Jammu & Kashmir High Court

Amrita Singh vs Sagar Singh And Others on 15 July, 2021

                                                           Sr. No. 221

                HIGH COURT OF JAMMU AND KASHMIR
                           AT JAMMU

                                                    CRR No. 3/2016
                                                    IA No. 1/2016



 Amrita Singh                                                        ...Petitioner (s)
                                   Through:    None.

                           v/s


 Sagar Singh and others                                           .... Respondent(s)
                                    Through: None.

CORAM: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                            ORDER

1. This revision petition has been filed against the order of acquittal

passed by the trial court i.e. 3rd Additional Session Judge, Jammu in case titled

„State vs. Sagar Singh and others‟

2. No body is appearing in this case since the day it was filed before

this court. The petitioner after filing this petition has remained absent. It

appears that petitioner after filing the same has lost interest in the case.

However since the revision has been entertained, therefore, same is required to

be decided on merits. The matter as such is taken up for consideration.

3. The order of acquittal is sought to be challenged by the petitioner in

this revision petition precisely on the ground that the trial court has not

properly appreciated evidence produced before it and has not taken into

account the evidence in a proper perspective. Therefore, the order of acquittal

passed by the trial court is bad in law.

4. The trial court has passed the order of acquittal on the basis of

surmises and conjectures and conclusion drawn by the trial court is against the

weight of the evidence.

5. I have considered the grounds taken in the revision record of the trial

court and have also considered the judgment whereby the respondents 1 to 3

have been acquitted by the trial court.

6. Briefly stated the facts of the case are that on 19.07.2008 prosecutrix

filed a complaint before Chief Judicial Magistrate, Jammu alleging that about

six months back, accused no.3 Ranjeet Singh along with accused no.2 Kala

came to her residence with marriage proposal of accused no.1 Sagar Singh with

her, however, the said marriage proposal was rejected by her mother on the

ground she (prosecutrix) was minor, however, upon persuasion by accused

no.2 and 3, her mother had agreed to the said proposal, accordingly, accused

no.1 along with accused no.2 and 3 came to her house and engagement

ceremony was performed. After engagement of prosecutrix with accused no.1,

he (A1) started visiting the house of prosecutrix and used to take her along on

the pretext that she was going to be married to him, he used to take her to the

house of A3 or to his factory and used to ravish her making her to believe that

she was going to be married to him. On 10th of July, A1 came to her and asked

her to accompany him, but, she had refused to accompany him on the ground

that their marriage was fixed on 18th of July and they had to make arrangement

for the same, upon which A1 refused to marry her saying that he was already

married. It is further alleged that the accused were having criminal intention

from the very beginning to cheat her so as to induce her for sexual intercourse

with A1.

7. On 15.07.2008, she had approached police station, Gangyal for

lodging report against the accused persons, however, instead of registering the

FIR against the accused, Incharge Police Station, Gangyal put the prosecutrix

and her mother in lock up till 17th of July, 2008. She filed the aforesaid

complaint before Ld. CJM, Jammu which forwarded to SDPO Gandhi Nagar

and FIR No.89/2008 for offence under Section 376, 420 RPC was registered

against the accused and investigation commenced.

8. After framing of the charge against the accused, prosecution

evidence was produced and after conclusion of the trial, the trial court has

observed as under:

"42. In the instant case, no satisfactory explanation has been given to explain the inordinate delay of more than six months in lodging the report with the police. PW2 (mother of the prosecutrix) has stated that after 5/6 months prosecutrix had told her about the occurrence, prosecutrix has admitted in the cross examination that she did not tell her mother about the occurrence and cannot say as to when she had informed her husband about the same. As per PW 1 and PW 2, thereafter, they had gone to police station, Gangyal for lodging the report on 19.07.2008, however, police did not take any action. Thereafter, prosecutrix had filed a complaint in the court of Ld. CJM, Jammu and the Ld. CJM on the same day had forwarded the complaint to SDPO Gandhi Nagar for necessary action as warranted under law. However, the only explanation given for this long delay in reporting the matter to the police is that prosecutrix was engaged with A1 and then after getting the knowledge that A1 was already married, prosecutrix and her mother had gone to Police Station, Gangyal for lodging report against the accused, however, SHO concerned instead of registering the FIR had kept them in police lock up for three days and after their release from the police station, prosecutrix had filed a compliant before CJM Jammu which was forwarded to SDPO Gandhi Nagar, Jammu for necessary action

