State v. Sumit Kumar

1. State seeks leave to file appeal against a judgment dated 04.01.2013 of learned Additional Sessions Judge in Sessions Case No.172/2011 arising out of FIR No.208/2011 under Section 376 IPC PS Chhawla by which the respondent was acquitted of the charge. Petition is contested by the respondent.

2. I have heard the learned counsel for the parties and have examined the file. Learned Addl. Public Prosecutor urged that the Trial Court did not appreciate the evidence in its true and proper perspective. The physical relation that took place in January, 2008 with the prosecutrix 2016:DHC:1340 for the first time were against her wishes and she was not a willing and consenting party. Subsequently, her consent to have physical relations was obtained on the false promise of marriage. The respondent did not fulfill his promise and assurance and opted to marry another girl. Statements of the witnesses and other material proved on record were not appreciated correctly by the Court below. Learned counsel for the respondent urged that the impugned judgment is based upon fair appreciation of the evidence and needs no intervention. The prosecutrix was major aged around 30 years; she was an educated lady. Both, the prosecutrix and the respondent were on friendly terms and physical relations between the two (if any) were with their free consent. It was one-sided love and the respondent never gave any promise to marry the victim any time. Admitted e-mails sent by the prosecutrix to the respondent confirm this.

3. It is the specific case of the victim that her consent to have physical relations was obtained on the promise to marry on various occasions at different places. E-mails are not to be read in isolation. The respondent has not denied physical relations with the petitioner albeit with consent. In 313 Cr.P.C. statement, the respondent, however, categorically denied if he had any physical relation with the prosecutrix or that it was with her free consent. As the first appellate Court, this Court while dealing with an appeal against acquittal is entitled to scan through and if need be to re-appreciate the entire evidence. Arguments urged by the respondent’s learned counsel are primarily on merits which would be considered at the time of final disposal of the appeal. At this stage, refusal of leave to appeal would have the effect of foreclosing the right once for all.

4. In the light of above discussion, this Court finds it a fit case to grant leave to State to file the appeal.

5. Observations in the order shall have no impact on the merits of the case. CRL.A.__________/2016 (to be numbered)

1. Response, if any, shall be filed before the next date of hearing with advance copy to the learned Addl. Public Prosecutor for the State.

2. For disposal, renotify on 13th May, 2016.

JUDGE FEBRUARY 18, 2016 / tr