CRM A-1013-MA of 2011 (O&M) 1 PUNJAB & HARYANA HARYANA HIGH COURT AT CHANDIGARH CRM A-1013-MA of 2011 (O&M) Date of decision:07.11.2012 Pooja ...Applicant Versus State of Haryana and others ...Respondent(s) CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK Present: Mr.Babbar Bhan, Advocate for Mr.Hariom Attri, Advocate, for the applicant. RAMESHWAR SINGH MALIK, J. CRM No.67865 of 2011 The applicant, by way of this application under Section 5 of the Limitation Act read with Section 482 Cr.P.C., seeks condonation of delay of 41 days in filing the application under Section 378 (4) Cr.P.C., for grant of leave to appeal against the judgment of acquittal. After hearing the learned counsel for the applicant and going through the record of the case, this Court is satisfied that the delay has been sufficiently explained and the same deserves to be condoned. In view of the above, the delay of 41 days is condoned and the application under Section 5 of the Limitation Act stands allowed. CRM A-1013 MA of 2011 The instant application under Section 378 (4) of the Code of Criminal Procedure (`Cr.P.C.' for short), has been filed by the applicant, CRM A-1013-MA of 2011 (O&M) 2 seeking leave to file appeal against the judgment of acquittal dated 19.8.2011. Facts first. Suresh Kumar son of Duli Chand set the criminal law into motion with the allegation that his niece Pooja daughter of Subh Ram had been kidnapped by the accused-respondents. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts noted by the learned trial Court, which read as under:- “The story of the prosecution extracted from the record is that Suresh Kumar son of Duli Chand resident of House No.576, Katopur had reported about missing of his niece Pooja daughter of Subh Ram resident of Kishanpura, who was residing with him. His report was entered in DDR No.39 dated 18.11.2009. Thereafter, on a written complaint given by Shubh Ram, father of the prosecutrix, DDR No.41 dated 10.12.2009 was recorded and subsequent to that on 14.1.2010 the prosecutrix came to Police Station Rampura, Rewari with her parents on which she was produced before Ms.Saurabh Gusain, learned Judicial Magistrate, Rewari for recording her statement under Section 164 of the Code of Criminal Procedure. Her statement was recorded by the Magistrate. The prosecutrix stated that she was living with her maternal uncle Suresh Kumar and used to come for learning computer to a Computer Centre underneath the CRM A-1013-MA of 2011 (O&M) 3 bridge near Ahir college in Rewari. That day her maternal uncle Suresh offered to leave her at the Computer Centre and asked her to accompany him. She questioned why he was taking her that day when daily she had been going alone to the Centre. While the time of the Computer Centre was 9 a.m. in the morning, her maternal uncle Suresh took her with him at 8.30 a.m. saying that he was to get her identity card made from the Computer Centre. The prosecutrix further stated that her maternal uncle took her to `Naiwali chowk'. She saw that her maternal aunt Bala Devi and her younger daughter Sarla were already present there with a boy. They all made her drink tea after which she does not know what happened and when she regained consciousness she found herself in Goa with the boy who was accompanying her maternal aunt. She lived in Goa for one day. The next the boy received a telephone call from her maternal aunt who told him to take her (prosecutrix) some where else as her brother Vishnu was coming to Goa by air. The boy named Ravi then took her to Gujrat where they stayed in a hotel for 8 days. Thereafter Ravi made some calls from STD booth and came to know that her family had come to know their whereabouts. He then took her to Mumbai and they lived there in the house of his cousin Manju (maternal uncle's daughter) for one and a half months. From there they came to Jaipur on 10th. On 11th CRM A-1013-MA of 2011 (O&M) 4 the family members of Ravi came and solemnized her marriage with Ravi in an Arya Samaj Mandir. The prosecutrix stated that the family members of Ravi threatened her to get the case at Rewari cancelled failing which they will publicize her obscene photographs. Feeling scared, she had changed her version at the first instance. She added that her maternal aunt and her daughter had sold her for money in conspiracy with her maternal uncle. She also stated that she was having no pressure from any side and the statement was being made voluntarily. 2. After taking opinion of the Dy.District Attorney, a case under sections 363, 366 and 120-B of the Indian Penal Code was registered by the police on 20.1.2010. Investigation commenced. During investigation, Suresh son of Duli Chand and Smt.Bala Devi wife of Rohtash were found to be innocent and hence were not arrested. The prosecutrix was got medicolegally examined and based on the report Section 376 of the Indian Penal Code was added to the case. Accused Sarla wife of Hans Raj was arrested on 6.2.2010 and accused Jug Lal alias Ravi Kumar was arrested on 10.3.2010. Accused Ravi Kumar was got medicolegally examined. The sealed parcel containing blood sample of the accused was sent to Forensic Science Laboratory, Madhuban CRM A-1013-MA of 2011 (O&M) 5 for DNA test.” After carrying out the investigation, as noted above, report under Section 173 Cr.P.C. was presented to the learned court of