(PER : HONOURABLE MR.JUSTICE S.H.VORA) 1 The present appeal under Section 378 of the Code of Criminal Procedure, 1973 has been preferred by the appellant – State against the impugned judgment and order of acquittal dated 7th August 1993 passed by the learned Extra Assistant Sessions Judge, KachchhBhuj passed in Sessions Case No.87 of 1989 acquitting the accused respondent herein from the charge punishable under Sections 376, 342 and 506 of the IPC.
2 The offence as alleged against the respondent is such that on 22nd May 1989 during time from 19.45 to 24.00 hours while the victim was returning home after her job the respondent accused in an area known as railway colony, Nava Kandla by threatening the victim with the help of knife and further by gagging her mouth with handkerchief committed the act of rape on her in the ditch and thereafter in the school.
3 That on conclusion of the investigation, the Investigating Officer filed the chargesheet against the accused namely, Rasid @ Papodo Abdul Kadar for the offences punishable under Sections 376, 342 and 506 of IPC in the court of the learned JMFC, Gandhidham. As the case was exclusively triable by the Court of Sessions, the learned JMFC, Gandhidham committed the case as provided under Section 209 of the Code of Criminal Procedure, 1973 to the Sessions Court, BhujKachchh, which was numbered as Sessions Case No.87 of 1989. The learned trial Judge framed the charge against the respondentaccused at Exhibit 1. That the plea of the accused was recorded at Exhibit 5 wherein he pleaded not guilty and therefore the accused came to be tried for the aforesaid offences.
4 To bring home the charge, the prosecution has examined in all 11 witnesses and through the deposition of said witnesses, the prosecution proved the documents in the form of medical certificates, panchnama of the place of the incident, panchnama of TI parade and panchnama of clothes on the victim as well as the accused person, FSL Report and other documents. The prosecution case unfolded as per the record of the trial court may be summed up thus:
5 It is the case of the prosecutrix that at the relevant point of time she was aged about 30 years and was serving with one Molasis Company. On 22nd May 1989 at about 19.45 hours, when she was returning to her home after work was over, at that time, one person suddenly came on road and gagged her mouth with handkerchief and took her away to the nearby ditch and committed rape on her. It is further the case of the prosecution that the prosecutrix was thereafter taken to the nearby school by the respondentaccused who again committed rape on her. She was asked not to disclose the said act to anyone else and was threatened of dire consequence if she tells anyone. It is further the case of the prosecution that thereafter accused slept in the school while prosecutrix went to her home. While she was crying at her home, one Suleman came and she informed him about the incident. Thereafter, both of them went to the school where prosecutrix and said Shri Suleman found that the accused person was sleeping in the school. On the next day, the prosecutrix lodged the complaint at 1 PM with Kandla Police Station and at the police station, on the basis of the complaint of the prosecutrix, a case was registered for the offence under Section 376 of IPC and for other offences.
6 The police investigated the case and during the course of investigation the prosecutrix and other accused persons were subjected to medical examination and the police recorded the statements of relevant witnesses, collected the clothes worn by the prosecutrix and the accused and also drawn the panchnama of the site of the offence, recovered the knife alleged to have been used at the time of commission of offence and also arranged TI Parade. At the end of the trial, the learned Judge acquitted the respondent herein. Feeling aggrieved by and dissatisfied with the acquittal order the State has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973.
7 The learned Addl. Public Prosecutor, Ms Chetna M Shah for the State has urged that the learned trial Judge has failed to appreciate the evidence of the prosecutrix. According to her, it cannot be ruled out that the prosecutrix was subjected to rape at knife point and therefore this act of the respondentaccused was against her will. According to the learned APP, there is no reason for not believing the statement of the prosecutrix to satisfy the judicial conscience. Normally, if the victim of rape states on oath that she was forcibly subjected to sexual intercourse, then, her statement should be accepted eve if it is uncorroborated. On this broad submission, it is urged by the State to quash the acquittal order and record finding of the guilt against the respondent herein.
