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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 125/2011
W/O LATE DHRUBA DEO MISHRA, R/O WARD NO. 4 DEOT ROAD,
KOKRAJHAR TOWN, P.O. KOKRAJHAR, UNDER KOKRAJHR POLICE
STATION, IN THE DIST. OF KOKRAJHAR B.T.A.D., WITHIN THE STATE OF
1:STATE OF ASSAM AND ORS
S/O LATE RAMDHYAN MISHRA
R/O VILL. DHARMANGTA
PIN 841441 UNDER KATIA POLICE STATION IN THE DIST. OF GOPALGANJ
WITHIN THE STATE OF BIHAR
3:PUNYA DEO MISHRA
S/O ALTE RAM NARESH MISHRA
R/O WARD NO. 4
DEPOT ROAD KOKRAJHAR TOWN
UNDER KOKRAJHAR POLICE STATION
IN THE DIST. OF KOKRAJHAR
WITHIN THE STATE OF ASSAM
Advocate for the Petitioner : MR.K SARMA
Advocate for the Respondent : MSK KALITA
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HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
JUDGMENT AND ORDER
Date : 31-10-2019
Heard Mr. K. Sarma, learned counsel appearing for the appellant. Also heard Mr. P. Bora;
Mr. G. Baishya and Mr. A. Hassan, learned counsel for the respondents.
2. The present appeal has been preferred against the judgment and order dated 20.02.2010
passed by the learned Sessions Judge, Kokrajhar in Sessions Case No.9/2007 under Sections
380/Section376/Section511/Section34 IPC whereby the respondent Nos.2 and 3, namely, Upendra Mishra and Punya Deo
Mishra were acquitted from the charges leveled against them.
3. The appellant as complainant filed the Complaint Case No.1008/2006 before the learned Chief
Judicial Magistrate, Kokrajhar against the accused/respondent Nos.2 and 3 under Sections
376/Section380//Section511/Section506/Section109/Section34 IPC for committing theft of gold ornaments, medical papers relating to
medical treatment of her deceased husband in the evening of 13.08.2006 and thereafter for
subsequent attempt to commit rape on her on 15.08.2006 with a threatening not to disclose the
happenings before any one. The learned Chief Judicial Magistrate after examining the witnesses of the
complainant and after complying the provision of under Section 207 Cr. P.C. committed the case to the
Court of Sessions for trial, being the offence Session triable.
4. The accused/respondents faced the trial and denied the charges framed by the learned
Sessions Judge under Sections 380/Section376/Section511/Section34 IPC and claimed to be tried. In support of the case
the complainant examined five witnesses and defence also examined one witness in support of their
defence. Plea of defence is of total denial. At the conclusion of the trial the learned Sessions Judge
acquitted the accused persons from the charges by the impugned order, on benefit of doubt.
Challenging the aforesaid judgment, present appeal has been preferred.
5. Brief case of the complainant/appellant is that she is the widow of late Dhruba Deo Mishra and
the accused/respondent No.3, Punya Deo Mishra is the own brother of her deceased husband and the
accused/respondent No.2, Upendra Mishra is the cousin of her deceased husband. The
accused/respondent No.2 resides in Bihar and the accused/respondent No.3 resides just adjacent to
her house in Kokrajhar Town. It is stated that her deceased husband Dhruba Deo Mishra, who was
working as a school teacher in Baby Land English Medium School of Kokrajhar Town, used to stay at
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Kokrajhar Town and his three brothers were living in Bihar. The properties situated in Bihar were given
in the name of his three brothers and the properties situated in Kokrajhar Town were given in the
name of the deceased husband of the appellant by way of a Deed of Relinquishment. Further, it is
stated that her husband Dhruba Deo Mishra suddenly died on 04.06.2006 due to cardiac arrest
leaving behind the appellant who is within her thirties and two minor children and thereafter the
accused/respondent No.3, Punya Deo Mishra made a proposal to marry her but when the appellant
refused to accept his proposal, the accused/respondent No.3 called the accused/respondent No.2,
Upendra Mishra from Bihar to Kokrajhar with whom the appellant had civil litigation regarding partition
of immovable properties and accordingly, the respondent No.2 came to Kokrajhar on 21.07.2006 and
used to stay in the house of the appellant for near about 25 days till the occurrences are over.
