Jammu & Kashmir High Court - Srinagar Bench
State Of J&K vs Shabir Ahmad Khan on 9 May, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 20.04.2023
Pronounced on: 9.05.2023
CRAA No.17/2017
STATE OF J&K ... APPELLANT(S)
Through: - Mr. Sajad Ashraf, GA.
Vs.
SHABIR AHMAD KHAN ...RESPONDENT(S)
Through: - Mr. Shah Ashiq Hussain, Advocate
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The instant appeal is directed against the judgment and order dated 23.02.2017 passed by learned 2nd Additional Sessions Judge, Srinagar, whereby respondent herein has been acquitted of the charges for offences under Section 354, 376/511 RPC.
2) As per the prosecution case, on 05.04.2006, the prosecutrix lodged a report with the police stating therein that she is a student of 6th class studying in New Era Public School , Rajbagh, and on the said day, when, after the school hours, she was proceeding towards her house, at Mehjoor Nagar, Srinagar, the accused/respondent, who happens to be her cousin brother, met her. He offered to accompany the prosecutrix to her home and told her that he has to get some articles from a house belonging to a Sikh gentleman. Accordingly, the CRAA No.17/2017 Page 1 of 18 prosecutrix accompanied by the accused to the said house and at the relevant time there was no occupant in the said house. It was further alleged by the prosecutrix that the accused/respondent made her to take off her school uniform and tried to sexually assault her. When the prosecutrix raised hue and cry, the accused/respondent tied a rope around her neck and gagged her mouth. The prosecutrix raised an alarm and some people came on spot, whereafter the accused/respondent fled away from there leaving her in a naked condition. The prosecutrix further narrated to the police that some person standing over there gave his shirt to her to cover her body.
3) On the basis of aforesaid report, FIR No.33/2006 for offences under Section 307, 376/511 RPC was registered by the police of Police Station, Rajbagh and investigation was set into motion. After investigating the case and subjecting the prosecutrix to medical examination, offences under Section 307, 376/511 RPC were found established against the respondent/accused and challan was laid before the trial court. Vide order dated 30.12.2006, passed by the learned trial court, charges for offences under 354, 376/511 RPC were framed against the accused/respondent and he was put on trial.
4) In order to prove the charges against the respondent/accused, the prosecution examined as many as five out of nine witnesses cited in the challan. Vide order dated 17.02.2016, passed by the trial court, evidence of the prosecution was closed and thereafter statement of the respondent/accused under Section 342 of the J&K Cr. P. C was CRAA No.17/2017 Page 2 of 18 recorded. While explaining the incriminating circumstances appearing in the evidence against the respondent/accused, he stated that he has been falsely implicated due to enmity. He, however, admitted his relationship with the prosecutrix. No evidence in defence was led by the respondent/accused.
5) The learned trial court, after appreciating the evidence on record and after hearing the parties, came to the conclusion that the prosecution has failed to establish the charges against the respondent/accused beyond reasonable doubt and, accordingly, he has been acquitted of the charges in terms of the impugned judgment.
6) It has been contended in the appeal that the learned trial court while passing the impugned judgment of acquittal has not appreciated the prosecution evidence in its right perspective. It has been submitted that the prosecutrix while making her statement has supported the prosecution case, but the learned trial court has discarded her testimony on flimsy grounds, though as per the settled position of law, testimony of victim of a sexual assault deserves to be accepted without insisting for its corroboration. It has been further contended that merely because there were certain discrepancies and inconsistencies in the statement of the prosecutrix, it was not open to the learned trial court to disbelieve the whole of her testimony. CRAA No.17/2017 Page 3 of 18
7) I have heard learned counsel for the parties and perused the trial court record, grounds of appeal and the evidence led before the trial court.
8) It is a settled position of law that the prosecutrix in a case relating to sexual assault is the most important witness. It is also a settled position of law that testimony of a victim of sexual assault has to be ordinarily relied upon unless there are compelling reasons necessitating the need for its corroboration. If the Court finds that testimony of the prosecutrix in a case relating to sexual assault is reliable, conviction can be based upon it without insisting for corroboration. In the face of this position of law, it would be apt to refer to the statement of the prosecutrix recorded before the trial court so as to determine whether and to what extent her statement can be relied upon.
9) The prosecutrix has stated that the accused happens to be her cousin brother. She has further stated that in the year 2006 she was studying in 6th class in New Era Public School. She has gone on to state that in the month of April, when she was coming back from her school at about 2.00 pm, accused met her and asked her to accompany him inside a house where he had to get some bag. She accompanied the accused to the said house, but the accused tied a rope around her neck and gagged her mouth with a cloth. She has further stated that the accused laid her on ground on two or three occasions and made bedding over her. She has further stated that at the relevant time she CRAA No.17/2017 Page 4 of 18 was wearing school uniform. She did not know as to what accused was trying to do with her, perhaps he was trying to kill her. The witness was declared hostile and was examined by the APP.