8 Per contra, learned advocate Mr Thacker for the respondent – original accused has urged that the oral testimony of the prosecutrix is unreliable because, as the accused has seen the prosecutrix with one Suleman and under the apprehension that the accused might tell this fact to her husband, the respondent has been falsely framed in this case. After taking us through the oral evidence of the prosecutrix and evidence of the medical officers, learned advocate Mr Thacker for the respondent urged that the oral testimony of the prosecutrix is not reliable as it does not disclose the true facts before the Court, but is full of contradictions and inconsistencies with regard to the alleged occurrence of the offence. The learned advocate Mr Thacker, therefore, contended that there is no perversity or illegality committed by the trial court in appreciating the evidence and coming to the conclusion as to the innocence of the accused person and so, he has been rightly acquitted.
9 The prosecution case as unfolded during trial is as follows:
9.1 PW No.1 – Dr Maheshchandra Buch is examined at Exhibit 6 to prove the medical certificate of the prosecutrix at Exhibit 7 who is examined by him on 23rd May 1989 at around 12.00 PM. Dr Buch deposed in terms that there were no external injuries either on the body or private parts of the prosecutrix and therefore he has categorically opined that there was no sign or mark of act of intercourse. According to him, there was no evidence of rape found on her person suggesting commission of rape.
9.2 Thereafter, the prosecution has examined Dr Manohar Gulabani, PW No.2 at Exhibit 8 to prove the certificate of examination of the person of the respondentaccused at Exhibit 9. According to this witness, he conducted the said examination on 24th May 1989 at 11.20 AM (there is a typographical error, instead of 24.5.1989, the date is typed as 24.4.1989). On his examination of the accused person he found 2 inch abrasion on left hand side caused by nails, 4 inch abrasion on backside of the accused by nail and further 2 inch abrasion on both the knees. According to this witness, all these injuries are 48 hours old.
9.3 Thereafter, the prosecutrix, PW No.3 was examined at Exhibit 11 wherein she has testified that at the time, date and place of the incident she was returning to her home after performing her job at Molasis Company and at that time accused appeared suddenly in front of her, gagged her mouth by handkerchief and took her away to the nearby ditch and committed rape on her. Thereafter, the prosecutrix was taken to the nearby school where she was subjected to sexual intercourse and she was threatened at knife point not to disclose the alleged incident to anyone else she would be killed. During her testimony, the prosecution has proved her complaint lodged with Kandla Police Station at Exhibit 12.
9.4 Thereafter, the prosecution has examined the husband of the prosecutrix, PW No.4 at Exhibit 13. According to him, on the date of the incident as he was suffering from backpain he did not go to work at Molasis Company where the prosecutrix was serving at the relevant point of time. As the prosecutrix did not return home from the job on the date of the incident, he left his home at about 19.45 hours in search of her and went to the company, where, he was informed that the prosecutrix had already left the company. So, this witness went to Kandla and Gandhidham in search of her and her whereabouts. He returned home on the next day and found the prosecutrix crying and many persons gathered at their home. On enquiry, the prosecutrix had narrated the incident to him as aforesaid and has stated that the present respondent accused person is the author of the crime and thereafter PW No.4 had accompanied her to police station for lodging the complaint.
9.5 The prosecution has examined Sulemanbhai Adambhai, PW No.5 at Exhibit 14. Though he is the first person who met the prosecutrix after the incident, but as he turned hostile, the evidence of the said person would not be helpful to the prosecution.
