High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Cr. Appeal No.93/2011

Decided on : 27.7.2017

__________________________________________________________

State of H.P. …..Appellant

Versus

Vineet Kumar and ors. ….Respondents

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?

1 Yes

For the appellant: Mr. V. S. Chauhan, Addl. A.G. with

Mr. Puneet Rajta, Dy. A.G. and Mr.

J.S. Guleria, Asstt. A.G.

.

For the respondents: Mr. Sunny Modgil, Advocate, vice

Mr. Devender K. Sharma, Advocate,

for respondents No. 1 to 3.

Mr. Lalit K. Sharma, Advocate, vice

Mr. D.C. Guleria, Advocate, for

respondent No.4.

_______________________________________________________________

Tarlok Singh Chauhan (oral):

By medium of this appeal, the State has assailed the

judgment dated 18.10.2010 passed by the learned Presiding

Officer, Fast Track Court, Mandi, H.P. in Sessions Trial

No.51/2007/2006, whereby the respondents have been

1

Whether reporters of the local papers may be allowed to see the judgment? yes

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acquitted of the offences punishable under Sections 366, 376,

392, 323 read with Section 34 of the Indian Penal Code.

2. The story of the prosecution has been correctly

reproduced by the learned trial court, therefore, the same is

extracted as it is from the impugned judgment.

3. The brief facts of the case are that on 27.7.2006,

complainant Labh Singh along with the prosecutrix aged about

32 years had gone from Mandi to Baggi in his Maruti car bearing

No. HP-33-A-4611 to meet one Sunil Kumar in connection with

some work. They had reached at the quarter of Sunil Kumar at

about 7.30 P.M, but the quarter was found locked. Thereafter,

while waiting for Sunil Kumar, they had proceeded towards

Dhanotu in the car. After covering some distance, they had

stopped their car near a ground. At about 8.00 P.M., while they

were talking inside the car, a Balero vehicle had come there,

which was proceeding from Baggi side towards Sundernagar.

The said Bolero vehicle was stopped near Maruti car.

4. According to the prosecution, accused Lekh Raj,

Vineet Kumar and Pawan Kumar were travelling in the said

Bolero vehicle. Accused Lekh Raj was driving that vehicle.

Accused Vineet Kumar and Pawan Kumar had alighted from that

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Bolero vehicle and started giving beating to the complainant.

They had dragged the complainant out of the Maruti car and

pushed him inside the Bolero vehicle. Accused Lekh Raj had

taken the complainant from there in the said Bolero vehicle. The

complainant was left by Lekh Raj at about 12 mid night near

Baggi. Accused Vineet Kumar and Pawan Kumar had forcibly

taken the prosecutrix in the Maruti car of the complainant at

some unknown place, where they had committed rape on the

prosecutrix inside the car and outside the car. Thereafter,

accused Vineet Kumar and Pawan Kumar had taken the

prosecutrix in that very Maruti car towards Sundernagar, where

they had called accused Himesh Kumar and got him inside the

Maruti car, then all three accused had taken the prosecutrix in

that very cay at some unknown place. All the three accused had

committed rape on the prosecutrix at that place. After that,

accused Himesh Kumar had left that place, while accused Vineet

Kumar and Pawan Kumar had taken the prosecutrix to a Hotel

known as Rising Star where they stayed with the prosecutrix in

room No.102 of the Hotel and had also committed rape on her

during night. They had left the h otel in the morning and

proceeded towards Hatgarh in Maruti car.

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5. The further case of the prosecution is that accused

Vineet Kumar and Pawan Kumar had left the prosecutrix and

the Maruti car on the way and fled away from there. On

28.7.2006, at about 9.00 A.M., complainant Labh Singh had

given telephonic information about the incident to Police Station,

Balh, on the basis of which rapat No. 34, dated 28.7.2006 was

recorded. Inspector Hemant Kumar, the then SHO, Police

Station, Balh along with other police officials, left the Police

Station to proceed towards Baggi. The police party met

complainant Labh Singh at Baggi and thereafter, the police party

searched for the prosecutrix and the vehicle. Inspector Hemant

Kumar recorded statement of the complainant Labh Singh under

Section 154 Cr.P.C., on the basis of which, FIR No. 200/2006

was recorded at Police Station, Balh. Maruti Car of the

complainant and the prosecutrix were found by the police at

B.S.L. Silt Guard, near Baggi. Police recorded the statement of

the prosecutrix. She was taken to hospital for medical

examination, but she refused to get herself medically examined

on that day. However, on 8.8.2006, the prosecutrix moved an

application to SHO, Police Station, Balh, alleging therein that

she wanted to get herself medically examined and thereafter the

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Medical Officer on duty conducted the medical examination of

