State vs Rahul
2010 Latest Caselaw 5830 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl. L.P. No. 429/2010

%                       Date of Decision: 22.12.2010

State                                                     .... Petitioner

                        Through Mr.Lovkesh Sawhney, APP.


                                  Versus

Rahul                                                   .... Respondent
                        Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE S.L. BHAYANA

1.      Whether reporters of Local papers may be            YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?               NO
3.      Whether the judgment should be reported in           NO
        the Digest?


ANIL KUMAR, J.

*

Crl. M.A. No. 17590/2010

This is an application by the petitioner seeking condonation of

delay in filing the petition seeking leave to appeal.

The applicant has contended that after the judgment dated 18th

February, 2010 was passed by the Trial Court acquitting the

respondent, the public prosecutor and chief prosecutor recommended

the case for filing of appeal which was done after obtaining the true

copy of the judgment. The applicant contended that the matter was

considered by various authorities including Law Secretary, Govt. of NCT

and the Law Department, which gave approval for filing the petition

seeking leave to appeal where after the matter was entrusted to the

standing counsel of the Delhi Govt. which resulted into a delay of 154

days in filing the petition seeking leave to appeal.

The applicant has relied on Collector, Land Acquisition, Anantnag

and Anr. Vs. Mst. Katiji and Ors., (1987) 2 SCC 107 and State of

Nagaland Vs. Lipok Ao, 2005 (3) SCC 752 holding that sufficient cause

should be considered with pragmatism in justice oriented approach

rather than a technical defection of sufficient causes for explaining

every day's delay having regard to considerable delay of procedural red

tape in the decision making process of the government, certain amount

of latitude is permissible and should be given. The applicant has

contended that the State Government is the impersonal machinery

working through its officers or servants hence it cannot be put on the

same footing as an individual.

Considering the facts and circumstances and the law relied on by

the applicant, there is sufficient cause for condonation of delay in filing

the petition for leave to appeal. Consequently, the delay of 154 days in

filing the petition for leave to appeal is condoned and the application is

allowed.

Crl.L.P. No. 429/2010

The petitioner/State has filed this petition seeking leave to appeal

against the judgment dated 18th February, 2010 passed in Sessions

Case No. 131/2008 titled as State v. Rahul arising out of FIR

449/2008, PS Najafgarh, under Sections 363/366/376 of IPC,

acquitting the respondent of the charges made against him.

Brief facts as propounded by the prosecution are that Mithlesh,

wife of Radhey Shyam lodged a report on 6th August, 2008 about her

daughter, named, Malti aged about 13 years that she is missing. On 9th

August, 2008, three days after lodging the missing person report, the

complainant lodged a complaint that her daughter had returned back

and she was taken away by the respondent on the pretext of marrying

her. The complaint was investigated and the statement of the

prosecutrix, namely, Malti was recorded under Section 161 of the Crl.

Procedure Code and after she was medically examined, her statement

was also recorded under Section 164 of Crl. Procedure Code. On

completion of investigation, charge sheet was filed against the

respondent under Section 363/366/376 of IPC and the charges were

framed on 14th May, 2009 for offences punishable under said sections

to which the respondent pleaded not guilty and claimed trial. During

Trial, the prosecution examined 14 witnesses including the prosecutrix

Malti and the statement of the respondent under Section- 313 of Crl.

Procedure Code was also recorded. The accused/respondent stated

that he has been implicated falsely, however he did not adduce his

evidence in defence.

