State Of Uttarakhand vs Meharban @ Sahcin
2022 Latest Caselaw 3275 UK

                                  Reserved on: 06.08.2022
                                  Delivered on: 11.10.2022



     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

              Government Appeal No. 53 of 2013


State of Uttarakhand           ............           Appellant

                            versus

Meharban @ Sahcin              .............        Respondent


Mr. J.S.Virk, learned Deputy Advocate General, assisted by Mr.
Rohit Dhyani, learned Brief Holder for the State/appellant.
None for the respondent.


Coram:     Hon'ble Sanjaya Kumar Mishra, J.

Hon'ble Alok Kumar Verma, J.

Per: Sanjaya Kumar Mishra, J.

1. State has preferred this appeal against judgement of acquittal passed by the learned 4th Additional Sessions Judge, Haridwar, in Sessions Trial No. 286 of 2008, State vs. Meharban @ Sachin on 06.03.2013, whereby the learned Sessions Judge has acquitted the respondent Meharban @ Sachin for the offence under Sections 363, 366 and 376 of the Penal Code (hereinafter referred to as "the Penal Code", in brief).

2. The case of the prosecution is that the informant, who happens to be father of the victim (his name has been withheld in this judgement) produced a

written First Information Report in the Jwalapur Police Station, Haridwar that his daughter, who was working in a private factory was enticed away under the threats by the respondent on 01.12.2007 and that she was found on 02.12.2007 in the state of unconsciousness near Jatwara Bridge. She informed that the respondent Sachin alias Meharban r/o Sultanpur Kunhari, PS Laksar, who was commuting the victim, as an auto-rickshaw driver committed rape upon her. On such report submitted on 02.12.2007 at 08:45 PM, case crime no. 545 of 2007, was registered for the aforesaid offences. Thereafter, the Investigating Officer examined the complainant, victim and other witnesses, got the victim and examined medically, got her statement under Section 164 of the Code of Criminal Procedure, 1973, (herein after referred to as the "the Code", for brevity). Upon completion, investigating Officer submitted a charge-sheet against the respondent. The case was registered as Sessions Trial No. 286 of 2008 and was committed to the Court of Sessions.

3. The respondent took the plea of denial and pleaded his false implication by the Investigating agency.

4. In order to prove its case, the prosecution examined six witnesses. The victim (her name is withheld) was examined as PW2. PW1 is her father and informant of the case. PW3 Doctor Chandra

Prabha is the Doctor, who examined the victim. PW4 is mother of the victim. PW5 Dr. R. K. Pandey is a Radiologist, examined to prove the Ossification test. PW6 Constable Bhagwati Prasad is the Constable in the office of Senior Superintendant of Police, Roshnabad, Haridwar. PW7 is the Head Constable Ajeet Singh and PW8 Mahendra Singh Chauhan is Sub Inspector, who investigated the case.

5. Learned 4th Additional Sessions Judge, Haridwar after taking into consideration the evidence of the prosecutrix and also medical evidence produced came to the conclusion that the prosecution has not proved its case beyond all reasonable doubts, taking into consideration specially the fact that the victim was travelling with the respondent for a long time and passed through a very crowded streets and also where the police constables were deputed, came to the conclusion that she was the consenting party. The learned Sessions Judge further found that there are no admissible documents produced in this case to establish the age of the victim. Hence, he held that the victim was not a minor at the time of occurrence. Therefore, the learned 4th Additional Sessions Judge came to the conclusion that the respondent is not guilty of the offenses alleged against him.

6. In assailing the finding recorded by the learned Trial Judge, Mr. J. S. Virk, learned Deputy Advocate General would submit that the learned

Trial Judge committed error by not taking into consideration the fact that all the prosecution witnesses have supported the case of the prosecution, especially, the victim has supported the case of the prosecution. The age of the victim was about 16-17 years as per the report of the radiologist PW 5 Dr. R.K.Pandey. Therefore, the learned counsel for the State would submit that the learned 4th Additional Sessions Judge, Haridwar has committed error on record requiring the interference of the Appellate Court.

