Delhi High Court
State vs Laxman on 16 December, 2019
#21
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 16.12.2019
CRL.L.P.462/2019
STATE ..... Petitioner
versus
LAXMAN ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Ravi Nayak, APP with Inspector Surya Prakash, PS- Kirti Nagar
For the Respondent : None
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE I.S. MEHTA
JUDGMENT
SIDDHARTH MRIDUL, J (OPEN COURT)
1. The present leave to appeal under Section 378(1) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), has been
instituted on behalf of the State, assailing the order of acquittal of the
Solitary Respondent, Laxman (hereinafter referred to as 'Respondent') dated
27.05.2019, rendered by Ms. Nivedita Anil Sharma, Additional Sessions
Judge-01, West, Tis Hazari Courts, Delhi in case FIR No.120/2014, Police
Station- Kirti Nagar, for the charges framed against him for the commission
of offences under Sections 376/363/366 of the Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and under Sections 3/4 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO
Act').
2. The brief facts, as are necessary for the effective adjudication of the
present leave to appeal petition are that PW-3A Mr. Z, the father of the
prosecutrix X, filed a complaint on 25.02.2014 to the effect that his daughter
had gone missing from her parental house on 23.02.2014 without
information. The subject FIR, was initially recorded under Section 363 IPC,
in view of PW-3's allegations to the effect that Laxman (hereinafter referred
to as the 'respondent') had allured his daughter away.
3. Later, on 03.05.2014, the prosecutrix X accompanied by her mother
Ms. Y PW-5 reached the Police Station- Kirti Nagar, Delhi and informed
Sub-Inspector Ashok Kumar PW-6 vide DD No.20B that, the former had left
home of her own free will and accord with the respondent, since she was in
love with the latter and wanted to marry him, which relationship was
opposed by her parents.
4. Sub-Inspector Ashok Kumar PW-6 is stated to have recorded the
statement of the prosecutrix X under Section 161 Cr.P.C. and thereafter she
was taken to Deen Dayal Upadhyay Hospital on 04.05.2014 for her medical
examination.
5. Subsequent thereto, the statement of the prosecutrix X under Section
164 Cr.P.C. Ex.PW-1/B was recorded before the Competent Magistrate on
08.05.2014.
6. The solitary respondent was arrested on 23.06.2014 by the police in
the subject FIR, and after completion of the investigation he was challaned
for committing offences punishable under Sections 363/366/376 IPC and
Sections 3/4 of POCSO Act, as aforestated.
7. The trial court, vide order dated 29.05.2015, framed charges against
the respondent under the aforesaid Sections; to which the latter pleaded not
guilty and claimed trial.
8. To prove its case against the respondent, the prosecution examined six
witnesses, amongst whom, the critical evidence lead on their behalf was the
statements and testimony of the prosecutrix X as PW-1; her father,
Mr. Z--who was the complainant--as PW-3A; and her mother Ms. Y, as
PW-5.
9. Mr. Ravi Nayak, learned APP appearing in support of the leave to
appeal petition, would firstly urge that the impugned judgment failed to
appreciate that, the initial statement of the prosecutrix X PW-1under Section
161 Cr.P.C., does not stand entirely effaced, as was effectuated by the trial
court, merely because of her contrary statement under Section 164 Cr.PC.
Ex.PW-1/B and her hostile testimony, recorded in Court. Then it would be
urged on behalf of the State that, the trial court failed to consider the FSL
report ExPW.3/A, which clearly reflected that, at the time of her medico
legal examination Ex.PW.1/A, the respondent was opined to be the
biological father of the fetus carried by the prosecutrix X. Lastly, it is urged
on behalf of the State that, the learned trial court fell into error in ignoring
the circumstance that the prosecutrix X was a minor, at the time of the
commission of the offence.
10. In order to appreciate the contentions raised on behalf of the State, it is
considered necessary to examine and appreciate the statements and
testimony of the prosecutrix X, as well as her parents; predicated on which
the trial court returned the finding of 'not guilty', in favour of the respondent.
