State v. Abhinandan Kumar

10. Ms. Radhika Kolluru, learned APP for the State submits that the impugned judgment is manifestly wrong, illegal and against the facts on record and thus, warrants interference by this Court.

11. Learned counsel for the State submits that the Trial Court has failed to appreciate the testimony of the victim and has overlooked the act of the respondent which was being done under the misconception of the marriage. The act clearly shows the mala-fide intention of the respondent and since she was a minor, the Trial Court has erred in acquitting the respondent.

12. It was contended by the counsel for the State that the case of the prosecution is based on the direct evidence of the victim, whose testimony remained consistent in all material particulars. There is ample evidence available on record to convict the respondent for the offence punishable under Section 376 of IPC and Section 6 of POCSO Act.

13. We have heard learned APP for the State and carefully examined the testimony of the witnesses and the impugned judgment rendered by the Trial Court.

14. The question which arises for our consideration is as to whether the Trial Court has erred in not relying upon the statement of the prosecutrix to convict the respondent?

15. To deal with the submissions of the counsel for the State, it would be relevant to analyse the testimony of the vicim (PW[2]).

16. The victim was examined in the Court as PW[2] wherein she deposed in her examination-in-chief that she became friendly with the respondent who used to say that he loved her and wanted to marry her. She further deposed that about 1 ½ months prior to the her complaint to the police, when she was cooking food, the respondent came to her room and despite her protest he committed rape upon her against her will and consent. Thereafter, on the occasion of Saraswati Pooja, the respondent gave her a letter. At that time, her mother was planning to send her to her native village to arrange her marriage after two days. She further deposed that the respondent started teasing her and was trying to make physical relations with her forcibly but in the meanwhile her brother Raj Kumar (PW[4]) came inside the room and saw them and called her mother on phone. The mother of the victim reached the house and called one Anmol uncle and also went to Mahila Samiti and thereafter on the asking of Anmol uncle, police was informed.

17. However, in her cross-examination, she was confronted with her statement under Section 164 of the Code of Criminal Procedure wherein she stated that she was having friendship with the respondent two months prior to the day of incident and he had promised to marry her and had made physical relations with her but later he had refused to marry her. The victim further stated that the brother of the respondent namely Sanjay also used to stay with him and then volunteered that initially the respondent was willing to marry her but when his brother came to Delhi, he threatened the respondent and out of his fear the respondent refused to marry her. She further admitted that she was in love with the respondent and they both wanted to marry each other. She also admitted that her family had good relations with the respondent. She also deposed that her mother had only once stated to her that she would marry the victim with the respondent but in a light tone.

18. PW[1] Geeta Devi (mother of the victim) deposed with respect to the incident of 15.02.2013 only and denied certain facts which were admitted by PW[4] Raj Kumar (younger brother of the victim) in his testimony. Reading of their testimonies would show that the two families were very close to each other. In her cross-examination, PW[1] denied that the respondent gave driving lessons to her husband; denied that respondent used to take meals at her house sometimes; denied that her son Raj Kumar used to visit the respondent at his room; denied that the victim was once mentally disturbed and was taken to a Tantrik at Sonia Vihar in the TSR of the respondent who used to accompany them; denied that mother of the respondent used to visit their house; denied that she along with the victim and the mother of the respondent visited the village of the respondent. On the contrary, all the suggestions were duly admitted by PW[4] in his testimony. PW[4] deposed that the respondent had arranged for a TSR on hire for his father. PW[4] further deposed that his mother and the victim had gone to Bihar and that the respondent used to address his father and mother as uncle and aunt and used to stay with them like a family member. PW[4] also deposed that the respondent offered to marry the victim after the incident.

19. With regard to the age of the victim, the case of the prosecution is based on the ossification test report which was proved by PW[5] Dr. Mohd. Irfan Ahmed who deposed that the age of the victim falls between 18 to 20 years at the time of the incident. There is no other document produced by the prosecution to prove the age of the victim. In the absence of any other document which would show that the victim was minor on the day of incident. No case under POCSO Act is made out.

20. Undoubtedly, conviction can be based on the sole testimony of the victim provided that it is trustworthy. However, in case the Court has reason not to accept the version of victim on its face value, it may look for corroboration. The evidence has to be read in its totality. In the present case, the victim had not deposed anything which goes against the respondent. The prosecution has to prove its case beyond reasonable doubt. There must be proper evidence and material on record to record the conviction of the respondent.

21. It is also settled proposition of law that in case evidence read in its totality and the story projected by the prosecutrix is found to be improbable, her version is liable to be rejected. The Apex Court in Narender Kumar versus State (NCT of Delhi), reported at (2012) 7 SCC 171, has held as under:

175; and Vishnu v. State of Maharashtra, (2006) 1 SCC 283.

22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra,: (1999) 1 SCC 220.

23. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held: "4.....the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."

24. In Rajoo & Ors. v. State of Madhya Pradesh, (2008) 15 SCC 133, this Court held: "10.....that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary." The court however, further observed: "11........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 possibility of false implication...... 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."

25. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:

22. The Hon‟ble Supreme Court in State of Rajasthan v. Babu Meena reported at (2013) 4 SCC 206 has observed as under:

23. While deciding the present leave to appeal, the aforestated principles culled out by the Apex Court are to be kept in view. In the present case, the following circumstances stands proved: i) The victim was in love with the respondent and they both wanted to marry each other. ii) The respondent and the family of the victim enjoyed friendly relations. iii) There is no medical evidence to connect the respondent with the offence of rape.

24. In the present case, on a cumulative reading and appreciation of the entire evidence on record, we are of the considered view that the testimony of the victim is not reliable to bring home the guilt of the respondent. We are satisfied that given the evidence led by the prosecution during the trial, the findings of the Trial Court cannot be assailed on the grounds raised by the counsel for the State. As far as the contention of Ms. Kolluru regarding the victim being under the misconception of marriage is concerned, again reliance is made on the testimony of the victim, which we have already held cannot be relied upon in the absence of supporting evidence. Additionally, it has come on record that the respondent wanted to marry the victim and a marriage proposal for both of them was also floated but because they both belonged to different castes, it could not materialize. Therefore, it cannot be said that the respondent made any false promise of marriage. Hence, the contention of misconception of marriage is rejected. We find no infirmity in the findings and conclusion of the Trial Court.

25. Even otherwise, it is settled law that the appellate court may only interfere in an appeal against acquittal when there are substantial and compelling reasons to do so [See Sheo Swarup v. King-Emperor, AIR 1934 PC 227 (2); M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 (paragraph 16 and 17); Tota Singh and Anr. v. State of Punjab, AIR 1987 SC 108: (1987) 2 SCC 529 (paragraph 6); State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 (paragraph 7); and Chandrappa v. State of Karnataka, (2007) 4 SCC 415 (paragraph 42)].

26. The leave to appeal is accordingly dismissed.

G. S. SISTANI, J.

REKHA PALLI, J. MAY 15, 2017 //aa