CRM-A-1035-MA of 2011(O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-1035-MA of 2011(O & M) Date of decision : 1.3.2012 [ENTITY] Applicant/Appellant Vs. [ENTITY] and another Respondents CORAM :Hon'ble Mr. Justice [ENTITY] Hon'ble Mrs. Justice [ENTITY] Present:- Mr. [ENTITY], Advocate, for the applicant [ENTITY], J.
[CASE NUMBER] This application has been filed under [SECTION] of the [ACT] for condonation of 44 days' delay in filing the application seeking leave to file an appeal. Application is accompanied by an affidavit.
In view of the reasons given in the application, it is allowed and delay in filing the application seeking leave to file an appeal, is condoned.
CRM-A-1035-MA of 2011 Complainant [ENTITY] (PW-4) has filed this application under [SECTION] [ACT] seeking leave to file an appeal against judgment dated 6.9.2011 vide which respondent No.2-[ENTITY] was acquitted of the charges framed against him under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT].
CRM-A-1035-MA of 2011(O & M) -2- It is necessary to mention here that vide the above judgment, respondent No.2 was convicted for commission of offences under [SECTION] and [SECTION] [ACT] and on 6.9.2011 he was sentenced to undergo rigorous imprisonment for two years and six months and to pay a fine of ` 2,500/- with a default clause, for commission of an offence under [SECTION] [ACT]. He was also sentenced to undergo rigorous imprisonment for a period of six months for commission of an offence under [SECTION] [ACT].
The process of law was set in a motion on a statement made by applicant [ENTITY] (PW-4) on 15.5.2009, on the basis of which an FIR No. 56 was registered against respondent No.2 on 16.5.2009 in Police Station City Hoshiarpur.
The trial Judge has noted the following facts regarding case of the prosecution :-
"The brief facts of the prosecution case are that [ENTITY] daughter of [ENTITY] resident of House No. 298/16, Milap Nagar, Hoshiarpur got recorded her statement to SI [ENTITY] on 15.5.09 to the effect that she works with M/s Sachdeva Securities, Share Market and about 2- 3/4 years earlier to recording her statement that she was working at Sutheri Road, Hoshiarpur, One number came from data of company, which was in the name of [ENTITY] son of [ENTITY], caste [ENTITY], resident of Gali No.3, Gokal Nagar, Hoshiarpur and he had come to her office for getting that number. She further stated that during communication, there was an understanding between the complainant and [ENTITY] and [ENTITY] offered to marry her. He also got CRM-A-1035-MA of 2011(O & M) -3- introduced herself with his parents. After three months, he called upon her family members from Delhi and talked about the marriage. They had disclosed about their past. She told that she had already been married and had not divorced. Thereafter parents of [ENTITY] continued visiting her house and offering gifts etc. On different occasions. They had asked for time up to 2008 for getting marriage conducted. Then accused again sought more time for marriage. He had continued illicit relations with her and also committed rape upon her for the last three years, on the pretext of getting married with her. On that day at about 6 O'Clock he had called upon her near Sony showroom, opposite Income Tax Office, Hoshiarpur and said that he does not want to marry her. [ENTITY] also gave beatings to her and he also abused her. On raising raula people had gathered there and he was got caught hold to police by people. Complainant had demanded legal action."
The applicant was medico legally examined by Dr. [ENTITY] (PW-2) on 16.5.2009 at 3.30 P.M. This witness found the following injuries on her person :-
"1. Irregular reddish brown abrasion, irregular in shape present on middle 1/3rd of front of left upper arm, spread over 6 cm x 6.5 cm, irregularly distributed. Patient complained of pain over left shoulder joint, advised orthopedics opinion.
2. Complains of pain over scrolumber region, no external mark of injury visible seen in this area. Advised orthopedics opinion.
3. Complains of pain over right side of abdomen, no external marks of injury, advised surgeon's CRM-A-1035-MA of 2011(O & M) -4- opinion.
4. Complains of impairment of hearing from both ears, no external obvious marks of injury seen, advised ENT opinion.
5. On local examination, public hair and axillary hair present. Breast well developed for her age. On further examination, vulva, majora and minora healthy, normal in size and shape. On PV examination, uterus multiparous size, fornices clear and freely mobile. External os circular in shape and vagina roomy admits two fingers easily, hymen absent, two swabs taken and two slides made and sent for chemical examination to [ENTITY]. Two slides made and sent for DNA testing to police, if required."
