GA/198/2015
2021 Latest Caselaw 1320 UK

                                                        Reserved
      IN THE HIGH COURT OF UTTARAKHAND
                           AT NAINITAL
     THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH
                          CHAUHAN

                                   AND

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


                GOVERNMENT APPEAL No. 198 OF 2015

                           6th April, 2021

   Between:

   State of Uttarakhand                               ....Appellant.

   and

   Ramlakhan                                         ...Respondent

Counsel for the appellant: Mr. Amit Bhatt, learned Deputy Advocate General with Mr. Rakesh Kumar Joshi, learned Brief Holder for the State of Uttarakhand Counsel for the respondent: Mr. Mukesh Singh Rawat.

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

Aggrieved by the judgment dated 26.08.2015,

passed by the Fourth Additional Sessions Judge,

Dehradun, in Sessions Trial No. 33 of 2011, whereby the

learned Trial Court has acquitted Ramlakhan, the

accused, of offense under Section 376 IPC, the State has

filed the present appeal.

2. Briefly, the facts of the case are that on

27.07.2010, the prosecutrix (P.W. 1) submitted a written

report (Ext. Ka-1) before the SHO, Nehru Colony,

Dehradun, wherein she claimed that her father, Vinod

Chetri, had expired in 2005. After the death of her

father, her mother, Smt. Meena Chetri, started running a

General Store. Subsequently, she developed an illicit

relationship with her tenant, Ramlakhan, who does a

business of selling glass and mirrors. She further

claimed that when she came to know about this illicit

relationship between the two, she tried to reason out

with her mother. However, her mother threatened her,

and forced her to have physical relationship with

Ramlakhan. Due to her sexual exploitation by

Ramlakhan, she felt so ashamed that she could not

speak about it to anyone. At the instance of her mother,

she was repeatedly raped by Ramlakhan. Eventually, she

gathered sufficient courage to talk about this incident to

the leader of the Samajwadi Party, Smt. Hema Bohra

(P.W. 3). With her support, the complainant claimed that

she developed sufficient courage to report this case to

the Police.

3. On the basis of this report, a formal FIR, namely,

FIR No. 112/2010 (Ext. Ka-9), was chalked out, and the

investigation commenced.

4. During the course of the investigation, the

accused, Ramlakhan, was arrested; he was put up for

trial. In order to establish its case, the prosecution

examined five witnesses, and submitted twelve

documents. In turn, the defense examined one witness,

and submitted seventy-four documents.

5. After going through the evidence produced by

both the sides, by the judgment dated 26.08.2015, the

learned Trial Court acquitted the accused. Hence, the

present appeal filed by the State.

6. Mr. Amit Bhatt, the learned Deputy Advocate

General for the State, has raised the following

contentions before this Court:-

Firstly, the star witness of this case is the

prosecutrix (P.W. 1) herself. However, the learned Trial

Court has ignored her testimony. Instead, the learned

Trial Court has over-critically analyzed her testimony in

order to find faults with her deposition. Therefore, in

extremely perverse manner, it has concluded that the

prosecutrix is unreliable and untrustworthy witness.

Secondly, the Medical Report (Ext. Ka-11) clearly

indicates that the hymen of the prosecutrix was broken.

This clearly is an indication that she has been subjected

to sexual assault by the accused.

Thirdly, according to the prosecutrix (P.W.1),

once the incident was revealed to Hema Bohra (P.W. 3),

she had gone to the house of the prosecutrix and had

called her mother, Smt. Meena Chetri, and the accused,

Ramlakhan. Admittedly, Ramlakhan had written a

Mafinama (an apologetic admission made in writing)

(Ext. Ka-4). Therefore, the accused had admitted his

guilt. Hence, the learned Trial Court was not justified in

ignoring the Mafinama.

Fourthly, the testimonies of Ruchi Chetri (P.W.

