State of U.P. vs Sabir and Others

This leave to appeal arises out of judgment and order dated 21.7.2005 passed by learned Additional Sessions Judge, Court No. 10, Barabanki in S.T. No. 7 of 2004 recording acquittal of accused-Respondents of offence under Sections 363, 366 and 376 IPC.

We have heard learned Counsel for State and perused the impugned judgment.

Learned State Counsel submitted that the medical examination report suggested the age of prosecutrix to be above 18 years whereas in the school Leaving Certificate, it is mentioned as about 14 years. Learned Counsel also submitted that even in the absence of definite medical opinion about the commission of rape as the hymen of prosecutrix was found intact, in terms of view taken by Hon''ble the Apex Court in the case of Madan Gopal v. Nawal Dubey 1992 SCC 592, that the rupture of hymen is not necessary to constitute the offence of rape, the act of Petitioner may come within the definition of rape.

We have carefully considered the submissions of learned Counsel for State and perused the pleadings.

In the light of impugned judgment, we examined the medical report wherein the age of prosecutrix has been determined to be about 18 years and also the school Leaving Certificate which mentions her age to be about 15 years. But in view of the latest judgment of the Hon''ble Apex Court reported in AIR 2001 SC 715 (Alamelu v. State) laying down that the School Leaving Certificate should not be made a basis for determination of age, submission of learned Counsel for State does not carry any force. Moreover by giving the margin of error of two years on either side, she was a major. It further appears that after the alleged incident, there was a compromise between the parties on 22.5.2003. Besides, the prosecutrix did not register any protest during the period she was subjected to forcible sexual intercourse. Moreover, we have already found that the medical evidence does not suggest any forcible sexual intercourse as the hymen of the prosecutrix was found intact. That apart, the prosecution started only after filing a private criminal case u/s 156 Code of Criminal Procedure as the Appellant state could not find any material to register an FIR. In addition thereto, in the initial missing person report, there was no mention about the allegation of rape. The prosecutrix roamed around with accused freely but she never raised any alarm in order to seek assistance and attention of people. Thus, from her conduct it was amply clear that the prosecutrix was a consenting party as has been rightly found by the trial court.

Thus, we do not find any perversity in the appreciation of evidence and the impugned judgment/order does not call for any interference. Moreover, as Hon''ble the Apex Court in a catena of decisions regarding interference with the judgment of acquittal has held that when two views are possible, the one taken by lower court in the facts and circumstances of case in favour of the accused should be accepted as the probable and reasonable view by the trial court.

Thus, finding no ground, this leave to appeal is dismissed.