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2021 DIGILAW 120 (JK)

State of J&K v. Ravi Kumar

2021-03-25

SANJAY DHAR, TASHI RABSTAN

body2021
JUDGMENT : Sanjay Dhar, J. 1. The instant appeal is directed against the judgment dated 30.04.2014 passed by the learned Sessions Judge, Udhampur, whereby the learned Trial Court while dismissing the charge-sheet arising out of FIR No. 141/2012 for offences under Sections 366 and 376 RPC has acquitted the respondent (hereinafter referred to as the "accused'). 2. Briefly stated the case of the prosecution before the learned Trial Court was that on 20.08.2012, the prosecutrix, who happens to be a deaf and dumb girl, was abducted by the accused after taking undue advantage of her innocence and simplicity, whereafter she was subjected to wrongful confinement and repeated forcible sexual intercourse for seven days. The criminal prosecution against the accused was initiated with the lodging of a missing report in respect of the prosecutrix by her father-PW-Dev Raj on 20.08.2012. In the said report, the age of the prosecutrix was given as 16-1/2 years. On 21.08.2012, the complainant again approached the police, informing that the prosecutrix had been allured, enticed and kidnapped by the accused. On the basis of this information, the police registered a case under Section 363 of the RPC and set the investigation of the case into motion. During investigation of the case, mobile cell of the accused was kept under surveillance and as per the tower location, the said cell phone was found to be operational in Gulab Garh area. Accordingly, the police proceeded to said area and on 26.08.2012, the police recovered the prosecutrix from the accused while the two were in a bus, that was lying parked in Gulab Garh Bazar. The said bus was scheduled to proceed to Jammu. 3. Upon recovery of the prosecutrix, she was got medically examined. The accused was also got medically examined. From the certificate issued by the School, where the prosecutrix had studied upto 8 th standard, her date of birth was found to be 25.10.1992, which means that she was about 20 years of age at the time of the alleged occurrence. The investigation also revealed that the prosecutrix had been subjected to wrongful confinement and sexual assault. Thus, offences under Sections 366, 376 & 343 RPC were found established against the accused and the charge-sheet was laid before the Court. 4. On 20.10.2012, charge for offences under Sections 366, 376 and 343 RPC was framed against the accused and he was put to trial. Thus, offences under Sections 366, 376 & 343 RPC were found established against the accused and the charge-sheet was laid before the Court. 4. On 20.10.2012, charge for offences under Sections 366, 376 and 343 RPC was framed against the accused and he was put to trial. During the trial of the case, the prosecution examined as many as eight witnesses, whereas the accused examined four witnesses in defence. The learned Trial Court after analyzing the evidence on record came to the conclusion that the prosecutrix had eloped with the accused out of her own free will and volition and as such, the charges pertaining to kidnapping, rape and wrongful confinement against the accused are not proved. 5. The appellant-State has called-in-question the impugned judgment of the learned Trial Court on the grounds that the learned Trial Court has not properly appreciated the evidence while recording the judgment of acquittal in favour of the respondents; that the learned Trial Court has taken a hypertechnical approach and ignored the circumstantial evidence on record and that the impugned judgment is against law and facts. 6. We have heard learned counsel for the parties, perused the impugned judgment, the grounds of appeal and the record of the Trial Court. 7. As already noted the case of the prosecution against the accused is that on 20.08.2012, he enticed the prosecutrix to go with him, whereafter he kept her in wrongful confinement for seven days and subjected her to forcible sexual assault. In the cases relating to sexual assault, the victim happens to be the most important and crucial witness. However, in the instant case, the prosecutrix happens to be a deaf and dumb girl, who as per the prosecution case was aged about 20 years at the relevant time. It has been vehemently contended by the learned counsel for the appellant that the fact that victim in the instant case was a deaf and dumb girl, the learned Trial Court was expected to analyze her statement and approach the case with more sensitivity, which the learned Trial Court has failed to do. 8. In order to test the merits of the above argument, we need to analyze the statement of the prosecutrix and the manner, in which the same has been appreciated by the learned Trial Court while passing the impugned judgment. 8. In order to test the merits of the above argument, we need to analyze the statement of the prosecutrix and the manner, in which the same has been appreciated by the learned Trial Court while passing the impugned judgment. The prosecutrix in this case being deaf and dumb has been examined by the learned Trial Court with the assistance of an interpreter. As per the Trial Court record, for recording the statement of the prosecutrix, assistance of an interpreter, namely, Sh. Vijay Kumar Chabbra of All India Federation of Deaf, Panchkuian Road, Delhi has been taken. The interpreter has been administered oath by the learned Trial Court, whereunder he undertook to honestly decode the signals/ signs by the witness. 