Mridula vs Kamal and Others

Rameshwar Singh Malik, J.—This application has been filed u/s 378(4) of the Code of Criminal Procedure (''Cr.P.C.'' for short), seeking leave to file appeal against the judgment dated 18.1.2012, passed by the learned Additional Sessions Judge, Rewari. Facts first. Prithvi Pal son of Mam Chand, resident of Dhani Bhandor, sought to set the criminal law into motion, by getting his statement recorded on 30.12.2009, before ASI Bhagat Singh at Gopal Devi Chowk, Rewari. He alleged the commission of offence under Sections 376(2)(g), 323, 325, against the accused-respondents. The learned trial court noted the following facts, in para 2 and 3 of the impugned judgment:-

That on 30.12.2009, ASI Bhagat Singh along with other police officials was on patrolling duty in the area of Gopal Devi Chowk, Rewari, Prithvi Pal son of Mam Chand, resident of Dhani Bhandor came there and informed that a rape has been committed upon the prosecutrix, who is wife of his brother Manoj Kumar, and she has been taken to General Hospital, Rewari. On the information, he along with the other police officials accompanied by Prithvi Pal visited the General Hospital, Rewari and recorded that statement of the Prosecutrix Ex. PA. She has alleged that she is resident of village Dhani Bhandor. She was married with Manoj Kumar son of Mam Chand, resident of village Dhani Bhandor about ten month ago. On 30.12.2009 at about 1:30 pm, she had gone to answer the call of nature in the field belonging to Baba Thakurdas Mandir which is taken on lease by Sohan Lal son of Bhagwana who has sown the mustard crop. After answering the call of nature, when she got up and putting on her underwear, meanwhile, Kamal son of Mahender Singh, resident of her village came there. He gagged her mouth and dragged her inside the crop in the field and fallen her on the ground and laid upon her. He had forcibly committed rape upon her. She became unconscious. After some time when she regained conscious, her father Raju and her sister-in-law Mamta in search of her, reach there while she was grooming. She has narrated the entire incident to them who had brought her to General Hospital, Rewari. Legal action may be initiated.

On the statement Ex. PA., the police proceedings were recorded and ASI Kabool Singh made endorsement Ex. PA/1 and sent the same for registration of the formal FIR. On the basis of the statement Ex. PA and endorsement Ex. PA/1 made thereon, the formal FIR Ex. PN was registered for commission of the offences punishable u/s 376 of the Indian Penal Code. The investigations were commenced. The prosecutrix was medico legally examined vide MLR Ex. PE. The prosecutrix was again medico legally examined on 1.1.2010 vide supplementary MLR Ex. PF. After conducting the medical examination of the prosecutrix, the Medical Officer handed over the sealed parcel containing the clothes worn by the prosecutrix, two slides, two test tubes along with cotton swabs band sample seal to the police which were taken in possession vide recovery memo Ex. PR. The accused Kamal Kumar was arrested. He was medico legally examined vide MLR Ex. PJ and handed over sealed parcels containing the underwear, sample of blood as well as sample seal which were taken in police possession vide memo Ex. PT. The scaled site plan Ex. PM of the place of occurrence was prepared. The photographs Ex. P1 to Ex. P4 of the place of occurrence were taken. The broken pieces of glass bangles Ex. P5 were taken in police possession vide recovery memo Ex. PS. The rough site plan Ex. PU of the place of occurrence was prepared. The supplementary statement of the prosecutrix Ex. DA dated 12.4.2010 was recorded which bears her signature. Similarly, the statement of Mamta Ex. DB was recorded u/s 161 of the Code of Criminal Procedure on 30.12.2009. The prosecutrix has moved an application Mark-A to the Inspector General of Police, District Rewari for conducting fair investigation by the senior police officer. On the basis of the application Mark-A, the further investigations were conducted by the Deputy Superintendent of Police, Rewari, who on verification of all the facts and allegations made in the written complaint Mark-A has submitted his report Ex. DW4/A wherein which he found the accused Sonu and Pradeep innocent. On the basis of the medical record, the offences punishable under Sections 323 and 325 of the Indian Penal Code were also inserted. The statements of witnesses were recorded u/s 161 of the Code of Criminal Procedure. After completion of necessary investigation, a final report u/s 173 of the Code of Criminal Procedure was prepared and presented in the court for putting the accused Kamal Kumar on trial.

Starting the investigation, Investigating Officer visited the alleged place of occurrence. Rough site plan Ex. PU was prepared with correct marginal notes. Statements of witnesses were recorded. Accused-respondent No. 1 Kamal Kumar was arrested. After completion of investigation, report u/s 173 Cr.P.C., was presented to the learned court of competent jurisdiction. The relevant documents were supplied to the accused persons, as per law. Finding the offences to the triable exclusively by the court of Sessions, the case was committed to the learned court of competent jurisdiction. Having found a prima facie case, charge was framed against the accused Kamal Kumar, for the commission of offences under Sections 323, 325, 376 of the Indian Penal Code (''IPC'' for short), who pleaded not guilty and claimed trial.

