STATE OF UTTAR PRADESH Vs. OM ALIAS OMPRAKASH

JUDGEMENT

(1.) While hearing the application for bail on behalf of the accused respondent, we have thought it prudent to take up the criminal appeal itself for hearing. The same is thus, with consent of parties' counsel, taken on board.

(2.) The question arising in this appeal is : whether the prosecutrix aged out 10/11 years, was a reliable witness to establish charge of kidnapping and rape against the respondent. This automatically means that we have to rub the opposite judgment of the trial Court against that of the High Court. In addition thereto, we have to weigh the evidence of the prosecutrix. Having gone the exercise, we get to the view that the High court was wrong in finding that the prosecutrix, minor as undoubtedly she was, was of a loose moral character, for the medical evidence suggested that she was used to sexual intercourse and she may have gone with the accused herself, demolishing the case of abduction. Even so, she was not in that age to give consent to the respondent to abuse her sexually. But for that, there is no embellishment in her statement. The reasoning adopted by the Court of Session in relying on her statement is far more convincing than that of the High Court. We thus, believing the prosecutrix, set aside the impugned order of the High Court and restore that of the Court of Session, restoring the conviction of the respondent for the offences for which he was convicted. The sentence, however , is reduced to the period already undergone which approximates around 5 years' r. I. , under each count. This should, at this joint of time, meet the ends of justice. Before parting with the order, we have to comment upon the observations made by the high Court relating to the learned Sessions judge who decided the matter. Those remarks in the judgment were absolutely uncalled for. This Court has, time and again, advised the Courts below to be extra careful in commenting upon the judicial conduct of the members of the judiciary. The adage To err is human' must always be borne in mind and this understanding must percolate down to the appellate and the trial Courts. Since presently the judgment under appeal has been upset, those remarks automatically stand expunged.

(3.) For the foregoing reasons, this appeal is allowed in the manner stated above.