State Of J&K vs Rohit Kumar

Sanjeev Kumar, J

1 This appeal by the State is directed against the judgment dated 31.10.2011 passed by the learned Additional Sessions Judge, Kathua [‘trial

Court’] in file No. 56/Sessions/74/Sessions titled ‘State of J&K vs. Rohit Kumar’ (FIR No. 90/2006 under Sections 343/363/376 RPC).

2 Before adverting to the grounds of challenge urged by Mr. Aseem learned AAG, appearing for the appellant-State, it is profitable to briefly notice

the prosecution case which was put up before the trial Court: Complainant Tilak Raj submitted a written complaint before the Court of learned CJM

Kathua against the respondent-accused for registration of FIR against him and on the direction of learned CJM, Police Station, Rajbagh registered FIR

No. 90/2006 against the respondent under Sections 343/363/376 RPC. As per the averments made in the complaint aforesaid, on the basis of which

FIR was registered, it was alleged that the daughter of the complainant i.e., the prosecutrix had gone to the house of her paternal aunt at Jagyal Tehsil

Pathankote and when on 16.04.2006, she was returning, she was forcibly kidnapped by the respondent from village Madha, Tehsil Hiranagar. The

respondent, after kidnapping the prosecutrix took her to Delhi, Ludhiana and Damtal (Himachal Pradesh) where she was kept for more than one and a

half month for committing illicit intercourse. The allegations were investigated and the Investigating Officer, after recording the statements of

witnesses acquainted with the case and completing other legal formalities, found the offences proved against the respondent and, accordingly,

presented the challan in the Court of learned Judicial Magistrate 1st Class (Munsiff) Hiranagar on 07.09.2006. The challan was committed by the

learned Magistrate to the Court of learned Principal Sessions Judge, Kathua which, on transfer, was tried by the trial Court.

The trial Court framed the charges against the respondent for commission of offences under Sections 363/343/376 RPC. The respondent denied the

charges and claimed to be tried. The prosecution was called upon to lead evidence. With a view to bring home the charge and to prove the guilt of the

respondent, the prosecution examined PWs the Prosexutrix, Mohan Lal, Kanta Devi, Tilak Raj, Prakasho Devi, Rano Devi. Dr. Rajeev Mengi, and

Dr. Devinder Sauntra. On conclusion of the prosecution evidence, the statement of respondent in terms of Section 342 Cr.P.C was recorded on

07.12.2010 and incriminating circumstances appearing against him were put to him. The respondent denied the allegations, however, did not chose to

produce any witness in defence.

3 The trial Court, after considering the entire evidence on record and hearing the counsel for the parties, concluded that the prosecution had failed to

prove the case beyond shadow of doubt against the respondent and, therefore, acquitted him of the charges leveled against him. It is this judgment of

acquittal recorded by the trial Court, which is impugned in this appeal.

4 The impugned judgment has been assailed on the ground that the learned trial Court has failed to appreciate the prosecution evidence in proper

perspective and the conclusion drawn is against the weight of evidence. It is submitted that the occurrence has been sufficiently proved and, therefore,

there was no reason or occasion for the trial Court to acquit the respondent. It is argued by learned counsel for the appellant-State that the trial Court

has adopted a very hyper technical approach in the matter, while as, the direct and the circumstantial evidence available on record was sufficient to

connect the respondent with the offence of commission of rape on the hapless minor girl.

5 Having heard learned counsel for the appellant and perused the record, I am of the view that the judgment of acquittal passed by the trial Court is

perfectly legal and free from infirmity and, therefore, cannot be found fault with.

6 With regard to the age of the prosecutrix, the only evidence on record is the statement of PW Dr. Davinder Sauntra, who, on the basis of

examination of x-ray film of the prosecutix, has given his opinion that the radiological age of prosecutrix is between 14 and 16 years. In his cross-

examination, the said witness has deposed that neither he has taken the x-ray film of prosecutrix, nor has he seen the prosecutrix personally. His

opinion was, thus, based on mere examination of x-ray film.

7 It is well settled that so far as the age, on the basis of radiological examination is concerned, there is possibility of error of two years on either side

and if the opinion of the Doctor is accepted in the present case, the age of the prosexutrix could be 18 years. It is interesting to note that the father of

the prosecutrix i.e PW Tilak Raj in his deposition has stated that the prosecutrix had read up to 6th/7th class, but no effort was made by the

Investigating Officer to collect the proof of age of the prosecutrix from the concerned School. In view of the aforesaid evidence on record, the trial

Court was correct in law to take the age of the prosecutrix as 18 years.

8 Once the aforesaid view of the trial Court is accepted as correct, then the only question for consideration is whether the sexual encounters between

the respondent and the prosecutrix were consensual or against the will of the prosecutrix. The circumstances as also the testimony of the prosecution

witnesses clearly point towards the only conclusion that the same were consensual between the respondent and the prosecutrix. Both had allegedly

travelled from Kathua to Delhi and Delhi to Damtal through different modes of transport, but the prosecutrix never ever raised hue and cry or made

any effort or grievance to anybody with regard to her kidnapping. The trial Court is correct in its finding that it is not possible for a person to keep on

moving from one place to another and stay quiet for almost one and a half month and not even a single act of protest or willingness to skip from the

custody of the respondent was ever exhibited by the prosecutrix and that speaks volume of the prosecutrix being a willing partner till she landed back

in Barnoti.

9 It is trite and golden principle of criminal jurisprudence that the accused is presumed to be an innocent till proven guilty. It is for the prosecution,

which alleges commission of offence by the accused, to prove beyond reasonable doubt. The evidence that has come on record in the instant case

does not inspire confidence and if appreciated in proper perspective, lends support to the conclusion drawn by the learned trial Court that the

prosecutrix was major on the date of occurrence and that she had run away with the respondent of her own and may have even voluntarily indulged in

sexual activities. I am, therefore, in agreement with the learned trial Court that the evidence led by the prosecution in the instant case is not sufficient

enough to connect the respondent with the offence which the respondent was charged with.

10 Otherwise also, the scope of interference with the judgment of acquittal recorded by the trial Court is very limited. Even if the appellate Court, on

analysing the evidence on record, is of the opinion that two views are possible, yet the appellate Court would prefer the view which goes to the benefit

of the accused. In this regard, reference can be made to a judgment of the Hon’ble Supreme Court in the case of Sambhaji Hindurao Deshmukh

vs. State of Maharashtra, (2008) 11 SCC 186 wherein the Hon’ble Supreme Court held as under:

“The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire

evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence

which can dislodge the findings arrived by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the

conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against

acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are

reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse

the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes

it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of

doubt (vide G. B. Patel vs. State of Maharashtra, 1978 (4) SCC 371: Babu v. State of U.P,-1988 (2) SCC 21: Awadhesh v. State of M.P, 1988 (2)

SCC 557: Thanedar Singh v. State of M.P, 2002 (1) SCC 487: and State of Rajasthan vs. Rajaram, 2003 (8) SCC 180. Keeping the said principles in

view, we will examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification

for the High Court to interfere with the decision of the trial courtâ€​.

14 In view of the circumscribed scope of interference with the judgment of acquittal, I am not inclined to interfere with the impugned judgment. I,

accordingly, dismiss this appeal and uphold the judgment of acquittal passed by the learned trial Court.

Registry to return back the record of trial Court, if received.