competent jurisdiction. The relevant documents were supplied to the accused, in accordance with law. The offences punishable under Sections 366 and 376 of Indian Penal Code (`IPC' for short) having been found to be exclusively triable by the court of session, the case was committed for trial to the court of session, vide order dated 1.4.2010. Prima facie case was found to be made out, for the commission of offences punishable under Sections 363, 366, 376 and 120-B IPC, against the accused and the charges were framed accordingly. In order to prove its case, the prosecution examined as many as 13 prosecution witnesses. After conclusion of the prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. All the incriminating material brought on record was put to the accused. They alleged false implication and claimed themselves to be innocent. They further alleged that accused Sarla, Bala Devi and Suresh Kumar had been falsely implicated by the parents of the prosecutrix on account of civil litigation and property dispute. Accused Jug Lal @ Ravi Kumar stated that he had been falsely implicated by the prosecutrix at the instance of her parents just to extract money from him. He further stated that as a matter of fact, the prosecutrix was having love affair with him. He also claimed the prosecutrix to be his legally wedded wife and opted to lead defence evidence. The accused examined as many as 12 defence witnesses, CRM A-1013-MA of 2011 (O&M) 6 besides tendering numerous documents in defence evidence. After hearing both the parties and appreciating the evidence brought on record, the learned trial Court held that prosecution has failed to prove its case. The accused were ordered to be acquitted of the charge framed against them, vide impugned judgment of acquittal dated 19.8.2011. Feeling aggrieved against the impugned judgment, the applicant has approached this Court by way of instant application. That is how, this Court is seized of the matter. Learned counsel for the applicant has contended that the prosecution has brought on record sufficient evidence and the guilt was brought home against all the accused. However, since the learned trial Court has failed to appreciate the cogent evidence in the right perspective, the impugned judgment was not sustainable in law. Having heard the learned counsel for the applicant, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case for granting leave to file an appeal against the judgment of acquittal. The reasons are more than one, which are being recorded hereinafter. A combined reading of the voluminous evidence on record would show that the prosecutrix was not only a consenting party but, as a matter of fact, she has married with accused Jug Lal Singh @ Ravi Kumar-respondent No.3, on her own sweet will. It has gone undisputed on record that the prosecutrix had come to Rewari, on 8.11.2009 for CRM A-1013-MA of 2011 (O&M) 7 learning computer. She was living with her maternal uncle Suresh Kumar-respondent-accused. She had joined a computer centre, which was being run in a shop underneath Katopur bridge near Ahir College. On 18.11.2009, as she was found missing from the house of her maternal uncle, Suresh lodged a report with the police on which DDR 39 dated 18.112009 Exh. D15 was entered. Thereafter, on 10.12.2009, Subh Ram, father of the prosecutrix, lodged a report with the police, which was registered as DDR No.41 and same was Exh. 41. It was mentioned by him that his daughter was missing since 18.11.2011. He also stated that on enquiry at his personal level, he had come to know that Ravi Kumar accused, who was working in Goa, had eloped with his daughter. The boy was neither available in the village nor at Goa. Further pleaded case of the prosecution was that the prosecutrix was given some intoxicants in the tea at Naiwala Chowk, by the accused. When she became unconscious after taking the tea, she was taken away to Goa by one person and on reaching Goa, she regained her consciousness. The prosecutrix stayed with accused Ravi Kumar at Goa and from Goa, the prosecutrix had gone to Vadodra (Gujarat) with accused Ravi Kumar. They stayed together for 8 days. Then they went to Mumbai where they stayed for one and half months. However, the prosecutrix never made any attempt either to raise any alarm or to escape from the company of accused Ravi Kumar. It has also come in the statement of the prosecutrix that accused used to go out of the room two or three times during the day. Further, in her statement Exh.PG recorded CRM A-1013-MA of 2011 (O&M) 8 under Section 164 Cr.P.C., the prosecutrix did not utter even a word that while staying at Goa, Mumbai and Vadodra with accused Ravi Kumar, she had ever been threatened by him. Thus, the conduct of the prosecutrix, who was 20 years of age, leaves no manner of doubt that she had gone with the accused on her own sweet will. Further, a close perusal of defence evidence would show that the prosecutrix and accused Ravi Kumar married with each other of their own free will. Voluminous evidence has been brought on record in this regard. DW-7 Ashok Kumar Sharma, Deputy Post Master, General Post Office, Jaipur, deposed that he was working as Secretary (Mantri) of Arya Samaj, Moti Katla, Maharishi Daya Nand Marg, Jaipur. He produced the original marriage register maintained by the society and stated that on 