CHAMAN LALversusTHE STATE OF HIMACHAL PRADESH

1000                     [2020] REPORTS
                SUPREME COURT   12 S.C.R. 1000            [2020] 12 S.C.R.


 A                               CHAMAN LAL
                                        v.
                    THE STATE OF HIMACHAL PRADESH
                       (Criminal Appeal No. 1229 of 2017)
 B                            DECEMBER 03, 2020
             [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                        M. R. SHAH, JJ.]
              Code of Criminal Procedure, 1973 – ss.378, 313 – Appeal
       against acquittal – FIR lodged against appellant-accused alleging
 C
       that when the prosecutrix used to go to jungle to graze goats and
       cattle, appellant also used to come there and had sexual intercourse
       with her forcibly – Trial Court acquitted the appellant for offences
       u/ss.376, 506, IPC on the grounds of delay in FIR and that the
       prosecutrix was not of unsound mind as alleged – Acquittal reversed
 D     by High Court – Held: It has been proved that the prosecutrix was
       mentally retarded and she was not in a position to understand the
       good and bad aspect of sexual assault – Appellant took
       disadvantage of the mental sickness and low IQ of the prosecutrix
       – He is the biological father of the child delivered by her – In his
       s.313 CrPC statement, the case of the appellant was of a total denial
 E
       – It was never his case that it was a case of consent – Thus, he came
       with a false defence – Considering the evidence on record, the High
       Court rightly convicted the appellant for the offence u/ss. 376 and
       506, IPC – Being the first appellate Court, the High Court was
       justified in re-appreciating the entire evidence on record and the
 F     reasoning given by the trial Court – Impugned judgment not
       interfered with – Penal Code, 1860 – ss.375, 376, 506.
             Dismissing the appeal, the Court
              HELD: 1.1 In the facts and circumstances of the case the
       High Court is justified and, as such, has not committed any error
 G     in reversing the order of acquittal passed by the trial Court and
       convicting the accused for the offences under Sections 376 and
       506 IPC. Being the first appellate Court, the High Court was
       justified in re-appreciating the entire evidence on record and the
       reasoning given by the trial Court. In the facts and circumstances
 H     of the case, the High Court has acted within the parameters of
                                       1000
   CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                          1001


the law laid down by this Court. On re-appreciation of the entire       A
evidence on record, more particularly the deposition of doctors
examined as PW11 and PW22, the High Court has specifically
found that the IQ of the victim was 62 which was based on the
history and mental state examination of the victim. Merely
because the victim was in a position to do some household works
                                                                        B
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      C
delivered by the victim. Despite the above, in his 313 statement
the case of the accused was of a total denial. It was never the
case of the accused that it was a case of consent. Thus, the
accused, as such, came with a false defence. Therefore,
considering the evidence on record, more particularly the
                                                                        D
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           E
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, even it is not the case on behalf of
the accused that it was a case of consent. The accused has taken
disadvantage of the mental sickness and low IQ of the victim.
                                                                        F
[Para 7, 10 and 11][1008-A; 1016-D-H; 1017-A-D]
      1.2 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 patient. Therefore,   G
even if there might be some contradictions with respect to
language known by the victim, in that case also, it cannot be said
to be the major contradictions to disbelieve the entire medical
evidence on the mental status of the victim. Therefore, the High
Court is justified in reversing the order of acquittal and convicting   H
1002           SUPREME COURT REPORTS                    [2020] 12 S.C.R.


