STATE Vs. VINAY KUMAR

JUDGEMENT

(1.) By this petition filed under Section 378(1) of the Code Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.'), the petitioner seeks criminal leave to appeal to challenge the judgment dated 4.5.2012, passed by the learned Additional Session Judge, thereby acquitting the accused of the charges framed against him under Sections 363 and 376, Indian Penal Code, 1860.

(2.) The facts and circumstances which gave rise to the registration of the case against the accused person, as per prosecution, are that:

(3.) Addressing arguments in support of the present criminal leave to appeal, Mr. Saleem Ahmed, Additional Standing Counsel for the State submits that the learned Trial Court failed to appreciate that the victim of crime in the present case was a small child of 12 years of age and she was under a threat and fear because the accused had shown a knife while kidnapping her. Contention raised by the counsel for the petitioner is that the learned Trial Court failed to appreciate that a small child, facing a threat, could not have raised any hue and cry to resist the accused, when she was physically lifted by the accused to sit on his bike. Ld. Counsel in support of his contention, further invited attention of this Court to the statement made by the accused, under Section 313 Cr.P.C., wherein the accused had himself admitted that he took the prosecutrix on his bike first to IP park, Naib Sarai Kale Khan and then to the hotel, where he remained with the prosecutrix for about 1 1/2 hours. Contention of counsel for the petitioner is that this admission on the part of the accused under Section 313 Cr.P.C. is sufficient enough to prove that he had kidnapped the said minor child and then had raped her in a room taken by him in a hotel. Counsel further argued that the learned Trial Court failed to appreciate the fact that the victim had fully supported the case of the prosecution by making the statement under Section 164 Cr.P.C., supported by the other circumstantial evidence, yet the learned Trial Court has passed an order of acquittal ignoring the statement of prosecutrix and other incriminating evidence, proved on record by the prosecution. Based on these submissions counsel for the petitioner prayed for the grant of criminal leave to appeal to challenge the said judgment on acquittal.