Jammu & Kashmir High Court
State Of Jammu And Kashmir vs Rahat Ali on 26 June, 2020
Bench: Rajesh Bindal, Puneet Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Virtual Mode)
Reserved on : 18.05.2020
Pronounced on : 26.06.2020
Crl LP No. 86/2019
[Crl M No. 1479/2019]
c/w
CrlA(AD) No. 28/2019
State of Jammu and Kashmir ...Applicant(s)/Appellant(s)
Through :- Mr. Aseem Sawhney, AAG
v/s
Rahat Ali ...Respondent(s)
Through :- None
Coram: HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
::: : HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
PUNEET GUPTA-J
1. The application seeking leave to file the appeal is filed against judgment dated 15.05.2019 passed by the learned 3rd Additional Sessions Judge (Fast Track Court), Jammu in case No. 24/Sessions. The respondent has been acquitted by the trial court.
2. The case of the prosecution was that on 20.06.2013 the complainant filed an application stating therein that as per report No. 13 dated 16.06.2013 a missing report of the victim (prosecutrix) was filed as she had gone missing since morning of 16.06.2013 but was not traceable. F.I.R No. 74/2013 under Section 363/342 RPC was registered against the accused as it came to be known during search that one Rahat Ali 2 Crl LP No. 86/2019 had kidnapped the victim after enticing the prosecutrix and with a promise to marry her. The victim was recovered from the custody of the accused at Railway Station, Jammu. On the completion of the investigation, the challan was produced against the accused-Rahat Ali under Section 342/363 and 376 RPC. On committal the case was sent to the Court of the Principal Sessions Judge, Jammu which later on came to be transferred to the court of Third Additional Sessions Judge, (Fast Tract Court), Jammu. The charges under Section 363/376 RPC were framed against the accused who did not plead guilty to the charges and claimed trial. The prosecution examined number of witnesses in support of its case. On the completion of the prosecution evidence, the statement of the accused under Section 342 Cr.P.C was recorded. The accused produced witness Noor Alaha in defence.
3. Indeed in a case like the present one, the statement of the prosecutrix is the backbone for the prosecution to succeed in the challan. The trial Court has initially discussed the aspect of age of the alleged victim and the statement of the prosecutrix upon which hinges the prosecution case.
4. The age of the victim is stated to be sixteen years in the initial report filed by the complainant. The victim has stated her age as seventeen years as on 27.06.2013 in the Court below and as eighteen years in the trial Court on 13.05.2015 while recording her date of birth as 20.12.1996 and thus her age is 16 years as on date of occurrence. The complainant Swaran Singh, father of the victim, and PW-Shashi Bala, mother of the victim, deposed the age of victim as 16 years as on date of occurrence. The photo-copy of mark-sheet of class 10th of the victim 3 Crl LP No. 86/2019 has been attached with the file but surprisingly the same has not been proved in the Court. Thus, the documentary evidence on record remains a mere piece of paper and nothing more and devoid of any evidentiary value.