During the course of trial, an application u/s 319 Cr.P.C. was filed by the learned Public Prosecutor. The application came to be allowed, vide order dated 1.6.2010 and accused-respondents No. 2 and 3, namely Pardeep son of Ram Niwas and Sonu son of Desh Raj, were ordered to be summoned as additional accused. After hearing the parties, the learned trial court framed charges against all the three accused, for the offences under Sections 323, 325, 376 (2)(g), vide order dated 2.8.2010. However, accused persons pleaded not guilty and claimed trial.

In order to prove its case, prosecution examined as many as 16 PWs, besides tendering the relevant documents in evidence. After conclusion of the prosecution evidence, statement of the accused-respondents was recorded u/s 313 Cr.P.C. The incriminating evidence brought on recorded was put to the accused, who pleaded false implication and claimed complete innocence. Opting for leading the defence evidence, the accused examined as many as 4 DWs.

After hearing the counsel for the parties and examination of the evidence brought on record, the learned trial court acquitted accused-respondents No. 2 and 3, namely Pardeep and Sonu from the charge framed against them. Accused-respondent No. 1 Kamal Kumar, was acquitted of the charges framed against him, for the offences punishable under Sections 323, 325 IPC, whereas he was convicted for the offence punishable u/s 376 IPC, vide judgment dated 18.1.2012.

Accordingly, convict-respondent No. 1 Kamal Kumar was sentenced to undergo rigorous imprisonment, for a period of seven year and to pay a fine of Rs. 5,000/- for the offence u/s 376 IPC. In default of payment of fine, the convict was further ordered to be undergo rigorous imprisonment for a period of one year.

Dissatisfied with the above said judgment dated 18.1.2012 and also order of sentence dated 23.1.2012, the applicant has filed the present application u/s 378 (4) Cr.P.C., seeking leave to file appeal against acquittal, qua respondents No. 2 and 3, whereas for enhancement of sentence qua convict-respondent No. 1. That is how, this Court is seized of the matter.

Learned Counsel for the applicant vehemently contended that the learned trial court has committed serious error of law while not appreciating the evidence in the right perspective. He further submits that sufficient and cogent evidence was brought on record bringing home the guilt against the accused-respondents No. 2 and 3. He also submitted that the learned trial court has failed to appreciate the reliable evidence given by the PWs. The evidence brought on record against respondents No. 2 and 3 was sufficient to record conviction against them. Learned Counsel for the applicant concluded by submitting that sentence awarded to respondent No. 1 was also on very lower side, because of which the impugned judgment was not sustainable in law.

We have heard the Learned Counsel for the applicant and with his able assistance, have gone through the record of the case.

Having given our thoughtful consideration to the contentions raised and keeping in view of the peculiar fact situation of the case, we are of the considered opinion that present one is not a fit case for granting leave to file appeal. We say so for more than one reasons, being recorded hereinafter.

It is an undisputed fact on record that when author of the FIR namely Prithvi Pal, got his statement recorded on 30.12.2009 before ASI Bhagat Singh, he did not mention the names of respondents No. 2 and 3. The allegation was only against respondent No. 1 and that too only for the offence u/s 376 IPC. It is also a matter of record that even during the course of investigation, no incriminating material was found against respondents No. 2 and 3. However, they came to be summoned as additional accused, vide order dated 1.6.2010, passed in an application moved by the Public Prosecutor u/s 319 Cr.P.C.

In this view of the matter, the material improvement has been sought to be made in the prosecution story. The prosecution has miserably failed to bring home the guilt against respondents No. 2 and 3. Very many serious discrepancies have been found in the prosecution evidence. These two accused were identified in a highly improbable manner, and that too after two to four months.

The medical evidence also does not support the prosecution case against respondents No. 2 and 3. It has not been explained as to how the prosecutrix suffered multiple injuries, on different organs of her body when all these injuries were not reflected in the initial MLR (Ex. PF). The learned trial court has discussed all the evidence in this regard and have arrived at a judicious conclusion. The learned trial court has also rightly appreciated the defence evidence led by the accused-respondents No. 2 and 3. The learned trial court recorded cogent finding observing, as under:-

