State of J&K @APPELLANT@Hash Gulzar Ahmed

CONCR No.24/2018 Heard.

After hearing learned counsel for the petitioner/appellant and for the reasons assigned in the application, which is duly supported by an affidavit, we

find that sufficient cause for condoning the delay of 123 days in filing the leave to appeal is made out. In the result, delay is condoned.

Accordingly, the application for condonation of delay is disposed of.

SLA No.31/2018

After hearing the learned Additional Advocate General, we deem it appropriate to grant leave to file Criminal Acquittal appeal. Accordingly, leave is

granted

SLA is disposed of.

Registry is directed to diarize the appeal

CRAA No.41/2018

This Criminal Acquittal Appeal is filed against the judgment dated 11.09.2017 passed by the trial court by which the respondent has been acquitted

of offence under Sections 366/376 RPC.

The prosecution story in a nutshell is that one Ghulam Ahmed on 04.01.2013 submitted a written complaint to SHO Police Station, Rajbagh, Kathua

in which it was stated that on 03.01.2013 at about 6.00 p.m, sister of the complainant had gone to fetch firewood in the forest, however, she did not

return, whereupon, he went for search of his sister and thereupon a missing report was recorded in Daily Diary on 04.01.2013 in Police Station

Rajbagh. On 05.01.2013, the complainant again reported that one Gulzar Ahmed S/o Hussain Bakerwal R/o Gura Surjan had enticed away his sister

and on the basis of aforesaid complaint, a case was registered against the aforesaid Gulzar Ahmed at the Police Station, Rajbagh for offence u/s 366

RPC. The statement of the prosecutrix was recorded in terms of Section 164-A Cr.P.C and the police after completion of investigation, filed charge

sheet in the court against the respondent for the offence under Sections 366/376 RPC.Â

The prosecution in order to prove its case examined as many as 13 witnesses, namely, PW-1 Gulzar Ahmed, PW-2 Ct. Mohd Jameel, PW-3 Ct.

Prem Saroop PW-4 Nizam Din, PW-5 Qaddoos, PW-6 Prosecutrix, PW-7 Dr. Susheel Sharma, PW-8 Jatinder Mishra, PW-9 Dr. Pushpa Raina,

PW-10 Mushtaq Ahmed Bhat, PW-11 ASI Mohd Sadeeq, PW-12 SI Sanjeev Kumar and PW-13 ASI Pritam Singh.

The trial Court on the basis of meticulous appreciation of evidence, acquitted the respondent in respect of the offence alleged against him.Â

Learned Additional Advocate General for the appellant submitted that the trial court has failed to appreciate the evidence available on record in its

correct perspective, which has resulted in erroneous findings and consequent judgment.

We have considered the submissions made by the learned Additional Advocate General and have perused the record. PW-1 Gulzar Ahmed, PW-4

Nizam Din and PW-5 Qaddoos, who are brothers of the prosecutrix, are just circumstantial witnesses to her disappearance and recovery. However,

PW-5 Qaddoos and the prosecutrix have both stated that none of the brothers of the prosecutrix was present at the time of her recovery. Moreover,

the prosecutrix did not state that she made complaint against or resisted her kidnapping, to any person on her way from the place of occurrence to

Srinagar and back to Udhampur, till she was recovered. She did not complain to the parents about the incident. It is pertinent to mention that she had

not stated to have resisted her kidnapping, which indicate that she would have eloped of her own with the accused, as Qaddoos, brother of the

prosecutrix, has in unequivocal terms stated that accused and the prosecutrix were known to each other.

From perusal of the statement of PW-7 Dr. Susheel Sharma, Radiologist, it is evident that the age of the prosecutrix at the time of incident was 25

years. PW-9 Dr. Pupsha Raina has stated that she has examined the prosecutrix on 08.01.2013 in District Hospital, Kathua, no mark of violence on

any part of her body was found. In her opinion, the prosecutrix was habitual to sexual intercourse and there was no evidence of recent sexual

intercourse.

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 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 preserve. 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.

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.Â

In the result, the appeal fails and is hereby dismissed.