the prosecutrix. During the course of the investigation, the

accused persons were arrested. Maruti car along with its seat

cover was taken into possession by the police. Police visited

Room No.102 of Hotel Rising Star from where one bed sheet and

one quilt cover were taken into possession by the police. The

clothes of accused persons which they were putting on, on the

date of incident, were separately taken into possession by the

police. Statements of witnesses were also recorded. Accused

persons were also got medically examined. It was found during

the course of the investigation that the accused Pawan Kumar,

Vineet Kumar and Himesh Kumar committed gang rape on the

prosecutrix. It was also found during the investigation that

accused Lekh Raj along with other co-accused voluntarily

caused simple hurt to complainant Labh Singh. It was also

found during the investigation that accused Pawan Kumar and

Vineet Kumar in furtherance of com mon intention committed

theft of Maruti car of the complainant and also abducted the

prosecutrix with an intention to commit rape on her. After

completion of the entire formalities, charge sheet against the

accused persons was submitted in the Court.

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6. The learned trial court after recording the evidence of

the prosecution and thereafter examining the accused persons

under section 313 Cr.P.C. acquitted them of the offences

punishable under Sections 366, 376, 392, 323 read with Section

34 of the Indian Penal Code vide judgment dated 18.10.2010

constraining the State to file the instant appeal.

7. Learned Additional Advocate General for the

appellant-State has vehemently argued that the findings

returned by the learned trial court are perverse, inasmuch as it

has not correctly appreciated the statement of the prosecutrix,

who appeared as PW5 and has further not appreciated the

statement of the complainant, who appeared as PW6.

8. Learned counsel for the respondents/accused

persons have supported the impugned judgment dated

18.10.2010.

9. We have heard the learned counsel for the parties

and have also gone through the record of the case carefully.

10. It is now well settled principle of law that conviction

can be founded on the sole testimony of the prosecutrix, unless

there are compelling reasons for seeking corroboration. It is also

equally settled that corroboration as a condition for judicial

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reliance on the testimony of the prosecutrix is not a requirement

of law but a guidance of prudence under the given

circumstances. (Refer State of Punjab Vs. Gurmit Singh

(1996) 2 SCC 384, State of Himachal Pradesh Vs. Asha Ram

AIR 2006 SC 381, Rajinder Vs. State of Himachal Pradesh,

(2009) 16 SCC 69.) However, it has to be borne in mind that a

case of sexual assault has to be proved beyond reasonable doubt

as any other case and there is no presumption that the

prosecutrix would always tell the entire story truthfully.

11. In Rajoo Vs. State of Madhya Pradesh (2008) 15

SCC 133, the Hon’ble Supreme Court held that the testimony of

a victim of rape has to be treated as if she is an injured witness

but cannot be presumed to be a gospel truth. It was held that:-

“9. The aforesaid judgments lay down the basic principle that

ordinarily the evidence of a prosecutrix should not be suspect

and should be believed, the more so as her statement has to be

evaluated at par with that of an injured witness and if the

evidence is reliable, no corroboration is necessary. Undoubtedly,

the aforesaid observations must carry the greatest weight and

we respectfully agree with them, but at the same time they

cannot be universally and mechanically applied to the facts of

every case of sexual assault which comes before the Court. It

cannot be lost sight of that rape causes the greatest distress and

humiliation to the victim but at the same time a false allegation

of rape can cause equal distress, humiliation and damage to the

accused as well. The accused must also be protected against the

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possibility of false implication, particularly where a large number

of accused are involved. It must, further, be borne in mind that

the broad principle is that an injured witness was present at the

time when the incident happened and that ordinarily such a

witness would not tell a lie as to the actual assailants, but there

is no presumption or any basis for assuming that the statement

of such a witness is always correct or without any

embellishment or exaggeration. Reference has been made in

Gurmit Singh's case to the amendments in 1983 to Sections 375

and 376 of the India Penal Code making the penal provisions

relating to rape more stringent, and also to Section 114A of the

Evidence Act with respect to a presumption to be raised with

regard to allegations of consensual sex in a case of alleged rape.

