Point of Law : Rape case - Appeal against acquittal - Con donation of delay - Delay in filing appeal after the statutory period of limitation prescribed cannot be condoned as a matter of course.

JUDGMENT :

Tashi Rabstan J:

1. The order of acquittal of the accused dated 20.01.2018 is sought to be challenged by the appellant-State in accompanied appeal. As the appeal has been filed after the expiry of period of limitation, application on hand has been filed seeking condonation of delay in its filing. The appellant has also filed an application seeking special leave of this Court to file the appeal against the acquittal.

2. The brief case of the prosecution is that on 23.04.2012, the father of the prosecutrix lodged a report in Police Station, Billawar contending therein that his daughter had been missing from his house at Kohag since 15.04.2012 and acting on the same, the police concerned had registered missing report. On 19.04.2012, it was informed by the complainant that the respondent had kidnapped his daughter and as a result of this information, FIR No.49/2012 for commission of offence punishable under Sections 366/109 RPC was registered. During the course of investigation, the statements of witnesses were recorded and the prosecutrix was recovered from custody of accused from Gadbal, Kokarnag District Anantnag. Subsequent to which the respondent was arrested. The challan in the aforesaid FIR was presented before the Court of Judicial Magistrate, Ist Class, Billawar and the same was committed to the Court of learned Principal Sessions Judge, Kathua. Charges were framed against the accused by the learned trial court for the offences under section 343/366/376 RPC on 23.08.2012 to which he pleaded not guilty and claimed trial. The prosecution produced the evidence of as many as eight (08) witnesses including the prosecutrix and the trial Court after having considered the evidence so produced, found that the prosecution has failed to prove the charge against the accused and as such the accused/respondent herein was acquitted of all the charges by the learned trial Court.

3. Before dealing with the application seeking condonation of delay it would be appropriate to examine the impugned judgment to find out as to whether or not any interference is warranted therewith, so that injustice may not occasion merely because of lapse on the part of the appellant-State in filing the appeal within the prescribed period of limitation.

4. We have heard learned counsel appearing for the parties and carefully perused the material on record. The grounds inter alia taken by the appellant in the memo of appeal are that the prosecution has established the case against the respondent and there was sufficient material on record to convict the respondent but the learned trial Court has not appreciated the law, facts and evidence in its true and correct perspective.

5. The prosecutrix being the most material witness in the present case deposed that she was divorced by the accused on the basis of a written divorce deed. She was abducted by the accused while she was going to the house of her sister at Dharamkot and was taken by him in a bus full of passengers to Udhampur despite her protest. She had also made hue and cry but was of no avail. Thereafter the accused forced her to board a Sumo vehicle and took her to Srinagar. The accused took her to his house at Kokernag where she was raped by him thrice during the night.

6. Mr. Aseem Sawhney, learned AAG vehemently argued that Section 376-B would attract to the facts of the case in hand as it is a case of forced sexual intercourse during the separation. It is further submitted that the prosecutrix was under constant threat and trauma, therefore, she was unable to attempt an escape from the clutches of the accused.

7. It emerges from the testimony of the prosecutrix that even after her divorce with the accused she was in constant touch with him, which becomes clear from her conduct in accompanying the accused on the day of her alleged abduction from Dharamkot to Kokernag, that too in a bus and a Sumo vehicle full of passengers. Her statement that she made a hue and cry but nobody paid heed to her