Jammu & Kashmir High Court
State Of J&K; vs Surinder Kumar on 24 November, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SLAA No.13/2017
Date of Judgment : 24.11.2017.
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State of J&K through P/S Purmandal
Vs.
Surinder Kumar
Coram:
Hon'ble Mr. Justice Badar Durrez Ahmed, Chief Justice.
Hon'ble Mr. Justice Sanjeev Kumar, Judge.
Appearing counsel:
For Petitioner(s)/appellant : Mr. Ehsan Mirza, Dy. AG.
For Respondent(s) : Mr.Rohan Nanda, Advocate.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
Sanjeev Kumar-J
1. This is an application by the State seeking leave of this court to file an appeal against the order and judgment of acquittal dated 22.08.2016 recorded by the Learned Principal Sessions Judge, Samba by virtue of which the respondent has been acquitted of the charges u/s 458/376 RPC. Before appreciating the grounds urged in this application , it would be apposite to take note of the case set up by the prosecution, the evidence recorded and the manner in which the same has been appreciated by the learned trial Court.
2. The case set up by the prosecution is that on 27.06.2012 at about 12:40 P.M., the prosecutrix (PW-1) alongwith her mother lodged a written report in Police Station, Purmandal, Jammu alleging therein that she is the resident of village Baabli Tehsil Samba and on the night before lodging of FIR, there was a marriage in the village and her family members had gone to attend the same. She was alone at home and at about mid- night, a boy entered her house and ____________________________________________________________________________________________________ SLAA No. 13/2017 Page 1 of 6 finding her alone, sexually assaulted her four times. It is further alleged that when he left her after committing the crime, she raised alarm and few people gathered on the spot and on seeing them, the boy ran away. Later on, she came to know that the said boy was Surinder Kumar, resident of Dabuj.
3. On the basis of aforesaid written complaint lodged by the prosecutrix, FIR No.12/12 u/s 458/376 RPC was lodged in Police Station Purmandal and investigation was set in motion. The Investigating Officer (I.O) visited the spot, prepared the site plan, seized the clothes of the prosecutrix, sealed and sent them for FSL examination. The prosecutrix was got medically examined. The statement of witnesses u/s 161 Cr.P.C were recorded. The statement of Prosecutrix and her mother were however, recorded before the Judicial Magistrate u/s 164-A Cr.P.C. After obtaining the medical and FSL opinion and on the basis of material collected during the investigation, challan in terms of section 173 was presented before the Learned Chief Judicial Magistrate, Samba which was committed by the Learned CJM on 16.07.2012 as the offence u/s 376 RPC was exclusively triable by the Court of Sessions. The Court of Sessions Judge, Samba (hereinafter referred to as the trial court) framed the charges against the respondent for offence u/s 458/376 RPC.
4. The prosecution with a view to sustain the charges against the respondent, examined only eight out of the thirteen enlisted witnesses namely PW- 1(Prosecutix), PW-2 (Darshana Devi), PW-3(Nek Ram), PW-4(Waryam Singh), PW-6(Asha Rani), PW-7(Ravi Kumar), PW-11(Dr. Rubia Afroze) and PW-13 (Chaman Lal Gorkha), I.O. However, PWs 5, 8, 9, 10 and 12 which included Dr. Davinder Bhat and Dr. Vijay, Director FSL, Jammu were not examined during the trial for the reasons not explained by the I.O. The evidence recorded during the course of trial was put to the accused and his statement u/s 342 Cr.P.C was recorded on 10.09.2014. The accused pleaded innocence and his false implication in the case. The accused also chose not to lead any evidence in defence.
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5. The Learned Trial Court after meticulous examination of the statements of prosecution witnesses particularly taking note of the statement of expert witness i.e., Dr. Rubina Afroze who had conducted the medical examination of the prosecutrix, came to the conclusion that in view of inherent contradictions in the version of prosecutrix made in the written complaint lodged before the police and statement recorded u/s 164-A Cr.P.C as also the statement recorded in the court and also medical opinion indicating that there was no evidence of recent intercourse, the prosecution story was improbable and incapable of inspiring confidence of the court. Accordingly, the trial court found that the prosecution had miserably failed to prove the guilt of the accused beyond reasonable doubt, and therefore, acquitted the respondent of the charges leveled against him.
