9911796707
TMI Blog2020 (12) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... assault. Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault. It appears that the accused had taken disadvantage of the mental illness of the victim. It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim. Considering the evidence on record, more particularly the deposition of PW11 and PW22 and even the deposition of the other prosecution witnesses, the High Court has rightly observed that case would fall under Section 375 IPC and has rightly convicted the accused for the offence under Section 376 IPC. Even as per clause fifthly of Section 375 IPC, a man is said to commit rape , if with her consent when, at the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives 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 underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State and has quashed and set aside the judgment and order of acquittal passed by the learned trial Court acquitting the appellant herein original accused for the offences under Sections 376 and 506 of the IPC and consequently has convicted the appellant accused for the aforesaid offences and has sentenced him to undergo seven years R.I. with fine of ₹ 10,000/and in default of payment of fine, further six months R.I. under Section 376 IPC and four years R.I. with fine of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has convicted the accused for the offences under Sections 376 and 506 IPC by observing that the prosecutrix was not in a position to understand the good and bad aspect of the sexual assault. On reappreciation of the entire evidence on record, the High Court came to the conclusion that the IQ of the prosecutrix was 62 and that she had mild mental retardation. 4. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction 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 require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y relied upon the medical evidence of PW22 while coming to the conclusion that the prosecutrix was having mild mental retardation. It is submitted that deposition of PW22 is compared with the deposition of other family members. As rightly observed by the learned trial Court, the prosecutrix was a person capable of understanding her welfare and quite intelligent. 5.3 Making the above submissions and relying upon the decision of this Court in 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 prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 376 is seven years and the same can be reduced only by giving a special reasons. It is submitted that in the present case, as such, the High Court has already taken a lenient view by awarding seven years RI only. It is submitted that when it is a case of sexual assault on a person suffering from mental sickness and the accused has taken disadvantage of the mental condition of the victim, such cases should be dealt with an iron hand and no leniency 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subjectmatter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which the trial courts have acquitted the accused, should bear in mind that the trial court s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 9.4 In the recent decision of Vijay Mohan Singh v. State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of giving such consent, by reason of unsoundness of mind, is unable to understand the nature and consequences of that to which she gives consent. As observed hereinabove, even it is not the case on behalf of the accused 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