2) and Hema Bohra (P.W. 3) have supported the

testimony of the prosecutrix (P.W. 1). In fact, Ruchi

Chetri (P.W. 2) is the aunt of the prosecutrix, and Hema

Bohra (P.W. 3) is an adopted aunt, who has been treated

as a family member of the prosecutrix. Therefore, the

learned Trial Court is not justified in ignoring their

testimonies.

Lastly, both through the testimonies of the

witnesses, and through the documentary evidence, the

prosecution had succeeded in establishing its case

beyond a reasonable doubt against the accused. But,

notwithstanding the cogent and the convincing evidence

produced by the prosecution, the learned Trial Court has

unnecessarily over-analyzed the evidence. Needlessly,

the learned Trial Court has based its reasoning on

technicalities, surmises and conjectures. Therefore, the

impugned judgment deserves to be set aside by this

Court; the accused deserves to be convicted, and

sentenced by this Court.

7. On the other hand, Mr. Mukesh Singh Rawat, the

learned counsel for the accused, has raised the following

counter-arguments:-

Firstly, the scope of interference with an

acquittal order is extremely limited. An acquittal order

can be set aside, if it were perverse. The perversity

would emanate from the fact that the learned Trial Court

has either ignored an evidence, which is readily available

on record, or has based its reasoning on conjectures and

surmises, or has misapplied the law. However, in the

present case, none of these factors exist. Therefore, the

judgment is not a perverse one. Hence, it should not be

disturbed lightly.

Secondly, the learned Trial Court has given

cogent reasons for disbelieving the testimony of the

prosecutrix. For, from day one the prosecutrix has not

given the details of the incident either in the complaint

filed by her, or in her statement recorded under Section

164 Cr.P.C., or even in her testimony before the Court.

She has vaguely claimed that she was sexually exploited

by the accused for four to five years at the instance of

her mother. Moreover, she has given a self-

contradictory statement with regard to the reason why

she was forced by her mother to subject herself to the

sexual exploitation by the accused.

Thirdly, on the one hand, the prosecutrix claims

that she was forced to have physical relationship with

the accused under threat, as neither her mother nor the

accused wanted her to reveal their illicit affair to the

public at large. Yet, on the other hand, in her cross-

examination, she admitted that she never saw her

mother and the accused in the compromising position.

In fact, she learned about the illicit relationship from the

people at large and from her grand-mother. If the

people at large were well aware of the illicit affair of

them, the statement of the prosecutrix that her mother

and the accused wanted to stop her from revealing their

relationship to the people at large makes no logical

sense. For, the said information was public knowledge.

Therefore, the very motive for coercing the prosecutrix

into the alleged relationship with the accused falls apart.

Fourthly, the testimony of the prosecutrix is

belied by the medical evidence. Although, according to

the prosecutrix, last time the accused had sexual

intercourse with her on 27.06.2010, yet, according to the

Pathology Report dated 27.07.2010 (Ext. Ka 11), the

vaginal swab clearly indicated the presence of human

spermatozoa. There is no evidence to show that the

spermatozoa belongs to the accused. Thus, the presence

of the human spermatozoa in the vaginal swab of the

prosecutrix clearly reveals that she was having sex with

someone else, but certainly not with the accused.

Lastly, even with relation to the testimony of

Ruchi Chetri (P.W. 2) and Hema Bohra (P.W. 3), the

learned Trial Court has correctly assessed their

testimonies; it has validly declared them to be

untrustworthy witnesses. Ruchi Chetri (P.W. 2) admits

that she is the real aunt of the prosecutrix. She further

admits that she is an accused in the alleged murder of

the prosecutrix's father. Moreover, the testimonies of

Ruchi Chetri (P.W. 2) and Hema Bohra (P.W. 3) clearly

indicate that both these ladies were trying to take-over

the property which belonged to the prosecutrix's father.

There was an animosity between Ruchi Chetri (P.W. 2)

and Hema Bohra (P.W. 3) on one side, and the mother

of the prosecutrix and the accused on the other side.

