CRM-A-634-MA of 2018 (1)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-A-634-MA of 2018

DATE OF DECISION:04.04.2019

Neetu Yadav ……….Petitioner

Versus

State of Haryana and another ……….Respondents

BEFORE:- HON’BLE MRS. JUSTICE DAYA CHAUDHARY
HON’BLE MR. JUSTICE SUDHIR MITTAL

Present:- Mrs. Sheenu Sura, Advocate
for the applicant.

****

DAYA CHAUDHARY, J.

The present application has been filed under Section 378 (4)

read with Section 482 Cr.P.C. for grant of leave to appeal against judgment

of acquittal dated 9.1.2018 passed by Additional Sessions Judge-cum-

Special Court for the cases of Heinous Crime against Women, Faridabad.

Briefly, the facts of the case are that on 9.12.2016 FIR No. 189

under Sections 323,328,376 and 506 IPC was registered at Police Station

Women, Sector 16-A, Faridabad on the basis of statement made by

prosecutrix (applicant) alleging that respondent No.2-Chandan Kumar

Upadhyay came to her house along with her cousin. She became friend with

respondent No.2 on facebook. Respondent No.2 collected her personal

information and obtained her mobile number as well. He used to tell her that

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he was in love with her and called her to meet. On 11.7.2016, respondent

No.2 took her to the house of his friend, namely, Shahid Khan and asked her

to have physical relations with him but she refused. On 12.7.2016,

respondent No.2 offered cold drink, due to which she became unconscious

and rape was committed upon her. She regained consciousness on the next

morning and she was told to go to her home. Respondent No.2 promised

her to marry and developed physical relations on various occasions. After

some time, she came to know that he was already married and refused to

marry as she belongs to lower caste. He even made her MMS and snatched

her mobile.

On completion of investigation by the police, report under

Section 173 Cr.P.C. was submitted before the Court. Thereafter charges

were framed for commission of offence punishable under Sections

323,328,376 (2) (n) and 506 IPC.

In order to prove its case, prosecution examined as many as

nine witnesses. Thereafter statement of accused under Section 313 Cr.P.C.

was recorded, wherein, he denied the allegations of the prosecution and

pleaded false implication.

On appreciation of evidence and after hearing arguments

advanced by counsel for both the parties, trial Court acquitted respondent

No.2 vide its judgment dated 9.1.2018. The present application for grant of

leave to appeal against aforesaid judgment has been filed by raising various

grounds.

Learned counsel for the applicant submits that the applicant

while appearing as PW-2 has fully supported the case of the prosecution by

giving specific dates and events but still her statement/testimony has not

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been relied upon and the same has been disbelieved. Learned counsel

further submits that even the statement of Shahid-PW-5 has also been

disbelieved on the ground that he had connived with the applicant in order

to falsely implicate respondent No.2, whereas, there was no enmity between

Shahid (PW-5) and respondent No.2. Learned counsel also submits that

respondent No.2 has wrongly been acquitted on the ground that even a

single word has not been narrated about her company with him from

15.7.2016 to 17.7.2016, whereas, learned trial Court has failed to appreciate

that the applicant had specifically deposed in her cross-examination that she

had mentioned wrong dates by mistake and specifically deposed about the

dates on which she was in company of respondent No.2 and rape was

committed. It is also the argument of learned counsel that the impugned

judgment of acquittal has been passed by relying upon the arguments of

defence as well as the fact that wrong dates have been mentioned by the

prosecutrix and factum of commission of offence has not been discussed,

whereas, from the statements of PW-5 and PW-6, one thing has been proved

on record that respondent No.2 was present with the applicant. Shahid

(PW-5) has proved on record that respondent No.2 and prosecutrix stayed

in a single bedroom and his statement has further been corroborated by the

statement of Ravinder Kumar (PW-6), Manager of Ashirwad Guest House.

It came in the statement of PW-6 that respondent No.2 introduced the

applicant as his wife, which clearly shows that the applicant was deceived

by respondent No.2 with a promise to marry. At the end, learned counsel

for the applicant submits that the trial Court has wrongly taken into

consideration Ex. D2, whereas, it was not proved on record by respondent

No.2 as per provisions of Section 65B of Indian Evidence Act and it,

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therefore, cannot be relied upon.

