GA/109/2013
2021 Latest Caselaw 434 UK

       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. 109 OF 2013


                        24th FEBRUARY, 2021


 Between:

 State of Uttarakhand.
                                                              ...Appellant

 and


 Mohan Lal and others.
                                                         ...Respondents

Counsel for the appellant : Mr. Jagjit Singh Virk, learned Deputy Advocate General for the State of Uttarakhand.

Counsel for the respondents : Mr. R.P. Nautiyal, learned Senior Counsel assisted by Mr. Mahavir Prasad Kohli, learned counsel for the respondents.

The Court made the following:

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

Aggrieved by the acquittal of Mohal Lal (A-1),

Ranjeet Lal (A-2) and Hukami Lal (A-3), by judgment

dated 29.03.2013, passed by the learned Sessions Judge,

Chamoli, in Session Trial No. 02 of 2009, the State has

preferred the present appeal before this Court.

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

03.08.2008, Netri Lal (P.W. 1) lodged a written report

(Ex. Ka. 1) before the Naib Tehsildar, Ghat, District

Chamoli, wherein he claimed that his minor daughter

(name withheld) was enticed by Makli Lal on 02.08.2008

at around 08:00 P.M, and was taken away by him. He

further claimed that two persons from his village, namely

Ranjeet Lal, and Hukami Lal (A-2 and A-3 respectively),

were equally involved in taking away his daughter. He

further claimed that Makli Lal had also taken away a few

pieces of jewellery and cash. According to him, the

accused are staying in Village Ustoli, District Chamoli.

3. Similarly on 18.08.2008, Netri Lal (P.W. 1)

submitted another report before the District Magistrate,

Chamoli, wherein he claimed that his minor daughter is

studying in Class-VIIIth. According to him, Mohan Lal,

Ranjeet Lal and Hukami Lal have enticed his daughter

and taken her away. According to him, Mohan Lal is

keeping his minor daughter in his house located in Village

Ustoli. Furthermore, according to him, these three

accused persons have taken away certain pieces of

jewellery such as Gulband (made of gold), one gold nose,

ring and one silver anklet. They also took away Rs.

50,000. Furthermore, according to the complainant,

Mohan Lal is already married and has two children.

According to him, Mohan Lal is keeping his minor

daughter, and is treating her like a wife. He is thereby

ruining her life. Furthermore, according to him, these

three persons are threatening him and his family.

Despite the fact that he had filed a written report before

the Naib Tehsildar, Ghat on 03.08.2008, no action has

been taken on his complaint.

4. Since neither of the two complaints elicited any

response, on 26.08.2008, Netri Lal (P.W. 1.) filed a

complaint under Section 156(3) Cr.P.C. (Ex. Ka. 3.)

before the Chief Judicial Magistrate, Chamoli, wherein he

repeated the same set of allegations against the three

accused persons. Upon an order passed by the Chief

Judicial Magistrate on 26.08.2008, the Naib Tehsildar

eventually registered an F.I.R. (Ex. Ka. 12), namely F.I.R.

No. NIL/2008, for offences punishable under Sections

363, 366, 392, 120-B and 506 IPC. Since the complaint

related to the jurisdiction of the Police, the F.I.R. was

transferred to Police Station, Chamoli, District Chamoli.

After a thorough investigation, the Police submitted a

charge-sheet against Mohan Lal for offences under

Sections 363, 366, 376, 120-B and 506 IPC. The Police

also submitted a charge-sheet against Ranjeet Lal and

Hukami Lal for offences under Sections 363, 366, 120-B

and 506 IPC.

5. In order to establish its case, the prosecution

examined eleven witnesses, and submitted twenty-three

documents. On the other hand, the defense neither

examined any witness, nor submitted any documents.

After going through the evidence produced by the

prosecution, the learned Trial Court acquitted all the

three accused persons by judgment dated 29.03.2013.

Hence, the present appeal before this Court.

6. Mr. Jagjit Singh Virk, the learned Deputy

Advocate General for the State of Uttarakhand, has raised

the following contentions before this Court :-

Firstly, the learned Trial Court has failed to

appreciate the evidence in a proper perspective.

Secondly, according to Dr. G.S. Joshi (P.W. 8),

he had examined the prosecutrix in order to determine

her age. According to the Medical Report contained in

the X-Ray Form (Ex. Ka. 9), issued by the said witness,

the prosecutrix was of the age between fifteen years and

eighteen years. Therefore, according to the medical

evidence, the prosecutix was minor. Hence, the learned

Trial Court is not justified in acquitting the accused

persons for the offences.

