CHAMAN LAL versus THE STATE OF HIMACHAL PRADESH on 3 December 2020

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 14.09.2016/19.09.2016 passed by the High Court ofHimachal Pradesh, Shimla in Criminal Appeal No. 36 of 2014, by whichthe High Court has allowed the said appeal preferred by the State andhas quashed and set aside the judgment and order of acquittal passed bythe learned trial Court acquitting the appellant herein – original accusedfor the offences under Sections 376 and 506 of the IPC and consequentlyhas convicted the appellant – accused for the aforesaid offences andhas sentenced him to undergo seven years R.I. with fine ofRs.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 Rs.5,000/- and indefault of payment of fine, further three months R.I. under Section 506IPC, the original accused has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

2. The facts leading to the present appeal in nutshell are as under:

That the father of the prosecutrix lodged an FIR against the accusedwith the allegations that on 1.4.2008, his wife Dhaneshwari Devitelephonically informed him at Shimla that their daughter (prosecutrix) ispregnant. It was alleged that the prosecutrix told her mother that whenshe used to go to jungle to graze goats and cattle, accused also used togo to jungle to graze cattle and goats. The prosecutrix told her motherthat three-four months ago, accused had sexual intercourse with herforcibly and without her consent. That the accused threatened theprosecutrix not to disclose the incident to anyone. That due to fear anddue to forgetting the same and further due to mental weakness, she didnot disclose about the incident to anyone including her mother. That theprosecutrix was got medically examined and as per the Medical Officerthe prosecutrix was carrying a pregnancy of 31 weeks. Her age wasstated to be 19 years. Prosecutrix was alleged to be mentally retarded.She was medically examined at IGMC, Shimla as well as PGI,Chandigarh. Prosecutrix gave birth to a female child on 19.6.2008 atKNH, Shimla. Blood samples of the prosecutrix, the baby and the accusedwere taken for DNA test. As per report, accused was the biologicalfather of the female child. The accused was arrested. After completionof the investigation, the Investigating Officer submitted the chargesheetagainst the accused for the offences under Sections 376 and 506 IPC.

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AThe accused pleaded not guilty and therefore he came to be tried by thelearned trial Court for the aforesaid offences.

2.1 To prove the case against the accused, the prosecutionexamined as many as 23 witnesses including the parents of theprosecutrix (PW 1 & 2), Prosecutrix (PW3), Laboratory Technician –BJitender Kumar (PW8), Dr. Sarla Chand (PW9), Dr. Rakesh Kumar,Radiologist (PW10), Dr. Ramesh Kumar, Assistant Professor,Department of Psychiatry (PW11), Dr. Jeeva Nand Chauhan (PW12),Nand Singh, Sr. Lab Technician, KNH, Shimla (PW13), Dr. MonikaSharma (PW14), ASI Takpa Dorje (PW17), SI Sunder Singh (PW19),Dr. Rama Malhotra, PGI, Chandigarh (PW22) and other witnesses. ThatCafter closure of the evidence on behalf of the prosecution, statement ofthe accused under Section 313 Cr.P.C. was recorded. He pleaded totalinnocence. The learned trial Court acquitted the accused mainly on theground of delay in lodging the FIR and also on the ground that theprosecutrix was not mentally unsound to understand the consequencesDand what was happening.

3. Feeling aggrieved and dissatisfied with the judgment and orderof acquittal passed by the learned trial Court, the State preferred appealbefore the High Court and by the impugned judgment and order and onre-appreciation of the entire evidence on record, more particularly theEmedical evidence, the High Court has reversed the order of acquittaland has convicted the accused for the offences under Sections 376 and506 IPC by observing that the prosecutrix was not in a position tounderstand the good and bad aspect of the sexual assault. On re-appreciation of the entire evidence on record, the High Court came tothe conclusion that the IQ of the prosecutrix was 62 and that she hadFmild mental retardation.

4. Feeling aggrieved and dissatisfied with the impugned judgmentand order of conviction and sentence passed by the High Court convictingthe accused for the aforesaid offences, the original accused has preferredthe present appeal.G

5. Ms. Radhika Gautam, learned Advocate has appeared for theappellant and Mr. Sarthak Ghonkrokta, Advocate has appeared for therespondent-State.

5.1 Ms. Radhika Gautam, learned Advocate appearing on behalfof the appellant – accused has vehemently submitted that in the factsH

and circumstances of the case the High Court has materially erred inreversing the acquittal and convicting the accused in an appeal againstacquittal. It is submitted that cogent reasons were given by the learnedtrial Court, which were on appreciation of the evidence on record, andtherefore the same were not required to be interfered with by the HighCourt in exercise of the appellate jurisdiction in an appeal against acquittal.

