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2015 DIGILAW 657 (JK)

State of J. &K. v. Imtiyaz Ahmad

2015-12-11

B.S.WALIA, MOHAMMAD YAQOOB MIR

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JUDGMENT : B.S. Walia, J. 1. Criminal Acquittal Appeal has been filed against judgment dated 11-6-2015 passed on file No. 37/Sessions by learned Principal Sessions Judge, Rajouri in case titled 'State v. Imtiyaz Ahmed', by virtue of which, respondent (hereinafter referred to as 'accused') has been acquitted of the offences under Sections 376/342, RPC. 2. Brief facts of the case, leading to the filing of the present appeal, are that the prosecutrix along with her sister Ruksana Kouser filed a written complaint before Police Station Rajouri on the allegations that on 15-7-2006 she i.e. prosecutrix had come to Rajouri for filling up the matriculation form and after filling up the form when she was standing at Gujjar Mandi Rajouri, the accused i.e. Imtiyaz Ahmed came to her and asked her to come to his room for taking meals. Since she knew him a little bit, she went to the room in Ward No. 4 Salati Mohalla at 3 p.m. where the accused kept her, closed the door and went away only to return back in the evening whereupon he told her to open her trouser (salwar) and when she desisted, he forcibly opened the girdle of her trouser and committed sexual intercourse with her without her consent and also threatened her that if she raised hue and cry, he would kill her and thereafter he again committed sexual intercourse with her two times. When he left the room, accused again told her not to disclose the same to anybody, otherwise he would kill her. It is further the stand of the prosecution that when the prosecutrix was returning home, her sister met her at the Bus Stand Rajouri whereupon she narrated the entire episode to her sister. 3. On the aforesaid basis, FIR. No. 289/2006 for offence under Section 376, RPC was registered at Police Station Rajouri and investigation assigned to one Mohd. Khushal SI. After conclusion of the investigation, offences under Sections 376/342 were found made out against the accused. Accordingly, challan was presented in Court and vide order dated 15-9-2006, accused-lmtiyaz Ahmed was charge-sheeted for the commission of offences under Sections 376/342, RPC. 4. Khushal SI. After conclusion of the investigation, offences under Sections 376/342 were found made out against the accused. Accordingly, challan was presented in Court and vide order dated 15-9-2006, accused-lmtiyaz Ahmed was charge-sheeted for the commission of offences under Sections 376/342, RPC. 4. Evidence of P.W. 3 Ruksana Kouser i.e. sister of the prosecutrix, reveals that the prosecutrix had gone to Rajouri on 15-07-2005 for filling up the form of matriculation but did not return back till evening and it was only on the next day i.e. 16-07-2005 that she met her at Bus Stand Rajouri where she disclosed to her that when she had gone to Gujjar Mandi after filling up the form, accused met her and asked her to take meals in his room and she went with him and that accused kept her in the room and during night he committed sexual intercourse with her without her consent forcibly besides threatened her that in case she made noise, he would kill her. 5. In cross-examination, P.W. 3 Ruksana Kouser stated that she had met the prosecutrix at the Bus Stand at 10 a.m. where she was standing and weeping and that there were a number of people and vehicle's at the Bus Stand but they did not disclose the incident to anybody and straightway went to the police station and further that the room in which the accused had taken the victim, other persons were also residing in the said house, besides the prosecutrix went with the accused of her own free will in day time and remained there till night and next day, accused brought her out from the room and further the prosecutrix told her that the accused had washed her clothes and thereafter dried the same where after she wore the same and came out. 6. P.W. 4 i.e. prosecutrix deposed that she had gone to Rajouri for filling up the form of 10th Class five years ago and after filling up the form, the accused who was known to her uncle, met her at Gujjar Mandi and told her to come with him for a meal, whereupon she went to the room at 4/5 p.m. In the room, the accused asked her not to cry, otherwise police would come there. Accused closed the door from outside and returned back in the evening. Accused closed the door from outside and returned back in the evening. Thereafter, accused committed sexual intercourse with her 2/3 times and asked her not to make noise and in the morning asked her to go to her home and not to disclose anything to anybody otherwise she would be killed. Prosecutrix further deposed that when she reached the Bus Stand, her sister Ruksana Kouser met her and she disclosed the entire episode to her sister, where after she went to the police station and filed a report. Her medical was conducted and statement recorded by the police. 