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| Accused facing trial in kidnapping, rape case acquitted | | |
JAMMU, MAY 17-
2nd Additional Sessions Judge Jammu Mr. AK Koul acquitted Qadir Ansari r/o Khalora Tola, Gorakhpur UP, who was facing trial in kidnapping and rape case.
According to the prosecution case, the mother of prosecutrix lodged a verbal report on September 29, 2002 in police post Talab Tillo that her daughter was found missing in the morning. She did not report the involvement of anyone. The police registered a missing report and started search. On November 22, 2002, she lodged a written report alleging therein that her daughter was missing since September 29, 2002 and despite search there was no clue after her. However, it has been learnt that accused Qadir Ansari kidnapped her. Police after registering the case u/s 366/ 376 RPC after recovered the prosecutrix who in her statement alleged that she was kidnapped and assaulted sexually by accused, who was there tenant. She also told that the accused told her that if her parents did not pay him Rs three lakhs, he would sell her. In the cross-examination, she said that when they got down from the bus at Delhi, there were other passengers and lot of people at the Bus-Stand even police was present. From bus-stand they hired an auto rikshaw for railway station; she did not complaint to anyone. Accused took her forcibly and left her at railway station and went to purchase tickets; she did not talk to anyone. Accused was going out during the day for earning livelihood and she used to stay at home, she was going out in the field for attending call of nature.
After hearing Additional Public Prosecutor appearing for the state and Adv MM Gupta appearing for the accused, Mr Koul observed that the question is whether prosecutrix was a consenting party or accused raped her forcibly by putting her under the fear of death or hurt. Consent could be expressed or implied, but what actually is consent voluntarily participation in an act would precisely amount to consent. What is of essence is that when consent if pleaded as defense in a case of rape, it has to be shown through cogent evidence that consent given by the lady was voluntarily because consent can be obtained through threat. So far as the facts and evidence in this case are concerned, the Court is of the considered view that whatever happened in this case, it was with consent of the prosecutrix. She was of the age where she could consent to a particular act and she appears to have done so voluntarily without any force, threat or allurement etc. There is no corroborations to her statement to the extent of kidnapped/ rape and even if it is true that she has been subjected to sexual activities, she was voluntary participant and once that is so, the case does not fall under any of the descriptions of section 375 RPC. She appears to have gone with the accused voluntarily and remained in his company for a long time till she was recovered by the police. The evidence adduced by the prosecution reveals that the prosecutrix was a consenting party and she accompanied the accused to his home in UP and remained there in his company for a long time, out of her freewill and consent. With these observations, the Court dismissed the case and directed that the accused shall be released immediately unless required in some other case.
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