Himachal Pradesh High Court

Reserved On: 13.11.2024 vs Balbir Singh @ Balla on 21 November, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

2024:HHC:12126

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 132 of 2014 Reserved on: 13.11.2024 Date of Decision: 21.11.2024

State of H.P. ...Appellant.


                                        Versus
    Balbir Singh @ Balla                                                         ...Respondent.

    Coram

Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.

For the Appellant/State : Mr. Pawan Nadda, Additional Advocate General.

For the Respondent/accused : Mr Gaurav Sharma, Advocate, vice Ms. Divya Sood, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 21.12.2013, passed by learned Special Judge, Sirmour

District at Nahan, vide which the respondent (accused before

the learned Trial Court) was acquitted of the commission of the

charged offences. (Parties shall hereinafter be referred to in the

same manner as they were arrayed before the learned Trial Court for

convenience).

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan against the

accused before the learned Trial Court for the commission of

offences punishable under Sections 376 and 506 of the Indian

Penal Code (IPC) and Section 5(j)(ii) of the Protection of

Children from Sexual Offences Act (POCSO Act). It was asserted

that the uncle of the informant (name being withheld to protect

her identity) had engaged the accused as a labourer with other

persons. The informant had gone to the jungle to bring the fuel

wood. The accused followed and raped her in the jungle. He

threatened to kill the informant in case the incident was

disclosed to any person. The accused continued to rape the

informant by calling her to the jungle and threatening her for

15-20 days after the incident. The informant could not narrate

the incident to any person due to fear. When the belly of the

informant started growing, her mother made inquiries from

her. The informant revealed the incident to her mother. The

matter was reported to the police where FIR (Ex.PW1/A) was

registered. SI Naresh Sharma (PW16) conducted the

investigation. He filed an application (Ex.PW6/A) for conducting

the medical examination of the informant. Dr Surya Saini (PW6)

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conducted the medical examination of the informant and found

that she was pregnant. He referred her to a Gynecologist and

Radiologist for expert opinion. No marks of injury were found

on the informant's body. Dr. Surya Saini issued MLC

(Ex.PW6/B). Dr Sumala Kapila (PW4) conducted the ultrasonic

examination of the informant on 24.2.2013 and issued the report

(Ex.PW4/B) stating that the fetus was 22 weeks and 5 days old.

The police subsequently told the Medical Officer that the

opinion of the Radiologist was not required. SI Naresh Sharma

(PW16) visited the spot and prepared the site plan (Ex.PW16/A).

He filed an application (Ex.PW16/B) for conducting a medical

examination of the accused. Dr Parvesh Aggarwal (PW17)

conducted the medical examination of the accused and found

that there was nothing to suggest that he was incapable of

performing sexual act. Samples of pubic hair, scalp hair, nail

scrapping and undergarments were preserved which were

handed over to the police official accompanying the accused.

Dr. Parvesh Aggarwal issued the MLC (Ex.PW17/A). SI Naresh

Sharma filed an application (Ex.PW5/A) for obtaining a blood

sample of the accused. Dr Gopal (PW5) obtained a blood sample

of the accused on an FTA card. He attested the identification

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form (Ex.PW5/B). Ranvir Singh (PW7) issued the birth

certificate (Ex.PW7/A) of the victim and a copy of the pariwar

15.12.1999 and was minor on the date of the incident. The

statement of the informant was recorded by learned Judicial

Magistrate First Class, Nahan. The statements of witnesses were

recorded as per their version. Prem Pal (PW8) issued a copy of

Jamabandi (Ex.PW8/A) and a copy of Aks (Ex.PW8/B). The

informant gave birth to a baby. The police filed an application

(Ex.PW6/E) for preserving blood samples of the informant and

her newborn baby for DNA profiling. Dr. Surya Saini obtained

blood samples of the informant and the newly born baby on the

FTA card. She attested identification forms (Ex.PW6/G and

Ex.PW6/H). Samples were sent to SFSL, Junga and results

(Ex.PW6/C, (Ex.PW6/J and Ex.PW19/C) were issued stating that

no blood and semen were detected on the samples analysed in

the laboratory, the informant was the biological mother and the

accused was the biological father of the male baby. Dr. Surya

Saini (PW6) issued a final opinion that the victim was subjected

to multiple sexual intercourse. The accused was the biological

father and the informant was the biological mother of the male

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baby. Statements of remaining witnesses were recorded as per

their version and after completion of the investigation, a challan

was prepared and presented before the learned Chief Judicial

Magistrate, Sirmour District at Nahan, who committed the case

to the learned Special Judge for trial.

