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2014 DIGILAW 433 (JK)

State Of J&K v. Mahavir Paswan

2014-10-30

BANSI LAL BHAT, DHIRAJ SINGH THAKUR

body2014
Per Bansi Lal Bhat, J. Condl. No. 230/2014 1. For the reasons mentioned in the instant application and those urged at the time of arguments, delay of 138 days' in filing the acquittal appeal is condoned. 2. Condonation application stands disposed of. SLAA No. 249/2014 &Cr. Acq. Appeal No. 237/2014 3. Aggrieved of the impugned judgment dated 31.01.2014 rendered by learned Additional Sessions Judge, Jammu (Fast Track Court) in Sessions File No. 48 titled State v. Mahavir Paswan, by virtue whereof the respondent Mahavir Paswan (hereinafter referred to as the `accused') has been acquitted of offence under Sections 363//366/376 RPC, the State seeks Special Leave to file appeal questioning the impugned judgment of acquittal on the ground that the Trial Court has failed to appreciate the prosecution evidence in its correct perspective and that the circumstances corroborated by medical report sufficiently established guilt of the accused. 4. Prosecution case is that on 04.02.2012, one Sudagar Ram father of the prosecutrix lodged a missing report at Police Station, Miran Sahib alleging therein that his minor daughter did not return from the market where she had gone to purchase household articles on 03.02.2012. According to him prosecutrix was 16 years old. Report was recorded as entry No. 12 in the "Daily Diary Register" of the Police Station Miran Sahib. Subsequently, he lodged a written complaint on 05.02.2012 alleging kidnapping of his daughter by the accused who was alleged to have taken her to some unknown place. Case under FIR No. 17/2012 for offence under Section 363 RPC came to be registered at Police Station Miran Sahib. The investigation ensued. Prosecutrix was recovered on 08.02.2012 from the house of sister of accused situated at Village Naranga, District Sita Marhi, Bihar. The investigation culminated in filing of charge sheet against the accused, who pleaded not guilty to charges framed against him for offence under Sections 363/366/376 RPC and claimed to be tried. Five witnesses were examined by prosecution to bring home guilt of the accused. In his examination u/s 342 Cr.PC, the accused denied the allegations leveled by prosecution witnesses and pleaded false implication. He did not enter upon his defence. Five witnesses were examined by prosecution to bring home guilt of the accused. In his examination u/s 342 Cr.PC, the accused denied the allegations leveled by prosecution witnesses and pleaded false implication. He did not enter upon his defence. Based on consideration of evidence brought on record by prosecution at the trial, the learned Sessions Judge found that the prosecutrix was more than 16 years of age at the time of alleged occurrence; that there was nothing to show that the accused induced the prosecutrix and prompted her to leave the house of her father. Thus, the Trial Court found that it was a case of elopement and no offence of rape was made out against the accused. 5. Heard and considered. 6. Wading through the impugned judgment, it comes to fore that as per School record of admission, the date of birth of prosecutrix was 04.01.1995. Thus, the prosecutrix was about 17 years of age on the date of alleged occurrence. Prosecution has, however, not examined the person who made the entry or who gave the date of birth at the School when prosecutrix was initially admitted in the School. It is an acclaimed fact that no living being on Planet Earth has personal knowledge of his date of birth. One acquires such knowledge on the basis of information provided by ones parents, elders, siblings, near relatives and others having relations with the family in which the person takes birth. Thus, it becomes important to ascertain the source of knowledge. In absence of proof of Municipal record the oral evidence led by prosecution does not furnish a definite proof of her age though in any case it is established by the School Leaving Certificate that she was above 16 years of age on the date of alleged occurrence. It is significant to notice that the opinion given by Radiologist Dr. Ravinder Sauntra in his certificate marked EXTP-7 regarding estimation of age of prosecutrix is between 15 and 17 years. Having regard for the error probability on either side, the possibility of prosecutrix having crossed the red line of 18 years for determination of penal liability under Section 363/366 RPC cannot be excluded. That being so, the prosecutrix has rightly been held to have attained the age of discretion relevant to offences of which the accused has been acquitted. 7. Having regard for the error probability on either side, the possibility of prosecutrix having crossed the red line of 18 years for determination of penal liability under Section 363/366 RPC cannot be excluded. That being so, the prosecutrix has rightly been held to have attained the age of discretion relevant to offences of which the accused has been acquitted. 7. It is well settled that in case of alleged rape, Court can rely upon the uncorroborated testimony of prosecutrix to base conviction of accused thereon if such testimony is found capable of implicit faith being reposed therein. Assurance, short of corroboration, to the testimony of prosecutrix by proof of circumstances relating to her pre and post occurrence conduct would suffice. In the instant case, prosecutrix in the first instance tried to suppress truth by giving a date of birth different from the one recorded in the School Admission Register though even according to her testimony she was more than 16-1/2 years of age at the time of alleged occurrence. This put the Trial Court on guard to scrutinize the testimony of prosecutrix closely. According to prosecutrix, the accused was known to her. He came across her on the way when she was going to the house of her Aunt at Miran Sahib. She claimed that the accused took her to the market for taking juice. She accompanied the accused but after consuming juice she claimed to have become unconscious. According to her version, she later regained consciousness at Railway Station Ludhiana where she was intimidated. The accused is alleged to have taken her in a train to Muzaffarpur from where she was made to travel in a bus to the house of his sister in a village. She further claimed that she was forcibly taken to a Temple in the village where the accused solemnized marriage with her. She further claimed that she was ravished by the accused for two days without her consent till she was rescued by the Police. Prosecutrix has been subjected to cross-examintion wherein she admitted that she had joined the accused to take juice in a busy market. She admitted that she had not stated this fact before the Police. She further claimed that she was ravished by the accused for two days without her consent till she was rescued by the Police. Prosecutrix has been subjected to cross-examintion wherein she admitted that she had joined the accused to take juice in a busy market. She admitted that she had not stated this fact before the Police. Though she tried to create an impression that she was threatened by the accused to accompany her, she conceded that she had not informed the Police Officials or co-passengers about her ordeal while she was at the Railway Stations and Bus Stand. In absence of any evidence emanating from her mouth or the witnesses examined at the Trial that the prosecutrix had raised alarm or made protest and given the fact that admittedly the accused was not armed with any weapon to execute any threat emanating from him, the Trial Court was justified in coming to conclusion that the prosecutrix was a consenting party who had eloped with the accused voluntarily and she had not been enticed away from the lawful guardianship. As noticed earlier, prosecutrix had attained the age of discretion. She was a fully grown up girl having attained the age of 18 years. Her conduct, as noticed in her deposition, brings it to fore that despite visiting public places like Market, Railway Stations, Bus Stand and a Temple and coming in contact with the people, she never protested, raised alarm, screamed or tried to put up resistance when admittedly the accused was not armed and could not have executed any threat as alleged by her. On going through the impugned judgment, we are of the considered opinion that this is a case of elopement of prosecutrix having attained the age of discretion who went with the accused of her own accord and had consensual sex with him voluntarily. 8. On consideration of the matter brought on record during Trial, we find that the findings recorded by the learned Trial Court on appreciation of evidence are perfectly justified. There being no compelling or substantial reasons to take a view different from the one taken by learned Trial Court, we find no scope for interference in appeal. The SLAA, is accordingly, declined. Resultantly, the appeal fails and the same is dismissed. Trial Court be informed of this order. Appeal file be consigned to records.