11. The prosecutrix X in her statement dated 08.05.2014, recorded by
the concerned Metropolitan Magistrate and proved as Ex.PW.1/B, stated as
follows:-
"Statement of 'prosecutrix X' (sic) d/o Mr. Z (sic), r/o F-275,
Kamla Nehru Camp, Kirti Nagar, Delhi, Aged abt 17 years.
On SA.
मेरा नाम X (sic) है । ɇ23.02.14 को ǒ ȡͩ Ȣको कुछ बताये
Ǖè ȯ Ʌघर छोड़कर ȣ गयी थी। ɇरमेश नगर Ʌͩ ȡf का
घर लेकर रह ¡ ȣथी। मुझे ͩ Ȣ ने ¡ ȣȲबहकाया था। ɇअपने
आप è
Ǖ ȯ Ʌघर छोड़कर ȣगयी थी। मेरे ͩ Ȣ ê नाम
के लड़के के साथ संबंध होने के कारण मेरे घरवाले मुझे ताने दे ते
रहते थे। ɇउन ȡ ɉसे परे शान होकर घर छोड़कर ȣगयी थी।
ɇ ȯअपनी मरजी से घर छोड़ा था।
Sd/-
RO&AC Sd/-
MM/West
THC, Delhi
08.05.14"
12. A plain reading of the above extracted statement completely belies the
case of the prosecution and leaves no manner of doubt that the case sought to
be made out against the Respondent, is unfounded and untenable.
13. Further, in her testimony before the learned trial court, the prosecutrix
X categorically deposed as follows:-
"PW-1:- Statement of Ms. X (the identity of the victim is
protected by not mentioning her actual name, parentage and
address and the same are mentioned in the police file as well
as Judicial File at sr. no. 01 in the list of prosecution
witnesses. Ms. Shradha Vaid counsel from DCW is also
present. Ms. Sheela, counsel from DLSA is also present as
Support Person. Mr. Nitin Chadha, counsel for the
prosecutrix is also present).
On S.A.
1. I am now aged about 21 years. My date of birth is
09.08.1997.
2. When the present case was registered, my age was
about 16-17 years and was studying in class IX.
3. I do not remember the year but it may have been 2-3
years ago on 23rd February, I had left my house on my own I
had differences with my family especially with my mother as I
used to demand money from them for my expenses but they
refused the same. Out of anger I left my house on 23rd February
and took room on rent at Ramesh Nagar and started living there
alone. I started working privately in customer care unit of a
company.
4. After 2-3 months, my father and my cousin who is the
son of my paternal aunt/Bua had met me at my residence and
there they had brought me home.
5. At that time I was pregnant. I have got married
subsequently to the same man from whom I had become
pregnant. Now I am happily married and have two
children. The fetus which I was carried at the time of my
recovery by my father and cousin was got aborted. This
fetus was also from my husband.
6. Later on my parents took me to the police who also
recorded my statement. I was got medically examined. I was
kept in Nirmal Chhaya for 02-03 days. Then I was produced in
the court where my statement was recorded by a lady Judge.
7. I know accused Laxman as he lives near my house
and he is my brother's friend. He is innocent and he has not
committed any offence against me. He did not established
physical relations with me at any point of time.
8. I have known my husband since I left my house and
started living at Ramesh Nagar. I got married on
25.08.2014. the name of my husband is Mr. R (name is
deposed by the witness and withheld to protect her identity).
9. Police made enquires from me and I told everything.
My statement/complaint was recorded by the police.
10. I was taken to the hospital where I was medically examined
and my samples were taken by the doctor.
11. I was also produced at Tis Hazari Courts and my
statement was recorded by a Lady Judge.
12. (At this stage, the judicial file is sent to the room where
the witness is seated and she is shown the MLC and she is
explained the same. After seeing the same, and it is also read
over to her, she is further examined.)
13. After seeing the MLC, I say that I was medically
examined. The MLC is now Exhibited as Ex.PW.1/A and it
bears my thumb impressions at points A & B.