and finally FIR was registered in P/S Gangyal on 07.08.2008 (after 19 days of the filing of complaint before CJM and it is difficult to believe that period of more than six months would be spent to make out the mind to report the matter to police, even mother of the prosecutrix after getting the knowledge about the alleged occurrence has not taken any action for some time, but as noticed had told A1 that he should not come to her house. Furthermore, the prosecutrix had filed the complaint before Ld. CJM, Jammu on 19.07.2008 and the Ld. CJM on the same day had forwarded the complaint to SDPO Gandhi Nagar, Jammu for necessary action as warranted under law, however, the prosecutrix instead of handing over the complaint to SDPO concerned had kept the same with her till 07.08.2008 and had handed over the same to SDPO Gandhi Nagar on 07.08.2008 as is evident from the order passed by SDPO on the said complaint (EXT-P1). Prosecution has failed to explain the delay caused in lodging of report/complaint and registration of FIR of alleged occurrence against the accused, even the prosecutrix and mother of the prosecutrix have not given any explanation for the delay caused in lodging of the report and registration of FIR.

Thus, there is unexplained delay of more than six months in reporting the matter to the police and registration of FIR against the accused. This inordinate and unexplained delay coupled with the circumstances discussed above creates the doubt about the veracity of the prosecution case.

43. As per the prosecution case A1 used to take the prosecutrix either to the house of other accused or to his factory premises and ravish her. Prosecutrix in her statement recorded under section 164-A CrPC has stated that one day all the three accused persons came to her house in the night hours, assaulted her mother and forcibly took her to the factory premises and ravish there. PW-2 (mother of the prosecutrix) has also stated that accused persons had come to her house in the night hours and had assaulted her and on her hue and cry people of the vicinity had come and saved her from the clutches of the accused and in order to prove the

same, IO has cited PW3 Mohinder Singh and PW4 Uttam Singh as witnesses, however, prosecution has not examined the said witnesses. Prosecution has not given any explanation for non examination of the said material witnesses, as such, adverse inference can be drawn against the prosecutrix under Section 114-g of Evidence Act that had they been examined they would have deposed against it (prosecution).

44. It is settled law that the court while evaluating the evidence to ascertain the probability of the accused has to give same weightage to the defence as is given to the prosecution evidence. In fact, it is the obligation of the court to separate grain from the chaff. Keeping in mind the principle relating to testimony of defence witnesses, the evidence adduced by the defence witnesses and when nothing contradictory could be extracted in their cross examination cannot be brushed aside.

45. In the present case, accused have examined two defence witnesses, who are DWs Om Parkash and Swarn Singh. DW Om Parkash in whose house prosecutrix and her mother was residing since April 2004 to June 2008 has stated that father of the prosecutrix Swarn Singh, prosecutrix and her mother were his tenant, they used to prepare meals and reside in the same room. He has further stated that in absence of Swarn Singh, prosecutrix and her mother used to stay out or used to come back home later in the evening, dissatisfied with the conduct of the prosecutrix and her mother, he had asked them to vacate his room, he has further stated that dissatisfied with their conduct, their earlier landlord namely Tarsem Lal had also asked them to vacate their house. He has further deposed that house of Sagar Singh (A1) is at a distance of 500 yards from his house and he has never seen A1 and other accused (A2 and A3) visiting the rented accommodation of prosecutrix. DW Swarn Singh (husband of PW2), who was residing with prosecutrix and her mother in the rented accommodation has stated that as per horoscope, prosecutrix was born in 1990, however, his wife (mother of the prosecutrix) had told him that her

date of birth was 01.02.1992, he has further stated that in the year 2007, marriage of prosecutrix was settled at Punjab, engagement ceremony was also performed, however, some days prior to the marriage, prosecutrix had refused to marry the said boy, the witness has also produced two photographs of the said marriage ceremony which have been marked as SS1 and SS2.

46. After thoughtful consideration of the defence evidence and the prosecution evidence, as discussed hereinabove, in my considered view, there is an element of doubt regarding the complicity of the accused persons with the offence with which they have been charged and if it is so, the suspicion, however, may be grave cannot lead to the conviction of accused. Moreover, it is settled principle of criminal jurisprudence that the more serious the offence, the more stricter is the degree of proof. So a higher degree of assurance is required to convict the accused for the commission of offence of rape. Even if the material brought on record by the prosecution is said to be the pointer to the guilt of the accused, but in absence of the same being positively proved to be true, the accused would be entitled to acquittal.

