Jammu & Kashmir High Court
State Of J&K; vs Irshan Bhat And Ors on 28 July, 2017
Bench: Alok Aradhe, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SLAA No. 16/2016
&
Cond (CR) No. 16/2016
Date of decision: 28/07/2017
_______________________________________________________
State of J&K. Vs. Irshan Bhat and ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge.
Hon'ble Mr. Justice Sanjeev Kumar, Judge .
Appearing counsel:
For Applicant/Appellant(s) : Mr. Sanjeev Padha, Dy. A. G.
For Respondent(s) : M/s. Y. E. Tak and Mohd Amir
Awan, Advocates
(i) Whether to be reported in Yes/No Press/Journal/Media
(ii) Whether to be reported in Yes/No Digest/Journal ________________________________________________________ Sanjeev Kumar, J:
Cond (Cr) No. 16/16:
1. For the reasons stated in the application supported by an affidavit, delay of 229 days in filing the Appeal is condoned.
2. Condonation application is, therefore, disposed of.
SLAA No. 16/2016:
1. Heard on the application seeking leave to file Acquittal Appeal against the Judgment dated 24.03.2015 passed by learned 3rd Additional Sessions Judge, Jammu in File No. 33/Challan, titled State v. Irshan Bhat and ors, whereby the respondents have been acquitted __________________________________________________________________ SLAA No. 16/2016, Cond (CR) No. 16/2016 Page 1 of 6 of the charge for commission of offences under Sections 363/366-
A/376/343/109 RPC.
2. Briefly stated the facts of the case are that on 22.04.2011, the prosecutrix, a resident of Reasi, who was studying in B.A Part-I in BTC College at Baniketh, Chamba, was coming back to home because of vacations in the college. The accused No. 1, who was also a student of B.A. Part-II in the same college was boarding a Zen Estello Car along with accused Nos. 2 and 3 for coming to Jammu. The further case of the prosecution is that when the Car of the aforesaid accused reached at Bus Stand Baniketh, the prosecutrix, who was known to the respondent No. 1, requested them to give her lift up to Jammu. She accordingly boarded the said Car and requested the respondents to drop her at Shalamar, Jammu as she had to go to the house of her maternal aunt at Malhotrian Street, Jammu. It is claimed that on reaching at Jammu, the accused instead of taking her to Shalamar, had taken her to Roop Nagar at the residence of accused-respondent No. 4 and forcibly kept her in a room, snatched her documents and forced her to sign some documents. She was further told by the accused that she had been married to accused No. 1. It is further alleged that accused No. 1 repeatedly ravished her. As per the prosecution case, after 4/5 days, the accused took her back to Chamba and forced her to make statement in favour of accused No. 1 and, accordingly, on 28th April, 2011, she was taken to the office of Tehsildar, Chamba, where she was made to sign some papers. Tehsildar, Chamba, however, _________________________________________________________________ SLAA No. 16/2016, Cond (Cr) No. 16/2016 Page 2 of 6 handed over the prosecutrix to her parents. The prosecutrix was, therefore, brought back to Jammu and on 05.05.2011, a written complaint was filed before the Chief Judicial Magistrate, Jammu, which was in turn transferred to Special Mobile Magistrate (Electricity), Jammu, who on the same date, i.e., 05.05.2011, forwarded the complaint to SHO Police Station, Janipur for investigation in terms of Section 156 Cr.P.C. Accordingly, FIR No. 66/2011 was registered and investigation set in motion. The Police found the offences under Sections 363/366-A/376/343/109 RPC made out against respondent No. 1 and offences under Sections 363/366- A/343/109 RPC against respondent Nos. 2 and 3 and similarly, offences under Sections 363/343/109/186 RPC against respondent No. 4 and two other persons namely, Indresh Bhat and Suriya Bhat. The challan was presented before the learned Trial Court and the charges for the aforesaid offences were framed against respondent Nos. 1 to 4. However, accused Indresh Bhat and Suriya Bhat were discharged.
