State Of H.P. vs Mohammad Yaseen @ Sonu Pathan & Another

The State of Himachal Pradesh, becoming aggrieved, from, the verdict of acquittal, pronounced, by the learned Sessions Judge, Chamba, Division

Chamba, in Sessions Case No.10 of 2017, visÂaÂvis, charges, drawn against, the, accused, under Sections’ 376, 323, 506, read with, Section 34

of the Indian Penal Code, and, arising, FIR No.58 of 2016, of, 18.6.2016, registered with Police Station, Tissa, District Chamba, H.P, has, thereagainst

constituted, the, instant application, before this Court, bearing Cr. MP (M) No.2490 of 2019, seeking therethrough, leave of this Court to appeal

against, the, verdict of acquittal, pronounced by the learned Sessions Judge, Chamba.

The learned Additional Advocate General, has, contended with much vigor before this Court, that with, the Medico Legal Certificate, as, embodied

in Ext. PW8/B, and, proven by PWÂ8, making trite revelation, visÂÃ Âvis, the prosecutrix being subjected, to, sexual intercourse, (i) thereupon when

the inspiring, and, trustworthy deposition, as, rendered by the prosecutrix, becomes combined therewith or is read, in, conjunction therewith, (ii)

thereupon the charge against the accused becoming amenable, for, findings of conviction, becoming returned, upon, the coÂaccused, and hence, the

verdict of acquittal, as, pronounced thereon, by the learned Sessions Judge, Chamba warranting reversal.

Conspicuously, hence the entire fulcrum, of, the prosecution case, becomes anchored, upon, inasmuch, as, the testification, of, the prosecution being

free from any taint, of, hers making any gross improvement(s) or embellishment(s), visÂaÂvis, her previous statement, (b) her testification being free,

from, any taint, of, all the echoings, as, occurring in her examinationÂinÂchief, suffering contradictions, during, the course of hers becoming subjected,

to, crossÂexamination, (c) hers maintaining consistency, visÂaÂvis, Ext. PWÂ1/B, exhibit whereof, is, the statement of the prosecutrix, recorded

before the learned Magistrate concerned, in proceedings drawn, under, Section 164 Cr.P.C. The afore endeavour, is, of utmost importance, and,

obviously enjoins/making of, a thorough scrutiny, of, the testification of the prosecutrix. A surgical examination, of, the deposition, of, the prosecutrix,

as, comprised in her examinationÂinÂchief, makes trite unfoldings, visÂaÂvis, (i) hers therein echoing qua the sexual intercourse(s) entered into

interÂse her, and, the accused, commencing since the year 2014, and, theirs lasting upto the phase, whereat, the prosecutrix came to lodge an FIR,

against, the accused, FIR whereof, is, embodied, in Ex.PW14/A, (ii) hers also echoing therein, qua her repeated engagements or sexual intercourse(s),

with the accused, becoming engineered from a promise, or, allurement of marriage, meted by the accused, to her, (c) hers communicating therein,

visÂaÂvis, at the relevant time, of hers engaging, in, repeated sexual intercourse(s) with the accused, hers holding also the completest knowledge,

visÂ​aÂ​vis, the accused being a married man, though, his married spouse not cohabiting with him.

Be that as it may, the effect of the afore trite echoings, occurring in the testification, of, the prosecutrix, is, qua therefrom an inference becoming

capatilized, inasmuch, as, her scumbings’, to, the sexual overtures s), of, the accused, under any purported pretext, or, allurement, of, marriage

purveyed to her, by the accused, (i) rather becoming construable, to be wholly consensual. Even otherwise, assuming, if, the prosecutrix, was not in

the knowledge, of, the accused, being a married man, and, had on the pretext or allurement, of, marriage, meted to her, by the accused, hence

succumbed to his sexual intercourse overtures, (a) yet, only visÂaÂvis, the, initially entered into sexual intercourse interÂse both, and, hence founded,

on the afore pretext, or, allurement of marriage, rather would upon the accused, thereafter, declining to marry her, hence bolster an inference qua the

accused, under an, allurement, or, pretext of marriage, securing her consent (b) and, obviously hence he would become amenable, for his, becoming

convicted, for, the charged offence. Contrarily, when the prosecutrix repeatedly engaged herself in sexual intercourse(s), with the accused, and,

despite subsequent, to, the initial sexual intercourse, as, purportedly arose, from, a false pretext of marriage, hence meted to her, by the accused, he

declined to marry her, (c) thereupon the repetitive sexual intercourse(s), entered into, interÂse the accused, and, the prosecutrix, cannot acquire any

penal color inasmuch, as, theirs becoming engendered, from any pretext or allurement, of, marriage, purportedly meted to her, by the accused, nor

would coax this Court, to, return adverse findings against the accused, visÂaÂvis, the afore drawn charges against him. In aftermath, the repetitive or

unbroken chain, of, sexual intercourse(s), entered into, inter se, the accused, and, the prosecutrix, purportedly, under any pretext, or, allurement of

marriage, rather than being tainted, with, the afore penal color, contrarily, become construable, to be wholly consensual, and, taint free.

In summa, the verdict of acquittal returned visÂÃ Â vis, the principal accused Mohammad Yaseen, for, a charge drawn, under Section 376 of the

Indian Penal Code, does not warrant, any interference, from, this Court.

Be that as it may, since both the coÂaccused, also, stand charged, for, commission, of, offences, punishable, under Section, 323 read with Section

34, of, the Indian Penal Code, and, beside also become charged, for, commission of an offence, punishable under Section 506 read with Section 34, of,

the Indian Penal Code, and, hence, when findings of acquittal also become returned thereon(s), (i) thereupon the validity, of, the afore findings of

acquittal, returned against both coÂaccused, in the impugned verdict, is, also required to be tested. Even though, the prosecutrix in her examinationÂ‐

inÂchief, does categorically depose, qua, the afore charged offences, being committed by both the accused, and, also though, the, apt medico legal

certificate, embodied in Ext. PW8/B, does purvey succor to her, (ii) yet, her testification qua therewith does lack credibility, as, in her crossÂ‐

examination, she has deposed, that, in the vicinity, of, the shop, of, the principal accused, Mohammad Yaseen, and, whereat the afore penal misÂ‐

demeanors, were committed, by both the accused, rather other commercial establishments also existing, (iii) thereupon it became imperative, for, the

prosecutrix, to raise hues and cries, hence, to, invite the attention, of, the owners, of, the commercial establishments, hence, existing in the vicinity, of,

the commercial establishment(s), of, the accused (iv) however, she remained silent, and necessarily hence an inference, is, aroused, vis aÂvis, her

imputation(s) qua the accused inasmuch, as theirs committing offences, under the afore penal provisions, becoming falsified. Also the echoing(s) made

in the medico legal certificate, hence, pronouncing, visÂaÂvis, simple injuries becoming encumbered upon her person, is, also unreliable, as, to the

author, of, the afore, rather suggestion(s) become meted, visÂaÂvis, the injuries detailed, in, the medico legal certificate, being possible, owing to, fall,

and, whereto an affirmative answer emanated. Consequently, no leverage can become drawn therefrom, by the prosecution.

Consequently, there is no merit in the instant application, which is accordingly dismissed. The espoused leave to appeal, is, declined to the

petitioners. Records be sent back forthwith.