Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 821 (JK)

State Th. SHO P/S Thathri v. Shakti Kumar

2017-09-08

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. SLAA No.11/2015 1. Heard. After hearing learned senior Additional Advocate General for the appellant, we are inclined to grant leave to appeal. Accordingly, SLAA No.11/2015 is allowed. 2. Registry is directed to diarize the appeal as Criminal Acquittal Appeal today itself. Cr. Accquital Appeal: 1. This Criminal Acquittal Appeal has been filed against the judgment dated 31.05.2014 by which the respondent has been acquitted in respect of offence under Sections 376 RPC. 2. The prosecution story in nutshell is that on 12.01.2003 in the evening the prosecutrix was in cattle shed, which belongs to one Jaswant Singh and where the cattle of the prosecutrix were also kept. At that time, respondent came to the cattle shed and committed rape with the prosecutrix. Thereupon, the First Information Report was lodged on 14.01.2003. The police after registration of the FIR, completed the investigation and presented the charge sheet in the Court against the respondent for the offence as aforesaid. The trial Court vide impugned judgment acquitted the respondent for the aforesaid offence. 3. Learned senior Additional Advocate General submitted that from the statement of the prosecutrix it is evident that the offence against the respondent is proved. She has also invited our attention to the statement of PW-Dr. M. A. Tariq, to show the marks of the injury on the person of the prosecutrix. It is further submitted that the trial Court has failed to appreciate the oral and documentary evidence available on record in its correct perspective which has resulted in erroneous findings and the consequent judgment. It is further submitted that there was sufficient material on record to connect the respondent with the commission of the alleged offence. 4. We have considered the submissions made by learned senior Additional Advocate General for the appellant and have perused the record. From the perusal of the statement of PW-Dr. M. A. Tariq, it is evident that though he found certain injuries on the person of the prosecutrix but in the cross-examination he has admitted that he had thoroughly examined the prosecutrix but no sign of any violence was found on her nor any sign of sexual violence was found on her body nor prosecutrix complained of any sexual violence. PW-Dr. PW-Dr. Pushpa Raina, who had allegedly examined the prosecutrix on 15.01.2003, has stated that on examination a bruise on left thigh of the prosecutrix was found and no mark of violence was observed on the private parts of the prosecutrix. 5. It is pertinent to mention here that in the instant case the sample of the blood group of the accused person i.e. respondent was not taken during the investigation in order to prove the involvement of the respondent in the commission of aforesaid offence. It is pertinent to mention that the offence has allegedly been taken in the cattle shed and if the alleged offence could have taken place then in our opinion the prosecutrix could have sustained injuries. It is pertinent to mention that the prosecutrix and her husband in their testimony have stated that they wanted to settle the matter privately with the accused and it was only when the accused and his brother did not prefer to settle the dispute privately that a report was lodged in the police station. PW-Bir Singh i.e. husband of the prosecutrix has admitted in his cross-examination that respondent had got him arrested in a false case of theft which had allegedly taken place in the school. The prosecutrix and her husband have stated that on the day of occurrence PW-Bir Singh had gone to Prem Nagar and had returned by evening. PW-Bir Singh has been cited as an eyewitness but the testimony of PW-Bir Singh is conflicting with the testimony of his wife i.e. prosecutrix. The prosecutrix in the Court has stated that the respondent was not known to her but has admitted that the respondent is her cousin on maternal side. She has also stated that the respondent had involved her husband in a theft case and on account of which the relations with the respondent and her husband were strained. 6. The trial Court has recorded the findings, which are based on careful scrutiny of the 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 . 7. 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.