14. (At this stage, an envelop which is sealed with the seal
of VA and bearing the particulars of the case, annexed in the
judicial record, is taken out and opened. It contains the
statement u/s 164 Cr.P.C. of the witness, application of the IO
requesting for recording the statement u/s 164 Cr.P.C. and the
application of the IO requesting for supply of copy of the
statement u/s 164 Cr.P.C. The statement u/s 164 Cr.P.C. is
shown to her and she is explained the same. After she has seen
and read the same and it is also read over to her, she is further
examined.)
15. The statement now shown to me is signed by me and I
had told the same facts to the Lady Judge. The statement u/s
164 Cr.P.C. of the witness is now exhibited as Ex.PW.1/B and it
bears my signatures at point A. I had given this statement to the
Lady Judge with my free consent.
16. I can identify accused Laxman if shown to me.
17. (At this stage, the accused Laxman who is sitting in a
separate enclosure is shown to the witness through the one way
visibility window on her screen. After the witness has seen the
accused Laxman, she is further examined.)
18. I have seen the accused Laxman on the screen. I
identify him as Laxman who is my brother's friend. He is
innocent. (witness has correctly identified accused Laxman.)
19. I pray that accused Laxman may be acquitted as he is
innocent.
20. (At this stage the Addl. PP had sought permission to
cross examine the witness as she has resiled from her earlier
statement and is hostile. Considered. Allowed.)
XXXX by Ms. Nimmi Sisodia, Addl. PP for State
1. Accused Laxman resided near my house for 06-07
months prior to the registration of the present case. He
work with my brother for manufacturing of furniture. He
used to visit my house frequently. I was friends with
accused Laxman. He has never visited me at any rented
accommodation at Ramesh Nagar. My family including my
mother had suspicion that accused Laxman had physical
relations with me. However the suspicion was mis-founded
as we did not have any physical relations.
2. I known my husband for many years as he used to
drive a school van near my school. My family was not aware
about my friendship with my husband who was then only a
friend. I had told my parents about my friendship with my
now husband and then they had got me married with him as
he also wanted to marry him.
3. It is wrong to suggest that they were no friendship
between me and my now husband prior to the registration of
the present case. It is wrong to suggest that I had physical
relations with accused Laxman and the fetus which was
aborted was also from accused Laxman. (At this stage the
witness is told about the FSL report and thereafter she is
questioned again regarding physical relations with the
accused). I again say that the aborted fetus could not be
from accused Laxman as we never had any physical
relations.
4. It is wrong to suggest that as I have stated in my
statement u/s 164 Cr.P.C. exhibit PW.1/B that my family used to
taunt me for having relations with some boy name Laxman, I am
deposing falsely today that I did not have any physical relations
with the accused.
5. I was not aware on 23rd February when I had left my
home that accused Laxman was already married and had two
children. I became aware of this fact when the present case was
registered as his wife and children had come to the PS.
6. I have been to Kamal Mandir as it is near my residence.
It is wrong to suggest that on 25.04.2014, I got married with
accused Laxman at Kamal Mandir. Accused Laxman had never
proposed married to me.
7. (At this stage the judicial file is sent to the room of the
prosecutrix and she is shown her statement dtd. 03.05.2014. She
is explained the same. After the witness has read the same and
it is also read over to her, she is further examined.)
8. After reading and hearing the statement dtd.
03.05.2014, I say that I had not made the same statement to the
police. The statement dtd. 03.05.2014 of the prosecutrix is now
marked as Mark "A". I have not told the fact mentioned in this
statement to the police. It is wrong to suggest that I had made
the statement mark A to the police and now I am deliberately
denying the same in order to save the accused.
9. (At this stage the judicial file is sent to the room of the
prosecutrix and she is shown her statement dtd. 15.05.2014. She
is explained the same. After the witness has read the same and
it is also read over to her, she is further examined.)
10. After reading and hearing the statement dtd.
15.05.2014, I say that I had not made the same statement to the
police. The statement dtd. 15.05.2014 of the prosecutrix is now
marked as Mark B. I have not told the fact mentioned in this
statement to the police. It is wrong to suggest that I had made
the statement Mark B to the police and now I am deliberately
denying the same in order to save the accused.