10) In her cross-examination by APP, the prosecutrix has stated that she could not raise alarm because her mouth had been gagged. She has further stated that the accused was standing there and after some time she heard the sound of opening of door and she saw the accused going out of the house. She has further stated that she went out of the house through a window and at that time she was wearing only her lowers without any shirt because the accused had taken off her shirt. She has stated that she had gone unconscious and during this period the accused had taken off her shirt. She had not narrated to the police that the accused had committed rape upon her. When she reached home, she did not feel that the accused had committed rape upon her. She does not know as to why the accused had taken off her shirt. When she went out of the house, she narrated the occurrence to a person who was standing over there and she was taken to the police station in a vehicle. On the road, one person gave his sweater to her. She put on the said sweater and went to the police station from where she was taken to a doctor.
11) In her cross-examination by the defence counsel, the prosecutrix has stated that the police enquired only about her name. CRAA No.17/2017 Page 5 of 18
12) Another important witness, whose statement is required to be noticed, is PW(2) Feroz Ahmad Dar. He has stated that about two years back, the accused had brought a minor girl aged about 14/15 years to the house of a Sikh gentleman. He further stated that the accused was working as a Chowkidar in the said house. The witness has also stated that he is an auto rickshaw driver and while he was waiting for a passenger, he saw a girl coming over there and she was crying. He has further stated that the girl was only wearing an undershirt and he offered his sweater to the girl and she put it on. He has also stated that he along with PW Reyaz Ahmad went inside the house and in his presence, police came on spot and they made enquiries from the girl who narrated to the police that the accused is her neighbourer and he attempted to commit sexual assault upon her. The girl was taken to the police station and the accused was also arrested by the police. The police seized the school uniform of the prosecutrix, a blood-stained bedsheet and certain other articles vide seizure memos EXTP3/I and EXTP3/II.
13) PW (3) Reyaz Ahmad Rather has not supported the prosecution case and he has stated that he did not witness the occurrence with his own eyes.
14) The statement of another witness, which is important from the perspective of the prosecution case, is that of PW(4) Constable Nazir Ahmad. The witness has stated that in April, 2006, he was posted as security guard of Mr. Nasir Sogami. On the date of occurrence, while CRAA No.17/2017 Page 6 of 18 he was on duty, he saw about 10 to 15 people entering the house of a Sikh gentleman. He saw a minor girl aged about 15 years in a naked condition and she was only wearing a pajama. He made the girl to board his gypsy and took her to police station. The girl narrated to the police that the accused, who is her cousin brother, had tried to commit an illegal act with her. The witness has further stated that the accused had brought the girl in school uniform inside the house and tried to outrage her modesty and that the girl put on a sweater near the post office.
15) From the statement of the prosecutrix and the statements of PWs Feroz Ahmad Dar and Constable Nazir Ahmad, as reproduced hereinbefore, it clearly emerges that the accused/respondent, who happened to be the cousin brother of the prosecutrix, had taken her to a secluded house on the fateful day. While the prosecutrix in her statement made before the police had narrated that she was sexually assaulted by the accused and he tried to commit rape upon her inside the house but in her statement before the Court, she has stated that she did not know as to what accused intended to do with her. The prosecutrix did not support the prosecution version, as such, she was declared hostile and was cross-examined by the APP but one thing is clear that she did state that the accused, who happens to be her cousin brother, took her to a secluded house where she was laid to ground by the accused on two or three occasions, bedding was made over her and the accused took off her uniform. She has also stated that after the CRAA No.17/2017 Page 7 of 18 accused left the house, she went out of the said house in a naked condition and later on she was given sweater by a person standing on the road.
16) The learned trial court has disbelieved the statement of the prosecutrix by observing that she has made inconsistent statements, inasmuch as she has stated before the police that she was sexually assaulted by the accused/respondent but before the Court she has resiled from her said statement. It is true that the prosecutrix has turned hostile and has not fully supported the version of occurrence given by her before the police but the question arises as to whether because of this reason only, whole of her statement is liable to be discarded.
17) The Supreme Court in the case of Himanshu v. State (NCT of Delhi), (2011) 2 SCC 36, has held that the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny. Similar views have been expressed by the Supreme Court in the case of Khujji vs. State of M. P. (1991) 3 SCC 627. Again, in the case of Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624, the Supreme Court held that the evidence of a hostile witness remains admissible and it is open for a court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record. CRAA No.17/2017 Page 8 of 18
18) Again the Supreme Court has, in the case of Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012) 4 SCC 327, discussed the effect of the testimony of hostile witnesses in the following manner:
"35. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Cr.P.C., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross- examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in- chief as well as the cross-examination of the said witness in so far as it supports the case of the prosecution.
