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2017 DIGILAW 837 (JK)

State of J&K v. Madan Lal

2017-09-13

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl(CR) No.43/2016 : After hearing learned Sr. AAG for the appellant and for the reasons assigned in the application which is duly supported by an affidavit, we find that sufficient cause for condoning the delay of 87 days in filing the application for leave to appeal is made out. Accordingly, the delay of 87 days in filing the application for leave to appeal is condoned. Condl(CR) No.43/2016 is disposed of. SLAA No.47/2016 : After hearing learned Sr. AAG for the appellant, we are inclined to grant leave to appeal. Accordingly, SLAA is allowed. Registry is directed to diarize the appeal as criminal acquittal appeal today itself. Cr. Acq. Appeal: Heard. This criminal acquittal appeal has been filed against the judgment dated 17.05.2015 passed by the Trial Court by which the respondent has been acquitted in respect of the offence under Sections 363/376 of the RPC. 2. The prosecution story in nutshell is that mother of the prosecutrix, namely, Santosh Kumari, on 04.01.2011 made a written report to the SHO that on 31.12.2010 at about 5 pm in the evening, the respondent kidnapped her daughter and has taken her to some unknown place. Thereupon, the first information report for an offence under Section 363 RPC initially was lodged against the respondent. On 20.02.2011, the complainant made a telephone call to the investigating officer informing that respondent has kept the prosecutrix in Ward No.4, Bari Brahmana. Thereupon, the investigating officer along with constable went to the aforesaid locality and recovered the prosecutrix and arrested the respondent. The statement of the prosecutrix was recorded under Section 164-A CrPC from which it was revealed that the respondent after kidnapping the prosecutrix had taken her to State of Chhatishgarh and had sexually assaulted her for 52 days, as a result of which, she became pregnant and brought her back to Bari Brahmana. Thereupon the offence under Section 376 of the RPC was also added against the respondent. The charge sheet was filed against the respondent. 3. The prosecution in order to prove its case has examined as many as five witnesses. 4. Learned Sr. AAG for the appellant submitted that the trial court has failed to appreciate the evidence on record in its correct perspective which has resulted in erroneous findings and the consequent judgment. The charge sheet was filed against the respondent. 3. The prosecution in order to prove its case has examined as many as five witnesses. 4. Learned Sr. AAG for the appellant submitted that the trial court has failed to appreciate the evidence on record in its correct perspective which has resulted in erroneous findings and the 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 learned Sr. AAG for the appellant and have perused the record. As per the prosecution case, on 31.12.2010, while the prosecutrix in order to attend the call of the nature had gone out in the field, the respondent who was plying a tipper, kidnapped her and took her to nearby khad (nallah) and committed rape on her and thereafter took her to State of Chattishgarh, where he repeatedly ravished her for about one and half month, due to which prosecutrix became pregnant. Thereafter the respondent brought her back to Bari Brahmana where he kept her in rented accommodation in the house of PW-Jagdish Lal and from Bari Brahmana, the prosecutrix informed her mother on phone and thereupon the mother of the prosecutrix reported the matter to the police and the police along with mother of the prosecutrix went to the rented accommodation and recovered the prosecutrix and arrested the respondent. From the report of the Gynecologist, Dr. Anil Mehta, PW-6, who had conducted the medical examination, it is revealed that he did not find any mark of violence on the body of the prosecutrix. She was found habitual to intercourse and was pregnant. However, there was no evidence of recent intercourse on the prosecutrix. Prosecutrix in her statement under Section 164-A CrPC had stated that on 31.12.2010 at 6 am in the morning, she had gone to attend the call of the nature. One respondent came there on his tipper and asked her to board the tipper. However on her refusal, the respondent forcibly made her to sit in tipper and took her to Chhatishgarh in train where they reached after four days and thereafter the respondent committed rape on her at Chhatisgarh. It was further stated by her that she was kept in Chhatisgarh for two months and after two months, the respondent brought her back to Bari Brahmana. It was further stated by her that she was kept in Chhatisgarh for two months and after two months, the respondent brought her back to Bari Brahmana. However, in her statement recorded before the Court she had stated that on 31.12.2010, between 5 to 6 am in the morning, she had gone to answer the call of the nature and therefrom the respondent kidnapped her and forcibly committed rape on her, as a result of which, she had became pregnant. Thereafter, she stayed with the respondent in Chhatisgarh where she repeatedly ravished her. In her cross examination, the prosecutrix has stated that when respondent had taken her from the field in his tipper, two labourers from Bihar were also boarding in the said tipper and both of them had asked the respondent that he should not commit rape on her. However, the respondent did not accede to their request and committed rape on her inside the tipper. Thus, there is contradiction in the statement of the prosecutrix under Section 164-A CrPC as well as her statement before the Court. Father of the prosecutrix PW-2, Prakash Chand has not corroborated the evidence of the prosecutrix and had stated that he had seen the respondent for the first time in the Court. 6. From the birth certificate issued by the Headmaster, Girls Middle School, Kangrail, Bhalwal, the date of birth of the prosecutrix was 10.01.1994 which has been approved by the Headmistress, Middle School, Kangrail, Bhalwal. Thus, at the time of the incident, age of the prosecutrix was 16 years, 11 months and 21 days. The prosecutrix was a grown up girl and had voluntarily accompanied the respondent from her village. She had many opportunities to raise an alarm even while travelling with the respondent. However, she did not do so. The prosecutrix has accompanied the respondent to various places and did not make any complaint against him and did not offer any resistance at the time of the intercourse with him. She also did not avail any opportunity of running from the company of the respondent despite having repeated opportunities. Thus, Trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. She also did not avail any opportunity of running from the company of the respondent despite having repeated opportunities. Thus, 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 . 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.