IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.A-610-MA of 2011 Date of decision: 14.10.2011 Suresh Kumar …..Applicant versus Ramesh Kumar and another ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.Vikas Bishnoi, Advocate for the applicant Jasbir Singh, J. This application has been filed under Section 378(4) read with Section 482 Cr.P.C. with a prayer for grant of leave to file an appeal against judgment of acquittal dated 17.5.2011, passed by the Additional Sessions Judge at Fatehabad. Respondent- Ramesh Kumar was made to face a trial for commission of offences under Sections 323, 341, 354, 506/376 IPC and Sections 3 and 4 of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the basis of prosecution story as reflected in FIR No.118 dated 25.5.2010. Process of law was set in motion on an application (Ex.P4) made by the applicant and his wife (PW7), in which it was alleged that accused Ramesh Kumar had stopped the complainant and the prosecutrix at a place which was one kilometer short of bus-stand Dhani Dulat when they, on 25.5.2010 at about 9.00 AM, were going to Bhuna for taking the Crl.Misc.No.A-610-MA of 2011 medicines. Accused gave 2-3 slaps to the complainant and teased the prosecutrix. He addressed them as ‘Chamar’, ‘Chamari’ and ‘Dedh’ and told the complainant that he could not harm him in any manner when earlier he had stayed with the prosecutrix for 15 days in Puna and that he would again kidnap her. The accused threatened to kill the complainant in case he dared to initiate some action against him and proclaimed that he had obtained thumb impression of the prosecutrix on blank stamp papers. Proclaiming further that he had a pistol with him, the accused even threatened to kill the complainant. Thereupon, the complainant rang up his brother Ramesh and father Sultan for help. On seeing them coming to spot in a jeep, the accused ran away. While leaving the place of occurrence, the accused declared that he would finish complainant’s family and would take away the prosecutrix, whom he had addressed as ‘Chamari’. It was further alleged in the application Ex.P4 that the clothes of complainant and prosecutrix got torn at the time when accused had assaulted the complainant and teased his wife. The application was presented before ASI Surender Singh (PW5), on the basis of which, formal FIR (Ex.P5) was recorded against the respondent on 25.5.2010. The investigation was conducted by DSP Chander Singh (PW8) as per norms. After about a week of the registration of an FIR, the prosecutrix filed an affidavit (Ex.P13) before the investigating officer that the respondent had been committing sexual intercourse with her for the last about six months before the date of occurrence i.e. 25.5.2010, due to fear and threat she had not made a complaint against him. She was medico-legally examined by Dr.Meenu Chaudhary (PW9). The respondent was arrested on 16.6.2010 and he was 2 Crl.Misc.No.A-610-MA of 2011 also subjected to medico-legally examination, which was done by Dr.Hanuman Bishnoi (PW10). On completion of investigation, final report was put in Court. Necessary documents were supplied to the respondent as per the provisions of Section 207 Cr.P.C. The respondent was charge sheeted. He pleaded not guilty and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the respondent was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he refuted and claimed false implication. In defence, it was stated by him that the complainant had borrowed an amount of Rs.three lac from him and had repaid only Rs.one lac in December 2009. An amount of Rs.1,12,000/- was repaid to him by brother of the complainant before a Panchayat on 7.1.2010. When remaining amount was demanded, a false complaint was lodged against him. To prove his case, he also produced four witnesses and brought on record documentary evidence. The trial Court noted that in the complaint (Ex.P4), the prosecutrix had not leveled any accusation against the respondent so far as commission of rape is concerned. The said allegation was made in an affidavit, which was filed after about a week of the date of registration of an FIR. When statement of the prosecutrix was recorded under Section 164 Cr.P.C. (Ex.P14), she did not level any allegation of rape against the respondent. In the witness box, the prosecutrix even dared to deny that she had made any statement under Section 164 Cr.P.C. before a magistrate. The trial Court rightly came to a conclusion that the prosecution has failed to make out a case for commission of an offence under Section 376 IPC against the respondent. 3 Crl.Misc.No.A-610-MA of 2011 Story of the prosecution, regarding outraging the modesty of the prosecutrix was also rightly disbelieved. The trial Court believed the defence version and came to a conclusion that a complaint was falsely made to implicate the respondent in this case, when he raised demand for repayment of loan amount. A reasoned finding has been given in that regard in paragraph Nos.18 to 23 of the judgment under challenge. This Court is of the opinion that in view of above, no interference is called for in the impugned judgment. The view formed by the trial Court was justified and is as per evidence on record. Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, 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 State of Punjab 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 Ashok Kumar 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.” Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that 4 Crl.Misc.No.A-610-MA of 2011 where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court. In Mrinal Das & others v. The State of Tripura, (Criminal Appeal No. 1719 of 2011), 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: “8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. 5 Crl.Misc.No.A-610-MA of 2011 While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. 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.” Counsel for the applicant has failed to indicate any misreading of evidence on the part of the trial Court or any other factual error in the judgment, which may necessitate any interference by this Court. The opinion expressed by the trial Court was possible in view of evidence on record. In view of above, no case is made out for interference. Dismissed. (Jasbir Singh) Judge 14.10.2011 (Sabina) gk Judge 6