36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put CRAA No.17/2017 Page 9 of 18 any question to him which might be put in cross- examination by the adverse party.
37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases :
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624;
(b) Prithi v. State of Haryana (2010) 8 SCC 536;
(c.) Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1; and,
(d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525
19) From the foregoing analysis of law on the subject, it is clear that testimony of a hostile witness cannot be discarded as a whole. The Court has to scrutinize the testimony of such a witness and accept that portion of the testimony which is dependable and discard the other portion which cannot be relied upon. If the portion of the testimony of a hostile witness, which is reliable, finds corroboration from other evidence on record, such portion of the testimony of a hostile witness deserves to be accepted.
CRAA No.17/2017 Page 10 of 18
20) Coming to the facts of the instant case, the prosecutrix has clearly stated that she was taken by the accused to a secluded house where she was laid to ground on a number of occasions by the accused. She has further stated that she was undressed by the accused though she has stated that she does not know as to why accused had done this to her. She has also stated that when she came out of the secluded house, she was naked and was given a sweater by a bystander which she put on and went to the police station.This part of the statement of the prosecutrix has remained unchallenged during her cross examination by the defence. Her statement to the aforesaid extent is corroborated by the statements of PWs Feroz Ahmad Dar and Constable Nazir Ahmad. PW Feroz Ahmad Dar has clearly stated that he saw the prosecutrix coming out of the house crying in a naked condition and he gave his sweater to her. He has also stated that the prosecutrix had been assaulted by the accused. PW Constable Nazir Ahmad has given his statement on similar lines, inasmuch as he has stated that he saw the girl in a naked condition and that she was given sweater by a person.
21) Thus, it is established from the statement of the prosecutrix, which stands corroborated by the statements of PWs Feroz Ahmad Dar and Constable Nazir Ahmad, that the respondent/accused took her to a secluded house, laid her to ground a number of times and undressed her, though it is not established that the accused tried to commit rape upon her.
CRAA No.17/2017 Page 11 of 18
22) In the face of aforesaid established facts, the question arises as to what offence has been established against the respondent/accused. One of the charges for which the respondent/accused has been put to trial is the charge for offence under Section 354 of RPC, which reads as under
"354. Assault or criminal force to women with intent to outrage her modesty: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with the imprisonment of either description for a term which shall not be less than one year, but which may extend to five years and shall also be liable to fine."
23) From a perusal of the aforesaid provision, it is clear that the offence defined under the aforesaid provision is established once it is shown that the offender has assaulted or used criminal force to a woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty.
24) The Supreme Court has, while considering the definition of the expression 'modesty' used in Section 354 of IPC in the case of Rupan Deol Bajaj vs. Kanwar Pal Singh Gill and another, (1995) 6 SCC 194, observed as under:
"14. Since the word 'modesty' has not been defined in the Penal Code, 1860 we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word 'modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English CRAA No.17/2017 Page 12 of 18 Dictionary (1933 Edn.) the meaning of the word 'modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".
25) Again, in the case of State Of Punjab vs Major Singh, AIR 1967 SC 63, the Supreme Court has, while answering the question whether a reasonable man would think that the female child on whom the offence was committed can be said to be possessed of modesty which could be outraged, held that when any any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of Section 354 of IPC. It was further observed by the Supreme Court that essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex.
26) Applying the aforesaid legal position to the facts established in the present case, it is to be noted that although the prosecutrix, who happened to be a minor girl of 14 years, did not know as to what the accused/respondent intended to do with her, yet the ultimate test for ascertaining whether her modesty has been outraged is the action of the respondent/accused. If his action is perceived as one which is capable of shaking the decency of a woman, the charge for offence under Section 354 RPC would get established. The action of respondent/accused in repeatedly laying down the prosecutrix on ground and thereafter undressing her, can clearly be perceived as an action that would shake the sense of decency any woman. Therefore, CRAA No.17/2017 Page 13 of 18 merely because the prosecutrix did not know what the respondent/accused intended to do with her, it cannot be stated that the respondent/accused did not intend to outrage modesty of the prosecutrix.
27) In the instant case, while appreciating the evidence on record, the fact that the prosecutrix has turned hostile has to be considered in the backdrop of the fact that the accused happens to be the cousin brother of the prosecutrix. It is quite probable that after the registration of FIR, the prosecutrix must have been subjected to pulls and pressures by her relatives to resile from her statement given to the police, which probably has prevented her from supporting the prosecution case in its entirety. Merely because the prosecutrix has turned hostile would not efface the evidence with regard to assault on her modesty by the respondent/accused. In this context, it would be apt to quote the following observations of the Supreme Court in the case of State vs. Sanjeev Nanda, (2012) 8 SCC 45:
"101....If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked."