3. Learned Special Judge charged the accused with the

commission of offences punishable under Sections 376 and 506

of IPC and Section 6 of the POCSO Act, to which he pleaded not

guilty and claimed to be tried.

4. The prosecution examined 19 witnesses to prove its

case. PW1 is the victim and PW2 is her mother. Pradeep Kumar

(PW3) is Pradhan of Gram Panchayat, who witnessed the

identification of the spot by the victim. Dr. Sumala Kapila (PW4)

is a Radiologist who went through the X-ray and issued the

report. Dr. Gopal (PW5) obtained a blood sample on an FTA card

for analysis. Dr. Surya Saini (PW6) conducted the medical

examination of the victim and obtained blood samples of the

victim and her baby. Ranvir Singh (PW7) is the Secretary of

Gram Panchayat who issued a birth certificate and copy of the

pariwar register. Prem Pal (PW8) is Patwari, who issued a copy

of Jamabandi and Aks Tatima. HC Som Parkash (PW9) was

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posted as the MHC with whom the case property was deposited.

Constable Mukesh Kumar (PW10) carried the case property from

the Police Station to SFSL, Junga. Constable Hitender Kumar

(PW11) and Constable Sunil Kumar (PW13) accompanied the

accused for his medical examination. LC Babli (PW12)

accompanied the informant for her medical examination.

Constable Ravinder Kumar (PW14) carried the FTA card of the

accused to SFSL, Junga. Constable Dinesh Kumar (PW15)

videographed the proceedings. SI Naresh Sharma (PW16)

conducted the investigation. Dr. Parvesh Aggarwal (PW17)

conducted medical examination of the accused. HC Mam Raj

(PW18) was working as MHC with whom part of the case

property was deposited. SI Vijay Kumar (PW19) conducted the

investigation partly and prepared the supplementary challan.

5. Accused in his statement recorded under Section 313

of Cr.P.C. admitted that he was engaged as labourer by the

informant's uncle for the construction of his house. He denied

the rest of the prosecution case. He stated that witnesses

testified against him falsely and he was innocent. Statements of

the maternal grandfather of the informant (DW1), Jasbir Singh

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(DW2), Secretary of Gram Panchayat and Rahul Sharma (DW3),

Clerk of the office of CMO were recorded in defence.

6. The learned Trial Court held that the incident was

not disputed. The only dispute was regarding the informant's

age. The informant and her mother expressed their ignorance

about the informant's age. The informant's mother admitted

that the informant was born when she (the informant's mother)

was unmarried. The prosecution relied upon the copy of the

pariwar register of the matrimonial home of the informant's

mother but that was not relevant because the informant was

born in a different village. The police had sought the victim's

Radiological examination to determine her age but subsequently

they stated that the Radiological examination of the informant

was not required. There was no satisfactory proof of the victim's

age. She had not complained to anyone regarding the rape. The

incident came to notice when her belly started growing and the

victim's consent could not be ruled out. Hence, the accused was

acquitted of the charged offences.

7. Being aggrieved from the judgment passed by the

learned Trial Court, the State has filed the present appeal

asserting that the learned Trial Court erred in acquitting the

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accused. The prosecution evidence was not properly

appreciated. The statement of the victim was wrongly discarded.

She specifically stated that the accused had raped and

threatened her. This shows that the victim was not a consenting

party. Learned Trial Court erred in holding that the victim had

consented to the sexual intercourse. She was proved to be minor

by the documents on record. Statements of the Panchayat

Secretary and the record of the victim's birth were wrongly

discarded. DNA analysis proved that the accused was the

biological father of the informant's male baby. This is sufficient

to corroborate the informant's testimony that she was subjected

to repeated sexual intercourse. Therefore, it was prayed that the

present appeal be allowed and the judgment passed by the

learned Trial Court be set aside.

8. We have heard Mr Pawan Kumar Nadda, learned

Additional Advocate General, for the appellant-State and Mr

Gaurav Sharma, Advocate, vice Ms. Divya Sood, learned counsel

for the respondent/accused.

