HIGH COURT OF UTTARAKHAND AT NAINITAL

Government Appeal No.144 of 2002

State of Uttarakhand	… Appellant
Vs.
1. Ved Prakash S/o Mittha Ram
2. Draupadi W/o Ved Prakash	… Respondents

Hon'ble Sudhanshu Dhulia, J. (Oral)

1. Heard Mr. Hari Om Bhakuni, Brief Holder for the State/appellant and Mr. A. M. Saklani, Advocate for the respondents.

2. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the I.P.C., Section 228A has been inserted vide Act No.43 of 1983, which bars the disclosure of the identity of the prosecutrix by publication and in fact it makes it an offence. Although, printing and publication in a law journal may not be included in the definition of "printing and publication", yet purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the victim is only addressed here as the "prosecutrix".

3. The present appeal arises out of the judgment and order dated 08.05.2001 passed by the Additional Sessions Judge/ F.T.C., Dehradun in Sessions Trial No.38/1996, whereby the respondents/accused, i.e. Ved Prakash was acquitted from the charges levelled against him under Sections 376(g) I.P.C. and respondent Draupadi was acquitted from the charges under Sections 363 & 366 I.P.C.

4. The brief facts of the prosecution story are that an F.I.R. was lodged by the father of the prosecutrix i.e. Gaj Bahadur Thapa PW2 at Police Station Cantt., Dehradun on 28.11.1995 at 1:30PM alleging that on 27.10.1995 his daughter went to learn typing at a place Kishan Nagar, Dehradun, but did not return and since then she is missing. It was further stated that he suspects that his first wife, namely, Draupadi, with whom he has no relationship for the last many years, has kidnapped his daughter. He also informed that his first wife Draupadi, her busband Ved Prakash and Satendra their son kidnapped his daughter. It was further informed that his daughter who is a minor was kept in the house of Draupadi and later she was taken to some other place. The informant made a search for her at every possible place, but in vain.

5. On 30.11.1995 the police arrested the accused Ved Prakash from his house and on 17.12.1995 accused Draupadi was arrested from her house. The prosecutrix was recovered from the custody of accused Satendra on 20.12.1995 at Bus Station, Dehradun. The prosecutrix was handed over to her mother and accused Satendra was arrested.

6. Thereafter, the prosecutrix was medically examined on 21.12.1995 at 12:45 P.M. at Woman Hospital, Dehradun by Dr. Asha Gupta PW3. The medical report states that axillary and pubic hair were present. Breasts were developed. Vagina admits two fingers easily. There was no mark of any external or internal injury on the body of the prosecutrix. Vaginal smear was taken and sent for pathological examination, which did not detect any spermatozoa. The supplementary medical report shows that the prosecutrix was above 18 years of age. It was opined that no definite opinion regarding rape could be given and that she was habitual to sexual intercourse.

7. The matter was investigated and a chargesheet was filed against the accused/respondents. Thereafter, the matter was committed to the Court of Sessions, who framed the charges against accused persons, namely, Satendra, Ved Prakash and Draupadi under Sections 363 & 366 I.P.C. on 27.03.1996. Accused Satendra was also charged under Section 376 I.P.C. vide order dated 27.03.1996. Besides this, vide order dated 12.12.1996 an additional charge was also framed against accused Satendra under Section 496 I.P.C. for having fraudulently gone through a marriage ceremony without lawful marriage. The accused Ved Prakash was later also charged under Section 376 I.P.C.

8. Since accused Satendra was absconding during the trial, the trial court consigned the case of Satendra to records. However, for all practical purposes, it will be deemed to have been separated and the due procedure of law given in Cr.P.C. shall be adopted as and when Satendra is apprehended. Two of the accused persons, namely, Ved Prakash and Draupadi were acquitted by the trial court and during the pendency of the present Government Appeal, accused respondent i.e. Ved Prakash has passed away. So the only respondent accused before this Court is Draupadi.

9. Since this is an appeal against acquittal, few words about the powers of the High Court in such matters would be in order. An appeal against acquittal is provided under Section 378 Cr.P.C. However, the powers of the High Court in dealing with the matter relating to appeal against acquittal are given under Section 386 (a) Cr.P.C. in which the appellate court (i.e. High Court) may either dismiss the appeal for insufficient ground or interfere or may "reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law."

10. Broadly speaking, there is no difference in the High Court's power while dealing in appeal whether it is against a conviction or against an acquittal. The difference, however, is in the approach! This has been so well expressed by Justice Krishna Iyer in its inimitable style, in Shivaji Sahabrao Bobade & another Vs. State of Maharashtra 1973 (2) SCC 793, which is as follows:-

"In India it is not a jurisdictional limitation on the appellate court but a judge-made guideline of circumspection. But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, ………… ………………………………… …………….In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, in- formed, however, by the weighty thought that the rebuttable innocence, attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration"

11. Having said this, the learned Judge of the Hon'ble Apex Court says further about adversarial system of criminal justice as practiced and followed in our country :-

"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are. always good regardless of justice to the victim and .,the community,' demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads

to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say', with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the ,guilty no less than from the conviction of the innocent."

