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2017 DIGILAW 685 (JK)

State v. Mangal Singh

2017-08-19

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. Condl(CR) No.38/2016: 1. After hearing learned counsel for the applicant and for the reasons assigned in the application which is duly supported by an affidavit, we find sufficient cause for condoning the delay of 99 is made out. Accordingly, delay in filing the appeal is condoned. In the result, Cond(CR) N.38/2016 is allowed. SLAA No.39/2016: Mr. Sanjeev Padha, GA for the appellant. Heard. Permission to file the appeal is granted. CRAA No.40/2017: Heard. This criminal acquittal appeal has been filed against the judgment dated 29.09.2015 passed by the trial Court by which the respondent has been acquitted for an offence under Section 376 of the RPC. 2. The prosecution story briefly stated is that on 27.04.2011 at about 5.30 PM in the evening when the family members of the prosecutrix including her parents had gone to the field for collecting the wheat crop, the accused entered the house of the prosecutrix and asked her for cold water. The prosecutrix went inside for bringing cold water from the Refrigerator and the accused also followed her and closed the door of the room and then committed the offence of rape on her. After the offence was committed, the prosecutrix called her mother from her mobile and thereupon the parents of the prosecutrix immediately rushed to their house. On the next day, father of the prosecutrix lodged a complaint which was registered as FIR and an offence under Section 376 of the RPC was registered against the respondent. Police after completion of the investigation filed the charge sheet against the respondent and the trial Court vide impugned judgment has acquitted the respondent of the offence alleged against them. 3. Learned Government Advocate for the State has submitted that the Trial Court grossly erred in relying on the testimony of the prosecutrix and ought to have appreciated that the prosecution in an offence under Section 376 can rest upon the sole testimony of the prosecutrix. It is further submitted that evidence on record has not been properly appreciated by the Trial Court. 4. We have considered the submissions made by learned government advocate and have perused the record. The case of the prosecution rests upon the testimonies of prosecutrix, her mother-PW2, and father-PW3. It is pertinent to note that Dr. It is further submitted that evidence on record has not been properly appreciated by the Trial Court. 4. We have considered the submissions made by learned government advocate and have perused the record. The case of the prosecution rests upon the testimonies of prosecutrix, her mother-PW2, and father-PW3. It is pertinent to note that Dr. Anil Mehta, Gynecologist was examined as PW-9 who in his report has stated that no injury on the private part of the prosecutrix was found and there was no mark of any injury on the other parts of the body of the prosecutrix. He has further opined that there is no evidence of any recent sexual intercourse. Thus, the medical evidence placed on record does not support the case of the prosecution. The Trial Court in paragraph 27 of the judgment has taken note of the well settled legal principle that conviction in a rape case can be founded on the sole testimony of the prosecutrix unless there are compelling reasons for seeking its corroboration. The prosecutrix in her statement under Section 164-A of the Cr.PC had given a different version with regard to the alleged offence in which she had stated ‘jinah bil jabar’ on her. However, in the cross examination before the Court, the prosecutrix has deposed that she does not understand the meaning of ‘jinah bil jabar’. It has also been stated by her before the Court that her parents had reached the place of occurrence after twenty minutes of the occurrence but she has nowhere stated that she was lying on the bed as was stated by her in her statement recorded under Section 164-A Cr.PC. The statement of the prosecution is inconsistent and suffers from the infirmities. 5. PW-2, Taro Devi, mother of the prosecutrix had stated that her daughter had informed her father on phone that accused was committing bad act with her. It was further stated by her that her daughter did not tell her about the aggressive act of the accused. However, the same was disclosed by her to her husband. PW-3, Surjeet Singh, father of the prosecutrix had stated that his daughter had informed him on phone that accused was committing bad act with her. Thereupon, he reached to the spot and saw that the prosecutrix was lying unconscious on the bed. However, the same was disclosed by her to her husband. PW-3, Surjeet Singh, father of the prosecutrix had stated that his daughter had informed him on phone that accused was committing bad act with her. Thereupon, he reached to the spot and saw that the prosecutrix was lying unconscious on the bed. He has also stated that he does not understand the meaning of ‘jinah bil jabar’ which clearly shows that there are contradictions, discrepancies, infirmities as well as improvements in the statement of the prosecutrix as well as PW2 mother and PW3 father. At the time of incident, as per the report of the Radiologist and date of birth certificate issued by school authorities, age of the prosecutrix was 16 years 11 months and 21 days which is evident from the date of birth certificate. It is also pertinent to mention that though undergarment of the prosecutrix and the accused were seized by the police authorities on 28.04.2011, however, the same were produced before the Executive Magistrate for its seizure on 04.05.2011 and thereafter was sent to FSL on 05.05.2011. No explanation has been offered by the prosecution with regard to safe custody of the aforesaid articles for a period from 28.04.2011 till its deposit in FSL on 05.05.2011. 6. The investigating officer PW-Krishan Lal has stated in his statement that at the time of occurrence, the people were working in their fields, which are adjoining to the house of the prosecutrix, he has further stated that land of Kirpal Singh and Rameshwar is near to the house of prosecutrix and house of Chuni Lal is at a distance of twenty feet from the house of prosecutrix, as per the statement of prosecutrix witnesses, a window of the house of prosecutrix open towards the fields and one was towards the house of Chuni Lal, all the windows were open, however, neither the Investigating officer has made any endeavor to contact the said person in order to make any enquiry about the occurrence nor has cited and examined them as witnesses. It is also pertinent to mention here that the conduct of the father of the prosecutrx is unnatural in the sense that after he came to know about the occurrence, but he attended his duties on the next date and thereafter lodged the FIR. Thus, there is delay in lodging the FIR for which no explanation has been offered. It is also pertinent to mention here that the conduct of the father of the prosecutrx is unnatural in the sense that after he came to know about the occurrence, but he attended his duties on the next date and thereafter lodged the FIR. Thus, there is delay in lodging the FIR for which no explanation has been offered. 7. In view of the preceding analysis, it is evident that the prosecution has failed to bring home the guilt to the respondent by leading cogent evidence. The Trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the Trial Court is also a reasonable view of the evidence on record and the findings recorded by the Trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. (See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124 . 8. From perusal of the judgment of the Trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this criminal acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.