It is however significant that Sections 113A and 113B too were

inserted in the Evidence Act by the same amendment by which

certain presumptions in cases of abetment of suicide and dowry

death have been raised against the accused. These two

Sections, thus, raise a clear presumption in favour of the

prosecution but no similar presumption with respect to rape is

visualized as the presumption under Section 114A is extremely

restricted in its applicability. This clearly shows that in so far as

allegations of rape are concerned, the evidence of a prosecutrix

must be examined as that of an injured witness whose presence

at the spot is probable but it can never be presumed that her

statement should, without exception, be taken as the gospel

truth. Additionally her statement can, at best, be adjudged on

the principle that ordinarily no injured witness would tell a lie or

implicate a person falsely. We believe that it is under these

principles that this case, and others such as this one, need to be

examined.”

12. In Tameezuddin @ Tammu Vs. State (NCT of

Delhi), (2009) 15 SCC 566, it was held as under:-

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“7. It is true that in a case of rape the evidence of the prosecutrix

must be given predominant consideration, but to hold that this

evidence has to be accepted even if the story is improbable and

belies logic, would be doing violence to the very principles which

govern the appreciation of evidence in a criminal matter. We are

of the opinion that story is indeed improbable. …..”

13. In Dinesh Jaiswal Vs. State of MP, (2010) 3 SCC

323, the Hon’ble Supreme Court held as under:-

“10. Mr. C.D. Singh has however placed reliance on Moti Lal's

case (supra) to contend that the evidence of the prosecutrix was

liable to be believed save in exceptional circumstances. There

can be no quarrel with this proposition (and it has been so

emphasised by this Court time and again) but to hold that a

prosecutrix must be believed irrespective of the improbabilities in

her story, is an argument that can never be accepted. The test

always is as to whether the given story prima facie inspires

confidence. We are of the opinion that the present matter is

indeed an exceptional one.”

14. In Abbas Ahmad Choudhary Vs. State of Assam,

2010 (12) SCC 115, the Hon’ble Supreme Court observed that:-

“5. We are however, of the opinion that the involvement of

Abbas Ahmad Choudhary seems to be uncertain. It must first be

borne in mind that in hery statement recorded on 17th

September, 1997, the prosecutrix had not attributed any rape to

Abbas Ahmad Choudhary. Likewise, she had stated that he was

not one of those who kidnapped her and taken to Jalalpur Tea

Estate and on the other hand she categorically stated that while

she along with Mizazul Haq and Ranju Das were returning to the

village that he had joined them somewhere along the way but

had still not committed rape on her. It is true that in her

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statement in court she has attributed rape to Abbas Ahmad

Choudhary as well, but in the light of the aforesaid

contradictions some doubt is created with regard to his

involvement. Some corroboration of rape could have been found if

Abbas Ahmad Choudhary too had been apprehended and taken

to the police station by P.W. 5 -Ranjit Dutta the Constable. The

Constable, however, made a statement which was corroborated

by the Investigating Officer that only two of the appellants Ranju

Das and Md. Mizalul Haq along with the prosecutrix had been

brought to the police station as Abbas Ahmad Choudhary had

run away while en route to the police station. Resultantly, an

inference can be rightly drawn that Abbas Ahmad Choudhary

was perhaps not in the car when the complainant and two of the

appellants had been apprehended by Constable Ranjit Dutta.

We are, therefore, of the opinion that the involvement of Abbas

Ahmad Choudhary is doubtful. We are conscious of the fact that

in a matter of rape, the statement of the prosecutrix must be

given primary consideration, but, at the same time, the broad

principle that the prosecution has to prove its case beyond

reasonable doubt applies equally to a case of rape and there can

be no presumption that a prosecutrix would always tell the

entire story truthfully.”

15. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi

(2012( 8 SCC 21, the Hon’ble Supreme Court commented about the

quality of the sole testimony of the prosecutrix, which would be made

basis to convict the accused and it was held:-

“15. In our considered opinion, the sterling witness should be of

a very high quality and caliber whose version should, therefore,

be unassailable. The Court considering the version of such

witness should be in a position to accept it for its face value

without any hesitation. To test the quality of such a witness, the

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status of the witness would be immaterial and what would be

relevant is the truthfulness of the statement made by such a

witness. What would be more relevant would be the consistency

of the statement right from the starting point till the end, namely,

at the time when the witness makes the initial statement and

ultimately before the Court. It should be natural and consistent

with the case of the prosecution qua the accused. There should

not be any prevarication in the version of such a witness. The

witness should be in a position to withstand the cross -

examination of any length and howsoever strenuous it may be

and under no circumstance should give room for any doubt as to

the factum of the occurrence, the persons involved, as well as,

the sequence of it. Such a version should have correlation with

each and everyone of other supporting such as the recoveries

made, the weapons used, the manner of offence committed, the

scientific evidence and the expert opinion. The said version

should consistently match with the version of every other

witness. It can even be stated that it should be akin to the test

applied in the case of circumstantial evidence where there

should not be any missing link in the chain of circumstances to

hold the accused guilty of the offence alleged against him. Only

if the version of such a witness qualifies the above test as well

as all other similar such tests to be applied, it can be held that

such a witness can be called as a sterling witness whose

version can be accepted by the Court without any corroboration

and based on which the guilty can be punished. To be more

precise, the version of the said witness on the core spectrum of

the crime should remain intact while all other attendant

materials, namely, oral, documentary and material objects

should match the said version in material particulars in order to

enable the Court trying the offence to rely on the core version to

sieve the other supporting materials for holding the offender

guilty of the charge alleged.”

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16. Now, coming to the statements of the prosecution

witnesses. Before adverting to the statements of the

PW-5 prosecutrix and the PW-6 Labh Singh, complainant, we

shall first deal with the testimonies of other prosecution

witnesses.

17. PW-1, Om Parkash is the owner of the Rising Star

Hotel and has not supported the prosecution case because in the

cross examination conducted by the Public Prosecutor, he has

stated that portions A to A, B to B, C to C, D to D and E to E of

his statement recorded by the police under Section 161 Cr.P.C.

are not correct. While in his cross-examination conducted by the

defence counsel, he deposed that one lady along with a person

had come to his hotel for stay and the said lady had disclosed

herself to be wife of that person, who was with her. He further

stated that he had entered the names of the lady and the person

accompanying her in his visiting register and obtained their

signatures. However, what is more important in the statement is

that this witness clearly deposed that the person who was

accompanying the lady on the date was not amongst the accused

persons in the Court. However, what is more intriguing is that

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the prosecution did not even bother to examine the records of

the Rising Star Hotel, more particularly the visitor’s register.

The prosecution is thus guilty of withholding of best evidence

constraining this Court to draw an adverse inference.

18. PW-2, Karam Singh, Accountant, who is supposed to

be the witness to the recovery memo, Ext.PW2/A has not

supported the prosecution story and has stated that four seat

covers from maruti car bearing registration No. HP-33A-4611

were not taken into possession in his presence vide memo, Ext.

PW2/A. Nothing material could be elicited from his cross -

examination conducted by the Public Prosecutor after he was

declared hostile.

19. PW-3, HC Manohar Lal, simply deposed about

scribing of FIR, Ext.PW3/B. He stated that the case property of

the case was deposited with him and he made entry in the

malkhana register.

20. PW-4, Constable Vidyasagar, deposed regarding the

delivery case property with C.F.S.L. Chandigarh vide receipt

Ext.PW3/J.

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21. PW-7, ASI Jaspal Singh is the witness to the recovery

of the keys of the vehicle bearing registration No.HP-33a-4611

vide Ext.PW5/B.

22. PW-8, ASI Mohan Singh Thakur, is the witness to

recovery of shirts and trousers of accused Himesh Kumar and

Pawan Kumar vide memos, Ext.PW8/A and Ext.PW8/B

respectively.

23. PW-9, Dr. Reena Thakur, is the Medical Officer, who

medically examined the prosecutrix on 9.8.2006 vide MLC,

Ext.PW9/B and did not find any signs of rape and rightly so

since alleged incident alleged to have taken place way back

during the intervening night of 27/28.7.2006.

