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2017 DIGILAW 1041 (JK)

State of J&K v. Pawan Kumar

2017-11-30

BADAR DURREZ AHMED, SANJEEV KUMAR

body2017
ORDER : CONCR No. 95/2016 1. Notice was issued to the respondent. The report of the Station House Officer, who was directed to effect the service, is that the respondent refused to accept the notice. Such refusal would amount to service. It is in these circumstances that we are taking up the consideration of the applications in the absence of the respondent. 2. The delay which is sought to be condoned is of 137 days. For the reasons stated in the application and upon hearing the counsel for the State, we allow the application for condonation of delay and accordingly condone the delay. SLAA No. 103/2016 3. This is an application seeking leave to appeal against the order of acquittal. By virtue of the judgment dated 03.12.2015 rendered by the Principal Sessions Judge, Udhampur in file No. 10/Sessions, the appellant has been acquitted of the charges framed against him under Sections 376/458/511 RPC. The case emanated from FIR No. 64/2013 under the said offences, which was registered in Police Station, Ram Nagar, on 29.05.2013. 4. A written complaint was filed on 29.05.2013 in the Police Station, Ram Nagar, by the complainant/prosecutrix-Mst. Z (The name has been withheld to protect the identity of the prosecutrix). As per the contents it was alleged that in the previous night at about 12 midnight in Village Surni when the prosecutrix alongwith her children were sleeping in the room, the respondent having a criminal intention entered the room and took her outside into the field where he allegedly tore her clothes forcibly and after that he attempted to rape her. On her raising a hue and cry, witnesses rescued her. She also alleged that during the occurrence two of her gold rings had gone missing. Pursuant to the registration of the FIR, the investigation ensued and the Investigating Officer (PW-4 Nazir Ahmed) presented the challan against the accused in court. Charges were framed against the respondent, as pointed out above, under Section 458/376/511 RPC. Since he pleaded innocence, trial ensued. The prosecution examined only four witnesses Mst. Z (the Prosecutrix), PW-2 Vidya Devi (the Sister-in-law of the prosecutrix), PW-3 Faquir Chand (the husband of the prosecutrix) and PW-4 Nazir ahmed (the Investigating Officer). 5. Mst. Z proved the contents of the complaint exhibit P1-1. Since he pleaded innocence, trial ensued. The prosecution examined only four witnesses Mst. Z (the Prosecutrix), PW-2 Vidya Devi (the Sister-in-law of the prosecutrix), PW-3 Faquir Chand (the husband of the prosecutrix) and PW-4 Nazir ahmed (the Investigating Officer). 5. Mst. Z proved the contents of the complaint exhibit P1-1. She stated that while she was with her children and was sleeping in her room at night, as it was summer time, the door of their room was open. The electric bulb was on in the room as the children do not sleep in darkness. She stated that the respondent entered her room at night and gagged her mouth and forcibly carried her outside. The respondent then took her to the field and tore her clothes and thereafter tried to rape her. She stated that she started crying and thereafter went to the court alongwith her husband to file an application. Subsequently, she went to the Police Station. The police came to the spot and seized her clothes and recorded her statement. In cross-examination she stated that the house of Mulkh Raj is behind her house and that the house of the respondent and her uncle are adjacent to her house. Her elder son Roshan who was 18 years of age, lived in the house of some officer, but on the day of the occurrence her other son Ravi aged 15 years and daughter Arti aged 10/11 years were sleeping with her. In the adjacent room her mother-in-law and sister-in-law were sleeping. She stated that when the accused gagged her mouth, she had tried to resist on the bed itself, but could not succeed. The accused then dragged her to the field from the room. She also stated that before that she had a scuffle with the respondent for about 5 to 7 minutes, but her children, mother-in-law and sister-in-law did not know about the occurrence because her mother-in-law remained ill and her sister-in-law was taking medicines and becomes unconscious after taking such medicines. She also alleged that she sustained scratches on both her legs. Even upon her raising hue and cry nobody came from the house of Mulkh Raj or Shiv Ram. Only her sister-in-law had come. She also denied that she had a dispute with the accused with regard to passage of animals. 6. PW-2 Vidya Devi who is her sister-in-law, stated that when Mst. Even upon her raising hue and cry nobody came from the house of Mulkh Raj or Shiv Ram. Only her sister-in-law had come. She also denied that she had a dispute with the accused with regard to passage of animals. 