Heard the arguments advanced by learned counsel for the

applicant and have also gone through the judgment passed by the trial Court

and other documents available on the file.

As per version of the prosecutrix while appearing before the

trial Court as PW-2 and her mother as PW-3, there are three incidents of

rape. The first incident has been stated to be happened from 11.7.2016 to

13.7.2016 (as per Ex. PB and Ex. PC), whereas, the prosecutrix has

improved her version by stating the dates from 26.6.2016 to 27.6.2016. The

second incident has been stated to be happened on 22.9.2016 and third on

27.9.2016. The first incident of rape has been falsified by respondent No.2

with the help of document Ex. D-1, which clearly shows that he was on

Government duty in West Bengal on those dates. Presence of respondent

No.2 on duty from 11.7.2016 to 13.7.2016 has also been admitted by

prosecutrix in her cross-examination. Subsequently the prosecutrix

improved her version by stating other three dates i.e. 25.6.2016 to 27.6.2016

and stated that earlier dates were mentioned because of confusion. So, on

account of these three dates showing rape with the prosecutrix by

respondent No.2, site plan Ex. PA prepared by Sharwan Kumar, draftsman-

PW-1 also becomes a false document, meaning, thereby the first incident of

rape stated to be happened from 11.7.2016 to 13.7.2016 could not be proved

on record. The prosecutrix improved her version by stating three dates from

25.6.2017 to 27.6.2017 instead of 11.7.2016 to 13.7.2016 and also stated

that accused took her at the room of Shahid on 25.6.2017 and committed

rape upon her and thereafter on 27.6.2016, respondent No.2 asked her to go

to her house and promised to marry her. In the cross-examination, she

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deposed that it is correct that she had not mentioned any incident pertaining

to dates 25.6.2017 to 27.6.2016 either in her statement Ex. PB or Ex. PC.

Similarly Shahid while appearing as PW-5 stated that he was owner of

House No. 1810 at NH4, Faridabad. On 25.6.2016, accused came to his

house after working hours in the late night alongwith a girl and introduced

her as his wife and both of them slept in his bedroom and stayed at his

house till 27.6.2016. In his examination in chief, he further deposed that the

prosecutrix did not narrate before him regarding rape committed upon her

by respondent No.2 during that time. In the cross-examination, he deposed

that he did not mention in his statement before the police regarding dates

25,26 and 27th June, 2016 and admitted regarding correctness of his

statement recorded before police regarding the date of incident as 11.7.2016

to 13.7.2016.

The mother of the prosecutrix while appearing as PW-3 and

stated that she used to ask her daughter (prosecutrix) the purpose of leaving

the house after return her home. The prosecutrix used to say that she was

going with her friend. She further stated that she used to attend the call of

her daughter and she used to call her daughter to ask her whereabouts

during day time. Meaning thereby, she was having knowledge that her

daughter was away from the house. A specific finding has been recorded by

the trial Court that the prosecutrix did not report the matter to her parents or

to the police or even to the Manager of the Guest House or even family

friend. Respondent No.2 while appearing as DW-1 stated that he received

a friend’s request from the prosecutrix on his facebook account and accepted

the same by disclosing his all background including his family life, wife and

children. He has proved photograph and chatting of facebook account as

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Ex. D2. It has also been proved on record that respondent No.2 was having

two daughters, one of 4 years and second of 2 months. Not only he posted

photographs of marriage on 13.12.2015 but also posted photograph with his

daughter. Meaning, thereby the prosecutrix was having knowledge about

his marital status.

As per Ex. PN, the prosecutrix denied for her medico-legal

examination on 9.12.2016 and vide MLR Ex. PM dated 23.12.2016, she

again denied for her medico-legal examination. Said act and conduct of the

prosecutrix cast doubt on her behaviour. On appreciation of evidence, by

giving a categoric finding that the prosecution has failed to prove its case

against accused-respondent No.2 and he was acquitted of the charges

framed against him by the trial Court.

It has been held in Division Bench judgment of this Court in

the case of Ranjit Kaur Vs. State of Punjab and others 2008 (22) RCR

(Criminal) 848 that in case two views are possible, the view taken by trial

Court in favour of accused persons while recording acquittal, be taken as

possible view.