11. It is wrong to suggest that accused Laxman had
physical relations with me even prior to the registration of
the present case which were not like not approved by my
family or that for this reason I left my house at the instance
of accused Laxman and started living with him in a rented
accommodation.
12. It is wrong to suggest that accused Laxman has
committed the alleged offences as I have told the same facts to
the Doctor in my MLC Ex.PW.1/A.
13. It is wrong to suggest that due to my physical relations
with the accused Laxman I became pregnant. It is wrong to
suggest that when I informed accused Laxman about my
pregnancy and ask him to perform marriage with me, then on
25.04.2014 he performed marriage with me at Kamal Mandir. It
is wrong to suggest that accused Laxman left me after
25.04.2014 by saying that he was just passing time with me. It
is wrong to suggest that now the matter is settled between me
and the accused Laxman and for this reason I am denying that
my aborted fetus was accused Laxman. It is wrong to suggest
that now I am deposing falsely in order to save the
accused......."
14. The clear and unequivocal testimony of the prosecutrix X, unravels
the case of the prosecution in its entirety and indubitably demolishes the
stratum of the charge against the respondent. According to the prosecutrix
X, although she knew the respondent, since the latter was a friend of her
brother, no physical relation had been established between them at any point
of time. The prosecutrix X statedly got married on 25.08.2014 with her
husband and the couple have two children from the wedlock. It was further
stated by the Prosecutrix X that, the fetus she was carrying at the time of her
medical examination, was also from her husband and not the respondent.
The respondent, according to her, had never visited her rented
accommodation at Ramesh Nagar and although, the family including her
mother suspected her of having physical relations with the respondent, the
same were baseless and without foundation. It was furthermore deposed by
the prosecutrix X that the reason for her to leave her parental home was not
her relationship with the respondent but the result of her serious differences
with her family, especially her mother on the issue of demands for money to
meet her expenses, which the mother continuously declined.
15. The above extracted statement and deposition of the prosecutrix finds
support and corroboration in the following testimony of her father Mr. Z,
examined as PW-3A, who deposed as follows:-
"PW-3 Mr. Z, Father of the prosecutrix (name, parentage,
address etc. of the witness are mentioned in the judicial file
and police file at sr. no.3 and have been stated by the witness
but the same are withheld and are not being mentioned herein
as the identify of the victim is to be protected.)
On SA.
1. Prosecutrix is my daughter and at the time of incident,
she was about 18 and half month old. I do not know her exact
date of birth. She was born at my house and not in the
hospital.
2. Prosecutrix had left the house without telling us
anything and I do not remember before how many years she
left the house. I lodge the complaint regarding the incident to
the police and the said complaint is now exhibited as
Ex.PW.3/A and it bears my signatures at point A.
3. I had suspicion that accused Laxman had taken away
my daughter/prosecutrix. On the basis of suspicions, I
mentioned the name of Laxman as culprit in Ex.PW.3/A.
4. Accused Laxman is present in the Court today and I
identify him. (witness has correctly identified accused
Laxman).
5. After return, my daughter told me that she was
residing with some Mr. Rajeev.
6. My daughter was studied in school at Moti Nagar.
Before Moti Nagar school she was studying in Govt. Girls Sr.
Secondary school, Kirti Nagar, Delhi. I went along got
admitted my daughter/prosecutrix in MCD, Kirti Nagar
school. At that time, Mr. Sahu, my neighbor accompanied
me and he got admitted my daughter in school.
7. Accused Laxman was arrested in my presence vide
memo already exhibited as Ex.PX5, which bears my
signatures at point B. The personal search of accused was
conducted vide memo already Ex.PX6 which bears my
signature at point B. The disclosure statement of accused is
also exhibited as Ex.PX7 and it bears my signature at point B.
FURTHER EXAMINATION IN CHIEF IS DEFERRED ON
REQUEST OF THE WITNESS AS HE IS NOT FEELING
WELL.
RO&AC Nivedita Anil Sharma
Additional Sessions Judge-01, West,
Special Court under POCSO Act,
THC, Delhi. 08.10.2018."
