Jammu & Kashmir High Court
State Of Jammu And Kashmir vs Zulfikar Ali And Others on 20 September, 2019
Author: Rajesh Bindal
Bench: Sindu Sharma, Rajesh Bindal
Sr. No.12
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRA No. 43/2019 [Crl A(D)
No.18/2019] (O&M)
SLA No. 43/2019 [Crl LP
No.19/2019]
CONCR No.32/2019 [CrlM
No.82/2019]
Decided on : 20.09.2019
State of Jammu and Kashmir ...Appellant(s)
Through:- Mr. Ravinder Gupta, AAG.
v/s
Zulfikar Ali and others .... Respondent(s)
Through:- None.
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
Coram :
HON'BLE MS. JUSTICE SINDU SHARMA, JUDGE
ORDER
RAJESH BINDAL, J
1. The State is in appeal against the judgment of learned court below whereby the respondents/accused have been acquitted of the charges framed against them. The respondents were tried in FIR No. 30/2014 registered under Sections 363/376/382/109 RPC at Police Station Basohli.
2. The FIR was registered on the complaint of Lekh Raj claiming that his sister was missing since 10.06.2014. On 18.06.2014, she was recovered from Halti Morh Kathua. She claimed that she had been enticed away by 2 CRA No. 43/2019 Vishal alias Bantu alias Zulfi on false promise of marriage. She also got her statement recorded under Section 164A Cr.P.C. to that effect. In that statement, she stated that three more unknown boys were also there. She alleged that on 10.06.2014, Zulfikar Ali came to her house and told his name as Vishal. When she was alone, he forcibly had sex with her. He threatened and asked her to take the gold ornaments of her sister-in-law and accompany him. Firstly, she was taken in a car to Ludera where they stayed for overnight. Then she was shifted to Udhampur where she was kept in a room in a house and was sexually exploited for eight days under threat.
3. Though the prosecution had tried to prove the charges against the accused, however, it miserably failed. There were many contradictions in the statements of all the witnesses including that of the prosecutrix. In her cross- examination, she stated that she met Zulfikar Ali first time on the date of occurrence. While in court she stated that Zulfi had committed rape firstly at her residence. However, this was not the position when she got her statement recorded first time with the police. Though she claimed that she had been kidnapped and taken in a bus but never raised any hue and cry. On medical examination, the doctor found that there were no marks of injury, bite or violence on the body of the prosecutrix. There is no evidence of recent loss of virginity. Vaginal smears were taken and the report of the laboratory was that there was no semen found. The story of the prosecutrix that the accused came to her house for the first time and raped her but still she accompanied him is not believable for the reason that despite all this she raised no hue and cry. As per the experts, the life of spermatozoa is 72 hours. Medical examination of the prosecutrix was conducted within that time but still from the vaginal smears slides, semen was not found. Hence, the rape itself was not proved. She was 3 CRA No. 43/2019 not living in a jungle. Road from the house of the prosecutrix was 2-3 KM. They had gone on foot. She travelled in bus and stayed in residential areas.
4. There are so much of discrepancies on record which have briefly been noticed above. Once the factum of rape itself is not proved with the medical evidence on record, the story of kidnapping also fails as at different stages when the prosecutrix had the opportunity, she never raised hue and cry, in our view there is no error in the judgment of the learned court below acquitting the respondents of the charges framed.
5. The appeal is accordingly dismissed.
6. Consequently, the application seeking condonation of delay in filing the appeal as well as the application seeking leave to file acquittal appeal are also dismissed.
(Sindhu Sharma) (Rajesh Bindal)
Judge Judge
Jammu
20.09.2019
Raj Kumar
Whether the order is speaking? : Yes
Whether the order is reportable? : Yes/No.
RAJ KUMAR
2019.09.26 14:59
I attest to the accuracy and
integrity of this document