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2014 Supreme(J&K) 289
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mohammad Yaqoob Mir,Dhiraj Singh Thakur, JJ.
State Of J&K -Appellant
Versus
Firdous Ahmad Chopan -Resopndent
COD No. 300-2014, IA No. 301-2014 & Acq. Appeal No. 26-2014
Decided On : 01-08-2014
Alla-Uddin Ganai.
The court can dismiss an appeal and the application seeking condonation of delay if it finds no merit in the appeal and deems it a futile exercise to grant permission and condone the delay.
Headnote:
Delay Condonation - Criminal Appeal - The court dismissed the application seeking leave to file an appeal and condone the delay, stating that there was no merit in the appeal and it would be a futile exercise to grant permission and condone the delay.
Fact of the Case:
The appellant, the State, filed an appeal after the prescribed period of limitation against the acquittal of the respondent. The appeal was filed along with an application seeking leave and another seeking condonation of a 179-day delay.
Finding of the Court:
The court found that there was no merit in the appeal and that it would be a futile exercise to grant permission and condone the delay. It noted that the trial court had rightly rejected the case of the prosecution based on the statements of the prosecution witnesses, particularly the prosecutrix.
Issues: The issues revolved around the delay in filing the appeal, the merit of the appeal, and the statements of the prosecution witnesses, especially the prosecutrix.
Ratio Decidendi: The court decided that there was no scope to interfere with the judgment of acquittal based on the statements of the prosecution witnesses, particularly the prosecutrix, and dismissed the application seeking leave to file an appeal and condone the delay.
Final Decision: Both the applications seeking leave to file an appeal and seeking condonation of delay were dismissed, and the appeal was also dismissed.
1. Dissatisfied with the judgment dated 04.11.2013 passed by the Court of Id. Sessions Judge, Bandipora, where-under respondent has been acquitted, appellant-State has chosen to file the appeal after prescribed period of limitation. For so filing, has filed one application seeking leave, another seeking Condonation of delay of 179 days.
2. In order to ascertain as to whether there is any merit in the stand of the appellant so as to grant permission and also to condone the delay, we have heard learned Dy. AG, appearing for the appellant. Unnecessarily State has chosen to prefer the appeal. There is no scope of its success. It being so, to grant permission and then to condone the delay shall be a futile exercise.
3. Registration of the case as Crime No. 232/2009 P/S Bandipora for commission of offences punishable under Section 366, 376 RPC culminated in filing charge sheet (challan) against the respondent-accused. Trial thereof culminated in acquittal.
4. Police machinery was set in motion by the complainant by complaining that on 06.12.2009 his minor sister (prosecutrix) went to a shop for purchasing purposes but did not return back. She was allegedly abducted by the respondent-accused with the aid of two persons, namely, Bashir Ahmad Dar and Abdul Rashid Ganai, thereafter she was subjected to sexual intercourse against her will. On investigation, it surfaced that the prosecutrix was major. Furthermore, as against other two persons no evidence was available, therefore, during investigation it was concluded that the accused had abducted the prosecutrix and subjected her to forcible sexual intercourse.
5. Prosecution out of listed 15 witnesses has produced and examined only 04 witnesses. PW Mohammad Rafiq Bhat has stated that he has no knowledge about the occurrence, was declared hostile but nothing favourable to prosecution has been elicited from him in the cross examination.
6. PW Gh. Rasool Malla (uncle of the prosecutrix) has stated that he is not eye witness to the occurrence.
7. PW Asif Iqbal (brother of the prosecutrix) has stated that on the date of occurrence prosecutrix had gone to her maternal uncle for fetching milk but did not return as a result whereof report was lodged, police party recovered the prosecutrix from the custody of the accused. In the cross examination has qualified that he was not available at home so cannot say when the prosecutrix was kidnapped.
8. The star witness of the case i.e. the prosecutrix has demolished the edifice of the prosecution case as in examination-in-chief has stated that she was on way to the house of her sister when accused met her and asked her to accompany him. Thereafter accused took her to Sopore where they stayed in a hotel for three days. The accused performed Nikah with her forcibly. Thereafter on way back, police party accompanied by her brother apprehended them and brought them to police station. After medical examination, she was handed over to her family. In the cross examination she has stated that the accused is known to her for last five years but they did not have any love affair. Accused met her on the road. Then said she and accused met abruptly and straightway went to Sopore. Both travelled in a bus up to Sopore. Many passengers boarded the bus. She and accused boarded the bus at bus stop where many passengers were waiting but she did not count as to how many passengers were waiting there. It took them at least one hour to reach to Sopore. She did not divulge to any passenger or conductor of the bus that the accused is taking her to Sopore. On reaching Sopore they straightway went to a hotel. At bus stand there were many people and vehicles. After three days they left the hotel and straightly went to the house. Then has qualified "that the accused neither committed any force on her nor teased or harassed her. Accused did not touch her, however, he forcibly performed Nikah with her".
9. Taking the statement of the prosecutrix on face value, the only inescap
