Application for leave to file criminal appeal against acquittal in a rape and kidnapping case was dismissed. The High Court held that evidence showed the prosecutrix was a consenting adult who voluntarily traveled with the respondent.
Application seeking leave to file criminal appeal against acquittal dismissed; accompanying proposed appeal stands dismissed.
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Sr. No. 10
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
CJ Court
Case: SLA No. 90 of 2016
State of J&K
.....Appellant/Petitioner(s)
Through :- Sh. Aseem Sawhney, AAG
v/s
Zoora
.....Respondent(s)
Through :- Mr. A. K. Shan, Advocate
CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
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basis of said report, FIR No. 132/2013 for commission of offences under Sections 363/109 RPC was registered against the respondent.
4.
During the course of the trial, the prosecution has examined as many as 15 witnesses, namely, PW-1 Mohd Shafi, PW-2-the prosecutrix, PW-3 Farman Ali, PW-4 Tooda Mohd., PW-5 Smt. Shambi, PW-6 Attar Din, PW-7 Puran Chand, PW-8 Kasturi Lal, PW-9 Davinder Sharma, PW-10 Bashir Ahmed, PW-11 Mool Raj, PW-12 Dr. Susheel Sharma, PW-13 Dr. Sanjeev Prihar, PW-14 Dr. Pushpa Raina and PW-16 Hukam Chand ASI.
5.
After the prosecution concluded its evidence, the statement of the accused-respondent was recorded under Section 342 of Cr.P.C and thereafter, learned trial court, after hearing both the parties, has acquitted the respondent herein. Learned trial court has acquitted the respondent on the ground that the age of the prosecutrix at the time of occurrence was in the range of 18-19 years and further in view of the evidence, allegations of kidnapping and rape of the prosecutrix by the respondent are not substantiated from the statement of the prosecutrix. Further, the evidence on record suggested that the prosecutrix had
3 SLA No. 90/2016
accompanied the respondent out of her free volition and enjoyed sex with him with her voluntary consent.
4 SLA No. 90/2016
recovery of the prosecutrix that the prosecutrix had told her that the respondent had raped her at several places. PW-6 Attar Din is the witness with regard to the missing of the prosecutrix. He has stated that the prosecutrix was recovered when she was coming on motorcycle along with the respondent. He further stated that by the time, he reached on spot, police had already arrested the respondent and recovered the prosecutrix. PW-7 Puran Chand is the witness with regard to the seizure memo, who has proved the same. PW-8 Kasturi Lal deposed that he was posted as Naib Tehsildar, Executive Magistrate 1st Class, Nagri. He re-sealed two packets marked as A and B and issued the authority letter in the name of FSL. PW-9 Davinder Sharma deposed that he was posted as Moharir in Police Post, Nagri. He proved the missing report lodged by the complainant. PW-10 Bashir Ahmed who also posted as Moharir in Police Post, Nagri is the witness with regard to the handing over of the file relating to the prosecutrix to the Investigating Officer. PW-11 Mool Raj is the chemical analyst and he has proved the FSL report. PW-12 Dr. Susheel Sharma, Radiologist in his statement has deposed that he is of the opinion that radiological age of the person was between 17-19 years on the date when X-ray films were taken. PW-13 Dr. Sanjeev Prihar has examined the respondent and found him to be physically and mentally fit for performing all physical activities. PW-14 Dr. Pushpa Raina examined the prosecutrix and found that there were no marks of violence on any part of body. He deposed that the hymen was found ruptured (old) and as per her opinion, the prosecutrix was habitual of sexual intercourse. PW-16 Hukam Chand ASI,
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Investigating Officer has deposed with regard to the investigation conducted by him.
7.
8.
From the evidence brought on record, it is evident that one certificate issued by the District Registrar, Births and Deaths, Kathua was placed on record to demonstrate the age of the prosecutrix as 25.03.1997. However, the same was not proved by the prosecution. From the evidence of PW-12-Dr. Susheel Sharma, it is evident that in his opinion, the age of the prosecutrix was in the range of 17-19 years. So, learned trial court has rightly held the age of the prosecutrix in the range of 18-19 years. Further, learned trial court has rightly come to the conclusion that the prosecutrix with her consent had travelled to the Jalandhar i.e. at a distance of more than four hours from the place where she boarded the motorcycle and further, there is evidence on record that the respondent used to leave her behind for 4-5 hours and still she did not make any attempt to run away. She did not make protest, shout, scream or complain when she was being taken. All these circumstances clearly demonstrate that the prosecutrix was a consenting party and had voluntarily gone with the respondent. Learned trial court has rightly come to the conclusion with regard to the factum of age of the prosecutrix and further with regard to her being a consenting party to sexual intercourse.
In view of all what has been discussed above, no fruitful purpose shall be served in the event any leave is granted to the applicant/appellant. As such, we do not find any reason to grant leave to file the criminal acquittal appeal. The application bearing SLA No. 90 of 2016 is,
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accordingly, dismissed. As a result, the accompanied proposed appeal shall also stands dismissed.
(RAJNESH OSWAL) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE
JAMMU 07.10.2021 Neha
Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No
3 issues framed by the court
Whether the trial court committed any error in acquitting the respondent by finding that the prosecutrix was above 18 years and had voluntarily accompanied him.
Whether leave to file a criminal appeal against the acquittal order should be granted.
Whether the High Court found any interference being served by quashing the acquittal of the accused.
State of J&K
Zoora
RAJNESH OSWAL
PANKAJ MITHAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
