State of J & K vs Raj Kumar

Bansi Lal Bhat, J.

Cond.(Cr.) No. 236/2014

The instant application seeks condonation of delay of 70 days' in filing the acquittal appeal.

For the reasons mentioned in the instant application and those urged at the time of arguments, delay is condoned.

Condonation application No. 236/2014 stands disposed of.

S.L.A.A. No. 256/2014

State has filed the instant motion for leave to file acquittal appeal against judgment dated 25.04.2014 passed by learned Sessions Judge

Udhampur in case titled State v. Raj Kumar by virtue whereof the respondent (hereinafter called as 'accused') has been acquitted of charges

framed under Sections 341/354/376/511 of RPC. On 27.07.2011 prosecutrix, accompanied by her husband, lodged a written report at the Police

Station alleging therein that on 21.04.2011 at 11 O'clock, while she was on way to Udhampur, she was intercepted by the accused who

overstretched her, caught hold of her breasts, took her to an isolated place and tried to commit rape. It was alleged that some women arrived there

and raised alarm. The accused, while escaping threatened the prosecutrix of dire consequences. Case under FIR No. 70/2011 for offence under

Section 341/354/376/511 of RPC came to be registered on the basis of the written report lodged by prosecutrix. The investigation culminated in

filing of charge sheet against the accused who pleaded not guilty to the aforesaid charges before the Trial Court and claimed to be tried.

Prosecution led evidence at the trial, on consideration whereof the accused was acquitted.

Accused pleaded innocence when asked to explain the incriminating circumstances emerging from prosecution evidence. He has examined a

single witness in defense.

Heard and considered.

In cases of sexual assault corroboration is not to be insisted upon provided the testimony of prosecutrix instills confidence and surrounding

circumstances lend assurance to her version of being victim of sexual assault. While corroboration is not necessary, Courts look for some

assurance to the deposition of prosecutrix from evidence of other witnesses brought on record by prosecution.

Assurance, short of corroboration is required which may be forthcoming from the conduct of prosecutrix immediately before and after the

alleged occurrence. In the instant case, the allegation is that the accused accosted the prosecutrix while on way to Udhampur, took her to an

isolated place after catching hold of her breasts and tried to commit rape with her but his attempt was thwarted as some women happened to pass

by the pathway and raised an alarm forcing the accused to take to his heels. Prosecutrix, admittedly, was a married woman. It is not her case that

she had put resistance and tried to foil the evil design of accused. It is in her deposition that some milkmaids were present at the time of occurrence

and they had raised an alarm. However, none of the ladies or milkmaids have been cited as witnesses of occurrence. The investigating agency has

made no efforts to trace out the eye- witnesses to the occurrence. Admittedly, husband of prosecutrix had no personal knowledge about the

occurrence and when he reached the spot upon being informed by the prosecutrix, the accused was not there. In absence of evidence of lodging of

any protest or offering of resistance on the part of prosecutrix and in view of the failure of prosecution to cite and examine the eye witnesses to the

alleged occurrence, prosecution cannot be said to have discharged its burden of proof resting upon it to rebut presumption of innocence available

in favor of accused. The conduct of prosecutrix doesn't portray her as a victim of sexual assault and the evidence, both substantive as well as the

evidence of eye witnesses corroborating the prosecution version, is lacking. Viewed in this context, prosecution cannot be said to have established

the guilt of accused beyond any shadow of doubt notwithstanding the fact that the Trial Court has not subscribed to the defense version that the

accused had been falsely implicated as the husband of prosecutrix owed some money to accused on account of wages. In view of the forgoing

discussion we find no substantial and compelling reasons to depart from the findings of Trial Court. Leave is accordingly, declined and the appeal

dismissed.