Jammu & Kashmir High Court
State Of J&K; vs Ashok Kumar on 16 February, 2018
Equivalent citations: AIRONLINE 2018 J AND K 66
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
Serial No.9
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No. 74/2017
Date of order: 16.02.2018
State of J&K v Ashok Kumar
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Dhiraj Singh Thakur, Judge.
Appearance:
For the Appellant(s) : Mr Ravinder Gupta, AAG.
For the Respondent(s) : Mr Sudesh Sharma, Advocate.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Badar Durrez Ahmed,CJ (Oral)
01. The present appeal is directed against the judgment dated 16.05.2016 delivered by the Principal Sessions Judge, Udhampur, in File No.124/Sessions. By virtue of the said judgment, the respondent has been acquitted of the charge under Section 376 RPC. The said case arose out of FIR No.176/2015 which was registered at Police Station, Udhampur on 23.05.2015.
02. The said FIR was registered on the oral complaint of PW-1 (Rekha Devi), who is the mother of the victim, Mst. „Z‟. According to the complainant, she is a resident of State of Orissa and was residing near Vikas Palace, Udhampur in the house of one Birbal (father of the respondent Ashok Kumar), as a tenant for the last three months or so. As per the complainant, about 10/12 days earlier, she had gone to her village in Orissa and her daughter Mst. „Z‟ and son (Rattan Sahu) PW-2 were in Udhampur. She returned on 22.05.2015 and was informed by her daughter (Mst. „Z‟) that Ashok Kumar (the respondent herein), who is the son of the landlord (Birbal), had for four days raped her on four occasions.
CRAA No. 74/2017 Page 1 of 503. Upon the registration of the said FIR, the investigation ensued and ultimately, the challan was presented in the Court. The respondent was charged of having committed the offence under Section 376 RPC. Since he claimed innocence, the trial ensued. The prosecution produced seven witnesses in support of its case.
04. PW-1/Rekha Rani (mother of the victim) stated that she had resided in the house of the accused as a tenant for four months and that on 11th of May, 2015 she had gone to her house in Orissa and returned on 22.05.2015. On 23.05.2015, in the evening, her daughter Mst. „Z‟ informed her that they should leave the room and also said that the respondent had raped her. In examination-in-chief, the said witness further stated that on enquiry, her daughter informed her that on 22.05.2015 at about 2/2:30 in the afternoon, the respondent had raped her („committed a wrong act‟). She further deposed that on 23.05.2015, she had informed the parents of the respondent about the occurrence but they argued with her and, thereafter, on 23.05.2015 itself she filed a report in the Police Station. In cross-examination she, however, stated that though the respondent had committed the offence on 22.05.2015 i.e., the day on which she returned from Orissa, her daughter did not tell her about the occurrence on that day and informed her only on the next day in the evening of 23.05.2015. She also stated that on 23.05.2015, she and the parents of the respondent had a quarrel and the neighbours had also gathered on the spot.
05. PW-2/Rattan Sahu, who is the brother of Mst. „Z‟, stated that he was residing in the house of the accused on rent. He, however, stated that he learnt from his mother (PW-1 Rekha Devi) that the respondent had raped his sister and thereafter they went to the Police Station. In cross-examination, he has stated that when his mother returned from Orissa, he did not know as to why she had a fight with the family of the accused because he was not at home at that point of time.
06. The victim PW-3 (Mst. „Z‟) stated that she was 18 years of age on 28.09.2015 and that she was not going to school at that time. She stated that her CRAA No. 74/2017 Page 2 of 5 mother had gone for work and she was at home and the respondent entered her room and stated that he loved her and wanted to marry her. She told him that she did not love him and did not want to marry him. Whereupon the respondent forcibly entered the room and raped her. She also stated that she was gagged and her clothes were removed. She stated that her mother had gone home (Orissa). She further stated that when her mother returned home, she informed her of the offence and it is thereafter that the report was lodged at the Police Station. In the course of cross-examination, she stated that her mother had gone to Orissa on 11th but did not remember the month. She further stated that the occurrence had taken place two days prior to her mother going to Orissa and had taken place in the morning. She further stated that on that day when her mother returned from work she had informed her about the occurrence but her mother went to Orissa two days later and when she returned about 10/12 days later, on the 23rd of May, 2015, she had quarrel with the accused and his parents and then the FIR was lodged in the Police Station.
