State vs Vinay Kumar
2013 Latest Caselaw 4908 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.L.P. 31/2013
       STATE                                                  ..... Petitioner
                           Through:    Mr.Saleem Ahmed,          Additional
                                       Standing Counsel

                           versus

       VINAY KUMAR                                    ..... Respondent
                           Through:    None.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE INDERMEET KAUR

                                    ORDER

%                                   25.10.2013

KAILASH GAMBHIR, J.

1. By this petition filed under Section 378(1) of the Code Criminal

Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.'), the petitioner

seeks criminal leave to appeal to challenge the judgment dated 4.5.2012,

passed by the learned Additional Session Judge, thereby acquitting the

accused of the charges framed against him under Sections 363 and 376,

Indian Penal Code, 1860.

2. The facts and circumstances which gave rise to the registration of

the case against the accused person, as per prosecution, are that:

"In the year 2009, prosecutrix used to live with her family

including sister, brother Mohd. Arif and parents in the area of Nabi Karim, Delhi. Prosecutrix was born on 15.08.1995. Sh. Nazaqat Ali, father of the Prosecutrix used to drop her and her sister at Nav Shakti Vidya Mandir, Arakasha Road, Nabi Karim, Delhi. On 26.11.2009 too the Prosecutrix and her sister accompanied their father on the scooter at about 7.00 a.m. for their school. They were dropped by him at some distance from the school i.e. near the street, as there were big pot holes in the street. After having alighted from the scooter of father, the Prosecutrix and her younger sister started proceeding towards the school. Whereas the sister of the prosecutrix entered the school, the Prosecutrix was still outside the school, accused was found standing there. He caught hold of the Prosecutrix by her hand and pulled her. Accused then asked her to sit on his bike and also threatened with dire consequences. At that time accused was having a blade in his hand which he showed her. Accused then took prosecutrix in Inderprastha Park on his bike, made her to sit there. He kept talking to her. Ultimately, he dragged the prosecutrix by her hand and brought her out of the park, made her sit on the bike, kept on driving the bike through street near her school and ultimately took her to Hotel Orient Palace. In a room of the Hotel, accused is alleged to have attempted to commit rape on the prosecutrix. He then opened the door and brought prosecutrix out of the hotel, drove his bike and left her near her house. On the way when accused reached near Mikky Hotel, Mohd. Arif, brother of the prosecutrix and her parents saw him and the prosecutrix. Accused was caught hold by her father and brother, and then taken to the police station. Younger sister of the prosecutrix returned from the school, she informed her parents that the prosecutrix had not attended the school. That is how parents of the prosecutrix and Mohd. Arif had left in search of prosecutrix. Parents of the prosecutrix when took prosecutrix to the police station, she made statements levelling allegations on the accused. SI ram narain appended endorsement to the statement of the prosecutrix and got the case registered."

3. Addressing arguments in support of the present criminal leave to

appeal, Mr. Saleem Ahmed, Additional Standing Counsel for the State

submits that the learned Trial Court failed to appreciate that the victim of

crime in the present case was a small child of 12 years of age and she was

under a threat and fear because the accused had shown a knife while

kidnapping her. Contention raised by the counsel for the petitioner is that

the learned Trial Court failed to appreciate that a small child, facing a

threat, could not have raised any hue and cry to resist the accused, when

she was physically lifted by the accused to sit on his bike. Ld. Counsel in

support of his contention, further invited attention of this Court to the

statement made by the accused, under Section 313 Cr.P.C., wherein the

accused had himself admitted that he took the prosecutrix on his bike first

to IP park, Naib Sarai Kale Khan and then to the hotel, where he

remained with the prosecutrix for about 1 ½ hours. Contention of counsel

for the petitioner is that this admission on the part of the accused under

Section 313 Cr.P.C. is sufficient enough to prove that he had kidnapped

the said minor child and then had raped her in a room taken by him in a

hotel. Counsel further argued that the learned Trial Court failed to

appreciate the fact that the victim had fully supported the case of the

prosecution by making the statement under Section 164 Cr.P.C.,

supported by the other circumstantial evidence, yet the learned Trial

Court has passed an order of acquittal ignoring the statement of

prosecutrix and other incriminating evidence, proved on record by the

prosecution. Based on these submissions counsel for the petitioner prayed

for the grant of criminal leave to appeal to challenge the said judgment on

acquittal.

