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A division bench of Justices Sureshwar Thakur and Chander Bhusan Barowalia on 5^th march 2021, quashed the impugned judgment of the trial court on the ground that the. Judgment “suffers, from perversity or absurdity of mis-appreciation and nonappreciation, of evidence, on record.”

The accused/appellant herein was charged for the commission of offences punishable under Sections 341, 376 and 506 of the IPC. The learned trial Court concerned, made an order of conviction, and also framed charges, under Sections 341, 376, and, under Section 506 of the IPC. All the mentioned sentences were ordered to run concurrently.

“The genesis of the prosecution story, becomes, embodied in the apposite FIR, FIR whereof becomes borne in Ex.PW11/A.  The prosecutrix therein attributes to the accused criminal penal misdemeanor(s) punishable under Section 376 of the IPC.   The incriminatory narratives carried therein also became subsequently echoed by the prosecutrix hence before the learned Magistrate concerned, wherebeforewhom, proceedings became drawn under Section 164 of the Cr.P.C.” – stated the appeal.

The prosecution, has relied, upon best scientific evidence, unfolded by the FSL concerned wherein, the vaginal swab of the prosecutrix collected from the accused, rather upon each being subjected, to DNA profiling.“(a) necessarily the afore inter se matching is conclusive proof, vis-a-vis, the relevant incriminatory participation, of, the accused, (b) more so when probative vigour thereof remains endeavoured to be denuded, by adduction of cogent evidence.”

It was also stated that the prosecutrix, was a major and hence was competent to give her valid consent to the accused/convict. “Since, the prosecution was enjoined to adduce evidence, personificatory, vis-a-vis, the accused perpetrating forcible sexual intercourses, upon, the prosecutrix, rather at the relevant stage, and, at the site of occurrence, (i) and, the afore evidence became enjoined to be carried in MLCs, respectively drawn of the prosecutrix, and, of the accused, (ii) inasmuch, as the apposite MLCs, personifying, vis-a-vis, through resistive abrasions, and, bruises existing on the bodies of both the accused, and, of the prosecutrix, the latter rather not consensually succumbing to the accused's sexual misdemeanors.”

The prosecution contended that, “in the afore exhibits, no echoings of any abrasions, or bruises rather carried, respectively on the body either of the prosecutrix, and, upon the body of the accused become pronounced.  Though, for unflinchingly proving the charges against the accused, the resistive bruises, and, abrasions, reflected in the respectively drawn MLCs of the accused, and, of the prosecutrix, rather comprised the best evidence qua therewith, yet when the afore evidence marking the resistance of the prosecutrix, to the sexual overtures  of the accused, is amiss in the MLCs drawn, vis-a-vis, her, and, also in the MLC drawn.”

He further contended that, “it appears that since she has acquiesced to the suggestion qua hers holding extremely good, and, cordial relations with the accused, or/and, hence becomes  construable, to, volitionally take to the company of the accused, and, also becomes construable to mete the apposite completest volitional consent to the accused, for his subjecting her to sexual intercourse(s). Significantly also when cogent evidence, in support of charge drawn under Section 506, of, the IPC is amiss hereat, reiteratedly the afore drawn charge also founders.”

Therefore taking into account the facts and circumstances of the present case, the bench allowed the appeal and observed that,

“the learned trial Court has not appraised the entire evidence, on record, in a wholesome and harmonious manner, and, the  analysis thereof, by the learned  trial Court, hence suffers, from, perversity or absurdity of mis-appreciation and nonappreciation, of evidence, on record.”

“The impugned judgment is quashed, and, set aside. Accordingly, the accused is acquitted from the charged offences. He be forthwith released from custody.  Release warrants be prepared accordingly.  Fine amount, if any, as, deposited be refunded to him. All pending applications also stand disposed of.  The records be sent down forthwith.”- ordered the court.

Case title: Lovely Negi @ Tinu v. State of H.P.

Access Copy of Judgment Here