Paragraph numbers below are the court’s original numbering, recovered from the source text.
9. Learned counsel for the appellant has laid great stress on the proposition that the testimony of the victim required corroboration and as no independent corroboration was available, the trial court rightly had passed an order of acquittal which should not have been upset by the High Court in· an appeal filed by the State.
10. The High Court in its judgment has stated that the trial court has erred in appreciating the testimony of the witnesses to the extent the victim has nowhere mentioned in her statement that the appellant Naresh Singh alias Titta (dead) had taken any particular name when he had requested her to accompany him to facilitate the delivery of his Bhabhi. The High Court has also observed that there is no contradiction in the testimony of victim and her son PW-7 Ashok Kumar as both have testified that there was reluctance shown by victim to accompany the appellant Naresh Singh alias Titta (dead) at around 12.00 a.m. at night, to facilitate the delivery of his Bhabhi. The High Court has also observed that the Trial Judge was not justified in coming to the conclusion that Ashok Kumar (PW-7) could not have heard the narration of the incident by the. victim to her [2010) 2 S.C.R. A husband since he was sleeping in the court yard. The High Court has also noticed that the observation of Additional Sessions Judge that the victim did not name the culprits while narrating the incident to PW-4 Niaz Deen Pradhan of village Dhabian contradicts the prosecution case, cannot be held to s be correct as the husband of victim in her presence had already told that she was raped by the appellants. Therefore, it is not reasonable to expect from the victim who was under shock due to the incident, to narrate the same to PW-4 Niaz Deen Pradhan in presence of her husband and son. c
11. The High Court hc;ts also found it difficult to accept the reasoning of the Trial Court about the fact that there were no injuries on the person of the victim belied her testimony that she was subjected to forcible sexual intercourse. The High Court has observed that the victim was suffering from toothache D because of which she was unable to firmly resist, and further she could not raise alarm since her mouth had been gagged by the accused persons: The Court has also observed that though the blow with the fist was given on her mouth by the appellant, it may not have caused any serious injury. However, E being an old lady of more than 40 years at the relevant time and the appellants being young men both around 20 years, the victim could not have put up a strong defence. The High Court has also pointed towards the finding that the spot where the victim was raped, shown in the spot inspection map Ext.PK and F which has been proved by the Investigation Officer PW-11 Govardhan Dass, shows that at the site of incident, grass and plants of some crop were found damaged and ruffled. The High Court is also not convinced with the trial court's observation that the victim at the late hours of the· night should have been G accompanied either by her husband or her son. The High Court observes that there was nothing unusual about victim going alone with the appellants as it is normal practice to go with male members to facilitate the deliveries as the midwives are respected like mothers. Therefore, there was no reason for H herself or her husband and son to disbelieve the appellant and RAM SINGH @ CHHAJU v. STATE OF H.P. [H.L. DATTU, J.] deny the request of appellant in that situation. The entire conspectus of the case was viewed by the High Court in vivid detail to come to the conclusion that the appellant was guilty of the crime.
12. It was submitted before us by the learned counsel for the appellant that there was no injury on the person of the victim. According to him, if there was sexual assault on the victim, she would have resisted the offender and in that process she would have received some injuries on other parts of the body. Much importance cannot be given to the absence of defence injuries, because it is not inevitable rule that in the absence of defence injuries the prosecution must necessarily fail to establish its case. In the first information report and also in the evidence of PW-1, it has come on record that she could not cry out for help since her mouth was gagged by the accused. It has also come in the evidence that the victim was aged about 40 years and the accused persons were young and aged about 20 years and, therefore, she was not in a position of equal strength so as to resist the appellants. Even in the absence of any injuries on the person of the victim, in our view, with the other evidence on. record, the prosecution is able to establish that the offence was committed.
13. It was contended by the learned counsel for the appellant that the blood stained clothes which were said to have been handed over to the Officer-in-Charge at the Police Station by the husband of the victim were not sent for chemical examination and, therefore, the corroboration with which such evidence could offer was absent. In our view, the failure of the investigating agency cannot be a ground to discredit the testimony of the victim. The victim had no control over the investigating agency and the negligence, if any, of the investigating officer could not affect the credibility of the statement of PW-1 -the victim. Having regard to the facts and circumstances of this case, we are satisfied that on the basis of the evidence on record, the conviction of the appellant can A be sustained.
14. It is also submitted that in the absence of any injury on the private parts of the victim, the High Court should have disbelieved the prosecution story. In our view, it is difficult to 8 accept the submission of the learned counsel. The reason being the doctor who has been examined as PW-2 has found that the victim PW-1 was used to .sexual intercourse and as such absence of injury on the private parts of the victim may not be very significant. PW-1 was also used to sexual intercourse. The C evidence of the victim has been corroborated by the evidence of PWs.2 and 3,. the two post occurrence witnesses, as well as by the FIR which was lodged without any delay. Therefore, it is difficult to differ from the findings of the High Court.
15. In the present case, the testimony of the victim inspires D confidence. Her testimony is not only corroborated by other witnesses but also by the medical evidence. Even if the statement of Niaz Deen, PW-4 is not taken into consideration, the other corroborative evidence in the case is sufficient to connect the accused with the crime.
16. Before we conclude, out of sheer deference to learned counsel for the appellant, we intend to notice the feeble submission made by the learned counsel for the appellant. It is contended by the learned counsel that the findings and the conclusion reached by the Sessions Court is one of the F possible view in the facts and circumstances of the case and therefore, the High Court ought not to have taken a different view and passed an order of conviction against the appellant. In aid of this submission, the learned counsel has invited our attention to the observations made by this Court in the case of Perla G Somasekhara Reddy and Ors. vs. State of A.P. ( 2009) 7 SCALE 115. In our considered view, the submission of the learned counsel has no merit. This Court in the aforesaid case by way of universal application has nof stated, that, whenever there is a judgment and order of acquittal by the Sessions RAM SINGH @ CHHAJU v. STATE OF H.P. [H.L.
DATTU, J.] Court, the High Court under no circumstances would interfere with the said order even when it comes to the conclusion that the findings and conclusion reached by the trial court is based on mere conjecture and hypothesis and not on the legal evidence. In fact, in the aforesaid decision this Court has taken note of what has been stated by this Court in the case of Chandrappa and Ors. vs. State of Kamataka (2007) Crl.L.J. 2136, wherein apart from others, it is stated, that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; 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; 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 emphasis 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; an appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of 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; and 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.
17. In the present case, the High Court on re-appreciation of evidence on record has differed with the findings of the Sessions Court on the innocence of the accused and has found A him guilty of the charges leveled against him. The High Court after evaluating ·the manner in which the evidence and other materials on record has been appreciated as well as the conclusions arrived at by the Sessions Court, has come to the conclusion that the findings of the Sessions Court are perverse and has resulted in miscarriage of justice has re-appreciated the evidence and materials on record and has found that the appellant is guilty of the offence alleged. Therefore, in our view, the decision on which reliance has been placed by learned co1-1nsel for the appellant would not assist him in any manner C whatsoever.
18. The result of the aforesaid discussion leads to only one conclusion that the accused committed forcible rape on the victim on the intervening night of 12/13th August, 1989, as alleged by her, and his conviction by the High Court is quite D justified being based on evidence on record. It is, therefore, confirmed.
19. We, therefore, find no merit in this appeal and the appeal is, accordingly, dismissed. N.J. Appeal dismissed.