State of J & K vs Surinder Singh

Bansi Lal Bhat, J.

Cond. (Cr.) No. 234/2014

The instant application seeks condonation of delay of 332 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. 234/2014 stands disposed of.

S.L.A.A. No. 253/2014

Special leave is sought by the State to assail the impugned judgment of learned 3rd Additional Sessions Judge Jammu (Fast Track Court) dated

31.07.2013 in Sessions File No. 44 titled State v. Surinder Singh alias Bablu in terms whereof respondent-Surinder Singh alias Bablu (hereinafter

referred to as accused) has been acquitted of charge under Sections 363/376 of RPC. The impugned judgment is sought to be assailed on the

ground that the Trial Court has not appreciated the prosecution evidence in proper perspective and the findings recorded are perverse. According

to prosecution version, on 12.08.2004 Ghulam Ali father of prosecutrix lodged a written report at P/s Bagh-e-bahu alleging therein that the

prosecutrix who was a minor aged about 14/15 years who had gone to the house of her aunt had been kidnapped by the respondent who was an

auto-driver by profession. Case under FIR No. 52/2004 came to be registered at P/s Bagh-e-bahu in this regard. Prosecutrix was recovered on

20.08.2004 during investigation and restored to her father after being subjected to medical examination. The investigation culminated in filing of

charge sheet before the Trial Court for offence under Section 363/376 of RPC. Accused pleaded not guilty and claimed to be tried. Prosecution

adduced evidence but PW-Ghulam Ali-father of prosecutrix expired before his appearance in the witness box.

In his examination under Section 342 of Cr.P.C. the accused denied the prosecution allegations and pleaded innocence. However, he did not

enter upon his defense and no witness was examined in defense. On consideration of evidence led by prosecution at the trial learned Trial Court

found that the prosecutrix was not proved to be a minor and that it was a case of elopement of prosecutrix with the accused and not a case of

kidnapping and rape as alleged by prosecution.

Heard and considered.

Since father of prosecutrix died before being examined by prosecution at the trial, mother of prosecutrix namely Ashraf Bibi was examined to

establish minority status of the prosecutrix. The witness has described the age of prosecutrix as 14 years at the time of alleged occurrence. The

witness as also the prosecutrix were admittedly illiterate persons having no record of date of birth of prosecutrix. In absence of examination of IO

at the trial prosecution had to fall back upon opinion of Dr. Anil Mehta who examined the prosecutrix and proved his certificate marked ExPW-

AM. According to this witness, prosecutrix was 17/19 years old and there was no evidence of sexual intercourse with her within 36 hours. Dr.

Madhu Gupta-the radiologist who examined the prosecutrix through X-rays was of the opinion that the Bone age of prosecutrix was between 17

to 19 years. In absence of production and proof of municipal record of birth of prosecutrix who was an illiterate and in view of the medical opinion

and the bone age described by radiologist the learned trial Court was perfectly justified in coming to conclusion that the prosecutrix had attained

the age of discretion. Having regard for the error probability in the estimation of age by radiologist it is found-that the prosecutrix had attained the

age of discretion relevant for the offences of kidnapping as well as rape at the time of alleged occurrence.

It is well settled that in rape cases testimony of prosecutrix can be made the basis for recording conviction of accused provided the same is

found capable of implicit faith being reposed therein. Assurance, short of corroboration, may be required for placing reliance on the testimony of

prosecutrix. Such assurance must be forthcoming from the pre-occurrence and post-occurrence conduct of prosecutrix and the surrounding

circumstances. In the instant case, the evidence brought on record by prosecution reveals that the prosecutrix accompanied the accused while

travelling in a Matadoor upto Bus stand Jammu from where they boarded a Punjab Roadways bus which carried them to Amritsar. These facts are

emanating from the testimony of prosecutrix who claimed that she was made to stay in a room for ten days and during the said period accused

raped her repeatedly. She further claimed that she was brought back and that they were moving about in Talab Tillo area where Police caught

them. Her cross examination lays bare that the accused had been visiting her neighbor and she was acquainted with him for about four months prior

to the occurrence. Admittedly prosecutrix did not raise alarm when she was taken in public transport to Amritsar. She has admitted presence of

passengers in the Matadoor from which she alighted and that the bus in which she traveled with the accused to Amritsar was full of passengers.

She admitted that she did not protest, shout, scream or complain to any fellow passenger about her ordeal of being kidnapped. She admitted that

she was lodged in a room in a crowded locality. She also admitted having told the Police that she lived with the accused in a Gurudwara at

Amritsar. She also did not raise hue and cry when the accused ravished her. The conduct of prosecutrix at the time of and after occurrence till she

was recovered by Police justifies raising the inference that she was a consenting party and that she had gone on a sojourn with the accused

voluntarily and had consensual sex with him out of her free will and consent. Findings recorded by learned Session Judge are justified on evidence.

In our considered opinion the findings recorded by Trial Court do not admit of a contrary view being taken thereon. The impugned judgment does

not suffer from any factual frailty or legal infirmity. The findings recorded by Trial Court cannot be termed to erroneous muchless perverse. We find

no scope for interference in appeal. In view of the foregoing discussion no substantial and compelling reasons are made out to grant the requisite

relief. S.L.A.A. is declined. Resultantly the appeal is dismissed.