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2017 DIGILAW 245 (JK)

State of J&K v. Bashir Hussain

2017-05-18

ALOK ARADHE, JANAK RAJ KOTWAL

body2017
JUDGMENT : 1. This appeal has been preferred against the judgment dated 30.12.2013 passed by the Additional Sessions Judge, Rajouri, by which the respondent has been acquitted of the offence under Section 376 of the Ranbir Penal Code. The prosecution case in nut-shell is that on 30.08.2007 at about 10.00 p.m., the respondent entered the house of the prosecutrix and committed rape on her. On raising the noise, sister-in-law of the prosecutrix came on the spot, who tried to catch hold the accused/respondent, but was unable to do so and the respondent fled away from the spot. On 31.08.2007 on the complaint being made by the prosecutrix, the First Information Report was lodged against the respondent for offence under Section 376 of the Ranbir Penal Code. The police after completion of the investigation filed charge-sheet against the respondent. The trial Court vide impugned judgment has acquitted the respondent. 2. Learned counsel for the appellant submitted that the trial Court grossly erred in appreciating that in view of the statement of the prosecutrix, the offence against the respondent is made out. On the other hand, learned counsel for the respondent has supported the judgment of the trial Court. 3. We have considered the submissions made by the learned counsel for the parties and perused the record. The prosecution in order to prove its case, examined as many as 11 witnesses. The prosecutrix was examined as PW1, who has stated in her evidence that she knows the respondent who is her neighbourer and she is residing separately from her brothers. It is further stated by her that on 30.08.2007 at about 10.00 p.m. she was sleeping with her Niece on her bed, when respondent entered in her room and fell her down from the Cot, closed her mouth with a cloth and committed rape on her. On raising the noise, her sister-in-law, namely, Sabra Bibi, came there, who tried to catch hold the accused/respondent, however, he ran away from the spot. 4. PW-2, namely, Maqbool Hussain, is a witness to the seizure memo. PW-3, namely, Hakim Din, is Chowkidar of Village of Gurdanwala, who has been declared hostile. PW-4, namely, Sabra Bibi has stated in her statement that prosecutrix is unmarried and living separately and her daughter, aged about 12 to 13 years was also residing with the prosecutrix. 4. PW-2, namely, Maqbool Hussain, is a witness to the seizure memo. PW-3, namely, Hakim Din, is Chowkidar of Village of Gurdanwala, who has been declared hostile. PW-4, namely, Sabra Bibi has stated in her statement that prosecutrix is unmarried and living separately and her daughter, aged about 12 to 13 years was also residing with the prosecutrix. On 30.08.2007 at about 10.00 p.m. she heard noise of the prosecutrix and rushed to the house of the prosecutrix where she tried to catch hold the respondent who ran away from the spot. PW-5, namely, Mushkeen Shah, in his cross-examination has stated that he does not know when the occurrence took place. Similar statement has been made by PW-6, namely, Mushtaq Shah, real brother of prosecutrix, who has been declared hostile. PW-7, namely, Shahida Akhter, has stated that she knows the prosecutrix and the respondent. On hearing the noise her mother had reached the spot and they Caught hold the accused/respondent. PW-8, namely, Javed Iqbal has stated that he has no knowledge about the occurrence. PW-9, namely, Mohd. Iqbal is a witness to the Supurdnama. PW-10, namely, Shamsher Singh, SPO and PW-11, Romesh Gandotra, Medical Officer, were not produced for examination in the Court. 5. Admittedly, the prosecutrix was an unmarried lady and resided away from her brothers. From the evidence of Sabra Bibi, PW-4, it is evident that her house is situated at one Kilometer away from the house of prosecutrix, however, Sabra Bibi, PW-4 was the first person who reached the spot within 4 to 5 minutes after hearing the noise. PW-5 and PW-6, the real brothers of the prosecutrix, have deposed that they have no knowledge about the occurrence and have been declared hostile. 6. It is note worthy that it is not the case of the prosecution that the respondent broke open the door and entered the house forcibly. It appears that the door of the house was open wherein the respondent appeared. Besides, it is pertinent to mention here that though the prosecution has cited PW-11, Romesh Gandotra, Medical Officer, however, he was not examined as a witness before the trial Court. Besides that we have also perused the Medical Report which has not supported the prosecution case. 7. Besides, it is pertinent to mention here that though the prosecution has cited PW-11, Romesh Gandotra, Medical Officer, however, he was not examined as a witness before the trial Court. Besides that we have also perused the Medical Report which has not supported the prosecution case. 7. The trial Court has meticulously appreciated the evidence on record and has held that brothers of the Prosecutrix, namely, PW-5, Mushkeen Shah and PW-6 Mushtaq Shah, who were residing adjacent to the house of the prosecutrix have been declared hostile and PW-4, Sabra Bibi who was residing at a distance of one Kilometer away from the house of prosecutrix, was the first person to reach the spot. The trial Court has correctly held that the prosecutrix herself had opened the door when the accused/respondent entered the house, therefore, is a consenting party to the act in question. We do not find any infirmity in the findings recorded by the trial Court which even otherwise are based on the meticulous appreciation of evidence available on record. In view of the preceding analysis, we do not find any merit in the appeal. In the result, the appeal fails and is hereby dismissed.