Jammu & Kashmir High Court
State Th.Police Station,Majalta vs Joginder Pal Sharma on 9 April, 2013
Author: Bansi Lal Bhat
Bench: Bansi Lal Bhat
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Acq. Appeal No. 81/2012
Date of Order: 09.04.2013
State of J&K. V. Joginder Pal Sharma.
Coram:
Hon'ble Mr. Justice Bansi Lal Bhat,
Bhat, Judge
Appearing Counsel:
For Appellant(s) : Ms.Neeru Goswami, DyAG.
For Respondent(s) : Mr. D. K. Khajuria, Advocate.
i) Whether approved for reporting
in Press/Media : Yes/No
ii) Whether to be reported
in Digest/Journal : Yes/No
This appeal is directed against judgment formulated by learned Additional Sessions Judge, Udhampur in File No. 32/Sessions titled State vs. Joginder Pal Sharma on 27.07.2012 in terms whereof accused-respondent herein has been acquitted of charge under Section 376 RPC. State has, through the medium of this appeal, questioned the impugned judgment on the ground that learned Trial Court has failed to appreciate the prosecution evidence properly and the conclusions drawn are against the weight of evidence.
Heard the rival sides at the Admission stage. Allegedly Prosecutrix -Anuradha Sharma was living in her matrimonial home while her husband serving in Armed Forces and stationed at Field Post in Manipur was away from home. Accused respondent -Joginder Pal Sharma and his co- accused Yash Pal (since discharged) made sexual advances towards Prosecutrix while her husband was away on duty. She 2 complained to her mother-in-law -Vaishno Devi who too was a co-accused and has since been discharged. She was rebuked and asked to keep mum. On 01.09.2006 respondent committed rape with Prosecutrix when she was alone at home. When she narrated the incident to her mother-in-law, she was abused and intimidated. Thereafter she left the matrimonial home, went to her parental home with her brother-Rakesh Sharma and informed her mother as well as her husband about the incident. Her husband returned from duty in the month of November 2006. He did not believe the story narrated by Prosecutrix and accused her of breaking the bond of affection between the brothers. Thereafter on 31.12.2006 Prosecutrix lodged written complaint with Police Station Majalta alleging commission of offence under Section 376 RPC. Investigation culminated in filing of charge sheet against five persons including the respondent. The learned Trial Judge discharged all other accused except the respondent against whom charge under Section 376 RPC was framed. Since the respondent pleaded not guilty he, was put to trial. Prosecution examined the material witnesses including the Prosecutrix, Doctor and the Investigating Officer.
On consideration of evidence brought on record by prosecution, the respondent was acquitted on the ground that the prosecution story was doubtful as the witnesses had contradicted each other on material particulars of the alleged occurrence and there was delay of four months in lodging the First Information Report (FIR).
On perusal of the impugned judgment it comes to fore that though the alleged occurrence is said to be of 01.09.2006, 3 the FIR was lodged on 01.01.2007 i.e. after a gap of four months.
It is well settled that the victim of rape is not an accomplice and her uncorroborated testimony can be made the basis for recording conviction of accused provided same is capable of implicit faith being reposed therein. The conduct of Prosecutrix during and post occurrence is of great significance. If the same lends assurance to her account, her uncorroborated testimony can be relied upon. Assurance short of corroboration is sufficient to attach credibility to the account of rape victim.
In the instant case it appears that the husband of Prosecutrix turned tables at her at the trial. His deposition reveals that the spouses did not enjoy cordial relations during the brief stay of the couple in matrimonial home after their marriage was solemnized on 23.02.2006. The husband has portrayed her as a quarrelsome wife who was not happy with her marriage. It appears from his testimony that the Prosecutrix had lodged complaint against him at Police Station Women Cell, Jammu. She had also approached State Commission for Women. She did not rest there. She even knocked at the door of Army Chief. However, Prosecutrix never complained about the alleged occurrence of rape at the hands of respondent. His testimony also reveals that the marriage between couple has broken down and the same has been dissolved by divorce with Prosecutrix having contracted second marriage. He emphatically denied that the Prosecutrix had complained to him telephonically that the respondent had committed rape with her.
4Learned Trial Judge found the version of Prosecutrix inherently improbable on account of contradictions, galore in testimony of Prosecutrix and her mother-Guddi Devi. Testimonies of other witnesses fall in the category of hear-say. On touch-stone of credibility, testimony of Prosecutrix was found shaky and incapable of being relied upon. It is intriguing that in the complaint filed by Prosecutrix with State Commission for Women and Women Cell Jammu after the alleged occurrence of rape and before lodging of FIR there is not even a slight whisper about the commission of rape by respondent. Thus, the contemporaneous record does not support the allegations of rape. The post-occurrence conduct of Prosecutrix does not synchronize with the behavior of a victim of rape.
Viewed in this context, unexplained delay of four months in lodging of FIR does not rule out fabrication moreso as the relations between the couple were strained and Prosecutrix was not happy with her marriage.
In view of the fore going discussion, I find there are no compelling and substantial reasons to take a view contrary to the one adopted by learned Trial Court. The findings arrived at by the learned Trial Court can neither be termed erroneous nor perverse.
There is no good ground made out for the admission of the appeal, same is dismissed, accordingly.
(Bansi Lal Bhat) Judge Jammu:
Sunita.09.04.2013 Sunita.