6. On 13.08.2006, when the appellant along with her mother, who is also staying with her, went
to the market, the respondent No.2 took the key of the almirah from her minor daughter Sneha
Mishra and took away the gold ornaments worth Rs.30,000/- and medical papers relating to the
treatment of the deceased husband of the appellant from the almirah without her knowledge. Further
on 14.08.2006, the respondent Nos.2 and 3 called her to the drawing room from her bed room and
both of them made an attempt to commit rape on her, however, she escaped at the intervention of
her mother. The respondent No.3 was thrown out of her house on the same night but the respondent
No.2 stayed there for the night as he was staying in her house since his arrival from Bihar. She
informed the matter to her parents and other relatives and after due consultation with them she filed
the complaint on 29.08.2006 before the learned Chief Judicial Magistrate. It is stated after committing
the crime the accused/respondent No.2 went to Bihar and filed a CR Case No.1268/2006 before the
Chief Judicial Magistrate, Gopalganj, Bihar leveling false allegation that she has killed her husband by
administering poison with the connivance of home tutor with whom she has illicit relation.
7. According to the complainant she has proved her case by adducing proper evidence but the
learned trial court has acquitted the accused persons on filthy ground of delay of 15 days in filing the
complaint and also on the ground that other civil and criminal cases are pending between the parties
and hence the case of the complainant is doubtful. The grounds for challenge in the present appeal is
that the learned trial court has failed to appreciate the evidence on record in proper perspective and
pendency of civil suit between the parties cannot be a ground for rejecting the case of the appellant,
as because of enmity arising out of such dispute the accused/respondents have attempted to commit
the offence of rape.
8. The learned counsel for the appellant Mr. K. Sarma has submitted that the findings of the
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learned trial court is perverse as the learned trial court without taking into consideration of the fact
that the complainant being a woman having status has filed the case under compelling circumstances
at the risk of her dignity and loss of status in the society, in the context of the Indian society. Further,
it contends that only for the ground of delay the case of the complainant cannot be thwarted and
pendency of cases between the parties also cannot be a ground to disbelieve the case of the
complainant/appellant and hence it is submitted that the order of acquittal is liable to be quashed and
9. Refuting the contention of the appellant side, the learned counsel Mr. P. Bora, Mr. G. Baishya
assisted by Mr. A. Hassan has submitted that the learned trial court has appreciated each and every
aspect of the matter in detail including the cause of delay, discrepancy in evidence as well as
pendency of various litigations between the parties indicating the enmity between the parties which
raised doubt upon the authenticity of the allegation.
10. In support of their respective contentions the learned counsel for both the parties has led this
Court through the evidence on record, the materials in the LCR including the impugned judgment.
Referring to the decisions of 1999 (2) GLT 604, SectionState of Manipur vs M. Madhu Singh and Others,
(2008) 15 SCC 582, SectionState of Andhra Pradesh vs M. Madhusudhan Rao, it has been contended by the
learned counsel for the respondents that the scope of the appellant court against the order of
acquittal is limited and it can interfere against such order only if such finding is suffering from serious
infirmities like non-appreciation of evidence, apparent illegality or any other perversity.
11. Referring to the entire evidence on record it has been urged before this Court that the
complainant has miserably failed to explain the cause of delay in filing the complaint in plausible
manner and her own evidence is not consistent with other witnesses while explaining such delay. On
the other hand, undisputedly there is a strain relation between the parties on the property dispute and
in such backdrop; the complainant has no reason to file the complaint after 15 days delay. Similarly,
pointing towards the discrepancies in the evidence on material aspect coupled with the prevailing
enmity between the parties it has been vehemently contended by the learned counsel for the
respondents that the evidence of the complainant is not at all convincing and truthful and hence
cannot be relied on to sustain conviction.
12. Due consideration is given to the rival contention of the parties and also gone through the
evidence on record.
Point of delay:
13. In the present case, three sets of occurrence have been indicated by the complainant, i.e. on
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13.08.2006, 14.08.2006 and 15.08.2006. As per the allegation theft of gold ornaments and valuable
documents committed on 13.08.2006 and attempt to rape upon the complainant was made on
14.08.2006 and on 15.08.2006 the accused/respondents left the house of the complainant with
threatening not to file any case and the complaint was filed on 29.08.2006 before the Chief Judicial
Magistrate concerned. Apparently, there was a delay of 15 days in filing the complaint. The
complainant/appellant in her evidence as well as in her complaint has stated that as regard the
commission of theft she only came to know on 15.08.2006 when she opened the godrej almirah and
upon asking her minor daughter aged 7 years/(PW-3) told her that the accused Upendra took the key
of the almirah in their absence on 13.08.2006 and took some articles. According to the complainant,
on 13.08.2006 she went to market along with her mother/PW2 and her son, keeping her minor
daughter, PW3 (aged about 7/8 years) in the house along with accused Upendra and on her return
nothing was reported to her by her minor daughter and only on 15.08.2006 while she opened the
almirah she came to know about the theft and upon asking, PW3 reported her about the matter. So
far as regards the other allegation about the attempt to commit rape upon the complainant, the
incident took place on 14.08.2006 and according to her she immediately informed the matter to her
brother/parents and they also suggested her to file the case, then why she waited for long 15 days in
lodging the complaint is not explained properly, rather her evidence itself appears to be inconsistent.
