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| Trial Court acquits accused from rape charges | | DB orders fresh trial after 11 years | | EARLY TIMES REPORT
Jammu, May 26- In the rarest of the rare case where the trial Court acquitted the accused from the charges of rape on a minor girl and Jammu and Kashmir High Court ordered fresh Trial after 11 years of the judgment of the Trial Court.
In an appeal filed by the State against the acquittal of accused, the Division Bench comprising Justice Nirmal and Justice Sunil of J&K High Court Jammu Wing today allowed the appeal filed by the state and set-aside the judgment of Sessions Judge Udhampur passed on December 15, 1998 and ordered that the matter shall be remanded to the Trial Court for holding a fresh trial.
The judgment written by Justice Nirmal Singh for the Division Bench, after hearing Additional Advocate General SC Gupta appearing for the state and Advocate Anil Sethi appearing for the respondent, observed that perusal of order impugned shows that the trial court has acquitted the respondent of the charge without recording the statement of the prosecutrix on the ground that she is incompetent to make any statement. The Sessions judge, however, recorded the statement of prosecutrix without oath and put questions to her. Perusal of the reply given by the prosecutrix shows that she was not incompetent to make her statement, she understood each and every question put to her and was replying the same intelligently which can be well established from the fact that to a question that where she is standing, the prosecutrix replied that she is standing in Sessions Court. To the question as to whether the school in which she is reading is a Government or Private School, she replied that the school is a private school and is up to 10th standard. She being further aware of the fact that one should always speak truth has rightly answered the question in this regard. From the above it cannot be said that the prosecutrix was incompetent to make any statement. The DB further observed that in the present case in order to arrive at just conclusion, it would have been appropriate if the Trial Court would have recorded the statement of the prosecutrix which was not done by declaring her an innocent witness, which has indicated above was an erroneous approach adopted by the Court below when the prosecutrix as per the answers given by her to the questions which were put by the Court appears to be intelligent enough to inform the Court as to what had happened with her.
Division Bench further observed that at this stage this Court cannot comment upon as to whether the statement of prosecutrix is to be relied upon or not by the Trial Court but her evidence has to be recorded, if she so chooses. After recording her statement the same is to be appreciated by the Trial Court to find out whether the respondent has committed the rape on prosecutrix. With these observations, the Division Bench allowed the appeal filed by the state and set-aside the judgment passed by the Trial Court on December 15, 1998 and directed that Trial Court to hold a fresh trial.
Respondent Sudesh Kumar was prosecuted u/s 376 RPC on the allegation on February 1, 1996; he committed rape on prosecutrix who was 8/9 years of age, the Sessions Judge Udhampur after appreciating the evidence of prosecution acquitted the respondent of the charges leveled against him vide order dated December 15, 1998. The state aggrieved by the said judgment filed the present appeal in which Additional Advocate General SC Gupta appearing for the state submitted that the Trial Court has not appreciated the evidence in its right prospective and further stated that the Trial Court has committed a legal error in reaching to a conclusion that the evidence of the prosecutrix cannot be relied upon being an incompetent witness. On the other hand Advocate Anil Sethi appearing for the respondents submitted that the Trial Court has rightly concluded that the prosecutrix is incompetent witness and further stated that the alleged occurrence took place about 13 years back and by this time prosecutrix who was minor at that time might have got married and at this juncture, the evidence of the prosecutrix, if any, cannot be relied upon. He further submitted that the Trial Court has not committed any legal error in acquitting the respondent of the alleged charge leveled against him JNF
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