 A     the accused for the offences under Sections 376 & 506 IPC.
       Present is a case of sexual assault on a victim whose IQ was 62
       and was mentally retarded and that accused has taken undue
       advantage of the mental sickness/illness of the victim. A person
       suffering from mental disorder or mental sickness deserves
       special care, love and affection. They are not to be exploited. In
 B
       the present case, the accused has exploited the victim by taking
       disadvantage of her mental sickness/illness. Therefore, no
       interference of this Court against the impugned judgment and
       order passed by the High Court convicting the accused is called
       for. [Paras 12, 13][1017-E-G; 1018-B-C]
 C          Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9
            SCR 1039; Kuldeep Singh v. Commissioner of Police
            (1999) 2 SCC 10 : [1998] 3 Suppl. SCR 594; Vijay
            Mohan Singh v. State of Karnataka (2019) 5 SCC 436
            : [2019] 6 SCR 994 – relied on.
 D          Krishna v. State of Karnataka (2014) 15 SCC 596
            – referred to.
                             Case Law Reference
       (2014) 15 SCC 596                referred to      Para 5.3
 E     [2010] 9 SCR 1039                relied on        Para 9.1
       [1998] 3 Suppl. SCR 594          relied on        Para 9.3
       [2019] 6 SCR 994                 relied on        Para 9.4
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
 F     1229 of 2017.
             From the Judgment and Order dated 14.09.2016/Order on
       Quantum of Sentence Dated 19.09.2016 of the High Court of Himachal
       Pradesh at Shimla in Criminal Appeal No. 36 of 2014.
             Ms. Radhika Gautam, Sarthak Ghonkrokta, Aslam, Advs. for the
 G     appearing parties.




 H
    CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                               1003


      The Judgment of the Court was delivered by                              A
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 14.09.2016/19.09.2016 passed by the High Court of
Himachal Pradesh, Shimla in Criminal Appeal No. 36 of 2014, by which
the High Court has allowed the said appeal preferred by the State and         B
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                    C
Rs.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 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:    D
       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      E
go to jungle to graze cattle and goats. The prosecutrix told her mother
that three-four 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      F
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 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 at          G
KNH, Shimla. Blood samples of the prosecutrix, the baby and the accused
were taken for DNA test. As per report, accused was the biological
father of the female child. The accused was arrested. After completion
of the investigation, the Investigating Officer submitted the chargesheet
against the accused for the offences under Sections 376 and 506 IPC.
                                                                              H
1004            SUPREME COURT REPORTS                         [2020] 12 S.C.R.


 A     The accused pleaded not guilty and therefore he came to be tried by the
       learned trial Court for the aforesaid offences.
              2.1 To prove the case against the accused, the prosecution
       examined as many as 23 witnesses including the parents of the
       prosecutrix (PW 1 & 2), Prosecutrix (PW3), Laboratory Technician –
 B     Jitender 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. Monika
       Sharma (PW14), ASI Takpa Dorje (PW17), SI Sunder Singh (PW19),
       Dr. Rama Malhotra, PGI, Chandigarh (PW22) and other witnesses. That
 C     after closure of the evidence on behalf of the prosecution, statement of
       the accused under Section 313 Cr.P.C. was recorded. He pleaded total
       innocence. The learned trial Court acquitted the accused mainly on the
       ground of delay in lodging the FIR and also on the ground that the
       prosecutrix was not mentally unsound to understand the consequences
 D     and what was happening.
             3. Feeling aggrieved and dissatisfied with the judgment and order
       of acquittal passed by the learned trial Court, the State preferred appeal
       before the High Court and by the impugned judgment and order and on
       re-appreciation of the entire evidence on record, more particularly the
 E     medical evidence, the High Court has reversed the order of acquittal
       and 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 re-
       appreciation 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
 F     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.
 G
             5. Ms. Radhika Gautam, learned Advocate has appeared for the
       appellant and Mr. Sarthak Ghonkrokta, Advocate has appeared for the
       respondent-State.
              5.1 Ms. Radhika Gautam, learned Advocate appearing on behalf
       of the appellant – accused has vehemently submitted that in the facts
 H
    CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                                   1005
                    [M. R. SHAH, J.]