While on one occasion she stated that due to threatening made by the accused persons not to divulge
the incident, there was a delay in filing the complaint but in her cross-examination she has stated that
as her father advised her to wait for 3/4 days so she filed the complaint, thereafter. Both statements
of complainant is contradictory.
14. The complainant and her witnesses PW2 and PW4 have admitted about the serious land
dispute between the parties in the cross-examination and filing of civil and criminal cases against each
other. One of the accused examined himself as defence witness has also brought on record certain
documents vide Exts.A to K regarding the documents showing various civil as well as criminal
proceedings between the parties. That being the position cause of delay in filing the complaint
appears to be not convincing. For such serious incident, no FIR was filed before the police promptly
by the complainant. The PW4, brother of the victim was also informed immediately after the incident
on the next day of occurrence and he also advised the appellant/complainant to file the case but
despite there is delay of 15 days in filing the complaint on the part of the appellant.
15. So far as regard the point of delay the Hon’ble Supreme Court in the case of (2007) 12 SCC
641, Dilabar Singh vs State of Delhi and (2019) 5 SCC 403, SectionP. Rajagopal and Others vs State of
Tamilnadu and Others it has been categorically held normally the court may reject the case of
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prosecution in case of inordinate delay in lodging the FIR because of possibility of concoction of
evidence but however if the delay is satisfactorily explained, the court will decide the matter on merit
without giving much importance to such delay. However, the court is duty bound to determine
whether the explanation afforded is plausible enough in the facts and circumstances of the case.
Delay may be condoned if the complainant appears to be reliable and without any motive for
implicating the accused falsely. The court will look for satisfactory explanation if there is delay in
coming before the court and if no such satisfaction is formed, delay is treated as fatal for prosecution.
Scope and power of the appellate court against the order of acquittal:
16. The law is settled that the appellate Court would not interfere into the conclusion of a trial
court except where the trial court has failed to appreciate the facts or the law and the decision is
perverse resulting miscarriage of justice. The Hon’ble Supreme Court in catena of decisions has laid
down the principles that the appellate court while hearing an appeal against the order of acquittal,
has full power to re-appreciate the evidence on which the order of acquittal is passed and while
exercising such power the High Court should give consideration as to whether the trial court has
properly weighed and considered the credibility of the witnesses, that the presumption of innocence
leans in favour of the accused and the appellant court should be slow in disturbing the findings of fact
reached by the trial court unless it is perverse. Even when the High Court does not agree with the
view taken by the trial court in reaching the conclusion but the same should not be disturbed if the
view expressed by the trial is reasonably possible.
17. In (2008) 15 SCC 582, SectionState of Andhra Pradesh vs M. Madhusudhan Rao on the power of
appellate court against the order of acquittal it has been held that there is no embargo on the
appellate court to review, re-appreciate, or reconsider the evidence upon which the order of acquittal
is founded. Yet generally order of acquittal is not interfered with because of presumption of innocence
which is otherwise available to an accused under the fundamental principles of Criminal Jurisprudence
that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets
further reinforced and strengthen by acquittal. It is trite that if two views are possible on the evidence
adduced in the case, then the one favourable to the accused have to be accepted by the trial court, it
should not be disturbed. Nevertheless where the approach of lower court in considering the evidence
is vitiated by some manifest, illegality or the conclusion recorded by the court below is such which
could not have been possibly arrived at by any court acting reasonably and judiciously and is therefore
liable to be characterised as perverse, then the appellant court is obliged to interfere to prevent the
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miscarriage of justice.
18. Similar principle has been reiterated in (2010) 9 SCC 189, SectionBabu vs State of Kerala by the
Hon’ble Supreme Court as follows:
“The appellate court should not ordinarily set aside a judgment of acquittal in a case
where two views are possible, though the view of the appellant court may be the more
probable one. While dealing with a judgment of acquittal, the appellant court has to consider
the entire evidence on record, so as to arrive at a finding as to whether the views of the trial
court were perverse or otherwise unsustainable. The appellate court is entitled to consider
whether in arriving at a finding of fact, the trial court had failed to take into consideration
whether in arriving at a finding of fact, the trial court had failed to take into consideration
admissible evidence and/or had taken into consideration the evidence brought on record
contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of
scrutiny by the appellant court (para 12).
In exceptional cases where there are compelling circumstances, and the judgment under
appeal is found to be perverse, the appellate court can interfere with the order of acquittal.