9. Mr. Pawan Kumar Nadda, learned Additional

Advocate General, for the appellant-State submitted that the

learned Trial Court erred in rejecting the cogent testimony of

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the informant. She categorically stated that the accused had

raped her when she was alone in the jungle. The accused also

threatened her due to which she could not make any complaint

to any person. The testimony of the informant was duly

corroborated by the report of DNA Analysis in which the accused

was shown to be the biological father of a male baby delivered by

the informant. Therefore, he prayed that the present appeal be

allowed and the judgment passed by the learned Trial Court be

set aside.

10. Mr. Gaurav Sharma, learned vice counsel for the

respondent/accused supported the judgment passed by the

learned Trial Court. He submitted that the evidence in support of

the informant's age is not satisfactory. The informant's mother

admitted that the informant was born to her when she (the

informant's mother) was unmarried. This was duly

corroborated by the informant's maternal grandfather. Learned

Trial Court had rightly held that the entry of the informant's

birth could not have been recorded in the matrimonial home of

the informant's mother and it should have been recorded in her

paternal home. Learned Trial Court had taken a reasonable view

while acquitting the accused and no interference is required

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with the same while deciding the appeal against the acquittal.

Therefore, he prayed that the present appeal be dismissed.

11. We have given considerable thought to the

submissions made at the bar and have gone through the records

carefully.

12. The present appeal has been filed against a judgment

of acquittal. It was laid down by the Hon'ble Supreme Court in

Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine

SC 130 that while deciding an appeal against acquittal, the High

Court should see whether the evidence was properly appreciated

on record or not; second whether the finding of the Court is

illegal or affected by the error of law or fact and thirdly; whether

the view taken by the Trial Court was a possible view, which

could have been taken based on the material on record. The

Court will not lightly interfere with the judgment of acquittal. It

was observed:

"25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so

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because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The "two-views theory" has been judicially recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.

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28. In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13)

"13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p. 643, para 9) '9. ... We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.'"

29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7) "7. It is well settled that:

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7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] ).

7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320])."

13. The present appeal has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

14. The informant (PW1) stated while giving her name,

address and age that she was not aware of her age. Her mother

(PW2) stated that she was not aware of the informant's age as

she was illiterate. She stated in her cross-examination that the

informant was born to her when she (the informant's mother)

was unmarried. The informant was aged 5-5½ years at the time

of her (mother's) marriage. She had six children and she did not

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know the age of any person. The informant's maternal

grandfather (DW1) stated that the informant's mother was aged

37 years and the informant was aged 20 years. The informant

was aged 5 years at the time of her mother's marriage.

15. The statements of the informant, her mother and her

maternal grandfather show that the informant's age has not

been proved satisfactorily. The informant has not mentioned

her age. Her mother could not describe her age and her maternal

grandfather stated that the informant was aged 20 years; thus,

the oral evidence does not establish the prosecution's version

that the informant was minor on the date of the incident.

16. The prosecution has also relied upon the copy of the

pariwar register (Ex.PW7/B), in which the informant's date of

birth was mentioned as 15.12.1999. The register does not

mention the name of the informant's mother. Learned Trial

Court had rightly held that in view of the evidence of the

informant's mother and grandfather, the entry of birth should

have been recorded in the parental panchayat of the informant's

mother and not in the matrimonial panchayat. Thus, the learned

Trial Court had rightly declined to place reliance upon the same.

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17. Birth certificate (Ex.PW7/A) shows the name of the

informant's father who is the husband of her mother. It is

admitted case that the informant was born when the

informant's mother was unmarried; hence, the name of the

informant's mother's husband could not have been mentioned

especially when the informant was 5½ years old at the time of

the marriage of her mother. Thus, the birth certificate was

suspicious and the learned Trial Court had rightly rejected the

same.

18. Dr. Surya Saini (PW6) referred the informant to the

Radiologist for her age determination. He stated in his cross

examination that police had asked for the age determination of

the informant and he had referred her to Radiologist and Dentist

for age verification. He admitted that the police informed him

on 7.3.2013 that they do not require a medical opinion regarding

the age of the informant. Therefore, there is no medical

evidence to show the informant's age. No reason has been

assigned as to why the police had asked the Medical Officer not

to get the medical opinion regarding the age of the informant.

