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2017 DIGILAW 833 (JK)

State of J&K v. Udhay Parihar

2017-09-12

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : This Criminal Acquittal Appeal has been preferred against the judgment dated 10.02.2014 passed by the trial court, by which the respondent has been acquitted of offences under sections 323/376/458/342 RPC. 2. The prosecution story in nutshell is that prosecutrix lodged a complaint on 01.08.2007 before the Judicial Magistrate, Kishtwar, in which she has stated that on 27.07.2007, the respondent in the absence of complainant’s parents trespassed in her house during night at about 10 p.m. and thrashed her sister Shano Devi, who was sleeping with the complaint and took her to other room, where complainant’s other sister, Bijlla Devi was also beaten and both her sisters were locked in the room and thereafter accused tied a handkerchief on the month of the complainant and committed rape on her. On the basis of aforesaid intimation, First Information Report was lodged for offences under sections 323/376/458/342 RPC against the respondent and investigation commenced. After completion of the investigation, charge sheet was presented in the Court against the respondent for the offences as aforesaid. 3. The prosecution in order to prove its case examined six witnesses, whereas respondent in defence has examined four witnesses. The trial court vide impugned judgment has acquitted the respondent of the aforesaid offences. 4. Learned counsel for the appellant submitted that the trial Court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment. 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. The prosecution story is that the respondent on the date of incident knocked at the door of the prosecutrix and when the door was opened, he forced out PW-6 Shano Devi and in the meantime on hearing their hue and cry the other sister PW 2- Bijlla Devi who was sleeping in the other room came out and the accused thrashed her also and detained both the sisters of the victim in the room, where PW-2 Bijlla Devi was sleeping and thrashed the victim also and subjected her to rape. PW 2 & 6 i.e. sisters of the victim have not seen the accused committing rape on the victim but they are eye witnesses to the incident. PW 2 & 6 i.e. sisters of the victim have not seen the accused committing rape on the victim but they are eye witnesses to the incident. However, there is contradiction in their versions. As per the complainant, PW 6-Shano Devi opened the door, who was beaten by the accused and forced out, but, PW Shano Devi deposed that the door was opened by the victim herself and she was dragged out. PW-6 Shano Devi has categorically stated that the victim had received no injury on any part of her body except a teeth bite on the cheek. 6. PW-Bijlla Devi deposed that when on hearing hue and cry of her sisters, she went to the room of the victim, the respondent slapped her but in her cross examination, she unambiguously stated that rather she gave a fist blow to the respondent who came out, bolted the door and went away. It is also pertinent to mention here that as per the prosecution story victim became unconscious, therefore, there is no direct evidence even of the victim to suggest that she was subjected to rape. It is also pertinent to mention that though there is medical report on record, but the author of the report i.e. doctor was not examined to prove the same and therefore, medical report is not admissible in evidence. Otherwise also, the report reveals that the patient was not having any injury mark or teeth bite not only contradicting PW-Shano Devi but also there was no spermatozoa or fresh or old clotted blood and still the doctor opined that the patient had been raped. The aforesaid report does not support the prosecution case. 7. It is also pertinent to mention that respondent has produced and examined two neighbourers i.e. Faqir Chand and Sanjay Kumar, who have categorically deposed that no such incident took place. DW-Farir Chand is the grandfather of the complainant in relation, who stated that their houses have a common wall and the other witness Sanjay Kumar has his house at a distance of 10/15 feet and both stated consistently that any noise in the house of complainant can be heard by them easily but no such noise was raised nor any occurrence took place and the respondent has falsely been implicated by the father of the victim. From the evidence of PW-1 Urmila Devi and PW 5 Bharat Bushan, mother and brother of the victim, it is evident that panchayat was convened. The FIR was lodged on 30.07.2007, in which different versions was given with regard to the abduction of the victim and theft of costly items including ornaments etc. from the house of the complainant, therefore, the FIR was admittedly based on totally false facts. 8. In the instant case, the occurrence took place on 27.07.2007, whereas FIR came to be lodged on 1.08.2008, i.e. after five days. The explanation for delay in lodging the FIR is far from satisfactory. Despite that, Investigating Officer has not been examined by the prosecution. Though non-examination of I.O is of no consequence where prosecution case is otherwise established by the direct evidence but in the instant case I.O. was required to explain as to what happened to the earlier FIR lodged by the father of the victim and also he was required to explain inconsistencies in the prosecution evidence and non seizure and non production of torn clothes of the prosecutrix. The trial court has rightly appreciated the evidence available on record and acquitted the respondent of the offence alleged against them. 9. 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 . 10. 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.