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TMI Blog2010 (1) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, on the same being granted, this appeal is before us. 2. Co-accused Naresh Singh alias Titta died during the pendency of appeal before the High Court. 3. We shall state the facts of the case as put forth by the prosecution: Smt. Chanchala Devi, hereinafter referred to as the "victim", is the resident of village Dhabian and, was midwife by profession. Shri Chattar Singh is the husband of Smt. Chanchala Devi. Shri Ashok Kumar (PW-7) is her son. The accused are the residents of village Guriyal, which is situated at a distance of about 2 Kms from village Dhabian. Smt. Chanchala Devi - Victim was present in her house on August 13, 1989. She had gone to bed along with her husband after taking her meal on that day. Her son Ashok Kumar (PW-7) aged about 24 years was present in the house and was sleeping in the courtyard of the house. That night i.e. on the night of 12/13th August, 1989, PW-7 Ashok Kumar woke up his mother Chanchala Devi and told her that Naresh Singh alias Titta (dead) has come to call her as his Bhabi, who was not named by him, has been having labour pains in village Guriyal. The victim went out of the room and saw Naresh Singh alias Titta sitting on the cot of her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The accused persons pleaded not guilty to the charge. Their defence was that they have been falsely implicated by the victim on account of animosity. 5. In support of its case, the prosecution examined the victim Smt. Chanchala Devi (PW1) who has supported the prosecution version in all its material particulars. Niaz Deen (PW-4) was also examined as a witness of fact, but he was declared hostile and cross examined by State counsel. Dr. S. Mahajan, (PW-2) was examined to prove the medical examination report of the victim. Dr. Anil Mahajan (PW-3) was examined to prove the medical examination report of the accused. Sardar Balwant Singh, (PW-5) was examined to prove the statement of the accused made before the Station House Officer, but, he was declared hostile and cross examined by the State counsel. Ashok Kumar, (PW-7), son of the victim was examined to corroborate the statement of the victim. 6. The trial court has found that the prosecution has not been able to prove that the accused persons had sexual intercourse with the victim. Accordingly, has acquitted the appellant herein of the crime. 7. The State of Himachal Pradesh had carried the matter by filing Criminal Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) could not have heard the narration of the incident by the victim to her 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 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. 11. The High Court has 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 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 mout ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantial 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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