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2017 DIGILAW 766 (JK)

State of J&K v. Artish Chander

2017-08-30

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl(Cr) No.19/2015 Heard. After hearing learned counsel for the parties and for the reasons assigned in the application, which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of 110 days in filing the criminal acquittal appeal is made out. In the result, delay is condoned. Accordingly, the application for condonation of delay is disposed of. SLAA No. 19/2015 After hearing the learned counsel for the appellant, we deem it appropriate to grant leave to file Criminal Acquittal Appeal. Accordingly, leave is granted. SLAA is disposed of. Cr. Acquittal Appeal No. 18/2015 This Criminal Acquittal Appeal has been preferred against the judgment dated 14.08.2014 passed by the trial court, by which the respondent has been acquitted of offence under sections 376/506 RPC. 2. The prosecution story in a nutshell is that husband of the prosecutrix, namely, Ashok Kumar submitted a written application before the Police Station on 02.01.2013, in which he has stated that on 02.01.2013 in the afternoon at 2.00 p.m. when his wife was alone in her house, the respondent forcibly entered into her residential room, untied her trousers without her consent and committed rape on her. On alarm being raised by the prosecutrix, the respondent fled away and while running away, he threatened the prosecutrix with dire consequences. On the basis of said written report, Police registered First Information Report against the respondents for commission of offence under sections 376/506 RPC. After completion of investigation, charge sheet was presented in the Court against the respondent for the offences as aforesaid. The trial court vide impugned judgment has acquitted the respondent of the aforesaid offences. 3. The trial court in order to prove the case examined as many as 8 witnesses, namely, PW Ashok Kumar, PW Rakesh Kumar, PW Krishan Chander, PW Dr. Renu Manhas, PW Sulekha Kumari, PW Sita Ram, PW Duni Chand and PW Krishna, whereas the respondent has examined two witnesses, namely, DW-Mahindra Nath and DW-Rajendra Kumar in his defence. 4. Learned Additional Advocate General for the appellant submitted that from the statement of the prosecutrix, offence alleged against the respondent was duly proved and prosecution witness, namely, Rakesh Kumar, other relatives and father -in-law of the prosecutrix have seen the respondent running away from the spot. 4. Learned Additional Advocate General for the appellant submitted that from the statement of the prosecutrix, offence alleged against the respondent was duly proved and prosecution witness, namely, Rakesh Kumar, other relatives and father -in-law of the prosecutrix have seen the respondent running away from the spot. It is further submitted that trial Court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment. It is further submitted that there is enough material on record to connect the respondent with the alleged offences. On the other hand, learned counsel for the respondent has supported the judgment passed by the trial Court. 5. We have considered the submissions made by the learned counsel for the parties and have perused the record. FIR has been lodged on 08.01.2013 when the husband of the prosecutrix returned home. PW-Krishan Chand, who is brother of father-in-law of prosecutrix has been declared hostile, who has expressed his ignorance about the occurrence and nothing incriminating from his cross-examination could be elicited against the respondent. From the careful scrutiny of the statement of the prosecutrix, it is evident that she has stated that before the incident in question once while she was going to her in-laws place at 5.30 p.m. through a jungle, the respondent followed her, caught hold of her and committed rape on her. However, she did not reveal the aforesaid incident to anyone. 6. From the statement of prosecutrix, it is also evident that on 02.10.2013, i.e, the date of incident in question, the respondent has only broken the string of her trouser and fled away. It is pertinent to mention that in the report lodged with regard to the real incident, the same has not been mentioned by the prosecutrix. In her statement recorded under section 164-A Cr. P.C. the prosecutrix had only stated that the accused has broken string of her trouser and fled away. All other prosecution witnesses examined by the prosecution have stated that when they reached at the house of prosecutrix and on enquiry being made, prosecutrix informed that she has been subjected to rape by the respondent. However, from the statement of prosecutrix herself, offence under section 376 RPC is not made out. As per the medical opinion, PW Dr. Renu Manhas, Gyeanoclogist has stated that there is no external injury seen on the person of prosecutrix. However, from the statement of prosecutrix herself, offence under section 376 RPC is not made out. As per the medical opinion, PW Dr. Renu Manhas, Gyeanoclogist has stated that there is no external injury seen on the person of prosecutrix. The omission of the alleged act of rape in the statement u/s 164-A RPC on the basis of which the respondent is charged is a glaring defect in the prosecution case. 7. 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 acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.