The Trial Court considered the testimony of PW-5, Malti,

prosecutrix and her statement recorded under Section-164 of Criminal

Procedure Code before the Metropolitan Magistrate. On perusal of said

statement, it transpired that no allegations were made against the

respondent. The said witness, however, before the Court, deposed that

the respondent had promised to take her to Gujarat and had forced her

to marry him under the threat to kill her father. She stated that she

had accompanied the respondent to Meethapur, Badarpur, where she

was kept in a house for two/three days and was raped by the

respondent. She deposed that when the respondent was taking her

from Badarpur to other place, her uncle Keshav raised an alarm and

they were apprehended. Considering the testimony of PW-5 Malti, the

Trial Court noted various contradictions and omissions and held that

her testimony was not trustworthy as in her statement under Section

161, she had stated that the respondent was known to her and he used

to come to her house while in her statement before the Metropolitan

Magistrate under Section-164 of Cr. Procedure Code, she stated that

the respondent was known to her one month prior to the incident,

however, in the cross-examination in the Court, she contended that the

accused was not known to her prior to the incident. The fact that the

respondent had threatened her to kill her father and she had

accompanied him under the threat was not disclosed in her statement

under Section-161 of Crl. Procedure Code. The Trial Court also noted

the unreliable conduct of the prosecutrix as she did not raise any alarm

while travelling in bus or scooter to Meethapur, Badarpur and even

stayed with the respondent for 2-3 days as per her version without

making any attempt to take help on any neighbor. She did not try to

attract the attention regarding her kidnapping. The Trial Court noted

the absence of any allegation of rape in the statement made before the

Metropolitan Magistrate under Section-164 of Crl. Procedure Code,

which was exhibited as Ex. PW-11/B. The reliance was also placed on

the MLC. There were no injury marks noted on the genital of the

prosecutrix and the hymen rupture was also found to be old. The MLC

did not reflect any abrasion and bleeding and the report indicated that

rape was not committed on the prosecutrix. Only ossification test was

done to ascertain the age of the prosecutrix and on account of margin of

3 years in such test, it was held that prosecution had failed to prove

that the prosecutrix was minor on the date of alleged incident. In these

circumstances and for these reasons, the Trial Court has held that the

prosecutrix was neither enticed nor taken away against her wishes and

consent and she was a consenting party to the elopement and acquitted

the respondent.

This is no more res integra that in reversing the finding of

acquittal the High Court has to keep in view the fact that the

presumption of innocence is still available in favor of the accused which

is rather fortified and strengthened by the order of acquittal passed in

his favor. Even if on fresh scrutiny and reappraisal of the evidence and

perusal of the material on record, if the High Court is of the opinion

that another view is possible or which can be reasonably taken, then

the view which favors the accused should be adopted and the view

taken by the trial Court which had an advantage of looking at the

demeanour of witnesses and observing their conduct in the Court is not

to be substituted by another view which may be reasonably possible in

the opinion of the High Court. Reliance for this can be placed on

2009(1) JCC 482=AIR 2009 SC 1242, Prem Kanwar v. State of

Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public

Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v.

State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622

Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu

Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v.

State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the

golden thread which runs through the web of administration of justice

in criminal cases is that if two views are possible on the evidence

adduced in the case, one pointing to the guilt of the accused and the

other to his innocence, the view which is favorable to the accused

should be adopted. The paramount consideration of the Court is to

ensure that miscarriage of justice is prevented. A miscarriage of justice

which may arise from acquittal of the guilty is no less than from the

conviction of an innocent.

The High Court has the power to reconsider the whole issue,

reappraise the evidence and come to its own conclusion and findings in

place of the findings recorded by the trial Court, if the findings are

against the evidence or record or unsustainable or perverse. However,

before reversing the finding of acquittal the High Court must consider

each ground on which the order of acquittal is based and should record

its own reasons for not accepting those grounds and not subscribing to

the view of the trial Court that the accused is entitled to acquittal.

This Court has heard the learned counsel for the State, Mr.

Sawhney, learned Additional Public Prosecutor in detail and have also

perused the Trial Court Record, especially the statement of the

prosecutrix under Section-161 of Cr. PC, statement recorded before the

Magistrate under Section-164 and the statement recorded before the

Court.

The learned additional public prosecutor, though, has tried to

contend that the statement of the prosecutrix recorded before the Court

is reliable, however, no plausible explanation has been given regarding

various contradictions and major inconsistencies in the three

statements.

This has not been denied and cannot be denied that the

prosecutrix travelled to Meethapur, Badarpur by public transport or by

scooter. There were ample opportunities to the prosecutrix to attract the

attention of others that she has been kidnapped. Her version that she

was threatened that her father would be killed, is also not reliable in the

facts and circumstances and consequently, the inferences drawn by the

Trial Court that the prosecutrix was not enticed away and was a

consenting party to go with the respondent cannot be termed to be

unsustainable or contrary to the evidence on record. The learned

additional public prosecutor has not been able to point out any such

evidence which has not been taken into consideration, the

consideration of which would have led the Trial Court to different

inferences.

In the circumstances, the findings of the Trial Court cannot be

termed to be unsustainable or perverse in any manner. Even this Court,

on perusal of the evidence is of the opinion that the prosecutrix was not

enticed away and she was a consenting party to elopement. The

learned additional public prosecutor has also not been able to show any

cogent evidence on the basis of which it can be inferred that the

prosecutrix was a minor on the date of incident.

In the circumstances, the petitioner has failed to raise any such

grounds on the basis of which leave to appeal should be granted to the

petitioner against the judgment dated 18th February, 2010 acquitting

the respondent. Therefore, in the totality of facts and circumstances,

there are no grounds to grant leave to appeal to the petitioner. The

petition for leave to appeal is without any merit and it is, therefore,

dismissed.

ANIL KUMAR, J.

DECEMBER 22, 2010                              S.L. BHAYANA, J.
'rs'