State v. Sanjay & Anr.

1. Whether the Reporters of local papers Yes. may be allowed to see the judgment?

2. To be referred to Reporter or not? Yes.

3. Whether the judgment should be Yes. reported in the Digest? MR.

JUSTICE S.RAVINDRA BHAT %

1. This order will dispose of prosecution petition for leave to appeal preferred under Section 378 (1) of Criminal Procedure Code against the acquittal of the first respondent/accused (hereafter referred to as Sanjay) by judgment dated 27.03.2010 of the learned District Judge cum Additional Sessions Judge. The accused had been charged along with another accused (hereafter referred as Devender Sharma) for committing offences under Sections 365/376/506/34 IPC. Briefly the prosecution case is that the prosecutrix was residing in Sanjay’s neighbourhood in 1996 (when she was about 17). He introduced her to Devender Sharma on 06.05.1996. 2011:DHC:495-DB Crl. Leave Petition No.447/2010 Page 2 Devender Sharma used to publish newspaper where she was employed as a clerk. The prosecutrix alleged that Devender Sharma used to indulge in indecent acts with her and committed rape upon her. The prosecutrix further stated that she did not report the matter anywhere or even disclosed it since Sanjay threatened that she would be defamed in the locality. She also complained that during her employment with Devender Sharma he continued to harass her and committed further acts of rape, citing his pending divorce from his wife and also later he would solemnize his marriage with the prosecutrix. She alleged that she threatened Devender Sharma that she would commit suicide and implicate him upon which he got scared and consequently she left his employment. The prosecutrix got married on 31.10.1998 and was living happily with her husband. About a year and half prior to the incident, she was again contacted by Sanjay who compelled her to meet Devender Sharma, failing which her past with Devender Sharma would be disclosed to him (her husband). It is alleged that Sanjay also stated that in case the prosecutrix refused to co-operate Devender Sharma would use his connections and get her husband implicated falsely in a smack case. The threats and frequent visits of the accused to her house and the neighbourhood instilled fear in her mind and she started living in her parental house.

2. The prosecutrix alleged that on 26.05.2006 in the late evening when she was returning with her younger brother, a Tata Indica Car stopped near them, Devender Sharma alighted from the Car, slapped her brother and after threatening him with a gun (which belonged to his security guard) abused them and asked her to sit in the car, since a crowd had by then gathered he allegedly claimed to be a Police Officer and drove off. She complained that on 27.05.2006 when she was going to the market around 7.50 P.M., upon her reaching Khalsa College, Devender Sharma arrived in his black Indica car and dragged her inside it, threatened her with revolver and slapped and warned her not to raise alarm. The prosecutrix alleged that she was asked to live with Devender Sharma and leave her husband and was also given the allurement of a good job and a separate residence. At that time Devender Sharma’s security guard was not with him. He took the car to a hilly area and at Budha Garden he stopped the car. It was alleged that in the meanwhile Sanjay also reached there on Crl. Leave Petition No.447/2010 Page 3 his scooter. Both Sanjay and Devender Sharma committed acts of rape in turn upon the prosecutrix and again threatened her to keep quite saying that in case she disclose the incident, her family members would be killed. It is stated that she was living in fear and eventually sent a complaint to Commissioner of Police, which lead to lodging of FIR for further investigation and charges being framed.

3. The prosecution examined 20 witnesses in their support including the prosecutrix who deposed as PW-1; her brother Pawan Kumar as PW-3 and PW-8, Constable Ram Kumar was another material witness being the PSO of accused Devender Sharma. The Court by above judgment believed the prosecutrix story and the other materials so far as Devender Sharma was concerned. The conclusion in this regard is as follows:

6. We have considered the petitioner’s submissions and have also gone through trial court record, which was summoned by the order dated 03.12.2010. The record undoubtedly establishes that Sanjay had introduced prosecutrix to Devender Sharma, however, it did not believe the prosecutrix version so far as the specific acts alleged against Sanjay were concerned. The reasons which persuaded trial court to acquit Sanjay were that he had merely introduced her to the perpetrator of the crime i.e. accused Devender Sharma. Her statement about involvement of Sanjay in the rape incident of 27.05.2006 has been disbelieved because of the fact that the call details from the mobile phone of Devender Sharma did not show any contact with Sanjay’s telephone. The trial court also notices that Sanjay was not with Devender Sharma on the previous date’s incident, i.e. that of 26.05.2006. The Court further gave weightage to the circumstance, the testimony of the prosecutrix as to involvement of others, which no where showed that Devender Sharma had any communication with Sanjay after the prosecutrix was seated with him. In the totality of circumstances, the Court was convinced that the prosecutrix’s version implicating Sanjay in respect of the incident of 27.05.2006 was unbelievable. The Court also relied upon two judgments of the Supreme Court i.e. Bijoy Singh V. State of Bihar, (2002) 9 SCC 147 and Jayaseelan V. State of Tamil Nadu, (2009) 12 SCC 275, to say that only that part of the evidence which is credible and trustworthy of a witness can be taken into Crl. Leave Petition No.447/2010 Page 5 consideration, if it convinces the Court trying the criminal charge. Upon these facts the Court concluded that prosecutrix had apparently borne some grudge against Sanjay and consequently named him also as an accused in respect of rape incident of 27.05.2006.

7. The standard, which the High Court has to apply while considering the petitions for grant of leave to appeal are that the record must show a substantial ground. The Court has to be mindful and alive to the fact that the presumption of innocence, which an accused is entitled to, stands affirmed by the conclusion of trial court in the case of acquittal. The High Court, therefore cannot entertain a petition merely because another view is possible; there has to be some substance in the grounds urged either in the appreciation of evidence or in material omission of consideration, certain factors or mistaken application of law or any legal principle. The principles are well settled by catena of judgments of the Supreme Court and were reiterated in the latest report in Prem Kanwar V. State of Rajasthan, (2009) 3 SCC 726.