The scope of interference with the judgment of acquittal recorded by the trial Court is very limited : Jammu High Court

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU CRAA 75 2012 Reserved on: 06.08.2021 Pronounced on: 10 .08.2021 State of J&K Through: Mr.Aseem Sawhney AAG ... Appellant(s) Rohit Kumar Through: None CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE 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’ where she was kept for more than one and a half month for 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 ClassHiranagar 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 CRAA 75 2012 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. 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. 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 4 CRAA 75 2012 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. 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. 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 5 CRAA 75 2012 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. 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 11 SCC 186 wherein the Hon’ble Supreme Court held as under: 6 CRAA 75 2012 “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 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 doubtSCC 371: Babu v. State of U.P 1988 SCC 21: Awadhesh v. State of M.P 1988 SCC 557: Thanedar Singh v. State of M.P 2002SCC 487: and State of Rajasthan vs. Rajaram 2003SCC 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 court”. 7 CRAA 75 2012 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. SANJEEV KUMAR) 10 .08.2021 Whether the order is reportable: Yes No Whether the order is speaking: Yes 

Summary: While the constitution guarantees more powers to the higher courts , it doesn’t necessarily mean that the verdicts of lower courts get dismissed easily. This was held in the judgment passed by a one bench judge comprising HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE, in the matter State of J&amp;K V. Rohit Kumar (MA 534/2014), dealt with an issue where the state filed for an appeal that is directed against the judgment passed by the learned Additional Sessions Judge, Kathua [‘trial Court’] titled ‘State of J&amp;K vs. Rohit Kumar’. 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 levelled against him. It is this judgment of acquittal recorded by the trial Court, which is impugned in this appeal. It is submitted by the state 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. In the present case, the age of the prosexutrix could be 18 years, the 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. After hearing both the parties, the Hon’ble Jammu High Court agreed with Trial Court’s judgement as 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. It also held that is not sufficient enough to connect the respondent with the offence which the respondent was charged with and 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.