Thirdly, according to the Police, the prosecutrix was

recovered from the house of Mohal Lal. This fact has

been proven by Savitri Devi (P.W. 3) and by Inder Lal

(P.W. 4), and by the testimony of the prosecutrix herself.

Furthermore, according to the prosecutrix (P.W. 2), she

was enticed and taken away by Mohan Lal and was kept

in his house for forty-five days. During this time, she

was subjected to sexual intercourse.

7. On the other hand, Mr. R.P. Nautiyal, the

learned Senior Counsel for the respondents-accused, has

raised the following counter contentions before this

Court:-

Firstly, that the scope of interference in an

acquittal order is extremely limited one. The High Court,

should, ordinarily, not interfere with an acquittal order,

unless, it is convinced that the judgment is a perverse

one.

Secondly, it was the foremost duty of the

prosecution to establish the fact that the prosecutrix was

minor in order to bring home the charge of offence under

Section 376 IPC. However, the prosecution has failed to

prove this fact through cogent and convincing evidence.

The prosecution has examined four witnesses on this

point, namely Netri Lal (P.W. 1), the prosecturix (P.W. 2),

Mrs. Bimla (P.W. 6) and Bileshwar Pant (P.W. 9). The

prosecution has also produced the Admission Register

(Ex. Ka. 6), which the prosecution has tried to prove

through Mrs. Bimla (P.W. 6), and the School Leaving

Certificate (Ex. Ka. 7). The prosecution has also

produced the Family Register (Ex. Ka. 11), which they

have tried to prove through Bileshwar Pant (P.W. 9).

However, despite producing both oral and documentary

evidence, the prosecution has failed to establish the

correct age of the prosecutrix. In fact, according to Dr.

G.S. Joshi (P.W. 8), and according to the opinion given by

him in the X-Ray Form (Ex. Ka. 9), the age of the

prosecutrix is between 15 to 18 years. Relying on the

case of Om Prakash v. State of Rajasthan and

another [(2012) 5 SCC 201], the learned Senior

Counsel has pleaded that the age determination is not

with a mathematical exactitude. In fact, the age so

determined by the medical doctor may differ plus and

minus by two years. Moreover, if there are two

interpretations of the same evidence, the interpretation in

favour of the accused would have to be accepted by the

Court. Since, according to the medical evidence, the

prosecutrix is said to be of 18 years, the learned Trial

Court is justified in concluding that the prosecutrix was

major at the time of the incident.

Thirdly, according to the prosecutrix (P.W. 2),

on 02.08.2008, while she was at home, Ranjeet Lal and

Hukami Lal flashed a torch inside her house to signal her.

Having received the signal, she came out of the house

and accompanied both these accused persons for some

time. Thereafter, they met Mohan Lal, whom the

prosecutrix accompanied on road for almost twelve

kilometers. Therefore, she accompanied Mohal Lal at

night, for a long distance, without a whisper of protest.

Moreover, according to her, Mohal Lal kept her at his

house for forty-five days. Mohan Lal's wife and two

children were also present in the house. Moreover, his

house was surrounded by inhabitation. Although the

prosecutrix may claim that she was subjected to sexual

intercourse, but there is not even a whisper of protest, or

even an attempt to flee away from the house of Mohan

Lal. Thus, according to the learned Senior Counsel, this

clearly proves the fact that the prosecutrix had eloped

with Mohan Lal out of her own free will, had voluntarily

continued to stay with him at his house, it is only after

her recovery after forty-five days that the story of being

subjected to rape is fabricated by the prosecutrix and by

the complainant in order to save the honour of the family.

But there is nothing to establish the fact that she was

subjected to sexual intercourse against her will. Hence,

the learned Senior Counsel has supported the impugned

judgment.

8. Heard the learned counsel for the parties,

perused the impugned judgment and critically examined

the record.

9. There are certain 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. Firstly, to establish the fact that the prosecutrix

was indeed a minor at the time of the occurrence, as

noted hereinabove, the prosecution had produced four

witnesses, namely Netri Lal (P.W. 1), the prosecutrix

(P.W. 2), Mrs. Bimla (P.W. 6) and Bileshwar Pant (P.W.

9). The prosecution has also relied upon the Admission

Register (Ex. Ka. 6), School Leaving Certificate (Ex. Ka.