5. The trial Court has also discussed the statement of PW Amandeep Kour who examined the victim on 22.06.2013 and issued the certificate exhibited as EXTP-8. As per the statement of the doctor the radiological age of the victim was sixteen years plus minus one year. The trial Court has taken note of important factor in the case that the radiologist who conducted the examination of the victim has not been examined who could prove that he had done the bone estimation test of the victim. Not only that, the report of the dental surgeon regarding the age of the victim has been attached but again the dentist has not been brought in the Court for examination and thus the report has not been proved in the Court. The other dental records regarding tests conducted have also been not proved though attached with the file and thus not rightly relied upon by the trial court. The Court has held that it is not proved by the prosecution that the age of the victim was less than eighteen years of age on the date of occurrence. The Court has aptly relied upon the observations made by the Apex Court in various judgments with regard to the aspect of the determination of the age of the prosecutrix. The Court has held that there is always margin of two years in case the age is to be determined through radiological test. The Court has doubted the victim being minor at the time of occurrence and the appellate Court finds no reason not to concur with the same. 4 Crl LP No. 86/2019
6. The trial Court has indeed taken detailed examination of the statement of the prosecutrix recorded during the trial. The Court after going through the statement of the prosecutrix has held the statement of the victim as inconsistent and unreliable, unworthy of credence. The trial court has also mentioned of the statement of the father of the victim wherein he has stated that the victim had gone out of the house of her own and so the same has been stated by another witness namely Vijay Singh. So far as the statement of the victim is concerned it is mentioned by the trial court that it has come on record in the court below that she was informed by the accused that he is having step mother and the accused has love and affection with the victim and the victim thus fell in his trap. The accused provided her with a Sim card and a phone and they used to talk with each other on the phone. The accused is alleged to have called the victim in the midnight of 15.06.2013 and the victim came out of the house to meet the accused where the accused threatened to kill her as well as himself. The victim is taken to Jammu, kept there for 2-3 days where rape was committed upon her by the accused. On 21.06.2013, the accused took the victim to the Railway Station where both were detained by the police. The accused is stated to be armed with knife when he called her out of the house. However, the Court has not believed the version of the victim that the accused was armed with knife. The accused was armed with knife is not mentioned in the statement recorded under section 164-A Cr.P.C. The victim is alleged to have been taken from Peer Baba to Jammu in the morning hours in a bus having 6/7 passengers but she did not reveal to the conductor the cause of her weeping despite being 5 Crl LP No. 86/2019 asked by him. The victim was also made to board a car which took her to one room. The victim alleges rape by the accused from 16th to 21st June. The victim was frequently made to move from one place to another and even up to railway station where lot of people and police were there but she did not reveal the act of the accused to anyone. The trial Court has emphatically held that the frequent movement of the victim in public and failing to raise the alarm and objection speaks of the fact that she had voluntarily gone with the accused and seemed to be willing party. The court has also cogently held that there was no evidence of protest by the victim. The trial Court has summed up improvements and inconsistencies in the statement of victim at para 49 of the judgment and those are based upon the factual aspects of the case. No doubt, the flaws in the statement of the victim are aptly pointed out by the trial Court and are fatal for the prosecution case.
7. The medical evidence in the shape of the statement of Dr. Amandeep Kour, who examined the victim on 22.06.2013 vis-à-vis the alleged rape committed on the victim, is on record. The doctor has stated that she did not find any proof with regard to sexual intercourse and rape having taken place with the victim when cross-examined by the defence. The trial court has rightly held that there is no medical report to the story of the victim of the alleged rape when the victim deposes that the accused committed rape upon the victim regularly till she and accused moved towards the Railway Station for onward journey. The FSL report also does not reveal the presence of spermatozoa on the wearing apparels of the victim and only adds as a circumstance weakening the prosecution case.
6 Crl LP No. 86/2019
8. The trial Court while acquitting the accused has also discussed some other loopholes in the prosecution case vis-à-vis the investigation conducted by the investigating officer which pertain to failing to find the places or the room where the accused had allegedly kept the victim and raped her or seizure of car of Maruti make in which she was allegedly taken from Jammu.
9. Lastly, the recovery of the victim along with the accused from the Railway Station is also held to be doubtful as PW-Puran Singh who is stated to have informed the father of the victim about the presence of the victim with the accused at Railway Station has not been kept as a witness to the recovery memo of the victim or the accused or even the arrest memo of the accused. The phone and the SIM was given by the parents of the victim or by the accused to the victim has not been proved by the prosecution because the same were not seized. The other prosecution evidence on record pales into insignificance when the statement of the victim is itself not found free from blemish.
10. In the totality of the circumstances of the case, the judgment of the trial Court is held to be based on correct appreciation of facts and the law. No interference is called for in the judgment of the trial Court.
11. The application seeking leave to appeal is dismissed, being without merit.
12. The application filed for condonation of delay in filing the appeal also stands dismissed.
(PUNEET GUPTA) (RAJESH BINDAL)
JUDGE JUDGE
Jammu
26.06.2020
Tarun
Whether the order is speaking? Yes
TARUN KUMAR GUPTA Whether the order is reportable? Yes/No
2020.06.26 17:34
I attest to the accuracy and
integrity of this document