7. In cross-examination, the prosecutrix deposed that she reached Rajouri at 11 a.m. and that the Board office was situated near Police Line's and that she took half an hour to fill up the form and that she had gone to the room of the accused, who was SPO in the police for the first time and that there were other houses located near the house of the accused and that the accused had given meal to her i.e. red rice and that Ruksana Kouser was her sister and that she had come to search her. The occurrence took place on 15-7-2006 while FIR was lodged on 16-7-2006 and that she tried to make noise during night but accused threatened her. 8. RW. 5 i.e. Dr. Umesh Gandotra deposed that on 16-7-2006 at 5 p.m. he had examined the prosecutrix and on local examination, no injury or mark of violence was noticed over the body as well as private parts of the victim. The relevant extract of the deposition of P.W.5 Dr. Umesh Gandotra is reproduced hereunder :- "PA7 Examination :- Uterus A/V normal size. Vagina admits one finger easily and two fingers rights. Vaginal smear was taken and sent for lab examination which was found negative for any alive or dead spermatozoa. In his opinion there is no evidence of recent sexual intercourse. However, the findings are suggestive that the victim seems to be habitual. The certificate in the file was issued by him which bears his signature. He admits its contends as correct and it was exhibited as Ext. P-UG. The lab report is also on the file, it was marked as Mark-Z. In cross-examination the witness stated that he found no mark of injury or violence on the body of the victim." 9. P.W. 6 i.e. Devinder Singh Dy. He admits its contends as correct and it was exhibited as Ext. P-UG. The lab report is also on the file, it was marked as Mark-Z. In cross-examination the witness stated that he found no mark of injury or violence on the body of the victim." 9. P.W. 6 i.e. Devinder Singh Dy. SP, in cross-examination, stated that according to report of the doctor, no intercourse was committed and no spermatozoa were found. The date of birth of the victim, according to school certificate, was 15-2-1989 and the occurrence being of 15-7-2006, the age of the prosecutrix on the date of occurrence was MVz years. The date of birth of the prosecutrix has been mentioned as 15-2-1989 on the basis of certificate of Govt. Girl High School Manjakote, therefore, it stood proved that as on 15-7-2006 the prosecutrix was more than 17 years of age, therefore, Clause 6 of Section 375, RPC was not applicable and that the allegation of rape and kidnapping rested mainly on the statement of the prosecutrix. 10. Perusal of the statement of the prosecutrix reveals that she knew the accused a little bit as the accused was known to her uncle and that she had reached Rajouri on 15-7-2006 at 11 a.m., that the office of the Board was adjacent to the Police Lines, that the accused was a SPO, that she had taken half an hour for filling up the form and that on the asking of the accused, whom she knew a little bit, she had gone to the room of the accused at 4/5 p.m. Further that the accused had told her not to cry, otherwise the police would come, he locked the room from outside and returned back in the evening, where after the accused committed sexual intercourse with her 2/3 times and asked her not to make noise and in the morning asked her to go to her home and not to disclose anything to anybody, otherwise she would be killed. She also admitted that other houses were located near the house of the accused and that the accused had also given meal to her. The evidence of the victim i.e. P.W. 4 does not inspire confidence. 11. She also admitted that other houses were located near the house of the accused and that the accused had also given meal to her. The evidence of the victim i.e. P.W. 4 does not inspire confidence. 11. In Rajesh Patel v. State of Jharkhand (2013) 3 SCC 791 : ( AIR 2013 SC 1497 ) the Hon'ble Supreme Court reversed the conviction inter aha on the ground of the story of the prosecutrix being unnatural and it appearing to be a case of consensual sex. Relevant extract of the same is reproduced hereunder : 14. The prosecution case is that the appellant has committed the offence of rape on the prosecutrix on 14-2-1993. She is the solitary witness to prove the charge. The same is sought to be corroborated by her mother, P.W. 2 who has supported the prosecution case on the basis of narration of the alleged offence by the prosecutrix to her. It is an undisputed fact that both the appellant and the prosecutrix are classmates and had good acquaintance with each other as they were exchanging books. The case of the prosecution is that she had given her book to the appellant. She asked him to return the same and he asked her to go to his house on 14-2-1993 to take back the book. Accordingly, she went to the house of the appellant. When she entered the house he locked the door of the house from inside. At that time she had not raised an alarm, except stating that she insisted not to lock the door of the house as there were no other inmates in the house at that point of time. The version of the prosecutrix is that she could not raise alarm as the appellant had threatened her with a knife. Further case of the prosecution is that he had then committed the offence of rape on her. Further, she has stated that while the appellant was committing rape on her she got pain in her private part and at that point of time also she wanted to raise alarm, but he had shown the knife to her not to raise alarm. Thus, the prosecution story as narrated by the prosecutrix is most improbable and unnatural. 15. Further, she has stated that while the appellant was committing rape on her she got pain in her private part and at that point of time also she wanted to raise alarm, but he had shown the knife to her not to raise alarm. Thus, the prosecution story as narrated by the prosecutrix is most improbable and unnatural. 