IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 398 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- BHIKBHIBEN RAQTILAL JOSHI Versus KANTILAL PUNJABHAI PARMAR -------------------------------------------------------------- Appearance: MR SAMIR BUNDELA for MR PM RAVAL for Petitioner MS ARCHANA ACHARYA for MR DK ACHARYA for Respondent No. 1 MR ST MEHTA, ADDL. PUBLIC PROSECUTOR for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 28/07/2000 CAV JUDGEMENT This is a Criminal Revision Application filed under Section 401 of the Criminal Procedure Code, 1973, (for short, "Cr.P.C.") filed by original complainant Bhikhiben Ratilal Joshi (victim) in Criminal Case No.1641 of 1984, challenging the legality, correctness and propriety of the order dated 18.2.1988 passed by the learned Joint District Judge and Additional Sessions Judge, Banaskantha at Palanpur, (for short, "the learned Appellate Judge") by rendering his Judgment Exh.7 dated 18.02.1988 in Criminal Appeal No.30 of 1985 by which he was pleased to reverse the judgment Exh.30 of conviction and sentence dated 20.07.1985 rendered by the learned Judicial Magistrate First Class, Deesa, (who will be referred to hereinafter as "the learned Magistrate") in Criminal Case No.1641 of 1984, which was pending on his file. The revision-petitioner was the complainant while the revision opponent no.1-Kantilal Punjabhai Parmar was accused in Criminal Case No.1641 of 1984 and therefore parties will be referred to hereinafter as the complainant and accused for the sake of convenience. 2 The facts leading to this Criminal Revision Application in a nutshell are as follows:- 2.1 As per the complaint lodged by the original complainant-Bhikhiben Ratilal Joshi, she is serving as a teacher in primary school of village Rampura, since about six months before the date of her complaint. Accused Kantilal Parmar is a Head Master seving in same school in which the complainant is serving. Except the complainant and accused, other five teachers are also serving in the said school. The ccomplainant is the junior-most teacher in the said school. 2.2 On or about 7th July 1984, at about 6.30 AM the complainant had gone to school to perform her duties. That day of 7th July 1984, was a day for disbursement of pay for the month of June 1984. On that day, pay was being disbursed to the teachers in the room of school and that work relating to disbursement of the pay was being done by the accused. Therefore, the complainant went to the room of the accused to collect her pay. Accused asked the complainant to collect her pay after school work-hours were over and therefore the complainant went to class room of Standard-I. After the school work hours were over, she went to room of accused at about 10.20 AM and reuested the accused to hand over her pay. Thereupon accused asked the complainant to wait till other male and female teachers leave the school. The complainant therefore went to chowk of the school and was standing there waiting for call of the accused to collect the pay. It is the case of the complainant that after all the teachers of the school left the school, the accused who was Head Master of the school called the complainant in the lobby of the school and therefore she went to the lobby. Taking advantage of no other persons being present in the school premises accused caught hold the hand of the complainant and he pulled the complainant inside the room of the school. The complainant made an attempt to get herself released from the clutches of accused but at the same time accused pulled her and embraced her to his chest and he put his hand on the breast of the complainant as a result of which, the blouse worn by the complainant was torn out. Thereafter accused was trying to take the complainant inside the room but the complainant shouted for help as a result of which, one Mafabhai Nai who is peon of English School situated adjacent to complainant's school and one Udaygiriji shouted as to what had happened and who was shouting. Thereupon the complainant shouted to rescue her from the clutches of the accused. Thereafter, accused went inside the room of the school and complainant came outside from the school. Those two witnesses i.e. Mafabhai and Udaygiriji enquired from the complainant as to what had happened. Thereupon the complainant narrated the whole incident to the said witnesses. 2.3 Thereafter, accused paid a pay of Rs.325/- to the complainant in the school and after collecting that pay she went to the house of her sister Champaben and she informed Champaben about the incident. Champaben asked the complainant to wait till brother-in-law of the complainant (husband of Champaben) arrives and on arrival of her brother-in-law she was asked to inform him about the incident. 2.4 Thereafter on 8th July 1984 at about 14.00 hours the complainant went to Agathala Police Station and lodged her complaint against the accused. That complaint came to be registered as C.R. No. I 100 of 1984 for an offence punishable under Section 354 of IPC. On the basis of that complaint police case was investigated by police Sub-Inspector and ultimately on completion of the investigation, a charge sheet came to be filed in the Court of the learned Magistrate. 2.5 Thereafter, predecessor of the learned Magistrate who was empowered to try the cases summarily recorded a plea of the accused. The accused pleaded not guilty to the charge. Thereafter the learned Magistrate who delivered a judgement on 20th July 1985, came on transfer to the Court of JMFC, Deesa, and as she had no powers to try the case summarily, she recorded the plea of the accused at exh.16 and thereafter prosecution examined five witneses on the side of the prosecution and thereafter further statement of the accused was recorded u/s 313 of Cr.P.C. The accused also examined one witness in his defence. 