5.2 Learned counsel for the appellant-accused has made thefollowing submissions:

i) there was a delay of four months in registering the FIR from thetime the prosecution claimed the incident occurred and therefore thelearned trial Court rightly acquitted the accused;

ii) even the father of the prosecutrix (PW1) clearly deposed thatthe appellant – accused was called to discuss the matter and he offeredto take care of the child but refused to marry the prosecutrix. It issubmitted therefore that the FIR was filed only as a vengeful act. It issubmitted that the appellant-accused was not in a position to marry theprosecutrix as the appellant was married and was having the children ofhis own;

iii) as such there is a delay of 8 months from the date of incidentin filing the FIR. It is submitted that the prosecutrix when examined theday after registering the FIR dated 22.4.2008 is found to be carrying afoetus of 8 months. It is submitted that it is not believable that the parentswere not aware of the pregnancy of the prosecutrix;

iv) as such the prosecutrix was not suffering from mild mentalretardation as claimed by the prosecution. It is submitted that twopsychiatrists gave a different account of which language the prosecutrixseems to know. It is submitted that one says she knew ‘Hindi’ and othersays she knew ‘Phari’ and he had to use the interpreter. It is submittedthat this is a major discrepancy in the prosecution’s case when one Doctorwho is supposed to have assessed her for mental faculties and thereforemust have asked her many questions which she spoke in Hindi and theother Doctor who is also supposed to ask her a lot of questions in Phariand he had to use the interpreter. It is submitted that therefore eitherboth of them or at least one of them is not stating the true facts; v) even there are material contradictions in the deposition of theprosecutrix as well as the mother, sister and father of the prosecutrixinasmuch as the prosecutrix said that she came to know about her A

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Apregnancy from her family members when they told her about it, whereasthe testimony of the mother, sister and father reveal that it was clearlythe prosecutrix who informed her sister about the pregnancy;

vi) the High Court has mainly relied upon the medical evidence ofPW22 while coming to the conclusion that the prosecutrix was havingBmild mental retardation. It is submitted that deposition of PW22 iscompared with the deposition of other family members. As rightlyobserved by the learned trial Court, the prosecutrix was a person capableof understanding her welfare and quite intelligent.

5.3 Making the above submissions and relying upon the decisionCof this Court in the case of Krishna v. State of Karnataka (2014) 15SCC 596, it is submitted that the High Court has clearly erred in reversingthe order of acquittal passed by the learned trial Court which was basedon appreciation of evidence on record and the view taken by the learnedtrial Court was a plausible view.

D5.4 It is further submitted by the learned Advocate appearing onbehalf of the appellant – accused that out of seven years imprisonment,the accused has already undergone four years and therefore it is prayedto allow the present appeal and quash and set aside the impugnedjudgment and order passed by the High Court and in the alternative toreduce the sentence to the period already undergone by the accused.

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6. While opposing the present appeal, the learned Advocateappearing on behalf of the State has vehemently submitted that in thefacts and circumstances of the case the High Court has rightly reversedthe order of acquittal passed by the learned trial Court and has rightlyconvicted the accused for the offences under Sections 376 and 506FIPC, more particularly when the prosecutrix was suffering from mentaldisease and as per the medical evidence she was not in a position tounderstand the good and bad aspect of sexual assault.

6.1 Learned counsel for the State has made the followingsubmissions:G

i) as the first appellate court the High Court was well within itsjurisdiction to re-appreciate the entire evidence on record and tocome to the right conclusion. It is submitted that in the presentcase the High Court has rightly re-appreciated the entire evidenceon record, more particularly the medical evidence; H

ii) the aspect of delay in lodging the FIR has already been dealtwith and considered by the High Court. It is submitted that assuch the accused had taken undue advantage of the mentalcondition of the prosecutrix and therefore even if there is anymaterial contradiction, the benefit shall not go to the accused andthe benefit must go in favour of such a victim who is sufferingfrom a mental disease and not in a position to understand the goodand bad aspect of sexual assault;