4. We have heard learned counsel for the petitioner and given our

thoughtful consideration to the arguments advanced by him. We have

also gone through the impugned judgment and other material placed on

record.

5. It is a settled legal position that in an appeal against an order of

acquittal, the Appellate Court should not normally interfere with the

findings of fact arrived at by the learned Trial Court unless the reasoning

given by the learned Trial Court is perverse or illegal on the very face of

it. The Appellate Court should also bear in mind that with the acquittal of

the accused persons by the learned Trial Court, the presumption of

innocence of the accused persons has been given the legitimacy. It is also

a settled legal position that where there is possibility of arriving at two

different conclusions on the basis of the evidence on record, the Appellate

Court should not disturb the finding of acquittal arrived at by the Lower

Court merely because the other possible view is a preferred view. It is

useful here to refer to the judgment of the Hon'ble Apex Court in the

matter of Rangaiah vs. State of Karnataka reported in AIR 2009 SC

1411. Relevant paras of the same are reproduced as under:-

" From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

6. In the aforesaid background of the legal position and an

appreciation of the material on record, we are not persuaded to take any

contrary view as has been arrived at by the learned Trial Court in

acquitting the accused. In her first statement to the police, proved on

record as Exhibit PW-1/A, the prosecutrix did not raise any charge of

rape against the accused rather she clearly stated that an attempt was

made by the accused to commit sexual intercourse with her. The

allegation of the rape was levelled for the first time by the prosecutrix in

her Court deposition. By taking into consideration the various

discrepancies in the deposition of the prosecutrix and improvements

made by her in her Court deposition, the learned Trial Court rightly held

that her testimony did not inspire any confidence. The allegations of the

prosecutrix also do not find any support from the medical evidence, as in

the MLC proved on record as Exhibit PW4/A, gynaecologist Dr. Ritu

clearly opined that her hymen was intact and there were no mark of injury

or bruises on the person of the prosecutrix. Doctor further specifically

mentioned in the MLC that the prosecutrix did not give any history of

sexual intercourse. Even the testimony of PW6, Manager of the hotel,

also did not support the prosecution story that the prosecutrix was raped

by the accused. Learned Trial Court thus rightly disbelieved the version

of the prosecutrix that she was raped by the accused in a room of the

hotel, after she was kidnapped by the accused.

7. So far as the offence under Section 363 IPC is concerned, we find

ourselves in agreement with the finding given by the learned Trial Court

that the prosecutrix did not raise any hue and cry or even jumped from the

motor cycle on their way, from school to park and then to hotel. Had she

been kidnapped by the accused then certainly she would have either

jumped from the motor cycle or raised some hue and cry to invite the

attention of the public. Learned Trial Court is correct in observing that as

per the case of the prosecutrix she was kidnapped from outside the school

after she was left outside the street leading to the school along with her

sister and there cannot be any possibility that the alleged kidnapping of

the child was not witnessed by the other students of the school and so

freely the accused could drive down the prosecutrix from school to park

and then to hotel through the streets of the walled city without attracting

the attention of any passer-by or public person.

8. In the background of these facts, the learned Trial Court is right in

observing that the prosecution has failed to prove that the accused had

kidnapped or enticed away the prosecutrix from the custody of her

parents. We also find no merit in the contention of counsel for the State

that the statement made by the accused under Section 313 Cr.P.C., is

sufficient enough to drive home the said charges against him. In fact the

statement of the accused, under Section 313 Cr.P.C., appears to us to be

more truthful and probable and no where he has admitted his guilt either

for kidnapping the prosecutrix or making even an attempt to sexually

assault her.

9. There is no merit in the present leave to appeal petition and the

same is hereby dismissed.

KAILASH GAMBHIR, J.

INDERMEET KAUR, J.

OCTOBER 25, 2013 rkr