28) Again, the Supreme Court has, in the case of Hemudan Nanbha Gadhvi vs. State of Gujarat, (2019) 7 SCC 523, observed as under:
CRAA No.17/2017 Page 14 of 18
10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law.
Neither the accused nor can the victim be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat [Zahira Habibullah Sheikh v. State of Gujarat, and Mahila Vinod Kumari v. State of M.P. If the medical evidence had not confirmed sexual assault on the prosecutrix, the TIP and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.
11. It would indeed be a travesty of justice in the peculiar facts of the present case if the appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the appellant in the dock, in view of the other overwhelming evidence available.
29) In the backdrop of aforesaid legal position, it is clear that just because the prosecutrix in the instant case has turned hostile and given inconsistent versions about the occurrence in her statement before the police and in her statement before the trial court, the case of the prosecution cannot be thrown away, particularly when certain portions of the statement of the prosecutrix are dependable and are corroborated by the other evidence on record.
30) The learned trial court while analysing and appreciating the evidence led by the prosecution has completely ignored the legal position with regard to appreciation of evidence of a hostile witness and has arrived at findings by ignoring and excluding the relevant material. The learned trial court while acquitting the accused and CRAA No.17/2017 Page 15 of 18 disbelieving the testimony of the prosecutrix has ignored the portion of the testimony of the prosecutrix which is dependable in nature and which is corroborated by the other evidence on record. The findings recorded by the learned trial Court are, therefore, perverse which deserve to be set aside.
31) It has been contended by learned defence counsel that the prosecution has not examined the Investigating Officer and the Doctor in this case, as such, an adverse inference deserves to be drawn against it. It is true that during the trial of the case, neither the Doctor, nor the Investigating Officer has stepped into the witness box but then, in the facts and circumstances explained hereinbefore, their non examination does not have any fatal effect on the prosecution case. As per the evidence on record, charge for offence under Section 354 RPC has been established against the respondent/accused. Having regard to the nature of the charge, evidence of the Doctor may not be necessary at all. Merely because the Investigating Officer has chosen not to step into the witness box, the credible testimony of the prosecutrix and two other witnesses who were present in the vicinity of the place of occurrence cannot be discarded. The argument of learned counsel for the respondent is, therefore, without any substance.
32) So far as scope of power of the appellate Court under Section 378 of Cr.PC (Section 417 of J&K Cr.PC) is concerned, it is a settled law that the appellate Court has full powers of reappreciation and reconsideration of the evidence led before the trial Court and if it finds CRAA No.17/2017 Page 16 of 18 upon reappreciation of evidence on record that the findings of fact recorded by the trial Court are perverse, or the same have been arrived at aby ignoring or excluding the relevant material or by taking into consideration irrelevant/inadmissible material, the judgment of acquittal can be reversed and converted into one of conviction. In the instant case, as already noted, the trial Court has ignored and excluded the relevant material, as such, the impugned judgment of acquittal deserves to be reversed.
33) Accordingly, the appeal is allowed and the impugned judgment of acquittal passed by the learned trial court is set aside. In view of the discussion made hereinbefore, the charge for offence under Section 354 RPC is proved against the respondent/accused beyond any reasonable doubt and he is, accordingly, convicted of the said offence.
34) Having regard to the fact that the respondent/accused has faced trial before the trial court for more than ten years and keeping in view the fact that there is nothing on record to show that the respondent/accused has any criminal background, he does not deserve to be sentenced to maximum punishment. However, while awarding punishment, it has to be noted that the respondent/accused happens to be the cousin brother of the prosecutrix and having regard to their relationship, the prosecutrix had reposed trust and confidence in him and accompanied him to a secluded place. By indulging in an abhorrent act of outraging modesty of the prosecutrix, the CRAA No.17/2017 Page 17 of 18 respondent/accused has shattered the trust and confidence of the prosecutrix. Therefore, an adequate and appropriate punishment is required to be awarded against the respondent/accused.
35) Having regard to the aggravating and mitigating circumstances peculiar to the instant case, the respondent/accused in proof of charge for offence under Section 354 RPC, IS is sentenced to undergo simple imprisonment for a period of four months and to pay a fine of Rs.10,000/-. In default of payment of fine, the respondent/accused shall undergo a further imprisonment of similar description for a period of two months.
36) The respondent/accused shall surrender before the trial court within a period of 15 days from the date of announcement of this judgment and in case he does not do so, the learned trial court shall issue warrants for his arrest and send him to jail for serving the sentence.
37) The trial court record along with a copy of this judgment be sent back.
(Sanjay Dhar) Judge Srinagar 09 .05.2023 "Bhat Altaf, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
CRAA No.17/2017 Page 18 of 18