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2017 DIGILAW 848 (JK)

Sakshi Gandotra v. Irshan Bhat

2017-09-14

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. SLAA No.48/2013 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. Criminal Acquittal Appeal is taken up on board. Cr. Acquittal Appeal No.41/2015 This Criminal Acquittal Appeal has been preferred against the judgment dated 24.03.2015 passed by the trial court, by which the respondents have been acquitted of offences under sections 363/366-A/376/343/109 RPC. 2. The prosecution story in nutshell is that on 22.4.2011, the prosecutrix, who was student of B.A Part-I in BTC College at Baniketh, Chamba, waiting for bus at Bus Stand, Baniketh, the respondent No. 1, who was student of B.A. Part-II in the same college was coming to Jammu by his car, along with respondent No. 2 & 3. Since respondent No. 1 was known to the prosecutrix, therefore, she requested him to give lift to Jammu. The prosecutrix thereafter boarded the car and on reaching Jammu, she told respondent No. 1 to drop her at Shalamar, Jammu. However, instead of dropping at Shalamar, respondent No. 1 took her to Roop Nagar at the residence of respondent No. 4, forcibly kept her in room, snatched her documents including Mark sheets of 10th Class and forced her to sign some document and told her that she has been married to respondent No. 1 and thereafter respondent No. 1 repeatedly ravished her. After 4/5 days, accused had taken her back to Chamba, threatened and forced her to make statement in favour of respondent No. 1. Accordingly, on 28.04.2011, the prosecutrix was taken to the office of Tehsildar, Chamba for making statement in favour of the respondent No. 1 before the Tehsildar, Chamba. After recording statement, she was handed over to her parents. The parents of the prosecutrix had brought her back to Jammu and on 5.5.2011 the prosecutrix filed a complaint before learned Chief Judicial Magistrate, Jammu, which was forwarded to SHO, Police Station, Janipur for investigation in terms of section 156 of Cr. P.C. On the basis of aforesaid complaint, First Information Report was lodged for offences under sections 363/366-A/376/343/109 RPC against the respondents and investigation commenced. After completion of the investigation, charge sheet was presented in the Court against the respondents for the offences as aforesaid. The trial court vide impugned judgment has acquitted the respondents of the aforesaid offences. 3. P.C. On the basis of aforesaid complaint, First Information Report was lodged for offences under sections 363/366-A/376/343/109 RPC against the respondents and investigation commenced. After completion of the investigation, charge sheet was presented in the Court against the respondents for the offences as aforesaid. The trial court vide impugned judgment has acquitted the respondents of the aforesaid offences. 3. Learned counsel for the appellant submitted that date of birth certificate was issued by the Municipal Committee. The date of birth of the prosecutrix is 27.05.1993. Therefore, she was below 18 years of age on the date of incident i.e. 22.04.2011. It is further submitted that from the statement of prosecutrix, commission of offence as alleged against the respondents is fully established in corroboration as required. Learned counsel also invited our attention to the statement of Dr. Anil Mehta, Gynaecologist and has submitted that medical opinion also supported the prosecution case. It is also submitted that prosecution witnesses, namely, Narinder Gandotra and Rakesh Kumar have supported the prosecution case and non examination of the Investigating Officer is not necessary in fact situation of the case. In support of his submissions, learned counsel for the appellant has referred to the decisions of the Supreme Court in the cases of Karnel Singh vs. State of MP 1995 AIR 2472, State of Punjab vs. Gurmit Singh and ors., 1996 AIR 1393 CIDCO vs. Vasudha Gorakhnath Mandevlekar, SLP (Civil) No. 20794 of 2008, and Bhadur Singh vs. State of J&K (2005) 0 Supreme (J&K) 8321. On the other hand, learned counsel for the respondents has supported the judgment passed by the trial court. 4. We have considered the submissions made by the learned counsel for the parties and have perused the record. It is well settled legal position of law that accused can be prosecuted on the sole testimony of the prosecutrix, provided the same is reliable and trustworthy. In the instant case, letter dated 09.05.2011 issued by S.P, Chamba reveals that on 27.04.2011, prosecutrix had filed an application before D.C. Chamba for protection of her husband, respondent No. 1 on the ground that on 23.04.2011, she out of her free will without any threat or coercion, has solemnized marriage with respondent No. 1 and has also sworn an affidavit before Notary Public, however, her relatives are not happy with the marriage and have extended threat of life to her husband, respondent No.1. Thereupon, the D. C. Chamba forwarded the application to S.P. Chamba for necessary action. 5. It is also pertinent to mention that prosecutrix in her statement recorded by Tehsildar (Executive Magistrate) Chamba has stated that on 22.04.2011, she had gone to the house of Irshad Bhat, respondent No. 1 and on 23.11.2011 she had gone to Jammu with respondent No. 1, where she contracted marriage with him with her free will. On the date of recording statement, i.e., 28.4.2011, she had stated that on that day she was going with her parents for one week and in case her parents will not contract her marriage within one week, she will go back to her husband, respondent No. 1. It is also pertinent to mention that the prosecutrix did not raise any alarm, hue or cry or made any complaint on different occasions, when as per the version of the prosecutrix, she has appeared before various authorities, namely, Notary Public, D. C. Chamba as well as Tehsildar (Executive Magistrate) Chamba. It appears that the prosecutrix admittedly was of 16 years of age on the date of incident, has not suffered any injury on any part of body including her private parts, which gives rise to the inference that she was a consenting party to the coitus in question. The trial court has rightly appreciated the evidence available on record and acquitted the respondents of the offence alleged against them. 6. Despite that, a Division Bench of this Court vide order dated 28.07.2017 passed in SLAA No. 16/2016 has already dismissed leave to appeal to file Criminal Acquittal Appeal by the State pertaining to the same incident. Therefore, for reasons stated in the order dated 28.07.2017 passed in the aforesaid SLAA, we are not inclined to take a different view. 7. The trial court has recorded the findings, which are based on meticulous appreciation of evidence available on record. Therefore, for reasons stated in the order dated 28.07.2017 passed in the aforesaid SLAA, we are not inclined to take a different view. 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.