Since the prosecurix's mother was against the marriage

of the prosecutrix with Saurabh Bohra, these two ladies,

along with the prosecutrix, fabricated a false case

against the accused and the prosecutrix's mother in

order to get rid of them. They have succeeded in their

plan, as the prosecutrix's mother has absconded, and

her property has been attached and sold. The accused,

on the other hand, has been arrested, and tried in the

present case. Therefore, the learned Trial Court was

justified in concluding that a false case has been

fabricated against the accused. Thus, the acquittal of

the accused is legally valid. Hence, Mr. Mukesh Sing

Rawat, the learned counsel for the accused, has

supported the impugned judgment.

8. Heard the learned counsel for the parties,

examined the record, and perused the impugned

judgment.

9. There are certain well established principles with

regard to the jurisdiction of the High Court while dealing

with an acquittal order. In the case of Sampat Babso

Kale v. State of Maharashtra [(2019) 4 SCC 739],

the Hon'ble Supreme Court has laid down the principles

with regard to the powers of an appellate Court in an

appeal against an acquittal order. The Hon'ble Supreme

Court observed as under:-

8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415, laid down the following principles: (SCC p. 432, para 42) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise 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 is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

10. In the case of State of Rajasthan v. Naresh

[(2009) 9 SCC 368], the Hon'ble Supreme Court

opined that "an order of acquittal should not be lightly

interfered with even if the court believes that there are

some evidence pointing out the finger towards the

accused".

11. These principles have recently been reiterated by

the Hon'ble Supreme Court in the case of Anwar Ali &

another v. State of Himachal Pradesh [(2020) 10

SCC 166]. Therefore, these settled principles of

criminal jurisprudence would have to be kept in mind

while examining the legality or illegality of the impugned

judgment.

12. The prosecutrix has been examined as P.W. 1.

In her examination-in-chief, she claims that "her father,

Vinay Chetri, expired in 2005. Six to seven months after

his death, the accused became her tenant in one of the

shops owned by her family. He also developed physical

relationship with her mother, Smt. Meena Chetri". I

tried to reason with my mother on various occasions. My

mother's General Store was one shop away from the

shop rented by the accused. When I tried to reason with

my mother, my mother started threatening me, and

started forcing me to have physical relationship with

Ramlakhan. When I refused to do so, my mother, the

accused, Ramlakhan, assaulted me, and would force me

to have physical relationship with him. I was a minor

then. I was in a lot of tension. The accused was having

physical relationship with me for the last four to five

years. When things started going above my head, my

aunt Hema Bohra (P.W. 3), who used to come to my

house very often, I gathered sufficient courage to reveal

the incident to her. My mother and the accused used to

threaten me that I should not reveal anything to the

people at large. After I told about the incident to my

aunt, Smt. Hema Bohra (P.W. 3), then on 27.07.2010, I

lodged the report with the police." The witness further

claims that on 28.07.2010, her statement was recorded

by a Magistrate under Section 164 Cr.P.C. When the

statement was shown to her, she identified the same.

13. In her cross-examination, the prosecutrix

(P.W. 1) admits that her father was murdered. She

claims that she does not know the name of the killer as

there were many accused, but she admits the fact that

"it is true that my uncle and aunt were accused in the

said case. My aunt's name is Ruchi Chetri". She further

admitted that "it is true that Vinay Chetri (her uncle) was

also murdered". But she claims that "Ruchi Chetri, her

aunt, is not an accused in the said murder". She further

claims that Hema Bohra (P.W. 3) has been coming to

their house for a long time. By relation, she is her aunt.

She further admitted that till 2nd July, 2010, she had

lived with her mother. Thereafter, she is living with her

aunt (Ruchi Chetri). According to her, while her mother

lives on the ground-floor, her aunt, Ruchi Chetri (P.W.

