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2017 DIGILAW 850 (JK)

State Th. SSP Bhaderwah v. Mushtaq Ahmed

2017-09-14

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl. (CR) 87/2017 Heard. After hearing learned senior Additional Advocate General for the appellant 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 39 days in filing the appeal is made out. In the result, delay is condoned. Accordingly, the application for condonation of delay is disposed of. SLAA No. 87/2017 Heard. After hearing learned senior Additional Advocate General for the appellant, we are inclined to grant leave to appeal. Accordingly, SLAA No.87/2017 is allowed. Registry is directed to diarize the appeal as Criminal Acquittal Appeal today itself. Cr. Accquital Appeal In this Criminal Acquittal Appeal, appellant has assailed the validity of judgment dated 26.04.2017 passed by the trial Court, by which the trial Court has acquitted the respondent in respect of offence under Section 376 of the RPC. 2. The prosecution story in nutshell is that on 11.06.2008 complainant filed a complaint in Police Station Kastigarh with the allegations against the respondent that daughter of the complainant had given birth to a baby girl and on questioning the daughter, the complainant came to know that 7-8 months ago the prosecutrix was subjected to forcible sexual intercourse by the respondent against her will, which fact she had not divulged to any one and was waiting for marriage to take place with respondent. On the aforesaid complaint, First Information Report was registered against the respondent. Police after completion of the investigation filed the charge-sheet in the trial Court against the respondent. The trial Court vide impugned judgment acquitted the respondent for the aforesaid offence. 3. Learned senior Additional Advocate General 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. It is further submitted that from the perusal of the statement of the prosecutrix it is evident that the respondent was involved in the commission of aforesaid offence. 4. We have considered the submissions made by learned senior Additional Advocate General for the appellant and have perused the record. It is further submitted that from the perusal of the statement of the prosecutrix it is evident that the respondent was involved in the commission of aforesaid offence. 4. We have considered the submissions made by learned senior Additional Advocate General for the appellant and have perused the record. It is well settled law that conviction in a case for offence under Section 376 of the RPC can be based totally on the trustworthy testimony of the statement of the prosecutrix. In the instant case, the prosecutrix in her statement under Section 161 of the Code of Criminal Procedure has stated that she was subjected to rape by the respondent when she went to attend the call of nature, whereas in her statement under Section 164-A of the Code of Criminal Procedure she has taken a stand that she of her own will remained with the respondent for 8-9 months and respondent also committed rape with her consent. However, in her statement before the Court the prosecutrix has not stated anything regarding the commission of rape by the respondent though she had stated that the respondent had developed physical relations with her on the pretext of marriage. Thus, in her statements under Section 164-A and 161 of the Code of Criminal Procedure as well as evidence before the Court, the prosecutrix has given three different versions. 5. Besides, it is pertinent to mention that though the prosecutrix has given birth to the child who died subsequently, the Investigating Officer did not conduct the DNA test of the said child and match with the blood sample of the respondent to ascertain that the respondent was involved in the commission of aforesaid offence. The prosecutrix was of the age of 22 years at the time of birth of child, which mean when she conceived the child her age was 21 years. It is also mentioned that father of the prosecutrix named four persons, namely, Ghulam Hassan, Dev Raj, Abdul Salam and Abdul Latief, who had enquired from the prosecutrix and later on, on the request of the complainant, took the prosecutrix to the respondent. However, all these persons have not been examined as witnesses. 6. The trial Court has recorded the findings, which are based on careful scrutiny of the evidence available on record. However, all these persons have not been examined as witnesses. 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.