Hence, an adverse inference has to be drawn against the

prosecution.

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19. The informant's grandfather stated that she was

aged 20 years. He is the best person to know about the age;

hence, his testimony shows that the informant was capable of

giving consent.

20. The informant stated that she had gone to the jungle,

where the accused caught her and committed sexual intercourse

with her. The accused threatened her not to disclose the incident

to any person otherwise he would do away with her life. The

accused used to call her to the jungle and perform sexual

intercourse with her. She became pregnant. Her mother inquired

from her about her pregnancy and she disclosed the incident to

her mother. She stated in her cross-examination that the

accused was previously known to her. She admitted that she had

not disclosed the incident to her parents about sexual

intercourse. She used to visit the jungle to fetch fuelwood

almost daily. The accused did not call her to the jungle. She

volunteered to say that the accused used to follow her.

21. The informant's mother (PW2) stated in her cross-

examination that she found out about the informant's

pregnancy when her belly became enlarged. The testimonies of

the informant and her mother show that the informant had not

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narrated the incident to her mother and the incident only came

to light when the belly of the informant started growing. It has

been found out above that the informant was major and capable

of consenting. The fact that the accused had repeatedly indulged

in sexual intercourse with her and still she had not complained

about the same to any person shows her consent. It was laid

down in Koli Jaga Rana v. State of Gujarat, 1992 SCC OnLine Guj

274: 1992 Cri LJ 2080: 1992 Cri LR (Guj) 269 that where the victim

had not complained to anyone about the rape, the same

suggested consent. It was observed at page 2085:

"16. ..The learned Addl. Sessions Judge, in our opinion, committed a serious error in not applying the 'probability test' which is against the prosecution, viz. the conduct of the prosecutrix after the incident i.e. to remain in the field up to 8 to 9 p.m. and to work in the field and not to narrate the incident even after going home to the neighbours or any other persons and not to narrate the story to Kunverben till the next day of her return to Ankolwadi. It will be the natural conduct of a prosecutrix on whom rape is committed to tell her mother immediately after returning to her house. Bena, the sister of the prosecutrix stated to her mother on the next day after she came to Ankolwadi and Vijaya narrated the incident to her mother only when Vijaya was asked by her. The fact that there are no injuries found on the person of the prosecutrix and also no tearing of clothes of the prosecutrix shows that there was no resistance whatsoever from the prosecutrix."

22. A similar view was taken in State of Maharashtra v.

Subhash Sitaram Sangare, 2001 SCC OnLine Bom 1120: 2001 Cri LJ

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4468: 2002 Bom CR (Cri) 218 wherein it was observed at page

4471:

"14. The most unnatural conduct on the part of the prosecutrix is not telling this incident of rape (?) to her own mother. It would have been but natural for Mangala to confide in her own mother, if such an untoward and traumatic incident had taken place, and it is very difficult to digest that a young virgin girl did not choose to confide in her own mother when such a shockingly traumatic incident took place in her life. This conduct of Mangala is absolutely unnatural and makes her deposition suspicious. Even PW 5 Indira's deposition to the effect that she did not know anything about the pregnancy of her daughter up to seven months is unbelievable. The defence of the accused as disclosed from cross- examination and the statement under Section 313 of the Code of Criminal Procedure, 1973 appears to be that the accused is a well-to-do person from a rich family, and Mangala and her mother wanted her to get married with the accused. Testing this defence on the touchstone of probabilities, and having considered the nature of the evidence given by the prosecutrix herself and her mother, the defence cannot be said to be preposterous or something which is improbable. The story as given by the prosecutrix appears to be unconvincing and does not point to the accused as a rapist of Mangala. The learned Sessions Judge, therefore, was right in acquitting him. It cannot be said that his findings were unreasonable or perverse."

23. It was submitted that the informant was threatened

by the accused and learned Trial Court erred in acquitting him

after holding that there was consent. This submission is not

acceptable. It is an admitted case of the prosecution that the

accused had not raped the informant after the construction

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work of the house of the informant's uncle was over which

means that the accused had left after the completion of the

construction work. Therefore, there was no reason for the

informant to feel terrorised; hence, in these circumstances, the

learned Trial Court rightly held that the silence of the informant

would suggest her consent.