and circumstances of the case the High Court has materially erred in              A
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.
                                                                                  B
      5.2 Learned counsel for the appellant-accused 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;                                C
      ii) even the father of the prosecutrix (PW1) clearly deposed that
the appellant – accused was called to discuss the matter and he offered
to take care of the child but refused to marry the prosecutrix. It is
submitted therefore that the FIR was filed only as a vengeful act. It is
submitted that the appellant-accused was not in a position to marry the           D
prosecutrix as the appellant was married and was having the children of
his own;
        iii) as such there is a delay of 8 months from the date of incident
in filing the FIR. It is submitted that the prosecutrix when examined the
day after registering the FIR dated 22.4.2008 is found to be carrying a           E
foetus of 8 months. It is submitted that it is not believable that the parents
were not aware of the pregnancy of the prosecutrix;
        iv) as such the prosecutrix was not suffering from mild mental
retardation as claimed by the prosecution. It is submitted that two
psychiatrists gave a different account of which language the prosecutrix          F
seems to know. It is submitted that one says she knew ‘Hindi’ and other
says she knew ‘Phari’ and he had to use the interpreter. It is submitted
that this is a major discrepancy in the prosecution’s case when one Doctor
who is supposed to have assessed her for mental faculties and therefore
must have asked her many questions which she spoke in Hindi and the
other Doctor who is also supposed to ask her a lot of questions in Phari          G
and he had to use the interpreter. It is submitted that therefore either
both of them or at least one of them is not stating the true facts;
      v) even there are material contradictions in the deposition of the
prosecutrix as well as the mother, sister and father of the prosecutrix
inasmuch as the prosecutrix said that she came to know about her                  H
1006            SUPREME COURT REPORTS                          [2020] 12 S.C.R.


 A     pregnancy from her family members when they told her about it, whereas
       the testimony of the mother, sister and father reveal that it was clearly
       the prosecutrix who informed her sister about the pregnancy;
             vi) the High Court has mainly relied upon the medical evidence of
       PW22 while coming to the conclusion that the prosecutrix was having
 B     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
 C     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.
 D            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.
 E
              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
 F     IPC, more particularly when the prosecutrix was suffering from mental
       disease and as per the medical evidence she was not in a position to
       understand the good and bad aspect of sexual assault.
             6.1 Learned counsel for the State has made the following
       submissions:
 G
             i) as the first appellate court the High Court was well within its
             jurisdiction to re-appreciate the entire evidence on record and to
             come to the right conclusion. It is submitted that in the present
             case the High Court has rightly re-appreciated the entire evidence
             on record, more particularly the medical evidence;
 H
   CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                                 1007
                   [M. R. SHAH, J.]

      ii) the aspect of delay in lodging the FIR has already been dealt        A
      with and considered by the High Court. It is submitted that as
      such the accused had taken undue advantage of the mental
      condition of the prosecutrix and therefore even if there is any
      material contradiction, the benefit shall not go to the accused and
      the benefit must go in favour of such a victim who is suffering
                                                                               B
      from a mental disease and not in a position to understand the good
      and bad aspect of sexual assault;
      iii) that in the present case even the conduct on the part of the
      accused is also required to be appreciated. It is submitted that it is
      an admitted position that the accused had sexually intercourse
      with the prosecutrix and because of that the prosecutrix was             C
      pregnant and delivered a baby child. Accused is not now disputing
      that the child does not belong to him. Despite the above, in his 313
      Cr.P.C. statement his case was of a total denial and innocence
      and it was not even his case that the prosecutrix was a consenting
      party and that he had sexually intercourse with the consent of the       D
      prosecutrix. It is submitted that thus the accused in his 313
      statement came out with a false case and did not state the true
      facts;
      iv) now so far as the submission on behalf of the accused that out
      of seven years RI, the accused has undergone four years RI and           E
      therefore the same may be considered in favour of the accused is
      concerned, it is submitted that the minimum sentence provided
      for the offence under Section 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          F
      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            G
present appeal.
       7. We have heard the learned counsel for the respective parties
at length.

                                                                               H
1008             SUPREME COURT REPORTS                          [2020] 12 S.C.R.