9.6 Thereafter, the prosecution has examined Ibrahim Salemamad, PW No.6 at Exhibit 15 and he also turned hostile.
9.7 Similarly, Dhurekan Swamy, PW No.7 is examined at Exhibit 17 who has also not supported the case of the prosecution and therefore his evidence is not helpful to the prosecution to bring home the charge. Similarly, PW No.8 – Kiritsinh Shivubha is examined at Exhibit 18 to prove the recovery panchnama of knife. However, he has also not supported the case of the prosecution. Except his signature he has not supported the contents of the panchnama being recorded in his presence. Then the prosecution has examined Maganlal Naranbhai, PW No.9 at Exhibit 20 and Rajesh Jivaram, PW No.10 at Exhibit 22 in order to prove the panchnama of TI Parade at Exhibit 21. As such the evidence with regard to TI Parade is not much relevant because, we have noticed from the evidence of the prosecutrix that she knew the accused person five years prior to the incident in question as the accused person was residing nearby the home of the prosecutrix.
9.8. Lastly, the prosecution has examined Ramesh Somabhai Patel, PW No.11 at Exhibit 23 in whose presence the prosecutrix lodged the complaint. The said witness registered the offence and proved the complaint at Exhibit 12. During the course of investigation, he recorded the statements of the relevant witnesses and also drawn the panchnama of the place of the incident, panchnama of recovery of clothes worn by prosecutrix and accused and sent them for medical examination. He has also drawn the panchnama of the recovery of muddamal knife. According to him, as the FSL report was not received, he could not file the chargesheet as he was transferred and thereafter ASI, Shri Desai took over the investigation and filed the chargesheet.
10. After having gone through the evidence of the prosecution, both oral as well as documentary, and after hearing both the learned counsel for the parties at length and also after reassessing, reexamining and re appreciating the evidence, we have not found any reason or ground to interfere with the findings recorded by the learned trial Judge leading to the acquittal of the accused person for the following obvious reasons:
11. Firstly, it is the specific version of Dr M.D. Buch, PW No.1 that he did not notice any marks or signs indicating commission of rape nor any injuries on the private parts of the prosecutrix were found/noticed when he examined the prosecutrix on 23rd May 1989 while he was serving as Medical Officer in GK Hospital, Bhuj at the relevant point of time. We are aware that it is the settled principle of law that in a sexual offence an accused can be convicted on the basis of sole testimony of the victim provided it is reliable. Suffice it to refer to the decision rendered in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384. Keeping in mind the principle laid down in the aforesaid case and after close scrutiny of the oral testimony of the prosecutrix we have to look for some assurance which would satisfy the judicial conscience as to the veracity of her statement pointing guilt towards the accused beyond reasonable doubt. According to the testimony of the prosecutrix, her mouth was gagged with handkerchief and she was first taken to ditch and thereafter to a nearby school and she was subjected to intercourse at both the places. In her crossexamination, she admitted that there was no light either in the school or in the ditch. She has, in terms, admitted that the accused was residing nearby the prosecutrix’s hut. On the top of it, she admitted that the prosecutrix has not seen the face of the respondent at the time of the incident. She has further admitted that when the police brought the respondent to her hut, the prosecutrix saw the respondentaccused for the first time. She further admitted that as she was informed by the police that the present respondent is the person who had committed the act of rape, the prosecutrix came to know about the respondent as to person who raped her. The prosecutrix has further deposed that she went to the school along with Suleman, PW No.4 to the school and no other person accompanied them. The prosecutrix has, in terms, admitted that as the respondentaccused has seen the prosecutrix in the company of Suleman, prosecutrix felt that the respondentaccused might inform about this to her husband and therefore she got up the present case against the respondent at the instance of PW No.4Suleman. Lastly, we have also found that the prosecutrix does not know Gujarati language and according to her the police recorded her complaint in Hindi. Needless to say that the complaint is written in Gujarati language. We have also noticed that on both sides of the road there were several huts near the place of the incident and at the time of the incident there used to be vehicular traffic as well as public movement. We have also noticed that the ditch where the offence is alleged to have been committed is situated 10 ft away from the school.