Hon’ble the Apex Court in a recent judgment titled as

Munishamappa and others Vs. State of Karnataka 2019 (1) Scale 721

has held that the High Court should not interfere with the order of acquittal

merely on the ground that two views are possible. The interference of High

Court should only be in such cases where appreciation of evidence by trial

Court is capricious or its conclusions are without evidence or acquittal is

not in accordance with law or the approach of the trial Court has led to

miscarriage of justice.

In Division Bench judgment of Delhi High Court, it has been

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held that in case there are contradictions and improvements in the statement

of the prosecutrix, both in respect of the incident and surrounding

circumstances, the Court should not rely upon the testimony of the

prosecutrix.

Even though there is no quarrel with the preposition that the

conviction can be based on the sole testimony of the prosecutrix but at the

same time it must be unimpeachable and beyond reproach precluding any

shadow of doubt over her veracity.

Hon’ble Apex Court in a case reported as 2016 SCC OnLine SC

834 Madathil Narayanan Ors. V. State of Kerala Anr. held as under :-

“It is a well settled principle of law that if two views are

plausible, the view which goes in favour of acquittal has to be

adopted. This legal principle has been reiterated by this Court

in the case of Arulvelu v. State rep. by the Public Prosecutor.

In the case of Bindeshwari Prasad Singh @ B.P. Singh v.

State of Bihar (now Jharkhand), this Court has held that in the

absence of any manifest illegality perversity or miscarriage of

justice, the order of acquittal passed by the Trial Court may not

be interfered by the High Court in exercise of its appellate

jurisdiction. The aforesaid view has further been reiterated by

this Court in the following two cases viz. Rathinam @

Rathinam v. State of Tamil Nadu and Sunil Kumar

Sambhudayal Gupta (Dr.) v. State of Maharashtra.”

A Division Bench of this Court, in a case reported as 2016(2)

Law Herald 1603 Mithlesh vs. State of Haryana and another, while

upholding acquittal of an accused charged with commiting rape, noticed the

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following facts which are identical to the present case :-

“It is also important to note that the applicant was a mature

female of 24 years. She herself was maintaining physical

relations with respondent No.2 and never lodged any complaint

for a period of about one and a half years. It does not inspire

confidence that she would have suffered harassment to the

alleged extent and would keep mum for such a long period

without disclosing the alleged tale of her harassment even to

her parents. She intimated the alleged sexual harassment to her

father just two days before the registration of FIR. Defence

taken by respondent No.2 gets corroboration from the statement

of PW10 Dr. Sarita Rani, Medical Officer, who medico legally

examined the applicant that there were no signs of injury on the

person of the applicant.”

Hon’ble the Apex Court in the case of Murugesan and others

Vs. State through Inspector of Police 2013 AIR (SC) (Cri) 126 has laid

down certain principles regarding powers of the appellate Court while

dealing with an appeal against an order of acquittal and the same are

reproduced as under:-

(1) An appellate court has full power to review, re-appreciate

and reconsider the evidence upon which the order of acquittal

is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,

restriction or condition on exercise of such power and an

appellate court on the evidence before it may reach its own

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conclusion, both on questions of fact and of law.

(3)Various expressions, such as, “substantial and compelling

reasons”, “good and sufficient grounds”, “very strong

circumstances”, “distorted conclusions”, “glaring mistakes”,

etc. are not intended to curtail extensive powers of an

appellate court in an appeal against acquittal. Such

phraseologies are more in the nature of “flourishes of

language” to emphasise the reluctance of an appellate court

to interfere with acquittal than to curtail the power of the

court to review the evidence and to come to its own

conclusion.

(4)An appellate court, however, must bear in mind that in case

of acquittal, there is double presumption in favour of the

accused. Firstly, the presumption of innocence is available to

him under the fundamental principle of criminal

jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent court of

law. Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced,

reaffirmed and strengthened by the trial court.

(5)If two reasonable conclusions are possible on the basis of

the evidence on record, the appellate court should not disturb

the finding of acquittal recorded by the trial court.”

(emphasis is ours)

In view of the facts and law position as discussed above, we are

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of the view that there is no merit in the arguments advanced by learned

counsel for the applicant and application for grant of leave to appeal against

judgment of acquittal is hereby dismissed.

(DAYA CHAUDHARY)
JUDGE

April 04, 2019 (SUDHIR MITTAL)
pooja JUDGE

Whether speaking/reasoned Yes
Whether reportable Yes

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