2.6 After hearing the arguments of the learned Advocates for both the parties and after appreciating the evidence led by both the parties, the learned Magistrate was pleased to come to a conclusion that the prosecution has proved the case against the accused for an offence punishable u/s 354 of IPC, beyond reasonable doubt and therefore the learned Magistrate, first passed an order of conviction u/s 255 (2) of Cr.PC and after hearing the learned advocates of both the parties on the point of sentence, the learned Magistrate passed an order of sentence on 20th July 1985 and by that order of sentence accused was sentenced to undergo simple imprisonment of six months and to pay fine of Rs.500/= and in default to undergo further simple imprisonment of seven days. The learned Magistrate had not passed any separate order for an offence punishable u/s 426 of the IPC. 3 Being aggrieved against and dissatisfied with the said judgement Exh.30 dated 20.7.1985 of conviction and sentence rendered by the learned Magistrate in Criminal Case No.1641 of 1984 original accused had preferred Criminal Appeal No.30 of 1985 to the Sessions Court at Palanpur. 4 The learned appellate Judge after hearing the arguments of the learned advocates for both the parties and after perusing the record and proceedings of the case and after reappreciating the evidence led by both the parties in the case before the trial Court, by rendering his judgement Exh.7 dated 18..2.1988 reversed the judgment of conviction and sentence rendered by the learned Magistrate and by allowing the appeal of the original accused, he acquitted the accused for the offences punishable under Sections 356 and 426 of the Indian Penal Code. 5 Being aggrieved against and dissatisfied with the said judgement Exh.7 dated 18.2.1988 rendered by the appellate Judge in Criminal Appeal No.30 of 1985, the original complainant, victim-Bhikhiben Ratilal Joshi first filed one Misc. Criminal Application No.1232 of 1988 u/s 378 (4) of the Criminal Procedure Code, 1973, in this Court requesting to grant her leave to appeal against the judgement and order of acquittal passed by the learned Joint District Judge and Additional Sessions Judge, Palanpur. It appears from the record that said Misc. Criminal Application was ordered to be converted into Criminal Revision Application No.398 of 1989 and therefore this present Criminal Revision Application filed by the original complainant (victim) is before this Court. 6 I have heard Shri Sameer Bundela, the learned advocate for and on behalf of the learned Senior Advocate Mr P.M. Raval for the Revision-Petitioner and Ms Archana Acharya, the learned Advocate for and on behalf of Mr D.K. Acharya, the learned advocate for the Revision Opponent No.1 and Shri S.T. Mehta, the learned APP for the State i.e. Revision Opponent No.2, in detail at length. I have perused a set of copies of depositions etc supplied by Ms Acharya. 7 Shri Sameer Bundela and Shri S.T. Mehta both have vehemently argued that the learned appellate Judge has seriously erred by not believing the case of the prosecution. They have argued that the learned appellate Judge has not assigned cogent, acceptable and plausible reasons for reversing the finding of conviction and sentence arrived at by the learned Magistrate in Criminal Case No.1641 of 1984. They have also argued that the learned appellate Judge has seriously erred by giving over much importance to the minor discrepancies and minor so called contradictions which he found in the evidence of the witnesses, as narrated by him in his judgement. They have further argued that the learned appellate Judge has not considered the admitted facts for which there was no dispute from the side of the accused. As per their arguments the learned appellate judge ought to have dismissed the appeal preferred by the accused and confirmed the judgement of conviction and sentence rendered by the learned Magistrate. 8 As against the arguments advanced by the original complainant and the learned APP for the State, Ms Acharya has supported the judgement of the appellate Court on the following grounds:- (i) The complaint is filed late by the complainant and delay caused in lodging the complaint is not properly explained by the prosecution. (ii) The evidence of the complainant i.e. victim cannot be accepted in view of the major contradictions and omissions and therefore the learned appellate judge has rightly disbelieved the case of the prosecution. (iii) There are serious contradictions and omissions in the evidence of Udaygiri PW No.3 and Mafabhai P.W. No.4 who, as alleged by the prosecution, were present in the temple which is admittedly just adjacent to the school in which the incident took place and their evidence is rightly not accepted by the appellate Judge. By citing the authority of KANAIYALAL ARJANDAS V. TRIBHOVANDAS DEVSHI PANDIT reported in 1997 (4) GCD 172 she has sbumitted that the scope of this Court in revision application is very limited and this revisional Court should not interfere with the finding of the learned appellate Judge in absence of some valid reason to disturb the findings of the appellate Judge. 9. The learned advocates for both the parties have taken me through the evidence of five witnesses examined by the prosecution and evidence of one defence witness examined by the accused. They have also taken me through the further statement of accused recorded u/s 313 of Cr.P.C. Looking to that further statement, accused has completely denied the incident. He has stated that he is innocent and he has nothing to say in connection with the alleged incident. 