Srinagar, Sept 12, KDC: Principal District judge Budgam has acquitted a man for alleged sexual assault of a minor girl in Nowgam area of summer capital Srinagar.
The accused was represented by Ahra Syed, Advocate, who vehemently argued against the accusations and charges levelled by the prosecution.
Police on 12/07, 2021 said, one person from Shalina area approached Nowgam police station with a written complaint that his 9-year-old daughter was sexually assult and rape by one Adil Husssain Ganai of Shalina Budgam. On the basis of complaint while taking cognizance of the matter police arrested the accused person immediately. A case under FIR No. 71 under section 342, 376 AB IPC, 07 POSCO ACT was registered in this regards at police station Nowgam and further investigation was taken up, police said”
After examining the case, Principal Sessions Judge, Budgam Khalil Ahmad Choudhary in a 30 page judgment, according to Srinagar based news agency Kashmir Dot Com said “Penal Code, 1860—S.376- Rape- Evidence- Medical evidence inconsistent with evidence of prosecutrix as the Prosecutrix aged 8 years at the time of alleged occurrence. According to evidence of the doctor who examined the prosecutrix immediately after the occurrence, made a clear remark that there was no sign of rape. Thus evidence of prosecutrix bellied by medical evidence. Held accused-appellant entitled to acquittal.”
“When the court examinesthe prosecution evidence, it clearly comes out that prosecution has miserably failed to establish foundational facts that may give rise to presumption of guilt of the accused who is accused of the commission of offences under sections 342, 376 AB IPC and 07 POCSO Act. The foundational facts are required to be established by the prosecution by leading evidence beyond any reasonable doubts. The burden on the accused is not to rebut the presumption beyond reasonable doubt. it is sufficient for the accused if he is in a position to create doubt about the veracity of the prosecution case. This he can do by preponderance of probabilities. In the instant case the accused has led sufficient evidence in defence which renders the prosecution version highly doubtful and improbable,” Choudhary mentioned in his order and referred to the judgment titled Dharampal Singh Vs. State of Punjab (2010) 9 SCC 608 and Bhota Singh V. State of Punjab (2011) 11 SCC 653.
Therefore, over all analysis of the evidence of the victim of offence, and other witnesses, there are major contradictions in their statements which creates doubt with regard to commission of offences. Having regard to the statements of witnesses in its totality would suggest that there is no concrete evidence on record connecting the accused with the commission of offence mentioned in the chargesheet, court said.
The evidence of witnesses is not corroborative, leaving doubt in the prosecution case, the judge said in his order, adding that I am unhesitant to record that prosecution evidence cannot be said to be definite, positive, consistent and coherent so far as the case against the accused is concemed.
“A clear room for doubt is left out in the prosecution evidence. Here it is pertinent to note that it is not the duty of the accused to show as to why a false allegation has been levelled against him and why particular witnesses have deposed against him but it is bounded duty of the prosecution to establish its case against the accused beyond any reasonable doubt.”
“Further, it is a beaten law that strong suspicion, co-incidence and grave doubt cannot take place of the legal proof. Suspicion however, grave is not proof in absence of reliable evidence, and it is always unwise to act on mere suspicion. Thus, prosecution case fails and accused is accordingly acquitted of the charges leveled against him”, court said, adding that the superintendent Central Jail, Srinagar is directed to release the accused forthwith provided he is not lodged in any other FIR. (KDC)