12 So far as evidence of prosecutrix in connection with the case is concerned, we have found that her evidence is not only inconsistent with regard to the material aspect, but she, in terms, admitted that at the instance of Suleman she has got up this case against the respondent accused. In our considered opinion, the testimony of prosecutrix is unreliable as according to her own admission the respondentaccused has been framed in this case. So, the learned trial Judge has rightly given the benefit of doubt to the respondentaccused. The oral testimony of the prosecutrix creates lot of doubt and no credence can be given to such evidence as it does not inspire any confidence in the mind of the Court and furthermore her testimony does not corroborate with the medical evidence.
13 As a last effort, it was contended by learned APP that on examination of body of accused person by Dr Manohar Gulabani, PW No.2, he found various abrasions caused by nails on the back, both the hands of the accused and further such injuries were 48 hours old. As against this, it is specifically admitted by PW No.2, Dr Manohar in his crossexamination to the effect that the injuries which noticed on the body of the accused might have been possible if the person falls from the bicycle. With regard to said injuries, the learned trial Judge sought explanation of the respondentaccused person while recording his statement under Section 313 of the Code of Criminal Procedure, 1973 and the respondentaccused has clarified that he sustained those injuries as he had fallen down from the cycle.
14 It is not legal to infer that the respondentaccused is involved in the crime merely because the injuries of the nature found by Dr Manohar Gulabani, PW No.2 on the person of the accused. It is well settled principle of law that the prosecution has to prove its case on its legs. In the present case, in our opinion, the respondentaccused has explained said incriminating circumstances inasmuch as the reasons leading to the injuries sustained by him was due to falling from the cycle, which is also supported by the evidence of Dr Manohar Gulabani, PW No.2. According to him, the injuries found on the person of the accused could be caused due to falling from the bicycle.
15 The offshoot of the above discussion is such that on overall review, reappreciation and reassessment of the evidence, upon which the order of acquittal is founded, there exists double presumption in favour of the accused in an appeal against the acquittal before this Court (original presumption of innocence followed by second presumption of innocence due to acquittal order by the trial court). It is wellsettled principle of law that if two views are possible, the appellate court should not disturb the finding of acquittal recorded by the trial court unless there are compelling reasons to do so. In this regard, broad proposition of law laid down by the Honourable Apex Court in the case of Brahm Swaroop And Another v. State of U.P., (2011) 6 SCC 288 more particularly, paragraphs 33 to 38 are relevant for the disposal of this appeal. Therefore, they are reproduced hereinbelow:
“33. It is well established in law that 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 appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court must 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 any admissible evidence and/or had taken into consideration evidence brought on record contrary to law.
34. Similarly, the incorrect placing of the burden of proof may also be a subject matter of scrutiny by the appellate court. The court of appeal may not interfere where two views are possible for the reason that in such a case it can be held that prosecution failed to prove the case beyond reasonable doubt and accused is entitled for benefit of doubt. (Vide: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Allarakha K Mansuri v. State of Gujarat, (2002) 3 SCC 57; Raghunath v. State of Haryana, (2003) 1 SCC 398; State of U.P. v. Ram Veer Singh & Ors., AIR 2007 SC 3075; S. Rama Krishna v.
S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066; Sambhaji Hindurao Deshmukh & Ors. v. State of Maharashtra, (2008) 11 SCC 186; Arulvelu & Anr. v. State, (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P., (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445).
35. In Sheo Swaroop and Ors. v. King Emperor, AIR 1934 PC 227, the Privy Council held as under:
"...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 slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. "
36. In Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415, this Court observed 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 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."
37. In State of Uttar Pradesh v. Banne @ Baijnath & Ors., (2009) 4 SCC 271, this Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include:
i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court's conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v) This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
38. Thus, the law on the issue can be summarised to the effect that 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 with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference.”
16. No other contention has been raised by the learned counsel for the appellantState to disturb the findings or to interfere with the judgment under appeal and we have also not found any compelling reasons to disturb the acquittal order under appeal. Therefore, the present appeal deserves only fate of dismissal and accordingly the same is dismissed and consequently bailbond stands cancelled.
(M.R.SHAH, J.) (S.H.VORA, J.) *mohd