IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. A-797-MA of 2010 DATE OF DECISION : 27.10.2010 Poonam and another .... APPLICANTS Versus Vinod and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Rakesh Gupta, Advocate, for the applicants. * * * SATISH KUMAR MITTAL , J. The prosecutrix and her father (complainant), namely Poonam and Satbir, have filed the appeal along with the instant application for grant of leave to appeal against the judgment dated 15.2.2010, passed by the court of Sessions Judge, Kaithal, whereby accused Vinod and Rajesh (respondents No.1 and 2 herein) have been acquitted of the charges under Sections 363, 366, 376 (2) (g) IPC. In the present case, initially on 4.9.2008, the FIR was registered under Sections 363 and 366 IPC on the basis of statement of Satbir, wherein he stated that his wife Leelawati had told him that on that day at about 1.00 PM, she found their daughter Poonam, who was Matriculate and minor, missing from the house. The complainant had stated that he was sure that accused Vinod had enticed her away in a forcible manner. As per the Crl. Misc. No. A-797-MA of 2010 -2- prosecution version, accused Vinod and the prosecutrix were apprehended on 5.9.2008, at Railway Station, Thanesar. The prosecutrix in her statement under Section 161 Cr.P.C., alleged that accused Vinod had enticed her away and then subjected her to sexual assault against her consent. She further stated that accused Rajesh Kumar had also accompanied accused Vinod. In view of this, offence under Section 376 IPC was added. On the same day i.e. on 5.9.2008, the prosecutrix made statement under Section 164 Cr.P.C., before the Judicial Magistrate, wherein she did not state that she was sexually assaulted by accused Vinod against her consent. On 16.9.2008, accused Rajesh Kumar was arrested and the vehicle used in the commission of the crime was recovered. After completion of investigation, challan was filed against the respondents-accused and they were charge sheeted, to which they did not plead guilty and claimed trial. In support of its case, the prosecution examined thirteen witnesses, including PW.1 Poonam (prosecutrix), PW.2 Dr. D.R. Thukral, PW.9 Satbir (complainant), PW.11 Dr. Neelam Kakkar and PW.13 Sub Inspector Amar Chand (Investigating Officer). In their statements under Section 313 Cr.P.C., the respondents- accused denied all the allegations appearing against them in the prosecution evidence. They pleaded innocence and false implication in the case. They stated that the record of birth of the prosecutrix was false and fabricated. They denied to have ever kidnapped the prosecutrix or subjected her to Crl. Misc. No. A-797-MA of 2010 -3- sexual intercourse. Accused Vinod further stated that prior to the registration of this case, parents of the prosecutrix along with other persons had assaulted his uncle Raju, regarding which a criminal case under Section 323, 325 read with Section 34 IPC was also registered. To save themselves in that case, the parents of the prosecutrix got him falsely involved in this case in collusion with the police. In defence, the accused examined DW.1 EASI Mohinder Singh, who proved FIR (Ex.DA) in the aforesaid criminal case against the parents of the prosecutrix. The trial court, after considering the evidence and the documents available on the record, held the prosecutrix to be major, at the time of the incident. In view of this finding, it was observed that the prosecution has failed to prove the charge under Section 363 IPC against the accused. Regarding the offences under Sections 366 IPC and 376 (2) (g) IPC, the trial court held that the prosecutrix, while appearing in the Court, has not stated that the accused ever used any force/threat or compelled/ incited her to accompany them. Her testimony to the effect that by the side of the road on Kaithal-Kurukshetra road, after parking the Tata Sumo vehicle, which was brought by accused Rajesh, in the vehicle itself, accused Vinod subjected her to sexual assault against her consent, and thereafter at the Railway Station Platform, on 5.9.2008, at 2/2.30 AM, again she was sexually assaulted by accused Vinod, is improbable. The trial court has further held that conduct of the prosecutrix that after reaching Kurukshetra, Crl. Misc. No. A-797-MA of 2010 -4- while in Panaroam and Birla Mandir, she did not take any step to seek help from the public at large, is also not probable. It has been further held that from the testimony of the prosecutrix, it is apparent that accused Vinod made an offer to her to go out for sight-seeing, to which she voluntarily agreed without any resistance or objection. It is the case of the prosecution that accused Vinod had only hired the vehicle of accused Rajesh. In view of these facts, the trial court held that accused are not proved to have kidnapped or sexually assaulted the prosecutrix. Accordingly, while giving benefit of doubt, both the accused have also been acquitted of the charge under Section 366 and 376 (2) (g) IPC. We have heard learned counsel for the applicants and have gone through the impugned judgment. After considering all the aforesaid factors, we are of the opinion that the view taken by the trial court is one of the possible view, which can be taken from the evidence led by the prosecution in the instant -case. It cannot be said that the view taken by the trial court, while acquitting the respondents-accused, is totally perverse, which cannot be taken, at all, in the given circumstances. It is settled law that the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. It has been held by the Supreme Court in State of Rajasthan v. Sohan Lal and others, (2008) 2 SCC (Cri) 53 that the High Court should interfere in the judgment of acquittal only when it finds that the evidence on record clearly and absolutely indicate the guilt of the accused. The High Crl. Misc. No. A-797-MA of 2010 -5- Court should not interfere merely on the basis that from the evidence on record a different view as to the trial Court is possible. Thus, we do not find any ground to grant leave to appeal. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE October 27, 2010 ( JORA SINGH ) ndj JUDGE