2), lives on the first-floor. She further claims that on

08.08.2010, she was married to Saurabh Bohra.

According to her, she was engaged to Saurabh Bohra on

26.07.2010 at the house of her aunt, Ruchi Chetri (P.W.

2). She further claims that Hema Bohra (P.W. 3), her

aunt, had discovered the boy, Saurabh Bohra, as a

bridegroom for her.

14. Furthermore, in her cross-examination, she

admits that in her complaint, she never stated that "the

accused was sexually exploiting her for last four to five

years, and her mother and the accused used to beat her

up, or used to threaten her."

15. The prosecutrix further admitted in her

cross-examination that after 27.06.2010, she had no

contact with the accused. According to her, "she had

never seen her mother and the accused in compromising

situation. She had heard about the illicit relationship

between the two from the neighbours and from her

grand-mother." However, she could not reveal the

names of the neighbours, who had told her about the

illicit affair.

16. The prosecutrix further claimed in her

cross-examination that "she had informed the Magistrate

about the dates on which she was physically and sexually

assaulted by the accused." However, when the

statement under Section 164 Cr.P.C. was shown to her,

she admitted that no specific dates have been

mentioned, only years have been mentioned. She

further admitted that she "was never medically examined

for the injuries caused to her due to the assault carried

out by her mother and the accused."

17. In her cross-examination, she further

admits that "the Mafinama (Ext. Ka 4) was never shown

to S.P. Sahab. It could not be shown as it was in the

possession of Hema Bohra (P.W. 3)." According to her,

"when she went and met S.P. Sahab, Hema Bohra and

Laxmi Devi were with her." She further admitted that

even "when she went to Woman Helpline (Mahila Help

Line), she did not show them the Mafinama (Ext. Ka-4)."

According to her, "her aunt, Hema Bohra, had shown the

Mafinama (Ext. Ka-4) in the police station. But they were

told to submit the same during the trial." She further

admitted that "the Mafinama was never in her

possession, but was always in the possession of Hema

Bohra." She claimed that "she had spoken about the

existence of the Mafinama (Ext. Ka-4) in her statement

recorded under Section 161 Cr.P.C." But, once she was

confronted with the said statement, she could not

explain as to why such an information was not

mentioned in her statement. She further stated that she

did not mention about the Mafinama before the

Magistrate. However, she claimed that she had

mentioned about the Mafinama in the complaint given by

her (Ext. Ka-1). When she was confronted with the copy

of her complaint (Ext. Ka 1), she admitted that the

Mafinama (Ext. Ka-4) is not mentioned in the said

complaint (Ext. Ka-1).

18. A bare perusal of the testimony of the

prosecutrix (P.W. 1) brings out certain salient points:_

Firstly, the testimony is bereft of details with

regard to the date, and the place when and where she

was sexually assaulted by the accused. Surprisingly, the

prosecutrix does not even mention when she was first

time forced to have physical relationship with the

accused, either by her mother or the accused, or by

both.

Secondly, there are no details, whether the

prosecutrix was sexually exploited by the accused in her

own house, or at any other place. Only a vague

statement has been made that "she was sexually

exploited by the accused for four to five years."

Therefore, her testimony is bereft of the concrete details

that are expected from a prosecutrix. Only vague

statements and allegations have been levelled against

the accused.

Thirdly, despite the fact that she claimed that a

Mafinama (Ext. Ka-4) was written by the accused, the

existence of the Mafinama is neither mentioned in the

complaint given to the police, nor in her statement under

Section 161 Cr.P.C., nor in the 164 Cr.P.C. statement

given by the prosecutrix. For the first time, she

mentions the existence of the Mafinama in her

testimony. Interestingly, she claimed that both at the

time of the complaint (Ext. Ka-1) and at the time of

recording of her statement under Section 164 Cr.P.C. by

the Magistrate, Hema Bora (P.W.3) had accompanied

her. Yet, the mentioning of Mafinama is conspicuously

missing from the complaint and from the 164 Cr.P.C.

statement.