iii) that in the present case even the conduct on the part of theaccused is also required to be appreciated. It is submitted that it isan admitted position that the accused had sexually intercoursewith the prosecutrix and because of that the prosecutrix waspregnant and delivered a baby child. Accused is not now disputingthat the child does not belong to him. Despite the above, in his 313Cr.P.C. statement his case was of a total denial and innocenceand it was not even his case that the prosecutrix was a consentingparty and that he had sexually intercourse with the consent of theprosecutrix. It is submitted that thus the accused in his 313statement came out with a false case and did not state the truefacts; iv) now so far as the submission on behalf of the accused that outof seven years RI, the accused has undergone four years RI andtherefore the same may be considered in favour of the accused isconcerned, it is submitted that the minimum sentence providedfor the offence under Section 376 is seven years and the samecan be reduced only by giving a special reasons. It is submittedthat in the present case, as such, the High Court has already takena lenient view by awarding seven years RI only. It is submittedthat when it is a case of sexual assault on a person suffering frommental sickness and the accused has taken disadvantage of themental condition of the victim, such cases should be dealt with aniron hand and no leniency should be shown to such accused.

6.2 Making the above submissions, it is prayed to dismiss thepresent appeal.

7. We have heard the learned counsel for the respective partiesat length.

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AAt the outset, it is required to be noted that by the impugnedjudgment and order the High Court has convicted the accused for theoffences under Section 376 and 506 IPC. It is also required to be notedthat on re-appreciation of the evidence, the High Court found that theIQ of the victim was very low and she was suffering from mental illnessand she was not in a position to understand good and bad aspect ofBsexual assault. It is also required to be noted and it is not in dispute thatthe accused had sexually intercourse with the victim and that the victimdelivered a baby child and that the accused is found to be the biologicalfather of the baby child delivered by the victim. It is also required to benoted that in the 313 statement the case of the accused was of a totalCdenial. It was not his case that it was a case of consent. Thus, theaccused, as such, came with a false defence.

8. It is true that the learned trial Court acquitted the accused.However, the High Court on re-appreciation of the entire evidence onrecord has found the accused guilty for the offences under Sections 376D& 506 IPC and has reversed the order of acquittal passed by the learnedtrial Court. It is the case on behalf of the appellant-accused that in anappeal against order of acquittal passed by the learned trial Court, theHigh Court has committed a grave error in convicting the accused andreversing the order of acquittal passed by the learned trial Court.Therefore, the first thing which is required to be considered in the factsEand circumstances of the case is, whether the High Court is justified ininterfering with the order of acquittal passed by the learned trial Courtand thereby convicting the accused?

9. Before considering the appeal on merits, the law on the appealagainst acquittal and the scope and ambit of Section 378 Cr.P.C. and theFinterference by the High Court in an appeal against acquittal is requiredto be considered.

9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189),this Court had reiterated the principles to be followed in an appeal againstacquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observedGand held as under:

12. This Court time and again has laid down the guidelines for theHigh Court to interfere with the judgment and order of acquittalpassed by the trial court. The appellate court should not ordinarilyset aside a judgment of acquittal in a case where two views are H

possible, though the view of the appellate court may be the moreprobable one. While dealing with a judgment of acquittal, theappellate court has to consider the entire evidence on record, soas to arrive at a finding as to whether the views of the trial courtwere perverse or otherwise unsustainable. The appellate court isentitled to consider whether in arriving at a finding of fact, thetrial court had failed to take into consideration admissible evidenceand/or had taken into consideration the evidence brought on recordcontrary to law. Similarly, wrong placing of burden of proof mayalso be a subject-matter of scrutiny by the appellate court. (VideBalak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missirv. State of Bihar (1990) 4 SCC 17,Shailendra Pratap v. Stateof 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 SCC731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulveluv. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. Stateof 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, thePrivy Council observed as under: (IA p. 404)

“… the High Court should and will always give proper weight andconsideration to such matters as (1) the views of the trial Judgeas to the credibility of the witnesses; (2) the presumption ofinnocence in favour of the accused, a presumption certainly notweakened 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) theslowness of an appellate court in disturbing a finding of fact arrivedat by a Judge who had the advantage of seeing the witnesses.”

14. The aforesaid principle of law has consistently been followedby 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, KheduMohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State ofM.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran(2007) 3 SCC 755)

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SUPREME COURT REPORTS

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15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,this Court reiterated the legal position as under: (SCC p. 432, para42)

“(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittal isfounded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and an appellatecourt on the evidence before it may reach its own conclusion,both on questions of fact and of law.

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(3) Various expressions, such as, ‘substantial and compellingreasons’, ‘good and sufficient grounds’, ‘very strongcircumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc.are not intended to curtail extensive powers of an appellate courtin an appeal against acquittal. Such phraseologies are more in thenature of ‘flourishes of language’ to emphasise the reluctance ofan appellate court to interfere with acquittal than to curtail thepower of the court to review the evidence and to come to its ownconclusion.

