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Jammu & Kashmir High Court

State Th. P.S. Hira Nagar vs Mukesh Kumar on 30 August, 2017

Bench: Alok Aradhe, B. S. Walia

                      HIGH COURT OF JAMMU AND KASHMIR
                                  AT JAMMU

Condl. (CR) No.56/2017
c/w
SLAA No.59/2017.
                                                          Date of order: 30.08.2017
       State Th. P. S. Hiranagar                  V.              Mukesh Kumar

Coram:
           Hon'ble Mr Justice Alok Aradhe, Judge
            Hon'ble Mr Justice B. S. Walia, Judge
Appearing counsel:
For Petitioner/appellant(s) :       Mr. L. K. Moza, AAG
For respondent (s)          :       Mr. J. P. Sharma, Advocate.

Per-Alok Aradhe, J:_ Condl(CR)No.56/2017 Heard. For the reasons stated in the application which is duly supported by an affidavit, we find that sufficient cause for condoning the delay of 119 days in filing the application for leave to appeal is made out. Accordingly, the delay of 119 days in filing the application seeking leave to appeal is condoned.

In the result, Condl(CR) No.56/2017 is allowed.

Heard. After hearing learned Additional Advocate General for the appellant, we are inclined to grant leave to appeal. Accordingly, SLAA No.59/2017 is allowed.

Registry is directed to diarize the appeal as Criminal Acquittal Appeal today itself.

Cr. Accquital Appeal:

In this criminal acquittal appeal the appellant has assailed the validity of the judgment dated 17.10.2016 by which the respondent has been acquitted in respect of offence under Sections 376/511/457/323 RPC.

2. The prosecution story in nutshell is that a written report was made on 04.11.2013 by the prosecutrix, in which it was stated that she and her husband resided in the same locality, as her husband was serving in the Police Department, who was on duty at Ghagwal, Samba. On the night intervening 3rd/4th of November, 2013 at about 10.30 p.m. accused in the absence of her husband with the intention to commit rape, trespassed in her residential house and entered in her room and caught hold of her. Thereupon she raised hue and cry and on hearing noise, her children woke up and accused fled away from the spot. He also threatened her of dire consequences in case she complained. On the basis of aforesaid written report, First Information Report for offence under Sections 457/354/376/511/323 RPC was registered. The Police after completion of the investigation filed the charge sheet against the respondent.

3. The prosecution in order to prove its case examined PW-1, the prosecutrix, PW-2 Vishal Kumar, PW-3 Sandokh Raj, PW-4 Bashaki Ram, PW-5 Dr. Manjeet Singh, PW-6 Anand Dutta and PW-7 Ashwani Kumar.

4. Learned Additional Advocate General for the appellant submitted that the trial Court ought to have appreciated that the statement of the prosecutrix is supported by her son who would not ordinarily make an incorrect statement. The mere delay in lodging the FIR is immaterial and the learned trial Court has failed to appreciate the oral Condl. (CR) No.56/2017 c/w SLAA No.59/2017 Page 2 of 5 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.

5. We have considered the submissions made by learned Additional Advocate General for the appellant and have perused the record. From the perusal of the evidence on record, it is evident that the incident is alleged to have taken place on 03.11.2013 at about 10.30 p.m. whereas FIR was lodged on 04.11.2013 at 4.15 p.m. and the distance between the place of occurrence and the Police Station can be covered within 10/15 minutes on motorcycle as per version of the prosecutrix.

6. The prosecutrix in her statement recorded under Section 164-A of the Code of Criminal Procedure stated that at about 10.30 p.m. she along with her 8 years' old son was sleeping on their bed, respondent also entered into their blanket and at 10.45 p.m. when she woke up she found that respondent was trying to molest her. In her statement before the Court, the prosecutrix has stated that about 10.30 p.m. when she woke up she found respondent was trying to molest her and therefore, she slapped the respondent on his head and enquired from him 'who he was?'. Thereupon she called her younger son who was sleeping with her, who called her elder son from other room. On this respondent caught hold of her from the arms and dragged her into the store-room. PW-4 Bashaki Ram who is brother-in-law of the prosecutrix has an old animosity with the respondent which is admitted by PW-3 Sandokh Raj, husband of the prosecutrix and PW-2 Vishal Kumar who is son of the prosecutrix.

7. From the statement of the prosecutrix, it is evident that in the night when the incident took place, since the telephone was out of order, therefore, she could not inform her husband regarding the occurrence and on the next morning, she obtained telephone of her brother-in- law Romesh Chander and asked him to give a missed call to her husband and call him to home. However, this fact is nowhere corroborated by the husband of the prosecutrix or even her son, namely, Vishal. The aforesaid version has also not been disclosed by the prosecutrix in her statement under Section 164-A of the Code of Criminal Procedure. As per medical certificate, the prosecutrix was advised for gynaecological test, however, she refused to do so and on her medical examination no marks of external injuries were found on her person. The conduct of the prosecutrix for not subjecting herself to gynaecological test brings reasonable doubt in the prosecutrix story. The trial Court has properly appreciated the material on record and has come to the conclusion that the prosecution has failed to prove the offence against the respondent.

8. 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.

9. 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
30.08.2017
Surinder




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