IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.M.P (M) No.423/2017
Date of decision: 15.6.2017

.

State of Himachal Pradesh …… Appellant

Vs.

Virender Kumar ….. Respondent

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?1 No

For the applicant/State: Mr. V.S. Chauhan, Additional

Advocate General with Mr. Punjeet
Rajta, Deputy Advocate General and
Mr. J.S. Guleria, Assistant Advocate
General.

For the respondent : Nemo

Tarlok Singh Chauhan, Judge (Oral)

The respondent stands acquitted for the offences

punishable under Sections 376 and 506 of the Indian Penal Code

by the learned Additional Sessions Judge, Hamipur, Circuit

Court, Barsar, in Sessions Trial No. 1/2015 vide judgment dated

31.12.2016 constraining the State to file the instant application.

2. Facts, in brief, as are necessary for the disposal of the

appeal are that the prosecutrix is alleged to have had love affair

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

19/06/2017 23:59:33 :::HCHP
…2…

with the respondent, who had promised to marry her and on that

pretext and assurance, he had indulged in physical relationship

with her during 2009 to 2014, but eventually refused to marry

.

her thereby constraining her to lodge FIR, Ext.PW16/A. Based on

the FIR, statements of the witnesses were recorded and thereafter

final report was presented in the Court. The respondent pleaded

not guilty and claimed trial. As aforesaid, trial ended in acquittal

of the accused.

3. It is vehemently argued by the State that the findings

returned by the learned trial court are totally perverse as there

was adequate material available before it to convict the

respondent for the offences charged.

4. What would be the scope of interference in appeal

arising out of acquittal of the accused has been lucidly laid down

by a coordinate bench of this Court in State of Himachal

Pradesh vs. Sikander, 2016 (2) SLC 613 in the following

terms:

7. It is a settled principle of law that acquittal leads to
presumption of innocence in favour of an accused. To
dislodge the same, onus heavily lies upon the prosecution.
Having considered the material on record, we are of the
considered view that prosecution has failed to establish
essential ingredients so required to constitute the charged
offence.

19/06/2017 23:59:33 :::HCHP

…3…

8. In Prandas v. The State , AIR 1954 SC 36, Constitution
Bench of the apex Court, has held as under:

“(6)It must be observed at the very outset that we
cannot support the view which has been expressed

.

in several cases that the High Court has no power
under S. 417, Criminal P.c., to reverse a judgment of
acquittal, unless the judgment is perverse or the

subordinate Court has in some way or other
misdirected itself so as to produce a miscarriage of
justice. In our opinion, the true position in regard to

the jurisdiction of the High Court under S. 417,
Criminal P.c. in an appeal from an order of acquittal
has been stated in -‘Sheo Swarup v. Emperor’, AIR
1934 PC 227 (2) at pp.229, 230(A), in these words:

“Sections 417, 418 and 423 of the Code give to

the High Court full power to review at large the
evidence upon which the order of acquittal was
founded, and to reach the conclusion that upon

that evidence the order of acquittal should be
reversed. No limitation should be placed upon
that power, unless it be found expressly stated

in the Code. But in exercising the power

conferred by the Code and before reaching its
conclusions upon fact, the High Court should
and will always give proper weight and

consideration to such matters as (1) the views
of the trial Judge as to the credibility of the
witnesses, (2) the presumption of innocence in
favour of the accused, a presumption certainly
not weakened by the fact that he has been
acquitted at his trial, (3) the right of the
accused to the benefit of any doubt, and (4) the

19/06/2017 23:59:33 :::HCHP
…4…

slowness of an appellate Court in disturbing a
finding of fact arrived at by a Judge who had
the advantage of seeing the witnesses. To
state this, however, is only to say that the

.

High Court in its conduct of the appeal should
and will act in accordance with rules and
principles well known and recognized in the

administration of justice.” ”

9. Prosecution has to prove its case beyond reasonable
doubt and cannot take support from the weakness of the

case of defence. There must be proper legal evidence and
material on record to record the conviction of the accused.
Conviction can be based on sole testimony of the
prosecutrix provided it lends assurance to her testimony.

However, in case the court has reason not to accept the

version of prosecutrix on its face value, it may look for
corroboration. In case the evidence is read in its totality
and the story projected by the prosecutrix is found to be

improbable, the prosecution case becomes liable to be
rejected.

10. It is a settled principle of law that testimony of

prosecutrix is sufficient enough to convict the accused if it

inspires confidence. (See: Rajesh Patel Versus State of
Jharkhand, (2013) 3 SCC 791 and State of Rajasthan
Versus Babu Meena, (2013) 4 SCC 206).

11. The Courts while trying an accused on the charge of
rape, must deal with the case with utmost sensitivity,
examining the broader probabilities of a case and not get
swayed by minor contradictions or insignificant
discrepancies in the evidence of witnesses which are not of
a substantial character.