15. This contention of the appellant is further supported by the contention urged on his behalf that after the offence was committed the appellant locked her in the house and went away from the house. After about half an hour Mr. Purnendu Babu. P.W. 3. who is a common friend of both the appellant and the prosecutrix came there and unlocked the room, till then she did not raise alarm drawing the attention of the neighbours. The aforesaid circumstance would clearly jo to show to come to the conclusion that the case of the prosecution is not natural and probable. Neither the prosecutrix nor P.W. 3 has informed the police with regard to the alleged offence said to have been committed by the appellant after the prosecutrix was unlocked from the house. The reason given by the prosecution is that P.W. 3 was making sincere efforts to bring about the settlement of marriage between the appellant and the prosecutrix. The same did not materialise and, therefore, the complaint was lodged with the jurisdictional police on 25-2-1993. The above said version of P.W. 1 regarding settlement between her and the appellant is not proved as P.W. 3 has stated in his evidence that he does not know anything regarding the alleged offence. 21. Further, one more strong circumstance which has weighed in our mind is that they had good acquaintance with each other as they were classmates and they were in terms of meeting with each other. The defence counsel had alternatively argued that the appellant had sex with her consent. The High Court proceeded not to accept the said argument by giving reasons that the appellant failed to explain as to under what circumstance he had sex with the consent of the prosecutrix when she was confined in his house. The defence counsel had alternatively argued that the appellant had sex with her consent. The High Court proceeded not to accept the said argument by giving reasons that the appellant failed to explain as to under what circumstance he had sex with the consent of the prosecutrix when she was confined in his house. The contention urged on behalf of the appellant that it was consensual sex with the prosecutrix is to be believed for the reason that she herself had gone to the house of the appellant though her version is that she went there at the request of the appellant to take back her book which she had given to him. This is a strong circumstance to arrive at the conclusion that the defence case of the appellant is of consensual sex. Further, the prosecution case is that after the offence was committed by the appellant he had locked the room from outside and left. After half an hour Purnendu Babu. P.W. 3 arrived and unlocked the room. This story is improbable to believe and the prosecutrix has not lodged the complaint either immediately or within reasonable period from the date of occurrence. The complaint was indisputably lodged after a lapse of 11 days by the prosecutrix..........." 22. For the aforesaid reasons the prosecution case is not natural, consistent and probable to believe to sustain the conviction and sentence of the appellant for the alleged offence said to have been committed by him. 23. The trial Court as well as the High Court should have appreciated the evidence on record with regard to delay and not giving proper explanation regarding delay of 11 days in filing FIR by the prosecutrix and non-examination of the complainant witnesses viz. the doctor and the IQ which has not only caused prejudice to the case of the appellant but also the case of prosecution has created reasonable doubt in the mind of this Court. Therefore, the benefit of doubt must ensure to the appellant. As we have stated above, the testimony of the prosecutrix is most unnatural and improbable to believe and therefore it does not inspire confidence for acceptance of the same for sustaining the conviction and sentence. Therefore, we are of the view that the impugned judgment requires to be interfered with by this Court in exercise of its jurisdiction. As we have stated above, the testimony of the prosecutrix is most unnatural and improbable to believe and therefore it does not inspire confidence for acceptance of the same for sustaining the conviction and sentence. Therefore, we are of the view that the impugned judgment requires to be interfered with by this Court in exercise of its jurisdiction. Accordingly, we allow the appeal and set aside the impugned judgment. If the appellant has executed bail bonds, the same may be discharged. (Underlining by us) 12. Admittedly, the accused was not directly known to the prosecutrix, but to her uncle and on asking of the accused to come with him for meal, she went to his room at 4/5 p.m. Despite being taken to the room and asked not to cry and accused bolting the door from outside and leaving the prosecutrix inside the room and returning back in the evening and the house being situated adjacent to other houses, it belies comprehension as to why the prosecutrix did not raise hue and cry on being locked up in a room, in the circumstances, as have been referred to above. Once the accused told her not to cry and locked her inside the room and went away, the prosecutrix as a normal and prudent person, was expected to have sensed that something was amiss and she could have bolted the door from inside and raised hue and cry. However, she did nothing of that sort. It is also strange that simply because the accused knew her uncle, therefore, on his asking she went to his room to have a meal with him. Although in the case referred to above, the accused and prosecutrix were known to each other being classmates, in the instant case the accused was known to the prosecutrix on account of his being known to her uncle, yet she readily went to his room on his asking, did not raise any hue and cry despite opportunity, besides as per medical opinion the prosecutrix was habitual to sexual intercourse and there were no injuries on her private parts. Even the IO was not examined. Thus the prosecution case does not inspire confidence, rather creates a doubt in the mind of the Court. 