 A              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 re-appreciation 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
 B
       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
 C     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 re-appreciation of the entire evidence on
       record has found the accused guilty for the offences under Sections 376
 D     & 506 IPC and has reversed the order of acquittal passed by the learned
       trial Court. It is the case on behalf of the appellant-accused that in an
       appeal against order of acquittal passed by the learned trial Court, the
       High Court has committed a grave error in convicting the accused and
       reversing the order of acquittal passed by the learned trial Court.
       Therefore, the first thing which is required to be considered in the facts
 E     and circumstances of the case is, whether the High Court is justified in
       interfering with the order of acquittal passed by the learned trial Court
       and thereby convicting the accused?
              9. Before considering the appeal on merits, the law on the appeal
       against acquittal and the scope and ambit of Section 378 Cr.P.C. and the
 F     interference by the High Court in an appeal against acquittal is required
       to 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 against
       acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed
 G     and held as under:
             12. This Court time and again has laid down the guidelines for the
             High Court to interfere with the judgment and order of acquittal
             passed by the trial court. The appellate court should not ordinarily
             set aside a judgment of acquittal in a case where two views are
 H
CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                               1009
                [M. R. SHAH, J.]

 possible, though the view of the appellate court may be the more         A
 probable one. While dealing with a judgment of acquittal, the
 appellate court has to consider the entire evidence on record, so
 as to arrive at a finding as to whether the views of the trial court
 were perverse or otherwise unsustainable. The appellate court is
 entitled to consider whether in arriving at a finding of fact, the
                                                                          B
 trial court had failed to take into consideration admissible evidence
 and/or had taken into consideration the evidence brought on record
 contrary to law. Similarly, wrong placing of burden of proof may
 also be a subject-matter 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             C
 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
                                                                          D
 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          E
 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   F
 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                   G
 Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.
 State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of
 M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran
 (2007) 3 SCC 755)
                                                                          H
1010      SUPREME COURT REPORTS                          [2020] 12 S.C.R.


 A     15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,
       this Court reiterated the legal position as under: (SCC p. 432, para
       42)
       “(1) An appellate court has full power to review, reappreciate
       and reconsider the evidence upon which the order of acquittal is
 B     founded.
       (2) The Code of Criminal Procedure, 1973 puts no limitation,
       restriction or condition on exercise of such power and an appellate
       court on the evidence before it may reach its own conclusion,
       both on questions of fact and of law.
 C     (3) Various expressions, such as, ‘substantial 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
 D     nature of ‘flourishes of language’ to emphasise 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.
       (4) An appellate court, however, must bear in mind that in case of
 E     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,
 F     reaffirmed and strengthened by the trial court.
       (5) 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.”
       16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this
 G
       Court reiterated the said view, observing that the appellate court
       in dealing with the cases 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
 H
CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                               1011
                [M. R. SHAH, J.]

 court as the trial court had the distinct advantage of watching the      A
 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)                                         B
 “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         C
 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;
                                                                          D
 (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                  E
 unreasonable based on erroneous law and facts on the record of
 the case;
 (v) This Court must always give proper weight and consideration
 to the findings of the High Court;
 (vi) This Court would be extremely reluctant in interfering with a       F
 case when both the Sessions Court and the High Court have
 recorded an order of acquittal.”
 A similar view has been reiterated by this Court in Dhanapal v.
 State (2009) 10 SCC 401.
                                                                          G
 19. Thus, the law on the issue can be summarised to the effect
 that in exceptional cases where there are compelling
 circumstances, and the judgment under appeal is found to be
 perverse, the appellate court can interfere with the order of
 acquittal. The appellate court should bear in mind the presumption
                                                                          H
1012             SUPREME COURT REPORTS                           [2020] 12 S.C.R.


