State Of Jammu And Kashmir Through vs Ghulam Nabi
2021 Latest Caselaw 422 j&K

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                             ....

                                             CONCR No.7/2019
                                             [CrlM No.13/2019]
                                             c/w SLA No. 8/2019

                                             Reserved on 29.03.2021
                                             Pronounced on:01.04.2021


State of Jammu and Kashmir through              ....Appellant(s)/Applicant(s)
Station House Officer, Police Station,
Billawar


                Through :- Mr. Aseem Sawhney, AAG.


         Versus


Ghulam Nabi                                                 ....Respondent(s)


                  Through :- None.


CORAM: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                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 cries during her journey, is opposed to common

sense, difficult to comprehend and raises serious suspicion on the credibility

of her testimony.

8. In case of sexual assault the testimony of prosecutrix has to be

tested on the touch stone of her conduct. When she was allegedly abducted

by the accused and taken to Kokernag where she spent about 8/9 days in the

company of accused, it is surprising to know that she did not reveal anything

to any person there. This casts a serious doubt over the veracity of her story

because she accompanied the accused without protest and without trying to

escape during the whole episode.

9. So far as the medical evidence tended by PW-7 Dr. Anshu

Charak is concerned, the report EXT-P7 regarding the examination of the

prosecutrix shows that there is no evidence of recent intercourse.

10. On reading of the evidence of prosecutrix in totality of the

circumstances along with other evidence, her deposition does not inspire the

confidence of this Court so far it concerns with the conviction of the

accused.

11. It is well settled in law that this Court while hearing an acquittal

appeal can re-appreciate the evidence, however, it should not interfere with

the order of acquittal if the view taken by the trial Court is a reasonable view

of the evidence on record and the findings recorded by the trial Court are not

manifestly erroneous, contrary to the evidence on record or perverse. [See

Ram Swaroop and others vs State of Rajasthan, (2002) 13 SCC 134; Vijay

Kumar vs State by Inspector General, (2009) 12 SCC 629 and Upendra

Pradhan vs State of Orissa, (2015) 11 SCC 124].

12. So far as the application seeking to condone the delay in filing

the Criminal Acquittal Appeal is concerned, a perusal of the file reveals that

there is 255 days delay in filing the appeal. The judgment impugned came to

be delivered on 20.01.2018. In the application, the State has not mentioned

as to when it had applied for obtaining certified copy of the judgment. It is

revealed that sanction to file the appeal was given on 09.03.2018 and the

appeal came to be filed only on 04.01.2019. The applicant has failed to give

any cogent reason for this delay, let alone explain day-to-day delay in filing

the appeal. Delay in filing appeal after the statutory period of limitation

prescribed cannot be condoned as a matter of course. The party seeking

condonation of delay was required to satisfy the Court that there was

sufficient cause justifying condonation of delay. Merely saying that the

delay was on account of procedural aspect, is not sufficient cause to condone

the delay. The Hon'ble Supreme Court in SLP (Civil) Diary

No(s).19846/2020 titled as Union of India Vs. Central Tibetan Schools

Admin & Ors., decided on 04.02.2021 while dismissing it on account of

delay observed as under:-

"We have repeatedly being counselling through our orders various Government departments, State Governments and other public authorities that they must learn to file appeals in time and set their house in order so far as the legal department is concerned, more so as technology assists them. This appears to be falling on deaf ears despite

costs having been imposed in number of matters with the direction to recover it from the officers responsible for the delay as we are of the view that these officers must be made accountable. It has not had any salutary effect and that the present matter should have been brought up, really takes the cake!

The aforesaid itself shows the casual manner in which the petitioner has approached this Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the Statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgment in the State of Madhya Pradesh & Ors. v. Bheru Lal [SLP [C] Diary No.9217/2020 decided on 15.10.2020] and The State of Odisha & Ors. v. Sunanda Mahakuda [SLP [C] Diary No.22605/2020 decided on 11.01.2021]...."

13. For the foregoing reasons, we do not find any merit in the

application and as such the application seeking condonation of delay

deserves to be rejected and accordingly, the same is dismissed. Resultantly,

in light of dismissal of condonation of delay application, the application

seeking special leave to appeal as well as the Criminal Acquittal Appeal

shall also stand dismissed, being time barred.

                                            (Sanjay Dhar)               (Tashi Rabstan)
                                                Judge                      Judge
                JAMMU
                01.04.2021
                Surinder
                                         Whether the order is reportable? Yes/No
                                         Whether the order is speaking? Yes/No




SURINDER KUMAR
2021.04.01 15:58
I attest to the accuracy and
integrity of this document