08.04.2019
PW3A Mr. Z father of the prosecutrix (recalled for further
examination in chief from dated 08.10.2018)
ON S.A.
1. Accused Laxman had been arrested as I has suspicion
that he had kidnapped my daughter. However, he is innocent
as my daughter had eloped with another boy with whom she
is now married and living happily and has two children.
2. I pray that accused Laxman may be acquitted as he had
not committed any offence against my daughter.
FURTHER EXAMINATION IN CHIEF OF THIS
WITNESS IS DEFERRED ON THE REQUEST OF
SUBSTITUTE ADDL. PP WHO HAS REQUESTED THAT
HIS FURTHER EXAMINATION IN CHIEF MAY BE
CONCLUDED IN THE PRESENCE OF REGULAR ADDL.
PP AS HE IS FULLY CONVERSANT WITH THE FACTS
OF THE CASE.
RO&AC Nivedita Anil Sharma
Additional Sessions Judge-01, West,
Special Court under POCSO Act,
THC, Delhi. 08.04.2019.
27.05.2019.
PW3A-Mr. Z father of the prosecutrix (recalled for the further
examination in chief from dated 08.04.2019)
ON S.A.
1. (At this stage, the Addl. PP has requested for
permission to cross-examine the witness as she is hostile and
has retracted from her earlier statement. Considered.
Allowed.).
XXXX by Mr. Ravi Shekhar Mangal Murti, Additional
Public Prosecutor for the State.
1. The police had not recorded my statement. The police
has not made any enquiry from me, they simple asked me to
sign the document and I put my signatures accordingly.
2. At this stage, the statement dated 23.06.2014 has been
read over and explained to the witness to which he denied in
toto by saying that he had not such made any statement to the
police. The said statement is marked as Mark C.
3. It is wrong to suggest that I had made the statement
Mark C and the same was read over to me by the police. It is
wrong to suggest that accused Laxman has been cheating my
daughter on the pretext of love for about one year. It is wrong
to suggest that accused Laxman has established physical
relationship with my daughter on the pretext of false marriage
due to which she became pregnant. I had not accompanied my
daughter to the hospital at the time of her medical
examination.
4. It is wrong to suggest that I deliberately suppressed
true facts in order to save the accused as the matter is settled
between me and accused Laxman. It is wrong to suggest that
as the matter has been settled between me and accused, I am
denying that the aborted foetus was of accused Laxman. It is
wrong to suggest that I am deposing falsely.
XXXX by Mr. Lalit Kumar, counsel for accused Laxman.
1. I am not certain about the exact date of birth of my
daughter Ms. X but she was aged about 18 and half years at
the time of alleged incident.
2. It is correct that I have not seen the accused
committing any offence against my daughter. It is correct that
I do not have any grievance against the accused. It is correct
that accused is innocent and has not committed any offences
against my daughter.
RO&AC Nivedita Anil Sharma
Additional Sessions Judge-01, West,
Special Court under POCSO Act,
THC, Delhi. 27.05.2019."
16. The mother of the prosecutrix Ms. Y, examined as PW-5, also failed
to depose anything incriminating against the respondent; and upon being
declared hostile by the prosecution, was subjected to cross-examined by the
Public Prosecutor. In her cross-examination on behalf of the accused, she
admitted that "It is correct that I have not seen the accused committing any
offence against my daughter. It is correct that I do not have any grievance
against the accused. It is correct that accused is innocent and has not
committed any offences against my daughter."
17. Inter alia, in view of the foregoing testimonies, learned trial court vide
judgment dated 27.05.2019 returned the following findings:-
"14. The most material prosecution witness i.e. the
prosecutrix Ms. X as PW-1 has not deposed an iota of
evidence of accused Mr. Laxman that he committed the
offence of kidnapping, of compelling her to marry against her
will or forced her to do illicit intercourse, of committing
penetrative sexual assault and of committing rape upon Ms.
X, the prosecutrix.