3. The prosecution, with a view to bring home the guilt of the accused, examined as many as five witnesses, i.e., PW-1, Sakshi Gandotra (Prosecutrix), PW-2-Narinder Gandotra, PW-5, Rakesh Kumar, PW-6 Dr. Dinesh Khajuria and PW-7 Dr. Anil Mehta out of nine witnesses enlisted in the calendar of Challan.
4. Upon closure of the evidence of the prosecution, incriminating material was put to the accused persons for their defence under Section 342 Cr. P. C, wherein respondent-accused No. 1 stated that _________________________________________________________________ SLAA No. 16/2016, Cond (Cr) No. 16/2016 Page 3 of 6 the prosecutrix was having love affairs with him and she accompanied him to Jammu out of her own free will and had executed a marriage agreement and performed nikah with him. He further stated that the prosecutrix also made a statement before the Tehsildar, Chamba stating that she was major and had gone with respondent No. 1 out of her free will and had married him. In their defence, the accused persons examined witnesses, i.e., DW-1 Mohd Riaz (Moulvi), DW-2 Babu Ram Sharma, Advocate and DW-3 Maan Chand.
5. The learned trial Court after meticulous examination and appreciation of the evidence on record, came to the conclusion that there were serious contradictions, discrepancies, omissions and improvements in the statements of the prosecution witnesses including the prosecutrix (PW-1) and father of the prosecutrix (PW-2) and that with a view to explain such contradictions, discrepancies and omissions, it was incumbent upon the prosecution to examine the Investigating Officer, who had conducted the investigation. Learned Trial Court, therefore, held that non-examination of the Investigating Officer was fatal to the prosecution case and had resulted in serious prejudice to the accused persons.
6. We have gone through the Judgment impugned and thoroughly scanned through the evidence recorded by the learned Trial Court.
7. As per the statement of the prosecutrix, it was clear that she was moving with respondent No. 1 freely, although in her statement, she had stated that after reaching at Jammu, accused had given her some _________________________________________________________________ SLAA No. 16/2016, Cond (Cr) No. 16/2016 Page 4 of 6 intoxicant mixed in water, as a result whereof, she had become unconscious, in which position the accused had taken her signatures on some papers. The prosecutrix, however, identified her signatures over the marriage agreement, which as per DW- Babu Ram Sharma, Notary Public, was executed and attested in the Court Complex at Janipur. She also admitted her signatures over the Nikahnama, which as per defence was performed by DW-1, Mohd Riaz (Moulvi) at Sarwal. It was further noted by the learned Trial Court that the prosecutrix, as per her date of birth recorded in marks card issued by the Central Board of Secondary Education, her age on the date of alleged occurrence was 18 years 26 days and, therefore, she was major and above the age of discretion. As has rightly been held by the learned Trial Court, the prosecutrix was grown up and well educated and had accompanied the accused out of her own accord. The evidence on record had fortified that there was no threat from the accused and the prosecutrix had gone and stayed with the accused out of her free wish and, therefore, the accused could not be held guilty for the offence punishable under Sections 363 or 366-A RPC.
8. Taking note of the statements of other witnesses coupled with the medical evidence, the learned Trial Court ultimately concluded that the offences alleged against the accused were not made out. Learned counsel appearing the State could not point out any material from the statements of any of the witnesses which is sufficient to connect the accused with the commission of offences alleged against _________________________________________________________________ SLAA No. 16/2016, Cond (Cr) No. 16/2016 Page 5 of 6 them. He, however, referred to the statement of Doctor, who examined the prosecutrix in which the doctor had found no injury on the private parts or other parts of the body of the prosecutrix. The absence of any injury on the body of the prosecutrix coupled with her conduct of accompanying the accused voluntarily, contracting marriage and making statement before the Tehsildar, are the factors which would give rise to the inference that she was a consenting party all along. The learned Trial Court has, therefore, rightly acquitted the accused of the offences alleged.
9. We find no material on record to take a contrary view. It is well settled that if upon re-appreciation of evidence, the two views are possible, the view which favours the accused has to be taken. That being the position, no legal infirmity in the Judgment impugned is found. Therefore, application of the State seeking leave to file Appeal against acquittal is dismissed.
(Sanjev Kumar) (Alok Aradhe)
Judge Judge
JAMMU
28/07/2017
Tilak, Secy.
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