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(4) An appellate court, however, must bear in mind that in case ofEacquittal, there is double presumption in favour of the accused.Firstly, the presumption of innocence is available to him underthe fundamental principle of criminal jurisprudence that everyperson shall be presumed to be innocent unless he is proved guiltyby a competent court of law. Secondly, the accused having securedhis acquittal, the presumption of his innocence is further reinforced,Freaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of theevidence on record, the appellate court should not disturb the findingof acquittal recorded by the trial court.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, thisCourt reiterated the said view, observing that the appellate courtin dealing with the cases in which the trial courts have acquittedthe accused, should bear in mind that the trial court’s acquittalbolsters the presumption that he is innocent. The appellate courtmust give due weight and consideration to the decision of the trial G

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court as the trial court had the distinct advantage of watching thedemeanour of the witnesses, and was in a better position toevaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, theCourt again examined the earlier judgments of this Court and laiddown that: (SCC p. 374, para 20)

“20. … an order of acquittal should not be lightly interfered witheven if the court believes that there is some evidence pointing outthe finger towards the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Courtgave certain illustrative circumstances in which the Court wouldbe justified in interfering with a judgment of acquittal by the HighCourt. The circumstances include: (SCC p. 286, para 28)

“(i) The High Court’s decision is based on totally erroneous viewof law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence anddocuments on record;

(iii) The entire approach of the High Court in dealing with theevidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust andunreasonable based on erroneous law and facts on the record ofthe case;

(v) This Court must always give proper weight and considerationto the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with acase when both the Sessions Court and the High Court haverecorded an order of acquittal.”

A similar view has been reiterated by this Court in Dhanapal v.State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effectthat in exceptional cases where there are compellingcircumstances, and the judgment under appeal is found to beperverse, the appellate court can interfere with the order ofacquittal. The appellate court should bear in mind the presumption A

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Aof innocence of the accused and further that the trial court’sacquittal bolsters the presumption of his innocence. Interferencein a routine manner where the other view is possible should beavoided, unless there are good reasons for interference.”

9.2 When the findings of fact recorded by a court can be held toBbe perverse has been dealt with and considered in paragraph 20 of theaforesaid decision, which reads as under:

“20. The findings of fact recorded by a court can be held to beperverse if the findings have been arrived at by ignoring orexcluding relevant material or by taking into considerationCirrelevant/inadmissible material. The finding may also be said tobe perverse if it is “against the weight of evidence”, or if thefinding so outrageously defies logic as to suffer from the vice ofirrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)4 SCC 635, Excise and Taxation Officer-cum-AssessingAuthority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, TriveniDRubber & Plastics v. CCE 1994 Supp. (3) SCC 665, GayaDin v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State(2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. Stateof A.P (2009) 10 SCC 636).”

(emphasis supplied)

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9.3 It is further observed, after following the decision of this Courtin the case of Kuldeep Singh v. Commissioner of Police (1999) 2SCC 10, that if a decision is arrived at on the basis of no evidence orthoroughly unreliable evidence and no reasonable person would act uponit, the order would be perverse. But if there is some evidence on recordFwhich is acceptable and which could be relied upon, the conclusionswould not be treated as perverse and the findings would not be interferedwith.

9.4 In the recent decision of Vijay Mohan Singh v. State ofKarnataka, (2019) 5 SCC 436, this Court again had an occasion toGconsider the scope of Section 378 Cr.P.C. and the interference by theHigh Court in an appeal against acquittal. This Court considered catenaof decisions of this Court right from 1952 onwards. In paragraph 31, it isobserved and held as under:

“31. An identical question came to be considered before this CourtHin Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittalpassed by the learned trial court on re-appreciation of the entireevidence on record. However, the High Court, while reversingthe acquittal, did not consider the reasons given by the learnedtrial court while acquitting the accused. Confirming the judgmentof the High Court, this Court observed and held in para 10 asunder: (SCC p. 233)

“10. Once the appeal was rightly entertained against the orderof acquittal, the High Court was entitled to reappreciate theentire evidence independently and come to its own conclusion.Ordinarily, the High Court would give due importance to theopinion of the Sessions Judge if the same were arrived at afterproper appreciation of the evidence. This rule will not beapplicable in the present case where the Sessions Judge hasmade an absolutely wrong assumption of a very material andclinching aspect in the peculiar circumstances of the case.”