15. Ms. Yasmin Vashist (PW-2) has only produced the
school record of the prosecutrix to show that her date of birth
is 09.08.1997 and her evidence is insufficient for
incriminating the accused. Ms. Sashi Bala Pahuja (PW-3) has
prepared the FSL reports (Ex.PW.3/A and Ex.PW.3/B which
are also insufficient for convicting the accused, especially as
Ms. X, the prosecutrix (PW-1) has turned hostile. Even, Mr.
Z, the father (PW-3A) of the prosecutrix and Ms.Y, the
mother of (PW-5) of the prosecutrix have also not deposed
anything incriminating against accused. The parents of the
prosecutrix have no grievance against accused Laxman and
have also turned hostile. SI Ashok Kumar (PW-6) is the
Investigating Officer of the case and his evidence is
insufficient for convicting the accused.
16. In the circumstances, as the prosecutrix Ms. X (PW-1),
who is the star witness, has turned hostile and has not
supported the prosecution case and more importantly has not
assigned any criminal role to the accused as well as Mr. Z and
Ms. Y, parents of the prosecutrix (PW-3A and PW-5) have
not deposed anything incriminating against him, the
prosecution evidence is closed, declining the request of the
Additional Public Prosecutor for leading further evidence, as
it shall be futile to record the testimonies of other witnesses,
who are formal or official in nature. The precious court time
should not be wasted in recording the evidence of formal or
official witnesses when the prosecutrix Ms. X (PW-1), Mr. Z,
her father (PW-3A) and Ms. Y, her mother (PW-5) who are
the star witnesses and the most material witnesses of the
prosecution, have not supported the prosecution case.
17. The statement under section 313 of the Criminal
Procedure Code (hereinafter referred to as the Cr.P.C.) of the
accused Mr. Laxman is dispensed with as there is nothing
incriminating against him as prosecutrix Ms. X (PW-1) is
hostile and nothing material has come forth for the
prosecution in her cross examination by the Additional Public
Prosecutor for the State and her parents (PW-3A and PW-5)
have also not deposed anything incriminating against the
accused.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
23. Crucially, the materials and evidence on record do not
bridge the gap between "may be true" and "must be true" so
essential for a court to cross, while finding the guilty of an
accused, particularly in cases where once the witnesses have
themselves not deposed anything incriminating against
accused Mr. Laxman. Even othwerwise, no useful purpose
would be served by adopting any hyper technical approach I
the issue.
24. Consequently, no inference can be drawn that the
accused Mr. Laxman is guilty of the charged offences under
sections 363/366 of the IPC and under section 6 of the
POCSO Act and in the alternate under section 376 of the IPC.
25. There is no material on record to show that on
23.02.2014 at about 09.00 p.m., accused Mr.Laxman had
kidnapped the prosecutrix aged about 17 years; he had
kidnapped the prosecutrix with the intention to compel her to
marry against her will, to force her to do illicit intercourse; he
had kidnapped the prosecutrix and took her to Ramesh Nagar
and in a rented accommodation, he had committed penetrative
sexual assault on her; and he had kidnapped the prosecutrix
and took her at Ramesh Nagar in a rented accommodation, he
had committed rape on her.
26. From the above discussion, it is clear that the claim of
the prosecution is neither reliable nor believable and is not
trustworthy and the prosecution has failed to establish the
offences against accused Mr. Laxman for the offences of
kidnapping Ms. X, prosecutrix, of kidnapping her to compel
her to marry against her will or force her to do illicit
intercourse, of committing penetrative sexual assault and of
committing rape upon her. The witnesses have not deposed
an iota of evidence that accused Mr. Laxman has committed
any of the charged offences.
27. Therefore, in view of the above discussion, the
conscience of this Court is completely satisfied that the
prosecution has failed to bring home the charge against
accused Mr. Laxman for the offences under sections 363/366
of the IPC and under section 6 of the POCSO Act. The
prosecution has also failed to prove the alternate charge for
the offence under section 376 of the IPC."
