Srinagar, Jun 16 (KNO): The Srinagar wing of Jammu & Kashmir and Ladakh High Court has discharged a man in a POCSO case after noting that the Investigating Agency had not collected any scientific evidence to show that the accused had committed the sexual assault upon the two girls, and there was an absence of oral testimony on the part of the victims.
According to the news agency—Kashmir News Observer (KNO) the petition before the High Court was filed against the order of the Special Judge (POCSO Cases), Srinagar, whereby charges for offences under Section 363, 376 IPC and Section 4 of the POCSO Act had been framed against the petitioner.
The Single Bench of Justice Sanjay Dhar said, “The Investigating Agency has not collected any scientific evidence to show that the petitioner has committed the sexual assault upon the two girls and in the absence of any oral testimony on the part of the two girls to this effect, the offence of rape is also not made out against the petitioner.”
Advocate Adnan Fayaz represented the Petitioner while Sr. AAG Mohsin Qadiri.
As per the chargesheet, which had emanated from an FIR registered under Section 363, 376 IPC and Section 4 of POCSO Act, it was alleged that the complainant’s minor daughter had left her home along with another girl. The two girls returned to their home and they were produced by their family members before the police. The victim girls were subjected to medical examination, and it revealed “sexual activity.”
The investigation further revealed that the petitioner had enticed the victim girls to board his vehicle, whereafter he kidnapped them intending to commit sexual assault upon them. The Special Court, after hearing the parties and after analyzing the material on record, framed charges for offences under Section 363, 376 of the IPC and Section 4 of the POCSO Act against the petitioner.
The Bench addressed the issue of scope of power of a Court while considering discharge of an accused, the Bench said, “From the foregoing analysis of law on the subject, it is clear that at the time of framing of charge, the Court has only to consider the material available for framing an opinion as to whether, prima facie, offence is committed which would require the accused to be put on trial. It is open to the Court, at the stage of framing of charge, to ascertain as to whether the allegations made in the charge sheet against the accused are supported by the material collected by the Investigating Officer during investigation of the case.”
“It is to be borne in mind that at the time of framing of charges, the court has to accept the material assembled by the Investigating Agency during investigation of the case at its face value and its probative value cannot be gone into. The court has only to derive satisfaction about the commission of offence by the accused”, it added.
The Bench took note of the fact that both the victim girls had stated that they could not get any vehicle for returning to their home, and they boarded the vehicle of the petitioner out of their own will and volition. “This Court is conscious of the fact that both the victim girls were minor at the relevant time and their consent or otherwise is immaterial”, it said.
It was noted that from the statements of the two girls, it was discernible that they had left their home completely uninfluenced by any promise and inducement emanating from the petitioner. “Thus, when the statements of both the victim girls are read in conjunction with the statements of their immediate family members, it comes to the fore that the victim girls were neither taken nor enticed by the petitioner to go with him. Therefore, offence under Section 363 of IPC is not made out against the petitioner even if whole of the material collected by the Investigating Agency is taken to be true at its face value”, the Bench said.
On the aspect of the evidence relating to rape upon the victim girls, the Bench noted that both of them had not stated anything about this aspect of the matter. “None of them had stated that they were subjected to assault by the petitioner. Merely on the basis of the opinion of the doctor that the two girls had been subjected to sexual activity a couple of days back, it cannot be inferred that the petitioner was the author of it,” the court said.
The Bench found no evidence on record to show that the petitioner had either kidnapped the two victim girls or had committed sexual assault upon them. Therefore, even if the material collected by the Investigating Agency during the investigation of the case remains unrebutted, the same is not sufficient to presume that the petitioner/accused has committed any offence nor does it raise any grave suspicion about the involvement of the petitioner in the alleged occurrence”, it said.
Allowing the petition, the Bench set aside the impugned order of the Special Judge (POCSO Cases) (Principal Sessions Judge) Srinagar, whereby charges had been framed against the petitioner/accused. “The petitioner is discharged and the challan against him shall stand dismissed”, it ordered—(KNO)