24. PW-10, Dr. Devinder Sharma, medically examined

the complainant, PW-6 Labh Singh and found certain simple

injuries on his person vide MLC Ext.PW10/B.

25. PW-11, Inspector Hemant Kumar, is the investigating

officer in this case. In examination in chief, he stated that at the

time when he was posted as SHO, Police Station Balh, on

28.7.2006 at about 9.05 A.M., he received a telephonic

information from one Labh Singh, who stated that some persons

had snatched his vehicle and had also kidnapped one girl near

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Baggi. On the basis of this telephonic information, rapat No.34,

dated 28.7.2006 was recorded in the roznamcha vide

Ext.PW3/K. Thereafter, he along with other police officials went

to the spot at Baggi where they met Labh Singh and thereafter

proceeded to search for the girl in the vehicle, but in vain.

Thereafter, statement of Labh Singh was recorded under Section

154 Cr.P.C. and the same was sent to the Police Station through

Constable Megh Singh, on the basis of which FIR, Ext.PW3/B

was recorded in the Police Station. Later on, girl and the vehicle

were found. The vehicle was taken into possession vide memo,

Ext.PW5/B. The prosecutrix took the police party to the place,

where the alleged incident took place. The site plan, Ext.PW11/A

was prepared. The prosecutrix also disclosed that she was taken

by the accused persons to Rising Star Hotel where they had

raped her and the site plan, Ext.PW11/B was prepared. The

blood stained quilt cover and bed sheet, which were identified by

the prosecutrix, were taken into possession vide memo, Ext.

PW1/A and thereafter, the prosecutrix was sent for medical

examination. The accused Vineet Kumar, who was found sitting

in the rain shelter at Chatrokhari Chowk, was arrested and

thereafter accused Lekh Raj was arrested from his house at

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village Kot. On identification of the Bolero vehicle, the same was

taken into possession. Statements of the witnesses were

recorded under Section 161 Cr.P.C. The prosecutrix was taken

to the C.H.C. Hospital, Ratti for medical examination. Since no

lady doctor was found available in C.H.C. Hospital, Ratti, the

prosecutrix was taken to Zonal Hospital Mandi, where she

refused to get herself medically examined. Similarly, the clothes

worn by the accused persons were taken into possession. The

statement of the prosecutrix was recorded under Section 164

Cr.P.C., Ext.PW5/C. On 8.8.2006, the prosecutrix moved an

application, Ext.PW11/D seeking her medical examination. On

9.8.2006, the prosecutrix was got medically examined in Zonal

Hospital Mandi.

26. In cross-examination, this witness does not appear to

remember anything because he clearly states that he does not

remember the time when he along with the prosecutrix reached

Rising Star Hotel and the time when he returned from here. He

further cannot tell the time of apprehending the accused Vineet

and even accused Lekh Raj for that matter. He cannot even tell

the time when they reached the Police Station. He categorically

admitted that he did not take into possession the visiting register

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of Hotel Rising Star. He further deposed that Labh Singh did not

come in the intervening night of 27/28.7.2006 to the Police

Station Balh and he stated that it was 9.05 A.M. when

telephonic information for the first time about the alleged

incident was received at Police Station. Meanwhile, this witness

categorically stated that he had persuaded the prosecutrix to get

her medically examined, but she refused.

27. It would be noticed that Ext. DX is the MLC of the

prosecutrix, which shows that she was taken by the police to the

Hospital on 28.7.2007 for medical examination , but she not

only refused to get herself medically examined on that date, but

even categorically stated that nothing had happened with her.

There is no satisfactory explanation given by the prosecutrix for

her refusal of medical examination and it is also not forthcoming

as to why she further claimed that nothing had happened with

her, however, while appearing as PW5, the prosecutrix stated

that she had refused to get herself medically examined because

she was mentally upset and moreover the accused persons had

threatened to kill her. The explanation offered by the

prosecutrix has not been accepted by the learned trial court and

rightly so, as the same is clearly an afterthought. This is clearly

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evident from Ext.PW11/D, which is an application given by the

prosecutrix to the police for medical examination on 8.8.2006,

wherein it has not been mentioned that the accused persons had

threatened to kill her on 28.7.2006 constraining her to refuse

the medical examination. In her cross-examination, she

categorically stated that the police party had met her at about

6.30 A.M. on 28.7.2006, but according to PW-11, Investigating

Officer, Police party had met her at about 5.00 P.M. on

28.7.2006. That apart, Labh Singh while appearing as PW6

stated that he and the prosecutrix had gone to Baggi on

28.7.2006 to meet one Sunil Kumar, but the prosecutrix denied

having gone to Baggi.