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, theHigh Court reversed the order of acquittal passed by the learnedtrial court and held the accused guilty on re-appreciation of theentire evidence on record, however, the High Court did not recordits conclusion on the question whether the approach of the trialcourt in dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable. Confirmingthe order passed by the High Court convicting the accused onreversal of the acquittal passed by the learned trial court, afterbeing satisfied that the order of acquittal passed by the learnedtrial court was perverse and suffered from infirmities, this Courtdeclined to interfere with the order of conviction passed by theHigh Court. While confirming the order of conviction passed bythe High Court, this Court observed in para 8 as under: (SCC p.416)

“8. We have perused the judgment under appeal to ascertainwhether the High Court has conformed to the aforementionedprinciples. We find that the High Court has not strictly proceededin the manner laid down by this Court in Ramesh BabulalDoshi v. State of Gujarat (1996) 9 SCC 225 viz. firstrecording its conclusion on the question whether the approachof the trial court in dealing with the evidence was patentlyillegal or the conclusions arrived at by it were wholly untenable, A

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which alone will justify interference in an order of acquittalthough the High Court has rendered a well-considered judgmentduly meeting all the contentions raised before it. But then willthis non-compliance per se justify setting aside the judgmentunder appeal? We think, not. In our view, in such a case, theapproach of the court which is considering the validity of thejudgment of an appellate court which has reversed the orderof acquittal passed by the trial court, should be to satisfy itselfif the approach of the trial court in dealing with the evidencewas patently illegal or conclusions arrived at by it aredemonstrably unsustainable and whether the judgment of theappellate court is free from those infirmities; if so to hold thatthe trial court judgment warranted interference. In such a case,there is obviously no reason why the appellate court’s judgmentshould be disturbed. But if on the other hand the court comesto the conclusion that the judgment of the trial court does notsuffer from any infirmity, it cannot but be held that theinterference by the appellate court in the order of acquittalwas not justified; then in such a case the judgment of theappellate court has to be set aside as of the two reasonableviews, the one in support of the acquittal alone has to stand.Having regard to the above discussion, we shall proceed toexamine 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 substancein the grievance of the learned counsel appearing on behalf of theaccused that the High Court has not adverted to all the reasonsgiven by the trial Judge for according an order of acquittal, thisCourt refused to set aside the order of conviction passed by theHigh Court after having found that the approach of the SessionsJudge in recording the order of acquittal was not proper and theconclusion arrived at by the learned Sessions Judge on severalaspects was unsustainable. This Court further observed that asthe Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court,therefore, was fully entitled to reappreciate the evidence andrecord its own conclusion. This Court scrutinised the evidence ofthe eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were notat all sound. This Court also observed that as the evaluation of theevidence made by the trial court was manifestly erroneous andtherefore it was the duty of the High Court to interfere with anorder of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, thisCourt observed and held as under: (AIR pp. 809-10)

“5. It has been argued by the learned counsel for the appellantthat the judgment of the trial court being one of acquittal, the HighCourt should not have set it aside on mere appreciation of theevidence led on behalf of the prosecution unless it came to theconclusion that the judgment of the trial Judge was perverse. Inour opinion, it is not correct to say that unless the appellate courtin an appeal under Section 417 Cr.P.C came to the conclusionthat the judgment of acquittal under appeal was perverse it couldnot set aside that order.

It has been laid down by this Court that it is open to the HighCourt on an appeal against an order of acquittal to review theentire evidence and to come to its own conclusion, of course,keeping in view the well-established rule that the presumption ofinnocence of the accused is not weakened but strengthened bythe judgment of acquittal passed by the trial court which had theadvantage of observing the demeanour of witnesses whoseevidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powersof appreciation of evidence in an appeal against an order ofacquittal as in the case of an appeal against an order of conviction,subject to the riders that the presumption of innocence with whichthe accused person starts in the trial court continues even up tothe appellate stage and that the appellate court should attach dueweight to the opinion of the trial court which recorded the orderof acquittal.

If the appellate court reviews the evidence, keeping thoseprinciples in mind, and comes to a contrary conclusion, the judgmentcannot be said to have been vitiated. (See in this connection thevery cases cited at the Bar, namely, Surajpal Singh v. State AIR1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122)

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In our opinion, there is no substance in the contention raised onbehalf of the appellant that the High Court was not justified inreviewing 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 toBbe beset with fanciful doubts, rejects creditworthy evidence forslender reasons and takes a view of the evidence which is butbarely possible, it is the obvious duty of the High Court to interferein the interest of justice, lest the administration of justice be broughtto ridicule.”

