SANJAY KUMAR Vs. STATE OF J&K

JUDGEMENT

(1.) Appellant No.1-Sanjay Kumar S/o Rattan Chand R/o Karva, Udhampur was reported dead during the proceedings of the instant appeal by the learned counsel for the respondent/UT as is apparent from the perusal of the interim order dtd. 2/11/2023. The instant appeal as regards the said deceased- appellant stands dismissed as abated vide the aforesaid order dtd. 2/11/2023 of this Court.

(2.) Impugned in the instant conviction appeal is the judgment dtd. 28/1/2013 of the Court of learned Sessions Judge, Udhampur (hereinafter referred to as "Trial Court " for short) passed in file No.48-A/Sessions, charge- sheet No.226/2006 dtd. 19/11/2006 of Police Station, Udhampur titled "State Vs. Sanjay Kumar and Anr. " culminating from the investigation in case FIR No.109/2005 of the aforesaid Police Station, whereby both the appellants including the deceased came to be convicted for the offences under Ss. 376(2)(g), 342 r/w 34 RPC and sentenced to undergo a rigorous imprisonment for a period of ten years with payment of fine of Rs.20,000.00 for commission of offence under Sec. 376(2)(g) RPC and also to rigorous imprisonment of one year for the commission of offence under Sec. 342 RPC with the stipulation that in case of default in payment of fine each appellant/convict shall have to undergo imprisonment of a further period of two months. The sentences were directed to run concurrently. The impugned judgment also directed taking in custody immediately of the appellants for committing them to the District Jail Udhampur to serve the sentence.

(3.) The impugned judgement has been assailed on the grounds that 11 days unexplained delay in lodging the FIR in the instant case renders the impugned judgment of conviction and sentence dtd. 28/1/2013 as illegal and perverse. That the name of the appellant No.1 was not mentioned by the alleged prosecutrix in her complaint/FIR which doubts the genuineness of the investigation process along with the trial Court proceedings. That linking of appellants with the alleged crime is bad under law for want of scientific evidence as Dr. Veena Gupta, Gynecologist, who conducted the medical examination of the prosecutrix, has categorically deposed at the trial that no sexual inter-course appears to have been done with her within a week 's time. That the alleged prosecutrix as per her own statement had washed her clothes on the next day of the alleged occurrence and sending of the same to the FSL was useless. That none of the prosecution witnesses have supported the prosecution version of the case at the trial and as such, the prosecution has failed at the trial to connect the appellants with the commission of the alleged offences. That there is no consistency between the direct and the expert evidence led by the prosecution at the trial thereby raising doubt in respect of the prosecution version of the case, the benefit of which goes to the appellants. That the statements of the alleged prosecutrix made during investigation and at the trial are contradictory inter-se in respect of material particulars. Improvements have been made in her statement by the alleged prosecutrix at the trial of the case. The statements of the alleged prosecutrix do not infer confidence as the said statements recorded at different stages of the criminal case differ inter-se. That the learned trial Court did not consider and appreciate the material contradictions, inconsistencies and discrepancies occurring in the prosecution case.