47. Another golden threat which runs through the veins 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 favourable to the accused, should be adopted. It is also an accepted rule that if on the basis of evidence on record, a reasonable doubt arises regarding the guilt of the accused, the benefit of that doubt cannot be withheld from the accused and he is entitled to the same.

48. In view of the discussion made herein above, I have no hesitation in holding that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Hence prosecution case is dismissed and accused are acquitted of the offences with which they have been charged. Their bail bonds and personal bonds

shall stand discharged. The seized material, if any, shall be destroyed after the expiry of period of appeal."

9. In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583, the Hon‟ble Supreme Court has held that:

"8. The unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given this right only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. It is further provided in Section 439(5) CrPC, that where no appeal is brought in a case in which an appeal is provided, no proceedings by way of revision would be entertained at the instance of the party who could have appealed. The State Government, therefore, having failed to appeal, cannot apply for revision of an order of acquittal. Again, on revision, the High Court is expressly prohibited from converting an acquittal into a conviction. Considering the problem facing the Court in this case in the background of this scheme, the High Court when approached by a private party for exercising its power of revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. It is not expected to act under Sections 435/439 CrPC as if it is a hearing on appeal in spite of the wide language under Section 435 which empowers it to satisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding and also in spite of the fact that under Section 439 it can exercise inter alia the power conferred on a Court of appeal under Section 423 CrPC. The power being discretionary, it has to be exercised judiciously and not arbitrarily. ..."

10. In Johar v. Mangal Prasad, (2008) 3 SCC 423, the Hon‟ble Supreme Court has observed that: 23. In Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC 707 : (1968) 2 SCR 287] this Court stated the law thus: (AIR pp. 708-09, para 8)

"8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla [AIR 1951 SC 196 : 1951 SCR 284] only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even there is misappreciation of evidence. Again, in Logendranath Jha v. Polai Lal Biswas [AIR 1951 SC 316 : 1951 SCR 676] this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is „perverse‟ or „lacking in true correct perspective‟. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the subordinate court, it is always difficult to re- weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 3 SCR 412] it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court."

11. In K. Ramachandran v. V.N. Rajan, (2009) 14 SCC 569, the Hon‟ble Supreme Court has observed with respect to cases which would justify the High Court in interfering with the finding of acquittal in revision that:

"40. This question has been considered in the celebrated judgment of Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583 : 1973 SCC (Cri) 903] , where,

after considering the judgments of D. Stephens v. Nosibolla [AIR 1951 SC 196 : 1951 SCR 284] , Logendranath Jha v. Polai Lal Biswas [AIR 1951 SC 316 : 1951 SCR 676] , K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 3 SCR 412] and Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC 707 : (1968) 2 SCR 287] this Court came out with categories of cases which would justify the High Court in interfering with the finding of acquittal in revision: (Akalu Ahir case [(1973) 2 SCC 583 : 1973 SCC (Cri) 903] , SCC pp. 587-88, para 8) "(i) where the trial court has no jurisdiction to try the case, but has still acquitted the [appellant-]accused;

(ii) where the trial court has wrongly shut out evidence which the prosecution wished to produce;

(iii) where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;

(iv) where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and

(v) where the acquittal is based on the compounding of the offence which is invalid under the law."

Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exceptional in nature where the High Court could justifiably interfere with the order of acquittal."

12. In Sheetala Prasad v. Sri Kant, (2010) 2 SCC 190, the Hon‟ble Supreme Court has observed that:

"12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Subsection (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of a private complainant (1) where the trial court has wrongly shut out evidence which the prosecution wished to produce,

(2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence, and (5) where the acquittal is based on the compounding of the offence which is invalid under the law.

13. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered."

13. In Bhupinder Singh v. Harbhajan Singh, 2006 (1) JKJ 23 (J&K), it

has been held that it is open to the High Court in revision to set-aside the order

of acquittal even at the instance of the private parties, though State may not

have thought fit to appeal. But this jurisdiction should be exercised only in

exceptional cases, when there is some glaring defect in the procedure or there

is manifest error on a point of law and consequently there has been flagrant

miscarriage of justice. Sub-section (4) of Section 439 CrPC forbids the High

Court from converting a finding of acquittal into the one of conviction. While

going through the record on file and the order of acquittal passed by the trial

court and the grounds taken in the revision, the order of acquittal recorded by

the trial court is well founded on merits. The conclusion which has been drawn

by the trial court was the only conclusion possible in the case on the basis of