(emphasis supplied)

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10. Having gone through the impugned judgment and order passedby the High Court and also the judgment and order of acquittal passedby the learned trial Court, we are of the firm opinion that in the facts andcircumstances of the case the High Court is justified and, as such, hasDnot committed any error in reversing the order of acquittal passed by thelearned trial Court and convicting the accused for the offences underSections 376 and 506 IPC. Being the first appellate Court and asobserved hereinabove in the aforesaid decisions the High Court wasjustified in re-appreciating the entire evidence on record and the reasoninggiven by the learned trial Court. In the facts and circumstances of theEcase, the High Court has acted within the parameters of the law laiddown by this Court in the decisions, referred to hereinabove.

11. So far as the merit of the appeal is concerned, on re-appreciationof the entire evidence on record, more particularly the deposition ofdoctors examined as PW11 – Dr. Ramesh Kumar and PW22 –FDr. Rama Malhotra, the High Court has specifically found that the IQ ofthe victim was 62 which was based on the history and mental stateexamination of the victim. The High Court has also come to the conclusionthat the victim was not in a position to understand the good and badaspect of the sexual assault. Merely because the victim was in a positionto do some household works cannot discard the medical evidence thatGthe victim had mild mental retardation and she was not in a position tounderstand the good and bad aspect of sexual assault. It appears thatthe accused had taken disadvantage of the mental illness of the victim.It is required to be appreciated coupled with the fact that the accused isfound to be the biological father of the baby child delivered by the victim.H

Despite the above, in his 313 statement the case of the accused was ofa total denial. It was never the case of the accused that it was a case ofconsent. Therefore, considering the evidence on record, more particularlythe deposition of PW11 and PW22 and even the deposition of the otherprosecution witnesses, the High Court has rightly observed that casewould fall under Section 375 IPC and has rightly convicted the accusedfor the offence under Section 376 IPC. Even as per clause fifthly ofSection 375 IPC, “a man is said to commit rape”, if with her consentwhen, at the time of giving such consent, by reason of unsoundness ofmind, is unable to understand the nature and consequences of that towhich she gives consent. As observed hereinabove, even it is not thecase 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 retardedand her IQ was 62 and she was not in a position to understand the goodand bad aspect of sexual assault. The accused has taken disadvantageof the mental sickness and low IQ of the victim.

12. Now so far as the submission on behalf of the accused thatthere are contradictions in the statement of PW11 – Dr. Ramesh Kumarand PW22 – Dr. Rama Malhotra that she was not knowing ‘Hindi’ andthat she was only knowing ‘Phari’ and therefore in view of suchcontradictions the benefit of doubt must go in favour of the accused isconcerned, the aforesaid aspect has been explained by PW22 in hercross-examination. In the cross-examination, PW22- Dr. Rama Malhotrahas specifically stated that the language is not material in the tests becausethese are independent of language. From the medical evidence, it emergesthat IQ 62 falls in the category of ‘mild mental retardation’. It has alsoemerged that the mental status and IQ are determined on the basis ofthe injuries and activities. IQ of a person can be known on the basis ofthe questions, activities and the history of a patient. Therefore, even ifthere might be some contradictions with respect to language known bythe victim, in that case also, it cannot be said to be the major contradictionsto disbelieve the entire medical evidence on the mental status of thevictim. Therefore, the High Court is justified in reversing the order ofacquittal and convicting the accused for the offences under Sections376 & 506 IPC.

13. Now so far as the submission on behalf of the accused that hehas already undergone four years RI out of seven years RI awarded tohim and is married and has two children and therefore a lenient view AB

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Amay be taken is concerned, it is required to be noted that as such theHigh Court has also taken a very lenient view by imposing the minimumsentence of seven years RI. It is required to be noted that it is a case ofsexual assault on a victim whose IQ was 62 and was mentally retardedand that accused has taken undue advantage of the mental sickness/illness of the victim. A person suffering from mental disorder or mentalBsickness deserves special care, love and affection. They are not to beexploited. In the present case, the accused has exploited the victim bytaking disadvantage of her mental sickness/illness. Therefore, nointerference of this Court against the impugned judgment and order passedby the High Court convicting the accused is called for.C14. In view of the above and for the reasons stated hereinabove,the present appeal fails and deserves to be dismissed and is accordinglydismissed.

DDivya Pandey

Appeal dismissed.

E

F

G

H