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Jammu & Kashmir High Court

State Of J&K; vs Javed Ahmed And Anr. on 29 August, 2017

Bench: Alok Aradhe, B. S. Walia

                  HIGH COURT OF JAMMU AND KASHMIR
                              AT JAMMU
SLAA No. 41/2017
c/w
Cond (Cr.) No. 37/2017
                                        Date of order: 29.08.2017
             State of J&K                       vs.            Javed Ahmad and anr.
Coram:
           Hon'ble Mr Justice Alok Aradhe, Judge
            Hon'ble Mr Justice B. S. Walia, Judge
Appearing counsel:

For Petitioner/appellant(s) :                Mr. R. S. Jamwal, Dy.AG.
For respondent (s)          :                None.

i/   Whether to be reported in                                 Yes/No
     Press/Media?
ii/  Whether to be reported in                                 Yes/No
     Digest/Journal?
Per Alok Aradhe-J

Condl(Cr) No.44/2017
         Heard.

For the reasons assigned in the application, which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of 63 days in filing the criminal acquittal appeal is made out. In the result, delay is condoned.

Accordingly, the application for condonation of delay is disposed of.

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. 43/2017 This Criminal Acquittal Appeal has been preferred against the judgment dated 31.08.2016 passed by the trial court, by which the respondents have been acquitted of offences under sections 376/313/420/109/34 RPC.

2. The prosecution story in a nutshell is that on 30.04.2013 at about 12.15 p.m, a written report was lodged by the complainant, Munira Bano, who was accompanied by her sister, Misra Bano in the Police Station, Gool against the respondents that respondent No. 1, Javed Ahmed has given false assurance to marry her and on this pretext, he raped her for 4/5 years and developed illicit relation with her forcibly. It is further submitted in the complaint that she conceived 2/3 times but was got aborted by respondent No. 1. Thereafter, respondent No. 1 refused to marry her. On the basis of said written report, Police registered First Information Report No. 23/2013 against the respondents for commission of offence under sections 376/313/420/109 RPC. 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.

2. Learned Deputy Advocate General for the appellant submitted that the trial court has failed to appreciate the statements of brother and sister of the deceased available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment. It is further submitted that there is enough material on record to connect the respondents with the alleged offences.

3. We have considered the submissions made by the learned counsel for the parties and have perused the record. It is pertinent to mention here that the deceased, Munira Bano has committed suicide after registration of the FIR. There is no medical evidence on record with regard to commission of offence under section 376 RPC. PW-Misra Bano, who is sister of the deceased has stated that the accused, Javed Ahmed used to visit their house frequently and forced the deceased for abortion. It has further been stated that her sister and accused, Javid Ahmad slept in a separate room, which by itself is not sufficient evidence to prove the allegation of rape. PW Gulzar SLAA No. 41 of 2017 a/w connected matters. Page 2 of 3 Ahmaed, who is uncle of the deceased, has not supported the prosecution case. He has stated that on account of harassment by the Police officials, the deceased had committed suicide. PW-Abdul Rashid has denied the commission of offence. There is neither ocular, nor medical evidence on record against the respondents. The deceased was major and was in relationship with the respondent No. 1 for 4/5 years. Even the prosecution witnesses have not stated anything regarding relationship of deceased with respondent No. 1.

4. 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.

5. 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.

                                             (B. S. Walia )   (Alok Aradhe)
                                                   Judge             Judge
Jammu
29.08.2017
Karam Chand




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