7. It is borne out from the record that that the victim has supported the case of the prosecution. It is, however, taken into consideration by the learned Additional Sessions Judge that the victim has stated in her statement that she went on the auto- riksha of the respondent from Sector-2 area towards the factory on his assurance that he will leave her in the factory. In between they went to Shivalik Nagar and Bahadrabad. From Bahadrabad, they took a bus to Prian Kaliyar. She has admitted that at Sector-2, several factories were there. They crossed Payal Cinema Hall, Harbel Chowk, Shivalik Nagar, the police barrier and the industrial area etc. On the road, they crossed the industrial area police chowki and that she did not raise any hue and cry even while travelling with the respondent in his auto-riksha or while they were travelling in the bus. The learned Sessions Judge also took into consideration that the victim did not reveal the

registration number of the three-wheelers nor any three-wheelers was seized. The cloths, the victim was wearing at the time of occurrence, were no sent for sent for Forensic Science Laboratory for examination. It also weighed in the mind of the learned Sessions Additional Judge that where the 14 hours prior to the occurrence of rape, the victim moved the round in the company of the respondent and the passed through very crowded places. She has also admitted that she was sitting on the back seat of the tempo and the respondent was driving the tempo. Thus, the learned Trial Judge has come to the conclusion that from the materials available in the case, the prosecution has failed to prove that the respondent by using force against the will and consent of the victim, kidnapped/abducted and that he committed rape against her will.

8. It is true that the prosecutrix has supported the case of the prosecution, but the learned Trial Judge who had the opportunity of recording the deposition of the victim and saw the demeanour of the victim at the time of the examination, came to the conclusion that she is a consenting party of the occurrence. In an Appeal against acquittal, the presumption of innocence of the accused becomes standard.

9. We also take note of the ratio decided by the Hon'ble Apex Court in Ghurey Lal vs. State of U.P., (2008) 10 SCC 450 in which the Hon'ble

Supreme Court after taking into consideration the host of earlier judgments and the principles guiding conciliation and disposal of appeal against acquittal, laid down the following principles:-

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

10. Moreover, in this case, the Court finds that the Doctor, who has medically examined the witness, i.e., PW3, Doctor Chandra Prabha has stated that on 02.12.2007, she medically examined the victim and on further examination of her private parts, she did not found any injury on the private part. Neither there was any bleeding or any dirty discharge. There was old tear of hymen. The swab was collected for pathological examination. On 21.12.2007, the pathological examination report was examined by the Doctor. The pathological report reveals that no spermatozoa were found in the same. Though, the ossification test reveals that the victim's girl is 16-17 years, the PW5 Doctor R. K. Pandey, has stated that the

ossification test of the victim was conducted by him on doing ex-rays of the joints of the victim.

11. As far as, the determination of age on ossification test is concerned, the Hon'ble Supreme Court in the case of Jai Mala vs. State of J & K, (1982) 2 SCC 538, has held that it is it is notorious that the ossification test have a margin of error of 1 ± 2 years. Hence, it cannot be said to be a sure and objective determination of the age of the victim. Moreover, in this case, the victim herself has stated that she was 20 years old and that no documentary evidence was produced in support of her date of birth. The charge-sheet was also not submitted under the provisions of the POCSO Act, hence it cannot be said that she was minor at the time of incident.

12. Moreover, the evidence of the Doctor, who has examined her genitals, did not found any injury. Therefore, he has not given a positive statement to the effect that there was any sign of recent sexual intercourse.

13. Thus, keeping in view the aforesaid considerations, this Court is of the opinion that there is no compelling and substantial reasons to upset the judgement of acquittal recorded by the learned 4th Additional Sessions Judge, Haridwar.

14. In that view of the matter and discussions made above, this Court is of the opinion that there is no

merit in the Government Appeal. Moreover, the State in the memorandum of appeal has not taken any specific ground about any perverse or unreasonable appreciation of evidence by the learned 4th Additional Sessions Judge. Hence, the appeal is without merit and the same is dismissed.

(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) (Grant urgent certified copy as per Rules)

Kaushal