19/06/2017 23:59:33 :::HCHP

…5…

12.However, even in a case of rape, the onus is always on
the prosecution to prove, affirmatively each ingredient of
the offence it seeks to establish and such onus never shifts.
It is no part of the duty of the defence to explain as to how

.

and why in a rape case the victim and other witness have
falsely implicated the accused. Prosecution case has to
stand on its own legs and cannot take support from the

weakness of the case of defence. However great the
suspicion against the accused and however strong the
moral belief and conviction of the court, unless the offence

of the accused is established beyond reasonable doubt on
the basis of legal evidence and material on the record, he
cannot be convicted for an offence. There is an initial
presumption of innocence of the accused and the

prosecution has to bring home the offence against the

accused by reliable evidence. The accused is entitled to the
benefit of every reasonable doubt. (Vide: Tukaram Anr. v.
The State of Maharashtra, (1979) 2 SCC 143; and Uday v.

State of Karnataka, (2003) 4 SCC 46.

5. We have gone through the records, which were

summoned by us vide order dated 11.5.2017 and find that the

prosecutrix had examined herself as PW1 and had deposed that

in the year 1999, she got married with PW11 Jeet Ram and out

of this wedlock, a child was born. After marriage, the relations

got strained and reached the stage of divorce. During the said

period, the respondent met her and also started visiting her

parental house and over a period of time, she developed physical

19/06/2017 23:59:33 :::HCHP
…6…

relations with the respondent as he assured her of marriage after

she was divorced by PW11. On 13.2.2010, she obtained divorce

from PW11 Jeet Ram on payment of a sum of Rs. 55,000/- in

.

lump sum, out of which, Rs.50,000/- was paid to the respondent

at that time as she was living with him in live-in relationship.

After divorce, the respondent continued dilly dallying the matter

and on 8.8.2014 she came to know that the respondent was

going to marry a girl of Nadiana Sadiana. She accordingly on

9.8.2014 visited the Police Station, Barsar and moved an

application, where the respondent on appearance executed an

agreement, Ext.PW16/G undertaking therein to marry her

within 15 days, but despite this, the respondent on 10.8.2014 got

married to the said girl.

6. The defence putforth by the respondent before the

learned trial court was that he shared plutonic relationship with

the prosecutrix as he treated her as his sister and was knowing

her even before she had got married to PW11 Jeet Ram. Even

while she was married to Jeet Ram, he was always insisting upon

the prosecutrix to patch up and live happily with Jeet Ram. In

view of such relationship, there is no question of having physical

relationship with the prosecutrix.

19/06/2017 23:59:33 :::HCHP

…7…

7. What was the nature of the relationship shared by

the prosecutrix and the respondent has been spelt out by none

other than the mother of the prosecutrix, PW2, Rattani Devi, who

.

though in her examination-in-chief tried to support the case as

putforth by the prosecutrix, but then in cross-examination, she

clearly admitted that the prosecutrix and respondent treated

each other as brother and sister and she further admitted that

the parents of the respondent were against the marriage as they

used to say that the prosecutrix and respondent had relationship

of brother and sister. Here it would be apt to reproduce her

cross-examination in its entirety, which reads thus:-

“Accused was acquainted to our family even prior to
marriage of prosecutrix with Jeet Ram. We also used to

attend marriage in each other houses. It is correct that
accused Virender along with his family members had
come to attend the marriage of prosecutrix. It is correct

that during the marriage of prosecutrix with Jeet Ram,

accused and prosecutrix used to treat each other as
brother and sister. It is correct that during strained
relations of prosecutrix and Jeet Ram, accused used to

help prosecutrix by showing indulgence by asking Jeet
Ram as to why he is not keeping her. It is correct that
prosecutrix used to visit the house of the accused and
also used to tie Rakhi to him. It is correct that
prosecutrix and Virender never lived in my house as
husband and wife. It is correct that the parents of the
accused were against this marriage as they used to

19/06/2017 23:59:33 :::HCHP
…8…

say that prosecutrix and accused have a relationship
of brother and sister.”

.

8. Notably, even the medical examination conducted of

the prosecutrix by PW12, Dr. Priyanka, does not support the

allegation of rape as levelled by the prosecutrix.

9. Now adverting to the so called undertaking,

Ext.PW16/G, a perusal of this document shows that it was

executed on 9.8.2014 at about 4.15 P.M. however, the material

question is as to whether this document has been proved on

record or not. This document is witnessed by one Rajesh Kumar,

son of Balak Ram, who appeared as PW6. He denied that this

document had been executed by the respondent in his presence,

rather he stated that his signatures over the same had been

obtained at Bijhar when the police officials were going to the

house of the prosecutrix. He also stated that this document at

that point of time was blank. Though this witness was cross-

examined by the Public Prosecutor, but nothing adverse could be

elicited therefrom. Thus, the only witness to this document has

not supported its execution and therefore, no reliance on the

same can be placed.

10. Further, even if for a moment, the document is

presumed to have been executed by the respondent in the

19/06/2017 23:59:33 :::HCHP
…9…

manner as alleged, even then no reliance can be placed on the

same because as per the prosecution, such document was got

executed in the Police Station and obviously, therefore, this

.

document cannot be said to have been executed out of free will

and volition of the respondent and there was bound to be

influence and pressure of the police upon the respondent.

11 In view of the aforesaid discussions, we find no

infirmity much less illegality or perversity in the findings arrived

at by the learned court below while acquitting the respondent.

Having said so, no case is made out to grant leave to appeal to

the State and the same is accordingly rejected so also the main

appeal.

(Tarlok Singh Chauhan)
Judge

June 15, 2017 (Chander Bhusan Barowalia)
(pankaj) Judge

19/06/2017 23:59:33 :::HCHP