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Charges not established against Rape accused since victim’s consent was established through Circumstantial evidence

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CRA No.57/2018
Date of order:30.01.2019

State through SHO P/S Hiranagar

vs.

Rajinder Paul Singh and Anr.

Coram:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Appearance:
For the petitioner/appellant (s) : Mr. F A Natnoo, AAG.
For the Respondent(s) :
i) Whether approved for reporting in Law journals etc.: Yes/No
ii) Whether approved for publication in press: Yes/No

Gita Mittal-CJ.

1. We have heard Mr. F A Natnoo, learned AAG on this appeal at length.

2. The appellant seeks to assail the decision dated 26th November, 2017 passed in the case arising out of FIR No.122/2015 which was registered by the Police Station, Hiranagar under Sections 376/363/344 of the Ranbir Penal Code.

3. A perusal of the judgment would show that an application was moved on 17th December, 2015 by Tara Chand, a resident of Mela, Tehsil Hiranagar, District Kathua to the SHO, Police Station, Hiranagar alleging that his daughter (referred to as the ‘prosecutrix’ in the judgment) was kidnapped by someone on 03rd December, 2015 and that she could not be traced. On this complaint, the police registered FIR No.122/2015 under Section 363 of the RPC. The prosecutrix was alleged to have been recovered on 15th December, 2015 from the bus stand, Amritsar. Premised on a statement attributed to the prosecutrix, the respondent was arrested in the matter. During the investigation, the police found commission of offences under sections 109 and 343 of the RPC as well and consequently, placed a charge- sheet under all these provisions of law before the court concerned.

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4. The charge-sheet was also filed against one-Bhupinder Kour @ Babli who could not be apprehended and was proceeded against under section 512 of the Cr.PC.

5. During the trial, the prosecution examined 12 witnesses including the parents of the prosecutrix, the doctors who conducted the medical examination of the respondent, the prosecutrix; as well as the persons who had met the respondent and the prosecutrix between the period 03rd December, 2015 to 15th December, 2015 at different locations.

6. After a careful consideration of the entirety of the evidence, the learned trial Judge relied on the testimony of the parents of the prosecutrix and concluded that the prosecutrix was aged between 18 to 20 years on the date of the offence and there was no substantiated documentary evidence of her age. In this background, the trial Judge concluded that the prosecutrix was not below the age of 18 years and not a minor and hence the aspect of kidnapping from custody of the lawful guardian, as was envisaged under section 363 of the RPC, was not made out. The learned trial Judge, therefore, acquitted the respondent of the commission of the offence under this section.

7. The second charge which was laid against the respondent was commission of offences under Section 344 of the RPC with regard to the unlawful confinement of the prosecutrix for ten or more days and Section 376 RPC for having raped her during this period. We find that learned trial Judge has considered the entire evidence and found that the prosecutrix was in active contact of the respondent from September, 2015 and that she voluntarily left her home in his company to go with him on 03rd December, 2015 with her documents. During the period between 03rd to 15th December, 2015, she went with the respondent to Dayalachak where from they shifted to Bari Brahmana where from they got themselves photographed; proceeded to an advocate to contract a ‘marriage’ where from she shifted to Beas village and then to his home on 10th December, 2015. The prosecutrix proceeded to Amritsar with the respondent in a public bus and till she was ‘recovered’ on 15th December, 2015 from the bus stand, Amritsar. Noting that the prosecutrix had on her own accord gone to the respondent to marry him and stayed with him over the entire period without raising any alarm or objection or complaint, the trial Judge has observed that the sexual relations between the respondent and the prosecutrix was with her consent.

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8. Specific reference has been made in the judgment to the testimony of PW-

6 Rajinder Paul, who had stated that on 03rd December, 2015, the prosecutrix and the respondent had come to him, introduced themselves as husband and wife and sought a room on rent. PW-3 Ram Paul further gave the evidence that he had witnessed the marriage agreement executed by the prosecutrix and the respondent at Bishnah before, an advocate which marriage agreement he had attested as a witness. This witness further testified that after 8 or 10 days, he dropped them at the main road as they were on their way to Amritsar for a pilgrimage. In this background, the trial Judge has concluded that the commission of offences punishable under Sections 376/363/344 of the RPC with which the respondent was charged had not been proved.
No evidence has been brought to our attention which would enable this Court to draw a different conclusion.
9. It is settled law that the appellate court will not lightly interfere with the judgment of acquittal. The Trial Court has recorded the findings, which are based on an elaborate 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 a 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 perverse. (See: Ram Swaroop and others v. State of Rajasthan, AIR 2004 SC 2943 and Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124).

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10. On application of the above principles as well, we see no reason to interfere with the findings and conclusions returned by the trial Judge in the judgment dated 26th November, 2017.

11. We find no merit at all in this appeal, which is hereby dismissed.

(Tashi Rabstan) (Gita Mittal)
Judge Chief Justice
Jammu
30.01.2019

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