 A            of innocence of the accused and further that the trial court’s
              acquittal bolsters the presumption of his innocence. Interference
              in a routine manner where the other view is possible should be
              avoided, unless there are good reasons for interference.”
             9.2 When the findings of fact recorded by a court can be held to
 B     be perverse has been dealt with and considered in paragraph 20 of the
       aforesaid decision, which reads as under:
              “20. The findings of fact recorded by a court can be held to be
              perverse if the findings have been arrived at by ignoring or
              excluding relevant material or by taking into consideration
 C            irrelevant/inadmissible material. The finding may also be said to
              be perverse if it is “against the weight of evidence”, or if the
              finding so outrageously defies logic as to suffer from the vice of
              irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)
              4 SCC 635, Excise and Taxation Officer-cum-Assessing
              Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni
 D            Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya
              Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State
              (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State
              of A.P (2009) 10 SCC 636).”
                                                               (emphasis supplied)
 E
               9.3 It is further observed, after following the decision of this Court
       in the case of Kuldeep Singh v. Commissioner of Police (1999) 2
       SCC 10, that if a decision is arrived at on the basis of no evidence or
       thoroughly unreliable evidence and no reasonable person would act upon
       it, the order would be perverse. But if there is some evidence on record
 F     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
 G     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
 H            in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before
CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                              1013
                [M. R. SHAH, J.]

 this Court, the High Court interfered with the order of acquittal       A
 passed by the learned trial court on re-appreciation 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)                                                     B
    “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      C
    proper appreciation of the evidence. This rule will not be
    applicable in the present case where the Sessions Judge has
    made an absolutely wrong assumption of a very material and
    clinching aspect in the peculiar circumstances of the case.”
 31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the            D
 High Court reversed the order of acquittal passed by the learned
 trial court and held the accused guilty on re-appreciation of the
 entire evidence on record, however, the High Court did not record
 its conclusion on the question whether the approach of the trial
 court in dealing with the evidence was patently illegal or the
 conclusions arrived at by it were wholly untenable. Confirming          E
 the order passed by the High Court convicting the accused on
 reversal of the acquittal passed by the learned trial court, after
 being satisfied that the order of acquittal passed by the learned
 trial court was perverse and suffered from infirmities, this Court
 declined to interfere with the order of conviction passed by the
                                                                         F
 High Court. While confirming the order of conviction passed by
 the High Court, this Court observed in para 8 as under: (SCC p.
 416)
    “8. We have perused the judgment under appeal to ascertain
    whether the High Court has conformed to the aforementioned
    principles. We find that the High Court has not strictly proceeded   G
    in the manner laid down by this Court in Ramesh Babulal
    Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first
    recording its conclusion on the question whether the approach
    of the trial court in dealing with the evidence was patently
    illegal or the conclusions arrived at by it were wholly untenable,
                                                                         H
1014      SUPREME COURT REPORTS                          [2020] 12 S.C.R.


 A        which alone will justify interference in an order of acquittal
          though the High Court has rendered a well-considered judgment
          duly meeting all the contentions raised before it. But then will
          this non-compliance per se justify setting aside the judgment
          under appeal? We think, not. In our view, in such a case, the
          approach of the court which is considering the validity of the
 B        judgment of an appellate court which has reversed the order
          of acquittal passed by the trial court, should be to satisfy itself
          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
 C        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
 D        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.”
 E
       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
 F     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 learned Sessions Judge on several
       aspects was unsustainable. This Court further observed that as
 G     the 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 and
       record its own conclusion. This Court scrutinised the evidence of
       the eyewitnesses and opined that reasons adduced by the trial

 H
CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                              1015
                [M. R. SHAH, J.]