6. PW-2 Vidya Devi who is her sister-in-law, stated that when Mst. Z (the prosecutrix) raised hue and cry, on coming out of the house, she saw that the respondent and the complainant were in the field and the respondent was committing "an offence" with the prosecutrix. She called out, whereupon the respondent ran away. She stated that in the moon light she had seen the respondent running away. She also stated that the clothes of the prosecutrix were torn. During cross-examination she deposed that no fight had taken place in the evening and that she had awoken upon hearing the cries of the prosecutrix. She also stated that her mother did not wake up due to her illness. The children also were sleeping at that time. She, of course, revealed that on the night of the occurrence she had seen the prosecutrix and the respondent in the land of Rattan Lal from a distance of 100 yards and that she had seen the respondent while he was running away. 7. The next witness is Faquir Chand PW-3 who is the husband of the prosecutrix. He, of course, was not present on the date of the occurrence as he stated that he had gone to Jammu to take medicines for his mother. He, however, stated that at 12 O' clock he had reached home, at that point of time, the prosecutrix (his wife) had told him that last night there had been a scuffle between her and the respondent and in that scuffle her shirt had been torn. He, however, stated that he was not informed as to why he tore the shirt. He then stated that he and his wife went to the Police Station to file a report and the Police came on the third day. Of course this witness was declared hostile by the prosecution and was permitted to be cross-examined by the Public Prosecutor. The only other witness produced by the prosecution was PW-4 Nazir Ahmed who was the I.O. in the case. Nothing material has been stated by him. Of course this witness was declared hostile by the prosecution and was permitted to be cross-examined by the Public Prosecutor. The only other witness produced by the prosecution was PW-4 Nazir Ahmed who was the I.O. in the case. Nothing material has been stated by him. The defence produced one Geeta Devi as their witness, who was the Naib Sarpanch of the Village. She however, stated that there was some dispute between the prosecutrix and the respondent over land, although she did not know as to whether such dispute had reached the court or not. 8. It is pertinent to note that this is the sum total of the evidence that is on record. There was no attempt made by the Investigating Officer to have the prosecutrix medically examined in order to corroborate or establish that she indeed received injuries on her legs as she claimed in her examination in chief. Therefore, there is nothing to verify as to whether there was actually any scuffle and whether the prosecutrix did received injuries as alleged by her. The learned trial court has examined the entire evidence and has analyzed the same in detail. After doing so, the trial court did not find the prosecutrix to be a credible witness and did not think it wise to convict the respondent for the offences for which he had been charged as there was enough doubt in the matter and there was several gaps in the prosecution story. We also note that on the one hand the prosecutrix stated that she was gagged and on the other hand she stated that she raised a hue and cry. Furthermore, her husband Faquir Chand (PW-3) has not corroborated her testimony, though he is the one who accompanied her to the police station for lodging the complaint. There is also no evidence that there was any discord or dispute between the prosecutrix and her husband so as to enable us to infer that he did not support the prosecution for that reason. It is in this backdrop that the learned trial court came to the conclusion that the respondent could not be convicted for the offences for which he was charged. It is in this backdrop that the learned trial court came to the conclusion that the respondent could not be convicted for the offences for which he was charged. In any event we may note that as pointed out in State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 , the principle to be followed by the appellate court considering an appeal against a judgment of acquittal is to interfere 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. However, the learned counsel for the State has not been able to point out any such unreasonableness in the impugned judgment, nor has any perversity been pointed out. It is also not the case that some valuable and clinching evidence has been ignored or that the analysis of the evidence is so unreasonable to enable us to interfere with the judgment of acquittal. 9. For all these reasons, in our view, there is no case made out for the grant of leave to appeal against the judgment of acquittal. Consequently, the application is dismissed.