28. Apart from the above, it has come on record that the

prosecutrix was aged about 32 years at the time of alleged

incident and as per her story, she was taken in the car to

various places including a hotel known as Rising Star and even

the Sundernagar Bazaar, but there is no explanation

forthcoming as to why she did not raise hue and cry in case, she

was detained against her wish.

29. The fact that the prosecutrix had refused her medical

examination after levelling very serious allegation of rape against

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the accused and not giving any acceptable explanation for the

same only indicates the possibility of false implication of the

accused. No justification or logical reason is forthcoming from

the prosecution regarding the refusal of the prosecutrix for

medical examination. The refusal of the prosecutrix to get

medical examination conducted and give samples indicates the

possibility of false prosecution of the accused and there is a

doubt on the veracity of the allegation against the accused. Such

refusal would also suggest that there were no marks of external

or internal injuries found on her body, otherwise, she should

have undergone the medical examination, as observed earlier.

30. We find the version putforth by the prosecutrix to be

highly improbable and difficult to accept on its face value. Having

found it difficult to believe such testimony on its face value, though

we searched for support from other material also, but found

complete lack of collaboration of material particulars and,

therefore, the testimony of the prosecutrix being not worthy of any

credence is totally unreliable. In case the prosecutrix had been

subjected to rape multiple times, we really see no reason why she

should have not raised an alarm in Sundernagar bazaar or at the

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Rising Star Hotel or other places where she was alleged to have

been raped.

31. Now, adverting to the statement of PW-6 Labh Singh.

He categorically deposed that he had visited the quarter of his

maternal uncle, however, this fact was not stated before the

police when his statement under Section 161 Cr.P.C. was

recorded. Therefore, further story that he along with his

maternal uncle hired a vehicle and went to the Police Station,

obviously is not to be found in the said statement.

32. As regards other contradictions, it would be noticed

that the Investigating Officer, PW-11 has stated that the

information about the alleged incident was given by the

complainant, Labh Singh to the police telephonically on

28.7.2006 at about 9.05 A.M., but Labh Singh, while appearing

in the Court as PW-6 has stated that he along with his maternal

uncle had gone to the Police Station during the intervening night

of 27/28.7.2006 and given information about the incident to the

police.

33. On the basis of the aforesaid discussion, it can

conveniently be held that the charges levelled against the

accused persons have not been proved at all proved. The

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learned trial court has rightly come to the conclusion that the

version putforth by the prosecution is highly improbable and full

of contradictions, which belies logic and therefore, no reliance of

credence can be attached to the same.

34. These are the aspects of the matter having been

discussed in paras 29 to 32 of the impugned judgment, which

are reproduced below:-

“29. The prosecutrix has stated in her cross-examination that

accused Vineet Kumar and Pawan Kumar had taken her in the

car to Sundernagar bazaar. She has also stated that some of the

shops were open in the market at that time. She has also stated

that the accused persons had b ought some medicine at

Sundernagar Bazaar. If the accused persons had taken the

prosecutrix at Sundernagar bazaar and stopped the car there to

buy medicine, then the prosecutrix had sufficient opportunity not

only to run away from there but she could have raised an alarm

there, it would have been heard by many persons, who would

have immediately come to her rescue. There is no satisfactory

explanation on the part of the prosecutrix as to why she did not

raise any alarm when the accused persons had taken her in the

car at Sundernagar bazaar. Thus, the conduct of the prosecutrix

is surprising.

30. Accused Vineet Kumar and Pawan Kumar are alleged to

have stayed with the prosecutrix in Room No.102 of Hotel Rising

Star during the intervening night of 27/28.7.2006. Prosecution

has examined owner of Hotel Rising Star as PW1. he has not

supported the prosecution case. He has stated in the cross-

examination conducted by the learned defence counsel that one

lady along with a person had stayed in the hotel on that night

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and that person was not amongst from the accused. Thus, the

possibility cannot be ruled out that some person other than the

accused had stayed in the Hotel Rising Star on the alleged date

of incident.