The basic contention which has been raised by the learned Public Prosecutor who was assisted by the Learned Counsel for the complainant that the prosecutrix is educated. However, she was terrified by the occurrence, she could not give the original version at the time of recording her statement Ex. PA. Moreover, there was no motive to implicate not only the accused Kamal Kumar but two other accused and their presence is well proved by the statement of the prosecutrix as well as Mamta, who has been examined by PW12. Even if the names of two accused do not figure in the FIR, it does not affect the case of the prosecution and it is a part of investigation the other two accused had also participated in committing the crime against a woman at the later stage. The prosecutrix was medico legally examined twice and thereafter, he was admitted in PGIMS Rohtak w.e.f. 4.1.2010 to 22.1.2010. In fact, the local police was in connivance of other two accused who were not been arrested. When the complaint Mark-A was submitted to the Inspector General of Police, Rewari on the next day, in haste, challan was presented in the court. Similarly, the plea of alibi which has been argued on behalf of the defence is not available. There is no question of false implication as no previous enmity is established. It was revealed at a later stage that the other two accused who had accompanied or joined the accused Kamal Kumar were Sonu and Pardeep. All these material contentions raised on behalf of the prosecution have been meticulously examined. It is true that in certain cases, names of offenders are not included and it is a part of investigation that names are being disclosed at a later stage and do not hamper the case of prosecution but as per the facts and circumstances of the present case, there is no plausible explanation given on behalf of the prosecution as to why the names of two accused were not named at the initial stage, in spite of the fact that they are neighbors of the prosecutrix and their houses are situated at a very small distance. They have been identified in a highly improbable manner and that too after a period of 2 to 4 months while the accused Sonu was crossing the house of the prosecutrix by driving the tractor trolley and the other accused Pardeep was identified by her husband at the pointing of the prosecutrix when they had gone to purchase medicines at the shop of Dr. Babu Lal on 4.5.2010, whereas, the actual occurrence was taken place on 30.12.2009. The gap of more than four months has not been explained on behalf of the prosecution and it is only on the basis of improved version on material counts by the prosecutrix as well as Mamta (PW12), the names of the other two accused namely Sonu and Pardeep had been introduced. Even if there is no motive or enmity on the part of the complainant party, still in the considered opinion of this Court, introducing the names of accused Sonu and Pardeep at a later stage amounts to be a false implication for which, the reasons are best known to the prosecutrix and PW Mamta. The plea of alibi though raised by the learned defence counsel has been found immaterial as involvement of the other two accused by appreciation of the entire evidence of prosecution as well as defence has been found to be doubtful. As far as presentation of challan is concerned, it is the prime duty of the investigating agency to conclude the investigations at the earliest state and submit the final report and as such, connivance of the local police is not established. As far as the other allegations leveled against accused Sonu and Pradeep are concerned, have been thoroughly examined, verified and enquired into by a senior police officer in the rank of Dy. Superintendent of Police who has been examined as DW4 and their involvement was not established and both of them were found innocent. However, admission of the prosecutrix in PGIMS Rohtak as an indoor patient w.e.f. 4.1.2010 to 22.1.2010 is a matter of record and it was the bounden duty of the prosecution and particularly the prosecutrix as to how she sustained multiple injuries on different organs of her body when all these injuries were not reflected or incorporated in the initial MLR Ex. PE, which has not been explained.

In view of the above, we are unable to persuade ourselves to accept the contentions of Learned Counsel for the applicant, so as to take a different view than the one taken by the learned trial court qua respondents No. 2 and 3.

So far as the convict-respondent No. 1 Kamal Kumar is concerned, he has been rightly acquitted of the charges framed against him under Sections 323, 325 IPC. The prosecution has failed to explain about the injuries on the person of the prosecutrix, which were not found at the time of her initial MLR. So far as conviction of respondent No. 1 u/s 376 IPC is concerned, that is not under challenge before us. In this regard, we have carefully examined the record of the case and after giving our thoughtful consideration, we are of the view that there is no scope for interference at the hands of this Court, so far as the order of sentence dated 23.1.2012 is concerned. The convict-respondent No. 1 has been sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 5,000/-. In default of payment of fine, he has been further ordered to undergo rigorous imprisonment for one year. The learned trial court arrived at a judicious conclusion in this regard, as well.

Further, it is the settled proposition of law that whenever two views are possible, the view which goes in favour of acquittal, is to be preferred. Having said that, it is unhesitatingly held that the view taken by the learned trial court was unassailable, having been based on the sound reasoning and cogent findings.

The view taken by this Court also finds support from the judgment of the Hon''ble Supreme Court in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr. 2009 (4) RCR (Crl.) 638. The relevant observations made by the Hon''ble Supreme Court in para No. 39, 40 and 41 in the case of Arulvelu''s case (Supra) read as under:

In Ghurey Lal Vs. State of U.P., a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. this Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:

The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court''s acquittal bolsters the presumption that he is innocent.

The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court''s conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.

The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

The appellate court may only overrule or otherwise disturb the trial court''s acquittal if it has "very substantial and compelling reasons" for doing so.

If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

this Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. this Court has dealt with the scope of interference with an order of acquittal in a number of cases.

Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court''s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.

In ''Mrinal Das & others v. The State of Tripura'', 2011(9) SCC 479, decided on September 5, 2011, the Hon''ble Supreme Court, after referring to many earlier judgments, has laid down parameters, for interference against a judgment of acquittal, by observing as under :-

An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.

Similarly, in the case of '' State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, , the Hon''ble Supreme Court has observed as under:-

A judgment of acquittal has the obvious consequence of granting freedom to the accused. this Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.

The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.

Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-

There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

No other argument was raised.

Considering the totality of facts and circumstances of the present case noted above, coupled with the reasons aforementioned, we are of the considered view that present one is not a fit case for granting leave to file appeal against the impugned judgment.

In view of the above, we have no hesitation to conclude that there is no illegality or perversity in the impugned judgment, which is sine qua non for interference in a judgment of acquittal. Resultantly, the application u/s 378(4) Cr.P.C., seeking leave to file appeal against impugned judgment of acquittal, is ordered to be dismissed.