Jammu & Kashmir High Court
Sate Through Sho P/S Channi Himmat vs Santosh Kumar on 14 August, 2017
Bench: Alok Aradhe, Sanjeev Kumar
Regular list
Item No. 14
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SLAA No.D-89/2015
c/w
Condl(CR) No.D-74/2015
Date of order: 14.08.2017
State through SHO P/S Channi Himmat
v.
Santosh Kumar
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant/petitioner(s) : Mr. Sanjeev Padha, GA.
For the Respondent(s) : Mrs. Z S Watali, Advocate.
i/ Whether to be reported in : Yes/No Press/Media ii/ Whether to be reported in : Yes/No Digest/Journal Alok Aradhe,J:-
Condl(CR) No.D-74/2015:
Heard.
For the reasons stated in the application which is duly supported by an affidavit, we find sufficient cause for condoning the delay in filing the leave to appeal is made out. Accordingly, the delay in filing the application for leave to appeal is condoned. In the result, the application is allowed. SLAA No.D-89/2015:
Heard on the question of admission. This application for leave to appeal has been filed against the judgment dated 29.12.2014 passed by the Trial Court by which the respondent has been SLAA No.D-89/2015 c/w Condl(CR) No.D-74/2015 Page 1 of 4 2 acquitted for the offence punishable under Section 376 of the RPC.
2. The prosecution story in a nutshell is that on 02.01.2003, when the prosecution was going to her school and was at a short distance from her house, accused came out of the bushes and blocked her way and caught hold of her and thereafter committed rape on her. On hue and cry being raised by the prosecutrix, PW-4, Ranjit Singh came on spot. Thereupon the accused fled away. The prosecutrix along with brother- Pardeep Kumar, PW-5 went to her home and narrated the whole story to her mother and thereafter the matter was reported to the police. Thereupon, the first information report was filed and the police after completion of the investigation filed the charge sheet against the respondent for the offence as aforesaid.
3. Learned Government Advocate submitted that the Trial Court ought to have appreciated that the accused can be prosecuted on the sole testimony of the prosecutrix in an offence under Section 376 of the RPC and from the statement it was evident that she was subjected to the offence in question. However, the aforesaid aspect of the matter has not been considered by the Trial Court.
4. We have considered the submissions made by learned counsel for the appellant and have perused the record. The prosecution story rests on the testimony of the mother of the prosecutrix, PW-2 and brother, PW-5 including the father of the prosecutrix. It is pertinent to note that in paragraph 29 of the judgment, the trial Court has taken note of the well settled legal principle SLAA No.D-89/2015 c/w Condl(CR) No.D-74/2015 Page 2 of 4 3 that conviction in an offence under Section 376 RPC can be founded on the sole testimony of the prosecutrix, unless, there are compelling reasons for seeking corroboration. From the statement of father of the prosecutrix, PW-3, Jagjit Kumar, it is evident that he has denied signatures on the seizure memo and has stated that the prosecutrix did not say anything against the respondent. Similarly, PW-4, Ranjeet Singh, who was the sole eye witness to the alleged offence has neither been examined by the prosecution nor any explanation has been offered for his non examination before the Court. It is also pertinent to mention here that the undergarment of the prosecutrix was seized, however, there is delay in sending the sample of 21 days to FSL which has not been explained. Besides that, there is no matching of blood group of the accused with the sample which was found on the undergarment of the prosecutrix. PW-6, Dr. Vijay Sharma has stated in his statement before the Court that no mark of violence on any part of body of the prosecutrix including her private parts was found. He has further stated that no definite opinion can be given with regard to sexual intercourse with the prosecutrix, except a linear scratch of about ½ inch size near left lower eye lid of the prosecutrix. Similarly, the mother of the prosecutrix, namely, PW-2 has also not stated anything against the respondent.
5. The Trial Court on the basis of meticulous appreciation of evidence on record has acquitted the respondent. The findings recorded by the Trial Court can by no stretch of imagination be said to be either perverse or SLAA No.D-89/2015 c/w Condl(CR) No.D-74/2015 Page 3 of 4 4 based on no evidence. Even otherwise, it is well settled in law that even on re-appreciation of evidence, another view is possible, this Court in an acquittal appeal would taken a view which favours the respondent.
6. For the aforementioned reasons, we do not find any merit in the appeal. The same fails and is hereby dismissed.
( Sanjeev Kumar ) ( Alok Aradhe )
Judge Judge
Jammu
14.08.2017
Raj Kumar
SLAA No.D-89/2015
c/w
Condl(CR) No.D-74/2015 Page 4 of 4