31. PW1 has stated in his statement that a lady along with a

person had stayed in the Hotel and the lady had disclosed

herself to be wife of that person. He has stated that he had

written the names and addresses of that lady and the person in

the visiting register and obtained their signatures in the register.

Admittedly, the visiting register of the Rising Star Hotel has not

been taken in possession by the police. No explanation has been

given by the Investigating Officer as to why he did not take in

possession the visiting register of the Hotel. Hence, it would not

be unreasonable to draw an inference that had the register been

taken in possession, it would not have supported the prosecution

case. This fact also creates doubt in the genuineness of the

prosecution case.

32. It has come in the cross-examination of the prosecutrix that

2-3 boys were present on the reception of the hotel when the

accused had allegedly taken her there. If 2-3 boys were present

on the reception of the hotel at that time, then the prosecutrix

had sufficient opportunity not only to run away from there but to

take help of those boys. There is no explanation on the part of

the prosecutrix as to why she did not narrate the incident to the

persons found present in the Hotel. Thus, the conduct of the

prosecutrix is surprising as to why she did not take the help of

the persons staying in the Rising Star Hotel.”

35. The legal position with regard to the inference in

appeal against acquittal is well settled in Mookkiah and

another vs. State, represented by Inspector of Police,

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Tamilnadu, 2013 (2) SCC 89, wherein the Hon’ble Supreme

observed as under:-

“9. It is not in dispute that the trial Court, on appreciation of

oral and documentary evidence led in by the prosecution and

defence, acquitted the accused in respect of the charges leveled

against them. On appeal by the State, the High Court, by

impugned order, reversed the said decision and convicted the

accused under Section 302 read with Section 34 of IPC and

awarded RI for life. Since counsel for the appellants very much

emphasized that the High Court has exceeded its jurisdiction in

upsetting the order of acquittal into conviction, let us analyze the

scope and power of the High Court in an appeal filed against the

order of acquittal

10. This Court in a series of decisions has repeatedly laid down

that

“3…… as the first appellate court the High Court, even

while dealing with an appeal against acquittal, was also

entitled, and obliged as well, to scan through and if need

be re- appreciate the entire evidence, though while

choosing to interfere only the court should find an

absolute assurance of the guilt on the basis of the

evidence on record and not merely because the High

Court could take one more possible or a different view

only. Except the above, where the matter of the extent and

depth of consideration of the appeal is concerned, no

distinctions or differences in approach are envisaged in

dealing with an appeal as such merely because one was

against conviction or the other against an acquittal.

[Vide State of Rajasthan vs. Sohan Lal and Others, 2004

5 SCC 573]

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11. In State of Madhya Pradesh vs. Ramesh and

Another, 2011 4 SCC 786 , this Court, while considering the

scope and interference in appeal against acquittal held:

"15. We are fully alive of the fact that we are dealing with

an appeal against acquittal and in the absence of

perversity in the said judgment and order, interference by

this Court exercising its extraordinary jurisdiction, is not

warranted. It is settled proposition of law that the

appellate court being the final court of fact is fully

competent to reappreciate, reconsider and review the

evidence and take its own decision. Law does not

prescribe any limitation, restriction or condition on

exercise of such power and the appellate court is free to

arrive at its own conclusion keeping in mind that acquittal

provides for presumption in favour of the accused. The

presumption of innocence is available to the person and in

criminal jurisprudence every person is presumed to be

innocent unless he is proved guilty by the competent court

and there can be no quarrel to the said legal proposition

that if two reasonable views are possible on the basis of

the evidence on record, the appellate court should not

disturb the findings of acquittal."

12. In Minal Das and Others vs. State of Tripura, 2011 9

SCC 479, while reiterating the very same position, one of us, P.