7) and the Medical Report contained in the X-Ray Form

(Ex. Ka. 9).

13. Netri Lal (P.W. 1) admits in his examination-in-

chief that he has six ,children out of whom the

prosecutrix is the eldest. He further admits that he was

married about twenty-five years ago, and the prosecutrix

was born two years after his marriage. Thus, according

to him, the prosecutrix is about twenty-three years old.

14. Mrs. Bimla, (P.W. 6) has clearly admitted in her

testimony that she is not the one who had recorded the

date of birth of the prosecutrix in the Admission Register

(Ex. Ka. 6). She further admits that the date of birth has

been interpolated, as there are changes made in the date

of birth. She has further admitted that the ink used,

while cutting the date and in changing the numerical

dates and the words, is different from the ink used for

making other entries in the Admission Register.

Moreover, wherever the numbers have been cut, there

are no initials of any person. Thus, the learned Trial

Court was justified in holding that the date of birth shown

in the Admission Register is an unreliable piece of

evidence.

15. Moreover, in the School Leaving Certificate (Ex.

Ka. 7) since the date of birth is based on the Admission

Register (Ex. Ka. 6), which is proven to be interpolated,

even the date of birth shown in the School Leaving

Certificate (Ex. Ka. 7) is unreliable. Therefore, the

learned Trial Court is certainly justified in doubting the

authenticity of the date of birth shown in the Admission

Register (Ex. Ka. 6) and the School Leaving Certificate

(Ex. Ka. 7), and in not relying on the documentary

evidence.

16. Needless to say when the documents produced

from the school are unreliable, the Court has no other

option but to rely on the medical evidence produced in

the case. Dr. G.S. Joshi (P.W. 8) has proven the Medical

Report (Ex. Ka. 4 and 5) and the X-Ray Form containing

the medical opinion (Ex. Ka. 9). According to his medical

opinion, the prosecutrix was between the age of fifteen to

eighteen years on the date of the occurrence. It is,

indeed, a settled principle that the age determination by

a medical Doctor is not with mathematical exactitude. It

is approximation of the age of the person. In the case of

Om Prakash (supra), the Hon'ble Supreme Court has

opined that the age is subject to a variation of two years

on either side. Moreover it is a settled principle of law

that in case the same evidence can be interpreted in two

different manners, the interpretation in favour of the

accused shall be accepted by the Court. Since the age of

the prosecutrix is shown to be 18 years in the X-Ray

Form report (Ex. Ka. 9), the learned Trial Court was

justified in concluding that the prosecutrix was certainly

major at the time of the occurrence.

17. The prosecutrix (P.W. 2) clearly admits that

Ranjeet Lal and Hukami Lal (A1 and A2 respectively) had

flashed a torch into her house. Thereupon, she came out

of the house and accompanied them till all three of them

met Mohan Lal. Having met Mohan Lal, she accompanied

Mohan Lal to his house, which was twelve kilometers

away from her house. Admittedly, she walked with

Mohan Lal on the streets, in the early hours of the night,

without any protest. Therefore, the prosecution has

failed to establish the fact that she was kidnapped by the

accused persons. After all, she has accompanied the

accused persons of her own free will.

18. Moreover, in her cross-examination, the

prosecutrix admits that in Mohan Lal's house, his wife and

two children were residing. The said house was

surrounded by other houses of the village. Yet she

neither protests, nor complains to Mohan Lal's wife, while

she is allegedly confined in the house for forty-five days,

and is allegedly subjected to sexual intercourse. The

conduct of the prosecutrix is certainly unnatural. For a

woman, who is repeatedly subjected to sexual intercourse

against her will, would instinctively protest, would shout

for help, or would try to run away from the clutches of

the alleged rapist. Despite the fact that the prosecutrix

had some mobility within the house, she has neither

shouted for help, nor protested, or tried to run away from

Mohan Lal's control. There is no indication that she even

communicated her difficulties to Mohan Lal's wife, or to

any other neighbour. Such a conduct clearly proves that

she stayed in Mohan Lal's house out of her own free will.

Moreover, her physical relationship with Mohan Lal was

also of her own free will. Hence, the learned Trial Court

is certainly justified in concluding that the prosecution

has miserably failed to establish the offence under

Section 376 IPC.

19. For the reasons stated above, this Court does

not find any illegality or perversity in the impugned

judgment. This appeal, being devoid of any merit, is

hereby dismissed.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 24th February, 2021 Rahul