State Of Haryana vs Shyam Sunder
2022 Latest Caselaw 14433 P&H

CRM-A-2456-MA-2018 (O&M)                                                     -1-


203    IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                                           CRM-A-2456-MA-2018 (O&M)
                                           Reserved on: 09.11.2022
                                           Pronounced on : 16.11.2022

State of Haryana                                               . . . Applicant

                                       Versus

Shyam Sunder                                                   . . . Respondent

CORAM:       HON'BLE MR. JUSTICE SURESHWAR THAKUR
             HON'BLE MR. JUSTICE KULDEEP TIWARI

Argued by: Mr. P.P.Chahar, DAG, Haryana.

                                    ****

Kuldeep Tiwari, J.

CRM-38642-2018

This is an application for condonation of delay of 92 days in filing

the present appeal.

Heard, sufficient cause has been shown for condoning the delay in

filing the appeal. Hence, the application is allowed.

Main case

Instant application, for grant of leave to appeal, is directed against

the order of acquittal recorded by Addl. Sessions Judge (Exclusive Court for

Heinous Crime against Women and Children), Yamuna Nagar at Jagadhri.

The Trial Court acquitted the accused-respondent from the charges framed

under Sections 420, 376, 328, 506 IPC, 1860 vide judgment dated 28.03.2018.

The appellant-State has assailed the impugned order on the

ground that the statement of complainant/prosecutrix (name of the prosecutrix

is withheld in view of provisions of Section 228(A) of IPC) hereinafter,

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referred as complainant, was not appreciated by the trial Court in its right

perspective. And that the prosecution has proved its case beyond reasonable

doubt. It is further submitted that apart from the statement of the complainant,

prosecution successfully proved documentary evidence (that are/that were

brought) on record, which further corroborate the version of the complainant

and that the same is sufficient to bring home the guilt of accused.

Before we examine the legality of the order of acquittal recorded

by learned trial court, it would be apt to first deal with the factual matrix of the

present case.

The prosecution agency was set into motion on an application

Ex.PW-6/A filed by the complainant, who was examined during trial as PW-7.

In her complaint, she levelled allegations against respondent-accused

that he had induced her to deliver Rs.10 lakhs and her jewellery items to him,

under the assurance of providing job to her. Secondly, that on 22.10.2014,

accused-respondent called her in his office "Prime Tech International" and

gave her juice to drink and thereafter, she became unconscious and in her

unconscious state accused raped her and took her obscene photographs. The

respondent-accused also gave two affidavits and two cheques amounting to

Rs.10 lakhs and Rs.1 lakh respectively. On the basis of aforesaid application

Ex.PW-6/A, a formal FIR was registered. Matter was investigated; respondent-

accused was arrested and he was subjected to medico-legal examination by

Dr. Anoop Goel, Medical Officer, MLGH, Yamuna Nagar, examined as PW-2,

during trial. The statement of the complainant was recorded under Section 164

Cr.PC. She was also subjected to medico-legal examination by Dr. Pragati

Garg, Medical Officer, MLGH, Yamuna Nagar, examined as PW-3, during

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trial. It is apt to mention here that the victim refused to get her medical

examination done. After completion of investigation proceedings, final report

was filed before the learned trial court.

Trial Court framed charges against the respondent-accused under

Sections 420, 376, 328, 506 IPC, 1860 vide order dated 04.02.2016. In order

to prove its case, prosecution examined as many as 10 witnesses whereas,

Inspector/SHO Rajeev, Smt. Nirmal Kanta and Constable Pardeep were given

up as unnecessary witnesses and witness Sanjay Tyagi was given up being won

over by respondent-accused.

Apart from the oral evidence, prosecution placed on record

various documentary evidence. Learned trial court after considering the ocular

and documentary evidence recorded the finding of acquittal. Now the State

has filed present application for grant of leave to appeal to challenge the order

of acquittal. There is no dispute that the Code does not impose any such

restriction upon Appellate Court while dealing with an order of acquittal. High

Court has full power to appreciate the entire evidence to reach its own

independent conclusion. It is open for High Court to re-determine the question

of facts and law. For this, we place reliance upon the judgment passed by

Hon'ble Supreme Court in State of Maharashtra vs. Sujay Mangesh

Poyarekar, 2008 (9) SCC 475.

Hon'ble Supreme Court in Chandrappa vs. State of Karnataka,

2007(2) RCR (Crl.) 92 laid down broad principles to be followed while dealing

with an appeal against an order of acquittal, which are as under:

(1) An appellate Court has full power to review, re-

appreciate and reconsider the evidence upon which the

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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, based 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.

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(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.

