STATE OF UTTARAKHAND Vs. SHANKER SINGH CHAUHAN

JUDGEMENT

(1.) FOR the reasons stated in the application, delay condonation application No. 406 of 2015 is allowed. Delay in the filing the appeal is hereby condoned. As per statement of the prosecutrix, she was tenant in the house of accused/respondent, herein; she herself told the accused, address of her parental house situated in another village and how to reach there; prosecutrix sent 64 SMS to the accused on 06.09.2013 and she also sent 113 SMS to the accused on 07.09.2013; accused allegedly entered into the parental house of the prosecutrix at about 11.00 in the night of 07.09.2013 and he remained in the room of prosecutrix till 04.00 a.m. and during this period, he developed physical relations with her.

(2.) IT has come on record that prosecutrix has also sent SMS to the accused after 07.09.2013 too. Had prosecutrix been raped and had there been any sexual assault without the consent of the prosecutrix, there was no occasion for the prosecutrix to send SMS after 07.09.2013. Not only this, she did not make any complaint about the alleged rape after 07.09.2013 and thereafter, she herself went in the car of the accused on 13.09.2013 and thereafter, started living as tenant in the house of accused.

(3.) THERE is another aspect of the matter. In an appeal against the judgment of acquittal, if two views are possible, then the view taken by the trial court while acquitting the accused should be allowed to be prevailed, until and unless some perversity is found in the judgment or prosecution is able to establish that important piece of evidence is left to be considered by the trial court. Mr. A.S. Gill, learned Deputy Advocate General for State of Uttarakhand, could not be able to point out which important piece of evidence was left to be considered by the trial court, therefore, no useful purpose would be served in granting the leave to appeal, therefore, leave to appeal is declined. Consequently, appeal is also dismissed.