Fourthly, although the prosecutrix claims

that the Mafinama was always in the possession of Hema

Bohra (P.W.3), interestingly, the Mafinama was produced

before the Court by Ruchi Chetri (P.W. 2). The

prosecution has not revealed as to how the Mafinama,

which was stated to be in possession of Hema Bohra

(P.W. 3), came into the possession of Ruchi Chetra

(P.W.2).

Fifthly, the prosecution has not submitted

any evidence to prove that the writing in the Mafinama is

that of the accused. Therefore, the authenticity and the

veracity of the Mafinama is highly doubtful.

Sixthly, Ruchi Chetri (P.W. 2) claims in her

examination-in-chief that "although the prosecutrix had

mentioned the sexual exploitation by the accused, firstly,

to her aunt, initially she did not believe the prosecutrix.

It is only when the prosecutrix mentioned the said fact to

Hema Bohra (P.W.3) that she was convinced that such

an incident had happened. This part of the testimony of

Ruchi Chetri (P.W. 2) is contradicted by the testimony of

the prosecutrix herself, for, according to the prosecutrix

herself, she did reveal the fact of her sexual exploitation

by the accused, firstly, to Hema Bohra (P.W. 3), and not

to Ruchi Chetri (P.W.2)."

Seventhly, according to the prosecutrix,

Hema Bohra (P.W.3), the adoptive aunt of the

prosecutrix, was a frequent visitor to her house.

Therefore, she gathered enough courage to reveal the

incident, firstly, to Hema Bohra (P.W. 3). However,

Hema Bohra (P.W.3) contradicts the testimony of the

prosecutrix. For, Hema Bohra (P.W.3) clearly states that

she never visited the house of the prosecutrix. According

to her, the prosecutrix merely informed her on the

telephone. Therefore, it is highly unlikely that the

prosecutrix would have revealed her story to a person

who is a totally stranger to her.

Eighthly, the prosecutrix claims that it is

Hema Bohra (P.W.3), who had discovered her fiancé

Saurabh Bohra. Yet, on the other hand, Smt. Hema

Bohra(P.W. 3) neither attended the engagement, nor the

marriage of the prosecutrix with Saurabh Bohra. This is

rather surprising that a person, who is stated to have

found the bridegroom for the prosecutrix, is allegedly

very close to the family, and is allegedly a frequent

visitor to the family of the prosecutrix, would not even

attend the engagement and / or the marriage of the

prosecutrix. Therefore, it is highly doubtful whether

Hema Bohra (P.W.3) was really close enough to the

family, or was a frequent visitor to the family, for the

prosecutrix to reveal the sexual assault suffered by her

to Hema Bohra (P.W. 3).

Ninthly, in her cross-examination, the

prosecutrix admits that after 27.06.2010, she never met

the accused, Ramlakhan. Yet, according to the Medical

Report (Ext. Ka-11) dated 27.07.2010, "Human

Spermatozoa" was found in the vaginal swab of the

prosecutrix. It is, indeed, a common knowledge that a

spermatozoa does not survive in the vagina for more

than seventy-two hours. Therefore, the presence of

human spermatozoa in the vaginal swab of the

prosecutrix, that too, after a month after her alleged

meeting with the accused throws a grave suspicion about

the veracity of her testimony.

19. A bare perusal of the impugned judgment clearly

reveals that the learned Trial Court has critically analyzed

the evidence produced by the prosecution. The learned

Trial Court has made a reasonable assessment of the

evidence produced by the prosecution; the learned Trial

Court has given cogent and convincing reasons for

acquitting the accused. Since a reasonable view has

been taken by the learned Trial Court, this Court does

not find any illegality, or perversity in the impugned

judgment.

20. For the reasons stated above, this Court does

not find any merit in the present appeal. The same, is

hereby, dismissed.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 6th April, 2021 Rathour