In Bishan Singh vs. State of Punjab, 1974 (3) SCC 288, Hon'ble

Supreme Court held as under:

"22. It is well settled that the High Court in appeal under Section 417 of the Code of Criminal Procedure has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as: (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witnesses."

Ordinarily, the order of acquittal will not be interfered with,

lightly, merely because other view is possible. Upon passing of an order of

acquittal, presumption of innocence in favour of the accused gets reinforced

and strengthened, as laid down by Hon'ble Supreme Court in Harijana

Thirupala vs. Public Prosecutor, High Court of A.P., (2002) 6 SCC 470.

In view of the above legal preposition, as laid down by Hon'ble

Supreme Court, we have examined the impugned order of acquittal and oral as

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well as documentary evidence led by the prosecution. We do not find any

perversity or illegality in the order of acquittal recorded by the trial Court.

The case of prosecution mainly revolves around the statement of

the prosecutrix, who was examined as PW-7, apart from other documentary

evidence. Therefore, it is important for us to examine whether the statement of

the complainant is trustworthy and credible enough to bring home the guilt of

the accused. It is a settled preposition of law that the testimony of the

prosecutrix is sufficient to base conviction of the accused and no corroboration

for the same is required. However, to that end, it is required that such

testimony shall be credible and inspire enough confidence of the Court for it to

be relied upon. The prosecution has to prove its case beyond reasonable doubt

and onus cannot be discharged by merely establishing a fact on preponderance

of probability.

In the present case, complainant in her application Ex.PW-6/A

made the following allegations:

"She (complainant) is resident of 'J' Colony, Camp, District XXX. She has filed a dowry case against her husband and in connection of that case, she used to come to Jagadhri Court. In August, September, 2013, she met with Shyam Sunder s/o Dharam Pal, resident of Buria Road, Jagadhri in the Premises of Jagadhri Court and they started talking each other. He assured her that he will get the decision in her favour as he is having contact with Higher Officers and will manage Government job for her, as he is having contact with Chief Minister, Uttar Pradesh. She came into his assurance because of her tension. Shyam Sunder used to meet her in car with red light. He demanded Rs.10 lacs from her for arranging job for her.

From October 2013 to October, 2014, he called her in his

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office name and style as 'Prime Tank International' and pressurised her for doing bad act with her, but she shouted on him. He told her to have juice and after taking same, she became unconscious and taking the benefit of her unconsciousness, he raped her. He clicked her obscene photographs. She objected but Shyam Sunder said that if she wanted to get job, she will have to do all this. Thereafter, Shyam Sunder maintained physical relations with her forcibly. She said that she will complain against him before police. He started feeling sorry and said that he will return her money. He gave two affidavits and two cheques of his account to her in January and February, 2015 and he obtained her signatures on blank papers in connection with arranging job. Money and jewellery were given by her to Shyam Sunder in the presence of her relative Sanjay Tyagi s/o Sh. Prem Nath, resident of 'J' Colony, District XXX. Thereafter, Shyam Sunder met her for one/two times in her house and assured that he will return her money, but he did not return the same. Shyam Sunder met her at Pyara Chowk, where she asked about her money and photographs, otherwise, she will make complaint in the police station, on this, he extended threat to injure her life and fled from there. Action be taken against Shyam Sunder and her money, jewellery and photographs be recovered."

When she was put to cross-examination, she could not stand by

that. During her cross-examination, she categorically admitted that in her

earlier complaint dated 04.07.2015 she did not allege the fact that on

22.10.2014 the accused called her to his office by the name "Prime Tech

International" situated at Lal Dwara, Yamuna Nagar and offered her juice and

thereafter she became unconscious and in her unconscious stage, accused

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committed rape upon her. It is important to reproduce the relevant extract of

cross-examination, which may be read as under:

"I did not get scribe in my complaint, which was got filed in 04.07.2015 that on 22.10.2014, accused called me to his office by the name Prime Tech International situated at Lal Dwara, Yamuna Nagar and accused Shyam Sunder offered me juice as well as I drank the juice and became unconscious or that accused Shyam Sunder committed rape upon me. I never got recorded in my complaint dated 04.07.2015 that when I regained consciousness after some time, accused Shyam Sunder showed my obscene photographs which he had clicked in his mobile or that he threatened me not to disclose about that incident to anybody or that on the pretext, he started blackmailing me. Volunteered stated that I have not got recorded these facts in said complaint due to pendency of my matrimonial litigations and due to social blemish. I never got scribed in my complaint as well as in affidavit that accused also threatened me that he will tell the entire incident to my in-laws. I never got recorded in my complaint dated 04.07.2015 that he used to force me to maintain sexual relations with him under the pretext of showing my obscene photographs to all. No such photographs on file. Volunteered stated that I have not got recorded these facts in said complaint due to pendency of my matrimonial litigations and due to social blemish. Accused Shyam Sunder has also moved complaint against me before S.P., Yamuna Nagar apprehending his false implication at my instance before the present case. Accused had filed another complaint against me on 19.03.2015. The enquiry of my complaint, which was filed in the month of July, 2015 was conducted firstly by DSP, Yamuna Nagar and thereafter, it was enquired by DSP, Bilaspur. I am aware of the fact that DSP, Bilaspur had given the findings on my complaint that this matter is related to money transaction."