07. PW-4/Ashok Kumar was declared hostile. In any event, he has not stated anything of relevance.
08. PW-5/Dr. Pankaj Gupta is a vital and important witness in this case. He is the Doctor who had medically examined Mst. „Z‟ on 24.05.2015. In terms of the medical report, EXP-PG, there was no sign of any injury on the person of Mst. „Z‟ and there was no evidence of any sexual intercourse in the recent past. It must be noted that the medical examination took place on 24.05.2015 when the alleged rape was said to have taken place on 22.05.2015.
09. PW-6/Som Dutt is the Investigating Officer and PW-7/Mahesh Sharma is the person who deposed as to the registration of the FIR No.176/2015 (EXTP- MS).
10. After examining the entire evidence which was put forth by the prosecution, the trial court came to the conclusion that although a conviction CRAA No. 74/2017 Page 3 of 5 could be based entirely on the testimony of the prosecutrix, but before that could be done, the testimony would have to be of a stellar quality.
11. The learned Trial Court while examining the testimonies of PW-1 (Rekha Devi) and PW-3 (Mst. „Z‟) correctly concluded that there was a serious contradiction in their testimonies. Moreover, the behaviour on the part of two witnesses as regards reporting of the crime was quite unnatural. On the one hand PW-1 (Rekha Devi) stated that the incident occurred on 22.05.2015 on the day when she returned from Orissa, but PW-3 (Mst. „Z‟) had informed her about the incident only on the next day i.e., 23.05.2015. On the other hand, PW-3 (Mst. „Z‟) states that the incident happened much earlier and that she had reported the same to her mother (Rekha Devi) on that very day but PW-1 Rekha Devi had left for Orissa two days later and only after her return, the FIR was lodged on 23.05.2015. There are, therefore, clear contradictions between the versions put forth by PW-1 Rekha Devi and PW-3 Mst. „Z‟. Additionally, it is strange that though PW-3 had allegedly reported the offence to her mother on the very same day on which the rape allegedly occurred, the mother did not take heed of it and two days later left for Orissa and only on her return the FIR was lodged. Thus, apart from the fact that the testimonies of the two witnesses are contradictory, their behaviour is also quite unnatural.
12. On the top of this, the testimony of PW-5 (Dr. Pankaj Gupta) runs contrary to the prosecution case. Dr. Pankaj Gupta has categorically stated that there was no evidence of any recent sexual intercourse and he also did not find any injury mark on the person of PW-3 (Mst. „Z‟).
13. Considering the totality of circumstances, the Trial Court had in the absence of any clear cut evidence, acquitted the respondent. The principles to be adopted by the Appellate Court in appeals against acquittal have been analyzed in State of J&K through SSP Srinagar v. Abdul Majid Makroo & ors. (Cr. Acq. Appeal No.06/2006), decided on 04.10.2017. After referring to the Supreme Court decisions in Vijay Kumar v. State : (2009) 12 SCC 629 and Upendra CRAA No. 74/2017 Page 4 of 5 Pradhan v. State of Orissa : (2015) 11 SCC 124, the Division Bench of this Court held as under:-
"It will be noted from the above discussion that the order of acquittal should not generally be interfered with because the presumption of innocence of the accused is strengthened by the acquittal order. Normally, in a case where admissible evidence is ignored by the trial court, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. As the Supreme Court pointed out, the principle to be followed by the appellate court, considering an appeal against the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."
14. In the present case, the learned counsel for the appellant has not been able to point out any perversity in the Trial Court decision. In fact, the Trial Court had examined the entire evidence, albeit scanty, produced on the part of the prosecution. On examining the decision of the Trial Court as also on surveying the evidence, we cannot come to the conclusion that the Trial Court decision was un-reasonable or the findings returned by the Trial Court were perverse. Therefore, we do not find any reason to interfere with the decision of the Trial Court in acquitting the respondent.
15. The appeal is dismissed.
(Dhiraj Singh Thakur) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
16.02.2018
Pawan Angotra
CRAA No. 74/2017 Page 5 of 5