13. The evidence of P.W. 5 Dr. Umesh Gandotra does not help the prosecution case, rather states absence of recent sexual intercourse. Even the IO was not examined. Thus the prosecution case does not inspire confidence, rather creates a doubt in the mind of the Court. 13. The evidence of P.W. 5 Dr. Umesh Gandotra does not help the prosecution case, rather states absence of recent sexual intercourse. The statement of P.W. 5 is suggestive of the victim being habitual to sexual intercourse as vagina admitted one finger easily and two fingers right besides there being no dead or alive spermatozoa in the vaginal smear taken from the prosecutrix and sent for lab-examination. Besides there being no injury or mark of violence over the body or private parts of the prosecutrix. 14. In the case of a young girl, who is unwilling to yield to sexual intercourse and is not being habitual to sexual intercourse, such a victim would in all probability have some injuries on her person, but the absence of injuries on her body as also other evidence as noted above makes it clear that the story as put forth by the prosecutrix is very doubtful and in any case, not corroborated on the basis of medical evidence. That apart, admittedly the prosecutrix remained in the room from 4/5 p.m. of 15-7-2006 till morning of 16-7-2006 and was subjected to sexual intercourse 2/3 times, but surprisingly she did not raise any hue and cry despite the fact that the room in which the incident took place was surrounded by many houses. The absence of the prosecutrix raising an alarm, even though she had been threatened not to cry w here after she was left alone, locked in the room by the accused, who returned late in the evening, renders the prosecutrix story unbelievable. The prosecutrix has also for the first time, in her statement recorded before the Court, stated that the accused washed her clothes and dried the same where after she wore them. Obviously the same is an improvement in order to justify non-discovery of spermatozoa. As per medical evidence, neither clothes of the prosecutrix were seized nor was any person from the locality cited as a witness. 15. P.W. Mohd. Khan, grandfather of the victim, deposed that on the date of occurrence, he was at his home where he came to know that somebody had kidnapped the prosecutrix, where after he came to police station Rajouri where the accused and the accused were also there. 15. P.W. Mohd. Khan, grandfather of the victim, deposed that on the date of occurrence, he was at his home where he came to know that somebody had kidnapped the prosecutrix, where after he came to police station Rajouri where the accused and the accused were also there. However, in cross-examination, the witness deposed that when police recorded the statements, he came to know that day about the rape and from perusal of the challan, it reveals that statement of PW Mohd. Khan was recorded on 5-8-2006 i.e. after more than 18 days of the occurrence. Likewise, the statement of P.W. Mohd. Khaliq was recorded on 5-8-2006. The Investigating Officer was not examined in the case. No explanation has been furnished as to why the statement of three witnesses was recorded after a delay of 18 days. Due to non-examination of the Investigating Officer, neither site map nor other documents prepared by the Investigating Officer have been proved. Thus, except for the statement of the victim, there is nothing on record, which supports prosecution case of the victim having been raped. The statement of the victim does not inspire confidence. Once that be so and doubt having been raised about involvement of the accused in the commission of the offence alleged, the conviction of such an accused, would not be in accordance law. 16. In the aforementioned background, the learned Principal Sessions Judge, Rajouri, to our mind, has rightly acquitted the accused in the absence of there being cogent evidence against the accused having committed offence as alleged by the prosecution. We have carefully considered the submission made by learned counsel for the appellant, who could not convince us of a case of accused having committed the alleged offence and the case not being one in which it could be said that the act of sexual intercourse if it took place was not without the consent of the prosecutrix. Medical version also belies allegations. No spermatozoa were detected. Clothes worn by the prosecutrix were not seized. The medical examination also reveals absence of injury over the body as well as private parts of the victim besides the Vagina admitted one finger easily and two fingers rights. Medical version also belies allegations. No spermatozoa were detected. Clothes worn by the prosecutrix were not seized. The medical examination also reveals absence of injury over the body as well as private parts of the victim besides the Vagina admitted one finger easily and two fingers rights. The fact that despite having been threatened not to cry out and thereafter prosecutrix having been left alone in the room by the accused with the door being bolted from outside and accused returning late in the evening and despite the room where the prosecutrix was kept being surrounded by other houses, no attempt was made by the prosecutrix to raise an alarm puts the nail in the coffin to absolve the accused of the offence alleged against him. 17. In view of the position as noticed above, we are of the considered view that the judgment passed by the learned Principal Sessions Judge, Rajouri does not suffer from any infirmity so as to warrant interference by this Court. Resultantly, Criminal Acquittal Appeal being bereft of merit, is dismissed. No order as to costs. Appeal Dismissed.