IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. A-587-MA of 2009 DATE OF DECISION : 02.08.2010 State of Haryana .... APPLICANT Versus Ram Kishore and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr. G.S. Chahal, Addl. A.G., Haryana, for the applicant-State. * * * SATISH KUMAR MITTAL , J. The State of Haryana has filed this application seeking leave to appeal against the judgment dated 14.7.2009, passed by the court of Sessions Judge, Gurgaon, whereby accused Ram Kishore and Dharam Pal (respondents herein) have been acquitted in case FIR No. 85 dated 19.3.2007 under Sections 363, 366-A and 376 IPC, Police Station Sohna, District Gurgaon. After notice of motion, in spite of availing many opportunities, the applicant-State could not get the service of the respondents-accused effected. We have heard the arguments of learned counsel for the applicant-State on the issue as to whether the instant case is a fit case to grant leave to appeal against the impugned judgment. Crl. Misc. No. A-587-MA of 2009 -2- In the present case, two persons, namely Ram Kishore and Dharam Pal were tried by the court of Sessions Judge, Gurgaon, for committing the offences under Sections 363, 366-A and 376 (2) (g) IPC, on the allegation that after abducting the prosecutrix, who is alleged to be less than 16 years of age, they committed rape upon her. As per the prosecution case, the prosecutrix was abducted on the intervening night of 14/15.3.2007 and she was recovered on 21.3.2007. After her recovery, on the same day, her statement under Section 161 Cr.P.C. was recorded, wherein she levelled allegation of rape against both the accused. However, on the next day, she made statement under Section 164 Cr.P.C., before the Judicial Magistrate, she did not level any allegation against the respondents-accused. She categorically stated that she had gone with respondent-accused No.1 Ram Kishore of her own sweet will and he did not commit any rape upon her. On the day of recovery, two statements under Section 161 Cr.P.C. were recorded. In one statement i.e. Ex.C1, she stated that she of her own will and consent had accompanied the respondents-accused and no rape was committed on her. However, during the trial, she alleged that respondent-accused No.1 Ram Kishore had committed rape upon her, whereas regarding respondent-accused No.2 Dharam Pal, she stated that he did not commit any rape upon her. The trial court, after considering her statement in the court as well as the previous two statements under Section 161 Cr.P.C., made by her before the police, as well as the statement under Section 164 Cr.P.C., made before the Judicial Crl. Misc. No. A-587-MA of 2009 -3- Magistrate, did not find her testimony in the court as trust-worthy. Regarding the age also, the trial court has come to the conclusion that in her statement before the Judicial Magistrate as well as before the doctor at the time of her medico legal examination, the prosecutrix had categorically stated her age as 19 years. While taking into account this fact, the trial court has not relied upon the school leaving certificate of the prosecutrix, produced by the prosecution, and has come to the conclusion that the prosecution has deliberately withheld the authentic proof of best evidence of the date of birth i.e. the birth certificate, or any other cogent and convincing evidence to prove that at the time of the alleged occurrence, the prosecutrix was minor. While taking into consideration all these factors, the trial court has come to the conclusion that the prosecution has failed to prove the guilt of the respondents-accused beyond reasonable doubt. 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. In our view, the trial court, while taking into consideration the aforesaid contradictions in the prosecution evidence, has rightly given the benefit of doubt to the respondents-accused. 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 Crl. Misc. No. A-587-MA of 2009 -4- 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 Court should not interfere merely on the basis that from the evidence on record a different view as to the trial Court is possible. In view of the aforesaid discussion, we do not find any ground to grant leave to appeal. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE August 02, 2010 ( MOHINDER PAL ) ndj JUDGE