18. Resultantly, the trial court acquitted the respondent of the charges
framed against him, for the commission of offences of kidnapping the
prosecutrix X; of kidnapping her to compel her to marry against her will or
force her to do illicit intercourse; of committing penetrative sexual assault;
and of committing rape upon her, punishable under Sections 363/366 of the
IPC and under Section 6 of the POCSO Act. The trial court also acquitted
the respondent for the alternate charge under Section 376 of the IPC.
19. Coming to the submissions made on behalf of the State, we observe
that prosecutrix X, who is their Star Witness, has turned hostile and has not
supported the prosecution's case and most significantly did not assign any
role to the respondent. The testimony of Mr. Z and Ms. Y, the parents of the
prosecutrix, also completely negates the case of the prosecution, insofar as
they urge that the prosecutrix X was a minor on the date of the commission
of the offence or that the respondent had any role or that the respondent had
committed any offence, leaves alone the offences with which he was
charged, against their daughter.
20. On the contrary, the statement of the prosecutrix X, recorded under
Section 164 Cr.P.C., as well as her testimony in Court, above extracted,
leaves no manner of doubt that according to the relevant prosecution
witnesses, the respondent was innocent of all charges since he had not
committed any offence against the prosecutrix X. It is further observed that
by way of the present leave to appeal, the State rely on the medical evidence,
including the report of the FSL to seek reversal of the finding of acquittal,
returned by the trial court. In this behalf, we must observe that the medical
reports relied upon by the prosecution are merely corroborative evidence;
whereas the oral evidence, as available on record in the present case, which
indubitably is substantive evidence, completely negates the case against the
respondent.
21. It is trite to state that the settled legal position is that when two views
are plausible, the appellate court should not reverse a judgment of acquittal
by the trial court, merely because another view is possible. [Reference: K.
Prakashan vs. P.K. Surenderan, reported as (2008) 1 SCC 258].
22. In that case, the Supreme Court held that where two views are
reasonable possible from the very same evidence, the prosecution cannot be
said to have proved its case beyond reasonable doubt [Reference:
T. Subramanian vs. State of Tamil Nadu, reported as (2006) 1 SCC 401].
23. If the High Court on reappraisal of the evidence considers the
possibility of another view being reasonably be plausible, then the view
which favours the accused should be adopted unless the High Court returns a
definite conclusion that the findings recorded by the trial court are perverse
and against the weight of the evidence on record. [Reference:
Ghurey Lal vs. State of U.P., reported as 2008 (10) SCC 450].
24. It is thus a well settled legal position that, the presumption of
innocence that obtains in favour of an accused person is further strengthened
by the order of acquittal, passed in his favour by the trial court. It is further
observed that the appellate court is generally loath to interfere with the
findings of fact recorded by the trial court a fortiori because the latter has
had the advantage of examining in the first person the demeanor of the
witnesses. Therefore, when the trial court takes a plausible view of the facts
of the case, interference by the appellate court, with the judgment of
acquittal, is neither warranted nor justified. It is only when the conclusion
arrived at by the trial court is palpably wrong and against the weight of
evidence or predicated on an erroneous view of law, which would result in
grave injustice, that the appellate court would interfere with the findings
returned. [Reference: 1) Muralidhar @ Gidda and Another vs. State of
Karnataka reported as (2014) 5 SCC 730 2) Mallikarjun Kodagali (Dead)
represented through Legal Representatives vs. State of Karnataka & Ors.
reported as AIR 2018 SC 5206].
25. It is, thus a rudimentary principle of jurisprudence that, the innocence
of an accused such as the respondent in the present case, who has been
acquitted by the trial court after an elaborate trial; the presumption of his
innocence is strengthened.
26. Having examined the testimony of the prosecutrix X, which
completely exculpate the respondent and which testimony is corroborated by
the testimonies of her parents, Mr. Z (father) and Ms. Y (mother), we find
ourselves in agreement with the findings returned by the trial court to the
effect that the prosecution has failed to establish the charges against the
respondent.
27. In view of the foregoing discussion, we are of the view that the present
leave petition is devoid of merit. The same is accordingly dismissed.
SIDDHARTH MRIDUL
(JUDGE)
I.S. MEHTA
(JUDGE)
DECEMBER 16, 2019
dn
