TaxTMI 
TaxTMI 
2020 (12) TMI 1290
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....on 376 IPC and four years R.I. with fine of Rs. 5,000/and in default of payment of fine, further three months R.I. under Section 506 IPC, the original accused has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the father of the prosecutrix lodged an FIR against the accused with the allegations that on 1.4.2008, his wife Dhaneshwari Devi telephonically informed him at Shimla that their daughter (prosecutrix) is pregnant. It was alleged that the prosecutrix told her mother that when she used to go to jungle to graze goats and cattle, accused also used to go to jungle to graze cattle and goats. The prosecutrix told her mother that threefour months ago, accused had sexual intercourse with her forcibly and without her consent. That the accused threatened the prosecutrix not to disclose the incident to anyone. That due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother. That the prosecutrix was got medically examined and as per the Medical Officer the prosecutrix was carrying a pregnancy of 31 weeks. Her age was stated to be 19 year....
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....tion and sentence passed by the High Court convicting the accused for the aforesaid offences, the original accused has preferred the present appeal. 5. Ms. Radhika Gautam, learned Advocate has appeared for the appellant and Mr. Sarthak Ghonkrokta, Advocate has appeared for the respondentState. 5.1 Ms. Radhika Gautam, learned Advocate appearing on behalf of the appellant - accused has vehemently submitted that in the facts and circumstances of the case the High Court has materially erred in reversing the acquittal and convicting the accused in an appeal against acquittal. It is submitted that cogent reasons were given by the learned trial Court, which were on appreciation of the evidence on record, and therefore the same were not required to be interfered with by the High Court in exercise of the appellate jurisdiction in an appeal against acquittal. 5.2 Learned counsel for the appellantaccused has made the following submissions: i) there was a delay of four months in registering the FIR from the time the prosecution claimed the incident occurred and therefore the learned trial Court rightly acquitted the accused; ii) even the father of the prosecutrix (PW1) clearly d....
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....the case of Krishna v. State of Karnataka (2014) 15 SCC 596, it is submitted that the High Court has clearly erred in reversing the order of acquittal passed by the learned trial Court which was based on appreciation of evidence on record and the view taken by the learned trial Court was a plausible view. 5.4 It is further submitted by the learned Advocate appearing on behalf of the appellant - accused that out of seven years imprisonment, the accused has already undergone four years and therefore it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court and in the alternative to reduce the sentence to the period already undergone by the accused. 6. While opposing the present appeal, the learned Advocate appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case the High Court has rightly reversed the order of acquittal passed by the learned trial Court and has rightly convicted the accused for the offences under Sections 376 and 506 IPC, more particularly when the prosecutrix was suffering from mental disease and as per the medical evidence she was not in a position....
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....niency should be shown to such accused. 6.2 Making the above submissions, it is prayed to dismiss the present appeal. 7. We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that by the impugned judgment and order the High Court has convicted the accused for the offences under Section 376 and 506 IPC. It is also required to be noted that on reappreciation of the evidence, the High Court found that the IQ of the victim was very low and she was suffering from mental illness and she was not in a position to understand good and bad aspect of sexual assault. It is also required to be noted and it is not in dispute that the accused had sexually intercourse with the victim and that the victim delivered a baby child and that the accused is found to be the biological father of the baby child delivered by the victim. It is also required to be noted that in the 313 statement the case of the accused was of a total denial. It was not his case that it was a case of consent. Thus, the accused, as such, came with a false defence. 8. It is true that the learned trial Court acquitted the accused. However, the High Court on reap....
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....ngh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (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." 14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan ....
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....te the credibility of the witnesses. 17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused." 18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and cons....
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....te of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under: "31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) "10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of ....
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....warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case." 31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the ....
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.... If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule." (emphasis supplied) 10. Having gone through the impugned judgment and order passed by the High Court and also the judgment and order of acquittal passed by the learned trial Court, we are of the firm opinion that in the facts and circumstances of the....
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....used that it was a case of consent. On evidence, it has been established and proved that the victim was mentally retarded and her IQ was 62 and she was not in a position to understand the good and bad aspect of sexual assault. The accused has taken disadvantage of the mental sickness and low IQ of the victim. 12. Now so far as the submission on behalf of the accused that there are contradictions in the statement of PW11 - Dr. Ramesh Kumar and PW22 - Dr. Rama Malhotra that she was not knowing 'Hindi' and that she was only knowing 'Phari' and therefore in view of such contradictions the benefit of doubt must go in favour of the accused is concerned, the aforesaid aspect has been explained by PW22 in her crossexamination. In the crossexamination, PW22Dr. Rama Malhotra has specifically stated that the language is not material in the tests because these are independent of language. From the medical evidence, it emerges that IQ 62 falls in the category of 'mild mental retardation'. It has also emerged that the mental status and IQ are determined on the basis of the injuries and activities. IQ of a person can be known on the basis of the questions, activities and the history of a patie....