12. By now, it is firmly established that in an appeal against acquittal the appellate court has full powers to review all the evidence which had been placed before the trial court and based on that evidence the appellate court can reach a conclusion that the order of acquittal must be reversed. The earliest reference of this is found in two Privy Council decision, first being Sheo Swarup & others Vs. King Emperor A.I.R. 1934 Privy Council 227 (2) and the other being Nur Mohammad Vs. Emperor AIR (32) 1945 Privy Council 151. While categorically holding that there are absolutely no limitation upon the appellate court to reverse the finding of acquittal made by the trial court as cautioned that it should only be done after due consideration on the following four matters, which reads as under:-

"(1) the views of the trial Judge as to the credibility of the witnesses;

(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;

(3) the right of the accused to the benefit of any doubt; and

(4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court is its conduct of the appeal should and will act in accordance with rule and principles well known and recognized in the administration of justice."

13. However, having considered the above aspects if the appellate court comes to the conclusion that the view taken by the trial court is not a correct view and there was sufficient evidence before the trial court for convicting the accused, then it is the duty of the appellate court to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established. In such a case, the appellate court must interfere in the decision of the trial court as said in Harbans Singh & another Vs. State of Punjab 1962 Supp. (1) SCR 104.

14. In Sanwant Singh & others Vs. State of Rajasthan AIR 1961 SCC 715, the Hon'ble Apex Court reiterated the above decision and said that the power of an appellate court in an appeal against acquittal is not different from that it has in an appeal against conviction; the difference lies more in the manner of approach and perspective rather than in the content of the power.

15. In Ramesh Babulal Doshi Vs. State of Gujarat 1996 (9) SCC 225, the Hon'ble Apex Court has further elaborated the above principle as to what parameters the High Courts should deal with the order of acquittal. It was further held :-

"7. ……………………….. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be

sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. …...………….."

16. In the State of Punjab Vs. Phola Singh & another 2003 (11) SCC 58, the Hon'ble Apex Court held :-

"9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."

17. In State of Rajasthan Vs. Shera Ram alias rVishnu Dutta 2012 (1) SCC 602, it was held that there is a thin distinction, but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. It was further held :-

"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the

materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."

18. Broadly therefore what emerges is that in dealing with an appeal against acquittal, the powers enjoyed by the appellate court i.e. the High Court are the same as it has in an appeal against conviction. There must be however a difference in approach while dealing with the appeal against acquittal. The Court must be more circumspect and cautious. Unless there are "substantial and compelling reasons" no interference should be made in an appeal against acquittal.

19. In view of the above, let us examine the evidence against respondent / accused Draupadi. Out of these accused, the main accused Satendra has absconded and therefore there is no order against him. Ved Prakash though acquitted like Draupadi died subsequently and therefore there is no appeal against him. The only accused at present is Draupadi. The only evidence against her is that her name has been mentioned in the FIR as well as in the statement of prosecutrix recorded under Section 164 Cr.P.C. and the evidence given by the prosecutrix and Gaj Bahadur Thapa PW2. However, from the evidence it emerges that only role assigned to respondent Draupadi is that she enticed the prosecutrix on 27.10.1995 while the prosecutrix had gone to Krishna Nagar to learn typing. Accused Draupadi took the prosecutrix from Krishna Nagar and the prosecutrix was administered an intoxicated chewable pill, due to which the prosecutrix became unconscious. Thereafter, accused Draupadi took her to her house where the prosecutrix was kept for some time. Thereafter, the prosecutrix was shifted to some other place at Jwalapur. It is well settled position of law that the conviction of an accused can be based on the sole testimony of the prosecutrix, provided the testimony of the prosecutrix is truthful and inspires confidence. In the present case, the statement of prosecutrix is not truthful and it does not inspire confidence and there is no reason to believe her testimony for the reasons that firstly there is an inordinate delay in lodging the F.I.R. which is absolutely fatal to the prosecution in as much as the incident is said to have taken place on 27.10.1995, whereas the F.I.R. was lodged on 28.11.1995 after a delay of one month. It has come in the statement of Gaj Bahadur Thapa PW2 that he suspects on Draupadi, who was his first wife, but there was no sufficient proof against her. It is admitted by the prosecutrix that a marriage was solemnized between Satendra and herself during the period when she stayed with Satendra.

20. Moreover, there are several love letters written by the prosecutrix to accused Satendra which show that they were known to each other. A query was raised by the defence as to why the prosecutrix has not given the statement in her statement under Section 164 Cr.P.C. that she was raped by Satendra. The rape she alleged only against the accused Ved Prakash. On this, the prosecutrix has stated that she did not state in her statement recorded under Section 164 Cr.P.C. against Satendra, as he had some unwanted photographs of the prosecutrix and he was trying to blackmail her. The prosecutrix later changes her stand. Therefore, this Court is of the view that the trial court has rightly acquitted the two accused persons. A doubt was rightly created in the mind of the trial court regarding the conduct of the prosecutrix, that the story of the prosecution is actually an afterthought, and does not reflect truth.

21. In the light of aforesaid, the Court is of the opinion that the evidence of the prosecution was not sufficient to prove the charges against the respondent Draupadi and, therefore, Draupadi was rightly acquitted by the trial court. I am completely in agreement with the findings recorded by the trial court with regard to the acquittal of the respondents/accused. No interference is liable to be made on the question of acquittal of the respondents/accused. The Government Appeal is hereby dismissed.

22. Lower Court record be sent back.

Dated 10th July, 2013 Rawat

(Sudhanshu Dhulia, J.)