The appellate court should bear in mind the presumption of innocence of the accused and
further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in
a routine manner where the other view is possible should be avoided, unless there are good
reasons for interference.(para 19)
The findings of fact recorded by a court can be held to be perverse if the findings have
been arrived at by ignoring or excluding relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against
the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice
of irrationality. (para 20)”
19. Bearing in mind the aforesaid broad principles, let us consider the evidence adduced by the
complainant and the other side to appreciate as to whether the learned trial court has duly
appreciated the facts and law in proper perspective.
Evidence on Record
20. It is the allegation of the complainant that the accused attempted to commit rape upon her on
the fateful day i.e. on 14.08.2006 and it was witnessed by her mother PW3 and she reported the
incident to her brother, PW4 and the home tutor, PW5. Accordingly the charges were framed under
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Sections 376/Section511/Section34 IPC but it is quite surprising that the PW3 has exaggerated the facts by saying
that both the accused persons committed rape upon PW1, which she witnessed. Obviously such an
evidence being contradictory to material aspect cannot be relied on as a true version of the
occurrence and the credibility of both the witnesses is shaken, as regards the authenticity. In view of
such serious infirmities in the evidence of vital witness i.e. the prosecutrix and the eye witness to the
occurrence no explicit reliance can be given to the evidence of the complainant, which has been
appreciated by the learned trial court also.
21. Further it is also noted that the complainant immediately did not rush to the police or to the
court to lodge such incident despite their inimical relation and there was no occasion to wait for long
to file the complaint before the court. There is no any medical evidence in support of the allegation of
rape. The enmity between the parties can also be considered for false implication of the accused
which has attributed for filing such delayed complaint after deliberation and the learned trial court has
elaborately dealt with the matter by relying on the decision of law on the matter.
22. So far as regard the allegation of theft there is no proper evidence on the matter save and
except the evidence of PW3 who is the minor daughter of the complaint herself aged about 7/8
years. According to the complainant the accused took the key of the almirah from the said PW3 and
taken away golden ornaments and land documents. At this, learned counsel for the respondents has
raised a serious question whether such a contention of the complaint can be accepted that such a
minor daughter will be kept alone in the house with a key of the almirah as if she is a major one?
There appears much substance in the submission inasmuch as that in an ordinary course of matter no
minor child can be the custodian of a key of the almirah containing valuable articles and it is also
noted that the said PW3 did not report the matter to PW1 after her returning from market.
23. Further such contention of PW1 that she kept the PW3 in the house alone while she went to
the market while the incident of theft occurred is also not proved, inasmuch, as the PW5 has stated
that PW1 reported him that on 13.08.2006 at about evening she went to the market along with
mother and PW3. If PW3 was not in home on the relevant day, then how one can say that key of the
almirah was taken from her and certain articles were stolen from the almirah. On the other hand,
although it was the allegation that accused committed theft of gold ornaments and land documents
but in her cross-examination she has stated that accused also taken away cash money along with
those articles which being contradictory, can be held as blatant lie on the part of the complainant, to
exaggerate the case.
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24. The accused Punya as DW1 by adducing various documents has raised a contention that the
present case has been filed out of the land dispute and prevailing enmity between them and the
complainant/appellant has failed to rebut the said contention at all. Rather pendency of such serious
or civil or criminal case between the parties is admitted.
25. In the given case, as per the averment in the complaint as well as evidence on record, enmity
between the parties is admitted position. The husband of the complainant was not provided due share
in the ancestral property and even nobody (brother) came to her house at the time of death of her
husband (as averred in the complaint petition). In view of such serious enmity litigation pending
between the parties, delay in filing the case and material discrepancies in the evidence assume great
importance. The explanation for delay is not at all convincing and far from satisfactory, in view of
contradictory statement of the victim herself. Her evidence cannot be accepted as the true version of
occurrence, and learned trial Court has rightly refused to rely upon her testimony.
26. In paragraph 36 of the judgment, learned Court has rightly appreciated one another vital
aspect in following words:-
“It could not be reasonably believed that after commission of such offences by accused
Upendra Mishra, he would be allowed to stay in the house of victim Promila Mishra for the
night and the accused was not handed over to Police and there was no recovery of theft
articles from his bag knowing the fact that the theft articles were in the said bag.”
27. In the given background, the evidence of complaint is not found wholly reliable to sustain
conviction. Learned trial Court has appreciated all necessary facts and law in proper perspective and it
calls for no interference.
28. On analysis of factual scenario and applying the principles of law as stated above, the
inevitable conclusion is that the appeal is devoid of merit and dismissed accordingly.
30. Return the LCR.