11.1.2010, Jug Lal and Pooja Bai presented to him their affidavits for getting married. Copies of the affidavits Exh.D16 and Exh.D17 were proved by him by producing the original affidavits. DW7 also proved copy of marks sheet of secondary examination presented by the boy and girl as proof of their age as Exh. D18 and Exh.D19. Similarly, DW-8 Ram Dass Sharma, Purohit of Arya Samaj Moti Katla, Jaipur, corroborated the statement of DW-7 Ashok Kumar. He stated that he had performed the marriage of Jug Lal with Pooja Bai, on 11.1.2010, according to Hindu rites and ceremonies. He also stated that both the boy and girl had given their consent to marriage on their own volition. He proved the photographs of marriage Exh. D1 to Exh.D10. Thus, it is unhesitatingly held that no case under Sections 363, 366 and 376 was made out against the accused-respondents. CRM A-1013-MA of 2011 (O&M) 9 The learned trial Court has recorded cogent finding before coming to the conclusion and the same read as under:- “26. From the evidence of the witnesses discussed above, it stands established that the prosecutrix had not only appeared before the Secretary, Arya Samaj Mandir and had also came into contact of Purohit of the said Mandir but had also appeared before Registrar, Marriages. Had there been any force, pressure or threat to her they were the best persons to whom she could disclose openly or even secretly so that she could save herself from going through for what she had been brought before them. More so, no reason could be explained by the prosecutrix for carrying her secondary examination certificate with her which she produced while applying for performance of marriage and also while applying for registration of the marriage. A bare perusal of the photographs Ex.D1 to Ex.D10, in which number of elderly people can also be seen besides accused Jug Lal and the prosecutrix, does not indicate/show any kind of pressure, confusion or sadness on the face of the prosecutrix. Any how, at this juncture also the prosecutrix had an opportunity to inform the elderly people accompanying the family of the accused, if any kind of force was being exercised on her. 27. There are still some more documents which prove concealment and manipulation on part of the prosecution. CRM A-1013-MA of 2011 (O&M) 10 These documents were brought on file and tendered in evidence only on direction given by the court allowing the request made by the accused. Ex.D28 is an application given by the prosecutrix to SHO, Rampura. In this application, the prosecutrix had very clearly stated that she had left Rewari on 18.11.2009 and had gone to Goa from where she went to Gujrat and stayed there for 15 days and then went to Mumbai and lived there for one month and 11 days before coming to Jaipur. She further stated that on 11.1.2010 she had married Jug Lal in an Arya Samaj Mandir and that she wants to accompany him to her matrimonial home. She also stated that she is 20 years old and wants to accompany her husband and not her parents.” Learned counsel for the applicant failed to point out any glaring illegality in the impugned judgment so as to convince this Court to take a different view than the one taken by the learned trial Court. It is the settled proposition of law that whenever two views are possible, the view which goes in favour of the accused, is to be followed by the Court. The view taken by this Court also finds support from the judgment of the Hon'ble Surpeme Court in the case of Arulvelu & anr.vs. State represented by the Public Prosecutor and anr. 2009(4) RCR (Crl.) 638. The relevant observations made by the Hon'ble Supreme Court in para Nos.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under: In Ghurey Lal v. State of Uttar Pradesh (2008) 10 CRM A-1013-MA of 2011 (O&M) 11 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court. 3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very CRM A-1013-MA of 2011 (O&M) 12 substantial and compelling reasons" for doing so. 5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused. 40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases." 41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law. CRM A-1013-MA of 2011 (O&M) 13 In `Mrinal Das & others, V.The State of Tripura', 2011(9) SCC 479, decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement 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 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', 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 criminal jurisprudence, this Court shall be reluctant to interfere with such CRM A-1013-MA of 2011 (O&M) 14 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 CRM A-1013-MA of 2011 (O&M) 15 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 interfered with. 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.” No other argument was raised. Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the prosecution has miserably failed to prove its case beyond reasonable doubt. The learned trial Court has not committed any error of law while passing the impugned judgment of acquittal. No patent illegally or perversity has been pointed out, which is sine qua non to interfere in a judgment of acquittal. No case for interference has been made out. Resultantly, the present application stands dismissed. (JASBIR SINGH) (RAMESHWAR SINGH MALIK) JUDGE JUDGE 07.11.2012 mks