6. The State is aggrieved of the judgment impugned and has assailed the same primarily on the ground that there is no proper appreciation of evidence by the trial court and that respondent was involved in committing the heinous offence and, therefore, contradictions pointed by the Learned trial court were inconsequential and in any case not fatal to the prosecution case. The judgment, however, has not been assailed on any specific ground, as is evident from a bare reading of memorandum of appeal
7. The Learned Counsel for the State, during the course of arguments, also could not point out any perversity in the findings of fact recorded by the trial court nor could he put forth any argument to reconcile the contradictions between the testimony of the prosecutrix, her mother, other witnesses and the medical opinion. As is rightly pointed out by the learned trial court that the prosecutrix in her written report lodged in the police station did not mention that she had suffered any injury during the course of rape committed by the accused with her but during her statement in the court particularly when she was cross examined, she made a huge departure from her statement. She had stated in her report lodged with police that when the accused pushed her in the ____________________________________________________________________________________________________ SLAA No. 13/2017 Page 3 of 6 house, she got bruises in her arms also. PW-11 Dr. Rubina who conducted medical examination of the prosecutrix also found no marks of violence or injury on any part of her body or on the private parts. It was deposed by the prosecutrix before the trial court that after the respondent had committed the act, she raised hue and cry and on hearing the same, her mother came on the spot and saw the accused running. However, in her report lodged in the Police Station, she has not mentioned all these facts. As rightly noted by the learned trial court, the prosecutrix made improvements during her deposition in the court. In the report, as noted by the learned trial court, the prosecutrix had stated that on her raising hue and cry, a few people had gathered on the spot and saw the boy who had committed the crime leaving the scene. But, in her deposition before the court, she states that it was her mother and uncle who came to the place of occurrence on hearing the hue and cry and except the aforesaid two persons, none else had come. PW-3 Nek Ram uncle of the prosecutrix, however, deposed in his statement before the court that he never went to the house of prosecutrix along with the mother of the prosecutrix (PW-
1). He even stated that PW-2 never told him about the occurrence. As has been rightly noted by the trial court after appreciating the evidence properly, there are major contradictions in the statements of prosecutrix and her mother, which cannot be brushed aside as minor contradictions but, are the contradictions which make the story projected by the prosecution highly doubtful and lacking credence. The occurrence appears to be of the intervening night of 26.06.2012 and 27.06.2012 at about 12:30 A.M and on the very next day in the morning, the Prosecutrix was subjected to medical examination. The Doctor who conducted the medical examination i.e., PW-11, has categorically stated that there was no evidence of recent sexual intercourse with the prosecutrix. She also stated that she did not find any mark of violence or injury anywhere in her body or on her private parts nor any fresh bleeding was noted. The learned trial court, therefore, correctly appreciated the oral evidence in the light of the ____________________________________________________________________________________________________ SLAA No. 13/2017 Page 4 of 6 medical examination and came to the conclusion that the prosecution had miserably failed to prove the guilt of respondent beyond any doubt. We, also do not find any reason to differ with the finding of fact recorded by the learned trial court,
8. It may be noted that this is an appeal against an order of acquittal and the jurisdiction of the court to hear the acquittal appeal, is circumscribed by the said parameters laid down by the Supreme Court in Vijay Kumar Vs. State; (2009) 12 SCC 629, paragraph 12 whereof reads thus:
"(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal. (4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.
(7) The High Court has also to keep in mind that even at that stage the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."
9. It is equally well settled that in acquittal appeal, if the appellate court on appreciation of evidence finds that another view different from the one taken by the learned trial court is also possible, the view which favours the accused has to be taken ( see Hari Ram Vs State of Rajasthan ;(2000)9 SCC 136).
____________________________________________________________________________________________________ SLAA No. 13/2017 Page 5 of 6 That being the principle of law defining the scope of interference in acquittal appeals, we do not find any merit in this application and accordingly the leave prayed for by the State for filing the acquittal appeal is declined. Consequently, this application is dismissed.
( Sanjeev Kumar ) (Badar Durrez Ahmed)
Judge Chief Justice
JAMMU : 24.11.2017
RSB.Secy.
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