A copy of MLR was brought on record as Ex.PC. At the time of medical examination of the applicant (PW-4), 2 swabs were taken and 2 slides were prepared, which were sent for chemical examination. On receipt of report Ex.PD, it is stated that spermatoza was detected on slides Ex.P1 and P2. Respondent No.2 was medico legally examined by Dr. [ENTITY] (PW-1) and it was opined that there is nothing to suggest that respondent No.2 was not able to perform sexual act. To prove injuries to the applicant, PW-4 was also produced in Court. Dr. [ENTITY] (PW-3), Dr. [ENTITY] (PW-5) have provided corroboration to the medical evidence on record. Inspector [ENTITY] (PW-6) has deposed regarding mode and manner of the investigation.
On completion of prosecution's evidence, statement of respondent No.2 was recorded under [SECTION] [ACT] Incriminating material existing on record was put to him which he [CASE NUMBER] claimed innocence and false implication.
The trial Judge on appraisal of evidence acquitted respondent No.2 of charges framed against him under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] whereas he was convicted for commission of offence under [SECTION] and [SECTION] [ACT]. Hence, this application.
After hearing counsel for the applicant and on perusing the paper book, this Court is of the opinion that the finding arrived at by the trial Judge is perfectly justified. Entire evidence has been dissected in a very efficient manner. The finding given is, as per record.
When giving benefit of acquittal to respondent No.2, it was observed as under :-
"25. So in order to prove the offence of rape prosecution was duty bound to prove that accused gave false assurance to the prosecutrix that he will marry her and on this pretext, accused used to commit rape with her for long period of three years. In the present case age difference between prosecutrix and accused is seven years, and prosecutrix is elder than accused. Moreover, she was divorcee and both belongs to different caste.
26. To give findings that whether the consent was obtained by fraud or it is voluntary consent, court has to consider evidence and circumstances. Before reaching the conclusion that whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under a misconception of fact court has to consider the circumstances and evidence on record. In the present case prosecutrix is a grown up woman, she is 35 years of age, she is a divorcee CRM-A-1035-MA of 2011(O & M) -6- and she fully knew that accused is unmarried and both belongs to different caste. So even proposal of marriage was given but it would have been seriously opposed by family members of the accused. She was fully in knowledge of the consequences particularly of the facts stated above that she is divorcee and seven years older than accused. No witness has been examined by the prosecution to show that accused wanted to marry her or parents of accused were ready for their marriage.
27. So it is clear that prosecutrix gave her consent for long period of three years and she had sexual intercourse with [ENTITY] fully aware that she was divorcee and she is seven years older than accused [ENTITY] and she belongs to different caste. Even by going through the law laid down in case [PRECEDENT] it is clear that prosecutrix of the present case namely [ENTITY] was consenting party. The law laid down by learned counsel for complainant are not helpful to prosecution and it is not proved that accused ever gave his consent for marriage or his parents gave their consent for marriage of [ENTITY] prosecutrix and [ENTITY] accused. So it is clear from the evidence that she was consenting party.
28. In view of above discussion, it is held by the court that prosecution has miserably failed to prove its case against accused U/[SECTION] and [SECTION] of [ACT]. Prosecution further failed to prove on record that accused [ENTITY] committed criminal intimidation by threatening [ENTITY] with injury on her person to commit CRM-A-1035-MA of 2011(O & M) -7- rape with her or accused wrongly restrained the prosecutrix. Therefore offences U/[SECTION] and [SECTION] [ACT] are also not proved against accused."
The Investigating Officer in his cross examination has admitted that during investigation it has come to his notice that the applicant was having a love affair with respondent No.2 for the last 2/2 years and she voluntarily allowed respondent No.2 to have sex with her. It has also come on record that applicant is a divorcee. Her age is 35 years, whereas, age of respondent No.2 is only 28 years. Under the circumstances, the trial Judge has rightly held that it is not possible to believe that respondent No.2 has misled the applicant. The opinion arrived at by trial Judge is perfectly justified.
Their Lordships of the Supreme Court in '[PRECEDENT]', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in '[ENTITY] v. Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in [ENTITY] v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
CRM-A-1035-MA of 2011(O & M) -8- Similarly, in [PRECEDENT]', and in '[PRECEDENT]', it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In '[PRECEDENT]', decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in 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 '[PRECEDENT]', the Hon'ble Supreme Court has observed as under:-
"7. 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 CRM-A-1035-MA of 2011(O & M) -9- criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. 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:-
"10. 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 [CASE NUMBER]. 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."
Counsel for the applicant has failed to indicate any misreading of evidence which may necessitate interference by this Court.
Dismissed.
([ENTITY]) JUDGE ([ENTITY]) JUDGE 1.3.2012 Ashwani