Jammu & Kashmir High Court
Ut Of J&K vs Asif Khan And Anr on 25 September, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl LP (D) No. 34/2023
UT of J&K ... Appellant(s)
Through: - Mr. Amit Gupta, AAG
v.
Asif Khan and anr. ...Respondent(s)
Through: - Mr. Prince Khanna, Adv.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT (Oral)
Crl LP (D) No. 34/2023
1. This is an application seeking leave to file appeal against a judgment of acquittal passed by learned Special Judge, Fast Track Court, POCSO Cases, Jammu.
2. We have considered the grounds taken up in the application and have also gone through the impugned judgment.
3. The applicant has succeeded in showing a ground for granting leave to him for filing the appeal. The application is allowed and the appellant is granted leave to file appeal against the impugned judgment.
4. Application stands disposed of.
5. Appeal is taken on Board.
CrlA (AD) No. 15/2024
6. Heard. Admit.
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7. Issue notice. Mr. Prince Khanna, advocate waives notice on behalf of the respondents.
8. With the consent of learned counsel for the parties, this appeal is taken up for final disposal.
9. This appeal by the State of J&K (now UT of J&K) has been directed against a judgment and order dated 31.05.2022 passed by the Court of learned Special Judge, Fast Track Court, POCSO cases , Jammu ["trial court'] in file No. 20/Challan, titled 'State v. Asif Khan and anr. whereby trial court has acquitted the respondents of the charges under Sections 363/376 IPC, 3/4 & 16/17 of POCSO Act in case FIR No. 121/2021 registered by Police Station, Jhajar Kotli.
10. Briefly stated, the prosecution case as was put up before the trial Court is that on 12.07.2021, on the basis of a written complaint lodged by father of the prosecutrix, namely, Isher Dass, FIR No. 121/2021 under Sections 363/376 IPC, 3/4 and 16/17 of POCSO Act and Section 3 of Scheduled Castes/Scheduled Tribes Atrocities Act was registered at Police Station, Jhajar Kotli. It was the allegation made by the complainant that her daughter, aged 17 years, had disappeared from her house on 19.07.2021 at around 4:00 p.m. Complainant along with his nears and dears made a search for her minor daughter at every possible place but could not find her. On the next day of the disappearance of her daughter, he received a telephonic call and caller identified himself as Aqib. He threatened to eliminate the complainant and his entire family and also used filthy and derogatory casteist remarks against him and his family. It was on 12.07.2021, Ex-Sarpanch, Balwan Singh received a telephonic call from some unknown person informing him 3 that one girl, whose clothes were drenched in water, was crying badly at Kharward Dansal. Balwan Singh immediately gave information to SHO Jhajar Kotli, who reached on spot and took the girl in his custody. Later on, statement of girl was recorded under Section 161 Cr.P.C. before the Police and under Section 164-A Cr.P.C. before the Magistrate. Statement of prosecutrix recorded under Section 164-A Cr.P.C also disclosed the commission of offence of rape and other offences against the respondents.
11. Police completed all the formalities and submitted the final report before the trial court. The charges against the respondents were framed on 09.11.2021. Respondent No.1 was charged for commission of offence under Section 376 IPC whereas respondent No. 2 was charged for commission of offence under sections 376 IPC, 3/4 and 16/17 of POCSO Act. With a view to substantiate the charge against the respondents, evidence was led by the prosecution. Respondents admitted statements of PWs-Balwan Singh, Pawan Kumar, Lady Constable-Geeta Kumari, Constable-Fazal Hussain, ASI- Rattan Kumar, SPO-Sham Lal, Yog Raj, Rishi Kumar, PW-12-Medial Officer, Principal-Jatinder Sharma, Constable-Tazoob Beigh, Constable- Rashpal Singh, Gynaecologist and SPO.
12. Prosecution, however, got the statements of PW-1 (Prosecutrix) and PW-3 (Shakeel Ahmed) only recorded in support of the charges against the respondents. On the basis of the evidence which was led by the prosecution, trial court came to the conclusion that charges against the respondents were not proved at all and, accordingly, vide impugned judgment dated 31.05.2022 both the respondents were acquitted of the charges. 4
13. Having heard learned counsel for the parties and perused the material on record, it is seen that the only evidence that is recorded by the prosecution in support of the charges against the respondents is the statement of the prosecutrix i.e. PW-1, who has completely resiled from her statement made under Section 164-A Cr.P.C. before the Magistrate. She was declared hostile on the request of learned APP and was cross examined at length. She has stuck to her statement that she did not know the respondents nor was she subjected to any rape by any person, in particular, respondents.
14. With regard to her statement recorded under section 164-A Cr.P.C., PW-1 (Prosecutrix) stated that said statement was made by her under public pressure. Complainant, who was father of the prosecutrix, died before the trial and, therefore, could not be examined as witness. PW-3-Shakeel Ahmed has denied that he knows the respondents present in the Court. He has also denied the fact of having seen the prosecutrix in the shed as has come in his statement recorded under Section 161 Cr.P.C. PW-3 too was declared hostile at the request of learned APP and was permitted to be cross examined. Learned APP could not bring out any incriminating circumstance from lengthy cross examination, to which, PW-3-Shakeel Ahmed was subjected. The only two prosecution witnesses, those were examined, also turned hostile and did not support the prosecution case. This is how the trial Court was left with no option but to dismiss the challan and acquit the respondents of the charges.
15. We fully concur with the view taken by the trial court and do not see any reason or justification to take a view other than one very aptly taken by the learned trial court.
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16. For all these reasons, we do not find any merit in the present appeal and the same is accordingly dismissed.
(RAJESH SEKHRI) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu
25.09.2024
Paramjeet
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No