 court for discarding the testimony of the eyewitnesses were not         A
 at all sound. This Court also observed that as the evaluation of the
 evidence made by the trial court was manifestly erroneous and
 therefore it was the duty of the High Court to interfere with an
 order of acquittal passed by the learned Sessions Judge.
 31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this        B
 Court observed and held as under: (AIR pp. 809-10)
 “5. It has been argued by the learned counsel for the appellant
 that the judgment of the trial court being one of acquittal, the High
 Court should not have set it aside on mere appreciation of the
 evidence led on behalf of the prosecution unless it came to the         C
 conclusion that the judgment of the trial Judge was perverse. In
 our opinion, it is not correct to say that unless the appellate court
 in an appeal under Section 417 Cr.P.C came to the conclusion
 that the judgment of acquittal under appeal was perverse it could
 not set aside that order.
                                                                         D
 It has been laid down by this Court that it is open to the High
 Court on an appeal against an order of acquittal to review the
 entire evidence and to come to its own conclusion, of course,
 keeping in view the well-established rule that the presumption of
 innocence of the accused is not weakened but strengthened by
 the judgment of acquittal passed by the trial court which had the       E
 advantage of observing the demeanour of witnesses whose
 evidence have been recorded in its presence.
 It is also well settled that the court of appeal has as wide powers
 of appreciation of evidence in an appeal against an order of
 acquittal as in the case of an appeal against an order of conviction,   F
 subject to the riders that the presumption 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.                                                           G
 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)
                                                                         H
1016             SUPREME COURT REPORTS                            [2020] 12 S.C.R.


 A            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
 B            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.”
 C                                                              (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 case the High Court is justified and, as such, has
 D     not committed any error in reversing the order of acquittal passed by the
       learned trial Court and convicting the accused for the offences under
       Sections 376 and 506 IPC. Being the first appellate Court and as
       observed hereinabove in the aforesaid decisions the High Court was
       justified in re-appreciating the entire evidence on record and the reasoning
       given by the learned trial Court. In the facts and circumstances of the
 E     case, the High Court has acted within the parameters of the law laid
       down by this Court in the decisions, referred to hereinabove.
               11. So far as the merit of the appeal is concerned, on re-appreciation
       of the entire evidence on record, more particularly the deposition of
       doctors examined as PW11 – Dr. Ramesh Kumar and PW22 –
 F     Dr. Rama Malhotra, the High Court has specifically found that the IQ of
       the victim was 62 which was based on the history and mental state
       examination of the victim. The High Court has also come to the conclusion
       that the victim was not in a position to understand the good and bad
       aspect of the sexual assault. Merely because the victim was in a position
 G     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.
 H
    CHAMAN LAL v. THE STATE OF HIMACHAL PRADESH                                   1017
                    [M. R. SHAH, J.]

Despite the above, in his 313 statement the case of the accused was of            A
a total denial. It was never the case of the accused that it was a case of
consent. Therefore, 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
                                                                                  B
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. As observed hereinabove, even it is not the
case on behalf of the accused that it was a case of consent. On evidence,         C
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             D
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
cross-examination. In the cross-examination, PW22- Dr. Rama Malhotra              E
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          F
the questions, activities and the history of a patient. Therefore, even if
there might be some contradictions with respect to language known by
the victim, in that case also, it cannot be said to be the major contradictions
to disbelieve the entire medical evidence on the mental status of the
victim. Therefore, the High Court is justified in reversing the order of
acquittal and convicting the accused for the offences under Sections              G
376 & 506 IPC.
       13. Now so far as the submission on behalf of the accused that he
has already undergone four years RI out of seven years RI awarded to
him and is married and has two children and therefore a lenient view
                                                                                  H
1018            SUPREME COURT REPORTS                          [2020] 12 S.C.R.


 A     may be taken is concerned, it is required to be noted that as such the
       High Court has also taken a very lenient view by imposing the minimum
       sentence of seven years RI. It is required to be noted that it is a case of
       sexual assault on a victim whose IQ was 62 and was mentally retarded
       and that accused has taken undue advantage of the mental sickness/
       illness of the victim. A person suffering from mental disorder or mental
 B
       sickness deserves special care, love and affection. They are not to be
       exploited. In the present case, the accused has exploited the victim by
       taking disadvantage of her mental sickness/illness. Therefore, no
       interference of this Court against the impugned judgment and order passed
       by the High Court convicting the accused is called for.
 C            14. In view of the above and for the reasons stated hereinabove,
       the present appeal fails and deserves to be dismissed and is accordingly
       dismissed.


 D     Divya Pandey                                                Appeal dismissed.




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