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2016 DIGILAW 2329 (HP)

State of H. P. v. Sandeep Kumar

2016-11-03

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, Judge The instant revision petition stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 05.10.2009, by the learned Principal Magistrate, Juvenile Justice Board, Una, District Una, H.P. in Criminal Inquiry No. 10/03 whereupon he announced an order of acquittal qua the respondent herein for his allegedly committing an offence under Section 376 of the Indian Penal Code. 309 2. Briefly stated the case of the prosecution is that on 16.5.2003, at about 4.00 p.m. the prosecutrix PW-1 (name not disclosed) was grazing her goats in the jungle near her house. In the meanwhile, Sandeep @ Gollu (hereinafter referred to as the juvenile) came there and caught hold of her arm. The prosecutrix PW-1 tried to raise hue and cry, however, the juvenile gagged her mouth and took her to nearby bushes and opened the string of her Salwar and forcibly committed rape on her. The juvenile was seen by BImla Devi PW-5, the grand mother of the prosecutrix PW-1 while leaving the spot. On inquiry, the prosecutrix disclosed the incident to her grand mother, Bimla Devi PW-5. Bimla Devi took her to house. The father of the prosecutrix namely Parvesh Kumar had gone to Pathankot. Parvesh Kumar PW-2 came late in the night as such the prosecutrix PW-1 as well as her grand mother Bimla Devi PW-5 disclosed the incident to him in the next morning whereafter, Parvesh Kumar PW-2 took her to hospital at Nurpur, however, the doctor asked them to report the matter to the police. Thereafter, Parvesh Kumar PW- 2 alongwith prosecutrix PW-1 rushed to P.S.Nurpur where the prosecutrix PW-1 lodged FIR Ex.PW-1/A against the juvenile. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the respondent challan was prepared and filed in the Board. 3. Notice of accusation stood put by the learned Principal Magistrate, Juvenile Justice Board, Una to the respondent for his committing an offence punishable under Section 376 of I.P.C, to which he pleaded not guilty and claimed inquiry. 4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the respondent under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. He did not choose to lead any evidence in defence. 5. 4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the respondent under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. He did not choose to lead any evidence in defence. 5. On an appraisal of the evidence on record, the learned Principal Magistrate, Juvenile Justice Board, Una returned findings of acquittal in favour of the juvenile/respondent herein. 6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Principal Magistrate, Juvenile Justice Board, Una standing not based on a proper appreciation by him of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. The learned counsel appearing for the respondent has with considerable force and vigor contended qua the findings of acquittal recorded by the learned Principal Magistrate, Juvenile Justice Board, standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record. 9. The prosecutrix by cogent evidence comprised in Ex. PW-4/A stands provenly subjected to forcible sexual intercourse. However, the embodiments occurring in Ex. PW-4/A would not constrain this Court to reverse the findings of acquittal recorded by the learned Principal Magistrate, Juvenile Justice Board qua the respondent herein unless evidence of immense probative sinew emanates qua the respondent herein provenly holding the relevant inculpatory role. Contrarily, the factum of the respondent purportedly holding any inculpatory role in the ill fated occurrence stands negated by the prosecutrix who in her testification has made an unequivocal deposition therein qua hers holding no knowledge qua the identity of the respondent herein, rather she testifies qua hers acquiring knowledge qua his name and identify from revelations made to her by Smt. Bimla Devi, who however, has omitted to corroborate the aforesaid factum testified by the prosecutrix by hers deposing qua hers not being aware of the name of the respondent nor hers recognizing any person except her son. The factum of the prosecution hence failing to establish the identity of the respondent herein gets fortifyingly established by the prosecutrix testifying qua hers not recognizing the respondent on the date of occurrence. In sequel thereof, the preeminent conclusion is of the prosecution version qua inculpation of the respondent in the alleged offence being wholly surmisal besides arising from concoction and invention on the part of the Investigating Officer concerned. 10. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned Principal Magistrate, Juvenile Justice Board, Una not suffering from any perversity and absurdity nor it can be said that the learned Principal Magistrate, Juvenile Justice Board, Una in recording findings of acquittal has committed any legal misdemeanor, in as much, as, his mis-appreciating the evidence on record or his omitting to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned Principal Magistrate, Juvenile Justice Board merit any interference. 14. In view of the above discussion, I find no merit in this petition, which is accordingly dismissed and the judgment of the learned Principal Magistrate, Juvenile Justice Board, Una, District Una, H.P. is maintained and affirmed. Record of the learned trial Court be sent back forthwith.