Upon a bare reading of the examination-in-chief and cross

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examination of the complainant, it is crystal clear that there are material

contradictions in the statements. She is a well educated woman and is M.A.

M.Phil. She clearly admitted during her cross-examination that she never got

her statement recorded before any authorities or any person regarding

commission of rape upon her by the respondent-accused till the time she filed

the application on 02.10.2015 upon which present FIR was registered.

From the above facts, it is crystal clear that the complaint dated

02.10.2015 was result of gross vice of pre-mediation and concoction.

As per complainant, she was blackmailed by the respondent-

accused on the pretext of her obscene photographs. However, those

photographs were not placed on record by the prosecution. In her complaint

filed before the police, she did not mention any date when she was subjected to

rape. However, when she stepped into the witness box, during trial, she stated

for the first time that the incident of rape occurred on 22.10.2014. For a

complete year she opted to remain silent. Moreover, she filed a different

complaint dated 04.07.2015 against the accused wherein, no allegation of rape

was made.

The complainant at the time of cross-examination has duly

admitted that she had filed a complaint against the accused under Section 138

of Negotiable Instrument Act, 1883, which was subsequently dismissed vide

judgment dated 04.12.2017 Ex.D-3. A perusal of the said judgment clearly

depict that she did not level any allegation with regard to commission of rape

by the accused person. In that complaint, the complainant alleged that she

gave total sum of Rs.6,01,200/- and jewellery weighing 12 tolas to the

respondent-accused for the purpose of doing some work/providing government

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job. However, when she stepped into the witness box and was subjected to

cross-examination, she stated that the amount was taken by the accused for

some personal work, which was never disclosed by the accused but she also

stated that accused had also assured her to provide some government job.

Upon finding a contradictory statement of the prosecutrix, learned Judicial

Magistrate, Ist Class dismissed the complaint filed against the respondent-

accused under Section 138 of Negotiable Instrument Act.

Prosecution also examined Dr. Pragati Garg, Medical Officer

MLGH, Yamuna Nagar as PW-3, who categorically deposed that prosecutrix

refused to get herself medico-legally examined. The relevant extract of

statement of PW-3 is read as under:

"Stated that on 02.10.2015, L/ASI Menka had brought prosecutrix for medical examination, but she refused for the medical examination and also given in writing to this effect. MLR is Ex.PW-3/A, which bears my signatures. She had specifically stated that she is not under any pressure to refuse her medical examination."

It is also important to note here that one of the important

witnesses, namely, Sanjay Tyagi was not examined by the prosecution. As per

the prosecution, Sanjay Tyagi was present at the time when the accused gave

two affidavit and two cheques in January and February, 2015 and obtained

signatures of the prosecutrix on blank papers in connection with the arranging

some job. Hiding of an important witness causes dent in the prosecution story.

Moreover, there is no evidence on record to prove that the complainant was

administered some stupefying/intoxicating substance.

As per the complainant, the reason for not disclosing the

incidence of rape for complete one year was because the accused was in

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possession of her obscene photographs, which were taken by him when she

was unconscious. However, neither the prosecution agency recovered those

photographs specifically when three different disclosure statements of

respondent-accused were recorded nor the complainant produced on record

those photographs in order to substantiate the reason for delay in lodging the

FIR. There is no dispute that in case where there are allegations of rape, delay

in general is not fatal to prosecution case. However, in the present

circumstances, where the statement of the prosecutrix is not credible, the

relevant delay is also but one of the reasons, which was aptly considered by the

trial Court in recording the order of acquittal.

We thus, do not find any merit in the application for grant of leave

to appeal filed by the applicant-State and therefore, the same is dismissed.

Case property, if any, be dealt with and destroyed after the expiry

of the period of limitation. Trial Court record be sent back.

(SURESHWAR THAKUR)                                    (KULDEEP TIWARI)
        JUDGE                                             JUDGE


16.11.2022
sonia

             Whether speaking/non-speaking?                  Yes/No
             Whether reportable?                             Yes/No




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