Jammu & Kashmir High Court
State Of J&K vs Shabir Ahmed And Other' Whereby The ... on 15 December, 2020
Author: Sanjay Dhar
Bench: Rajesh Bindal, Sanjay Dhar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(THROUGH VIRTUAL MODE)
Reserved on:08.12.2020
Pronounced on: 15 .12.2020
SLA 3/2018
CONCR 2/2018
State of J&K ... applicant(s)
Through: - Mr. Aseem Sawhney AAG
Shabir Ahmed and others ...non-applicant(s)
Through: - None
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL,JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
SANJAY DHAR, J.
CONCR 2/2018
This is an application seeking condonation of delay in filing the appeal against the judgment of acquittal dated 31.08.2017 passed by the learned trial Court. There is a delay of 37 days in filing the instant appeal.
The delay, that has occurred in filing the appeal, has been properly explained by the applicant in the application, as such, the same deserves to be condoned. The application is, accordingly, allowed and the delay of 37 days in filing the appeal is condoned. 2 SLA 3/2018
The application stands disposed of.
SLA 3/2018 1 The applicant-State has filed this application for grant of leave to file appeal against the judgment of acquittal dated 31.08.2017 passed by the learned Principal Sessions Judge, Kathua, (hereinafter referred to as the 'trial Court') in File No.30/2012/Sessions in case titled 'State Vs. Shabir Ahmed and other' whereby the learned trial Court has acquitted all the accused persons of the charges for offences under Sections 376/366/109 RPC.
2. Briefly stated the facts of the case are that on 11.07.2012, PW-1 Chand lodged a missing report pertaining to his daughter with Police Station, Basohli and the same was registered by the police. On 13.07.2012, the complainant informed the police that his daughter had been kidnapped by accused Shabir Ahmed. The police registered a FIR No. 47/2012 for offence under Section 366 RPC and started the investigation of the case.
3 After investigation of the case, it was found that the prosecutrix, who happens to be the daughter of the complainant PW-1 Chand, was kidnapped by accused Shabir Ahmed with the help of co-accused and she was also subjected to sexual assault by him. The prosecutrix was recovered from the possession of the accused on 20.07.2012. Offences under Sections 366/376/109 RPC were found established against the accused and charge-sheet was laid before the trial Court. Accused Shabir Ahmed was charged for offences under Sections 366/376 RPC, 3 SLA 3/2018 whereas accused Ansar Ali and Manzoor Ahmed were charged for offences under Sections 366/376/109 RPC. The accused denied the charges and, accordingly, the prosecution was directed to lead evidence in support of its case. The prosecution examined as many as 13 out of 14 witnesses cited in the charge-sheet. However, no evidence was led by the accused.
4 The learned Trial Court, after hearing learned counsel for the parties, came to the conclusion that the prosecution has failed to prove its case against the accused and, accordingly, they were acquitted of the charges in terms of the impugned judgment.
5 We have heard Mr. Aseem Sawhney, learned AAG and perused the record.
6 In the instant case, the prosecutrix was admittedly a major at the time of the alleged occurrence. Her date of birth, as per her own statement, is 29.09.1991. According to her statement, on the day when she was kidnapped by the accused, her brother, mother and father were sleeping in the same house in which she was sleeping; accused Shabir Ahmed asked her to accompany him and she reluctantly did so. Her statement further shows that she was having previous acquaintance with the accused Shabir Ahmed as the said accused used to come to her house. The evidence on record shows that the prosecutrix accompanied the accused first to Jammu in a light vehicle where she stayed with the accused. Thereafter, she was shifted to Bhaderwah in a vehicle where, she stayed with the accused for six days. Thereafter, while she was 4 SLA 3/2018 being shifted to Basohli, the police apprehended the accused and recovered the prosecutrix.
7 The aforesaid circumstances given by the prosecutrix in her statement show that she had sufficient opportunities to save herself from the clutches of the accused, firstly at the time when she accompanied the accused Shabir Ahmed without any struggle, secondly she did not raise any alarm to wake up her sleeping parents and brother, she did not try to escape from the clutches of the accused while accompanying them in vehicle nor did she raise any alarm while she was staying with the accused at Jammu and Bhaderwah. The fact, that the prosecutrix did not choose to resist the advances of the accused and, in fact, accompanied them without any demur, clearly shows that she had eloped with the accused out of her feel will and volition. 8 In the face of foregoing nature of evidence on record, the learned trial Court has rightly come to the conclusion that even if sexual intercourse with the prosecutrix was established, the same was a consensual one. Thus, the finding of the learned trial Court that the prosecution case does not deserve to be believed, is justified and, as such, the impugned judgment does not call for any interference from this Court. The law does not allow the State to file an appeal against an order of acquittal under Section 417 Cr.P.C. The State has to seek leave to file an appeal.
09 As already noted, in the instant case, we do not find any ground to interfere with the judgment of acquittal The present application 5 SLA 3/2018 seeking leave to file an appeal against the judgment of acquittal is without any merit. The same is, accordingly, dismissed.
(SANJAY DHAR) (RAJESH BINDAL)
JUDGE JUDGE
Jammu
15. 12.2020
"Sanjeev"
Whether the order is speaking: Yes
Whether the order is reportable: Yes/No
SANJEEV KUMAR UPPAL
2020.12.15 13:12
I attest to the accuracy and
integrity of this document