10. This Court is conscious about the powers which can be exercised under its revisional jurisdiction. The revisional jurisdiction of the High Court while dealing with the order of acuittal passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of the law that the High Court is empowered to set aside the order of acuittal and direct the retrial of the acquitted accused. It is required to be answered by this Court as to whether appellate Judge has exercised his powers, in accordance with law in deciding appeal. In appeal, the appellate Judge has only to address himself to the question whether the findings of the trial Court are (i) palpably wrong, (ii) manifestly erroneous, or (iii) demonstrably unsustainable and there has been resultant miscarriage of justice. While making scrutiny of the judgement of the appellate Judge, this Court has also taken into consideration the judgement of the trial Court. The learned Judge of the trial Court who recorded the evidence of the witneses before his own eyes analysed and appreicated the evidence and came to a conclusion that the prosecution has proved the case against the accused for offences punishable u/s 354 and 426 of IPC. The learned Magistrate sentenced the accused only for an offence punishable u/s 354 of IPC and no separate sentence has been imposed upon the accused for an offence punishable u/s 426 of IPC. If we read the judgement of the Appellate Judge, we find that the learned Appellate Judge has not come to the conclusion that the conclusion based on the facts recorded by the learned Magistrate is wholly unreasonable so as to be liable to be chararacterised as perverse and there has been resultant miscarriage of justice. For the Appellate Judge he has to see and evaluate the evidence and then come to the conclusion that the finding of fact arrived at by the trial Court is not probable and in no case accused can be convicted. Instead of this, the learned appellate Judge appreciated the evidence afresh and found that there are some discrepancies and contradictions in the evidence of the witnesses and therefore he was pleased to come to a conclusion that the case against the accused is not proved beyond reasonable doubt and on arrival of such conclusion, he allowed the appeal and acuitted the accused. 11 From the judgement of the appellate Judge, it appears that the learned appellate Judge has not kept in mind the well settled principles of law with regard to appreciation of evidence. 11.1 In case of INDER SINGH AND ANOTHER V/S STATE (DELHI ADMINISTRATION) reported in AIR 1978 SC 1091 the Hon'ble Supreme Court has observed on page 1092 as under:- "2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up ? Because the court asks for manufacture to make truth look true ? No, we must be realistic. 3. We are satisfied that the broad features of the case, the general trend of the testimony and the convincing array of facts which are indisputable, converge to the only conclusion that may be reasonably drawn, namely, that the accused are guilty. Theoretical possibilities may not shake up, fancied weaknesses may not defeat, when verdicts are rested on sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt." 11.2 In another case of State of Uttar Pradesh v. Anil Singh AIR 1988 SC 1998 it has been observed by the HOn'ble Apex Court in paragraphs 14 and 15 on page 2002 as follows:- "14. In Abdul Gani v. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the courts should make an effort to disengage the truth from falsehood and to sift the grain from the chaff. 15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform." 12. The learned Appellate Judge decided Criminal Appeal No.30 of 1995 on 18.2.1988. It appears that the learned appellate Judge has not come across the guidelines given by the Hon'ble Supreme Court with regard to discrepancies, contradictions, etc. given in case of BHARWADA BHOGINBHAI HIRJIBHAI Vs. STATE OF GUJARAT reported in AIR 1983 SC 753. It has been held in this case that over much importance cannot be given to minor disccrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. 13 In aforesaid very case of Bharwada Bhoginbhai Hirjibhai (supra) the guidelines are given by the Honourable Supreme Court for assessing the evidence of the woman victim who complains of rape or sexual molestation. It has been held in para 10 on page 757 as follows:- "By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound nonpermissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." The Honourable Supreme Court has therefore held in para 11 as follows:- "We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities-factors does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming." 14 It appears that the learned Appellate Judge while appreciating the evidence of Bhikhiben (victim) did not keep in mind the above legal position with regard to the appreciation of evidence of female victim in cases of sexual molestation. 15 The learned Magistrate who recorded evidence of prosecution-witnesses before his eyes had a chance to observe the manner in which their evidence is given. In case of MADHUSUDAN DAS V. SMT NARAYANI BAI and Ors. reported in AIR 1983 SC 114 it has been observed by Hon'ble Supreme Court in para 8 (page 116) as follows:- "..... At this stage, it would be right to refer to the general principle that in an appeal .... when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail, unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is sufficient balance of improbability to displace its opinion as to where the credibility lies." It appears that the learend Appellate Judge did not keep in mind the above legal position while dislodging the case of prosecution which only rests on oral evidence. 16 When the learned Magistrate appreciated the evidence of prosecution, he objectively analysed and appreciated the evidence of prosecution witnesses. What is appreciation of evidence? The process of appraising the evidence led by two parties can be equated almost to the process of holding the balance - the time honoured symbol of justice. Sometime when the two pans of balance are seemingly equal, even a slight evidence circumstantial or otherwise, tilts the balance of one side and thereby probablise the case of one party as against the other. In this process of holding the balance what pieces of evidence, of course excluding inadmissible evidence would lean the balance in favour of one party is dependent on the evidence available in