Sathasivam, J. held:

"14. There is no limitation on the part of the appellate

court to review the evidence upon which the order of

acquittal is found and to come to its own conclusion. The

appellate court can also review the conclusion arrived at

by the trial court with respect to both facts and law. While

dealing with the appeal against acquittal preferred by the

State, it is the duty of the appellate court to marshal the

entire evidence on record and only by giving cogent and

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adequate reasons set aside the judgment of acquittal. An

order of acquittal is to be interfered with only when there

are "compelling and substantial reasons" for doing so. If

the order is "clearly unreasonable", it is a compelling

reason for interference. When the trial court has ignored

the evidence or misread the material evidence or has

ignored material documents like dying declaration/report

of ballistic experts, etc. the appellate court is competent to

reverse the decision of the trial court depending on the

materials placed."

13. In Rohtash vs. State of Haryana, 2012 6 SCC 589 ,

this Court held:

"27. The High Court interfered with the order of acquittal

recorded by the trial court. The law of interfering with the

judgment of acquittal is well settled. It is to the effect that

only in exceptional cases where there are compelling

circumstances and the judgment in appeal is found to be

perverse, the appellate court can interfere with the order

of the acquittal. The appellate court should bear in mind

the presumption of innocence of the accused and further

that the trial court's acquittal bolsters the presumption of

innocence. Interference in a routine manner where the

other view is possible should be avoided, unless there are

good reasons for interference. (Vide State of Rajasthan v.

Talevar, 2011 11 SCC 666 and Govindaraju v. State,

2012 4 SCC 722)"

14. In a recent decision in Murugesan & Ors. vs. State

Through Inspector of Police, 2012 10 SCC 38 3, one of us

Ranjan Gogoi, J. elaborately considered the broad principles of

law governing the power of the High Court under Section 378 of

the Code of Criminal Procedure while hearing the appeal against

an order of acquittal passed by the trial Judge. After adverting to

the principles of law laid down in Sheo Swarup vs. King

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Emperor, 1934 AIR(PC) 227 (2) and series of subsequent

pronouncements in para 21 summarized various principles as

found in para 42 of Chandrappa & Ors. vs. State of

Karnataka, 2007 4 SCC 415 as under:

"21. A concise statement of the law on the issue that had

emerged after over half a century of evolution since Sheo

Swarup1 is to be found in para 42 of the Report in

Chandrappa v. State of Karnataka. The same may,

therefore, be usefully noticed below: (SCC p. 432)

"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 p ower 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

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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.

[pic](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."

(emphasis in original)

36. Thus, what can be taken to be settled is that the

appellate court should not ordinarily set aside a judgment of

acquittal and should concentrate to consider the entire evidence

on record, so as to arrive at a finding as to whether the views of

the trial court were perverse or otherwise unsustainable. The

appellate court is entitled to consider whether in arriving at a

finding of fact, the trial court has failed to take into

consideration admissible evidence and/or has taken into

consideration the evidence brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject

matter of scrutiny by the appellate court.

37. In exceptional cases, where there are compelling

circumstances and the judgment under appeal is found to be

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perverse, the appellate court can interfere with the order of

acquittal. However, the appellate court should bear in mind the

presumption of innocence of the accused and further that the

trial court's acquittal bolsters the presumption of his innocence.

Interference in a routine manner, where the other view is

possible should be avoided, unless there are good reasons for

interference. The findings of fact recorded by a court can be held

to be perverse if the findings have been arrived at by ignoring or

excluding relevant material or by taking into consideration

irrelevant/inadmissible material. The finding may also be said to

be perverse if it is “against the weight of evidence”, or if the

finding so outrageously defies logic as to suffer from the vice of

irrationality. Having examined scope of interference, we now

proceed to determine the case on its merits.

38. In view of the aforesaid discussion, we are of the

considered view that the prosecution has miserably failed to

prove its case. After going through the record of case, we find no

reason to take a different view than the one taken by the learned

trial court and even otherwise, in absence of any material to the

contrary, the prosecution has failed to persuade us to take a

different view. The findings recorded by the learned trial court

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are based on correct appreciation of the facts and the law and do

not warrant any interference. There are no compelling

circumstances which may call for an interference as the reasons

given by the learned court below are cogent and convincing; and

based on records of the case.

39. For the forging reasons, the appeal lacks merit and is

accordingly dismissed. Pending application(s), if also stands

dismissed. Bail bonds are discharged.

(Tarlok Singh Chauhan)

Judge

(Chander Bhusan Barowalia)

Judge

27

th July, 2017

(pankaj)

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