9. As per the statement of the prosecutrix, as decoded by the interpreter, the prosecutrix is stated to have gone out for easing herself when the accused gagged her mouth and forcibly took her away. She has further stated that the accused tore her clothes and subjected her to rape. She also stated that she was given intoxicating drugs by the accused. However, in her cross-examination, the prosecutrix stated that the accused applied sindoor (vermilion) to her. She further stated that the accused also made her to wear Mangalsutra and further he presented to her two suits. She also admitted that she kissed the accused and took photographs with him in different poses. She further admitted that one of the photographs was taken by her with an old lady, who was staying nearby. In fact, when she was confronted with these photographs, she admitted the genuineness of these photographs. 10. In the statement recorded under Section 342 RPC, the accused has taken a defence that the prosecutrix had accompanied him out of her own will for undertaking Machail Mata Yatra. He has further taken a defence that on her way back, the prosecutrix entered into wedlock with him and that he did not force her into anything. Throughout the cross-examination of the prosecution witnesses, the accused has developed the same defence. In order to probablize his defence, the accused has besides placing on record his photographs with the prosecutrix, which the prosecutrix admitted to be genuine, also produced DWs-Pooja Devi, Sonu Devi, Laxmi Devi and Joginder Sharma as witnesses. 11. Throughout the cross-examination of the prosecution witnesses, the accused has developed the same defence. In order to probablize his defence, the accused has besides placing on record his photographs with the prosecutrix, which the prosecutrix admitted to be genuine, also produced DWs-Pooja Devi, Sonu Devi, Laxmi Devi and Joginder Sharma as witnesses. 11. The prosecutrix in her cross-examination has admitted that she was learning tailoring from DW-Sonu Devi and she has also admitted that she also knows DW-Pooja Devi. DWs- Pooja Devi and Sonu Devi have confirmed that the prosecutrix was working in the Handicraft Center with them. They have further stated that the prosecutrix was in deep love with the accused. In fact, both DWs-Pooja Devi and Sonu Devi have stated that the prosecutrix had engraved the name of the accused on her left arm and narrated to them that she would like to run away with him. In addition to this, we have on record the medical certificate of the prosecutrix-EXTP-9, which has been issued by PW-Dr. Nidhi Mahajan. It is recorded in the said certificate that the prosecutrix had made a writing before the said doctor that she ran away on 20.08.2012 with somebody and got married with him. The doctor in her statement deposed that although no such written statement was given by the prosecutrix, yet she gathered this from her gestures and the dates, which she gave in writing. 12. From the foregoing statement of the prosecutrix, defence witnesses and the statement of the doctor, it becomes clear that the prosecutrix, who was a major person, possessing sound mind at the relevant time, was having an affair with the accused. The defence of the accused that the prosecutrix had accompanied him out of her own will and volition and without any force, gets established from the foregoing evidence. Therefore, the finding of the learned Trial Court that the prosecutrix had eloped with the accused out of her own will and volition and that it was not a case of forcible sexual intercourse, appears to be logical and well founded. 13. The case of the prosecution is further dented by the fact that the medical evidence on record does not support the theory of forcible sexual intercourse. Dr. 13. The case of the prosecution is further dented by the fact that the medical evidence on record does not support the theory of forcible sexual intercourse. Dr. Nidhi Mahajan, the doctor, who conducted the medical examination of the prosecutrix has stated that as per her examination, the prosecutrix had not been subjected to sexual intercourse in the recent past and she explained in her cross-examination that by recent past, she means for more than two weeks. The prosecutrix has been subjected to medical examination on 26.08.2012, i.e., the day on which she was recovered by the police. As per the prosecution case, she was repeatedly subjected to sexual intercourse for seven days. If that would have been the case, then certainly, there would have been not only marks of violence on her body, but also some evidence of sexual intercourse on her person. Nothing of the sort has been found by the doctor, who examined her. Thus, the theory of forcible sexual intercourse upon the prosecutrix is negated by the medical evidence on record. 14. That takes to the argument of learned counsel for the appellant that since the case involved the sexual assault upon a deaf and dumb girl, as such, a more sensitive approach was needed while considering the case at hand. There can be no quarrel with the proposition propounded by Mr. Vishal Bharti, learned Dy. A.G., appearing on behalf of the appellant. However, it does not mean that in all cases, where the alleged victim happens to be deaf and dumb, it is to be presumed that the accused has committed the offence irrespective of the fact whether there is any evidence to support the same. 15. Though in the instant case, the prosecutrix happens to be deaf and dumb, yet there is not even an iota of evidence on record to show that she was not of sound mind. Not even the parents of the prosecutrix have stated that she was not of sound mind. Therefore, the statement of the prosecutrix is to be appreciated and evaluated in the same manner as we would appreciate and evaluate the statement of any other grown up major girl. Her statement has been recorded with the assistance of an expert interpreter regarding which there is no challenge at least from the appellant/prosecution. Therefore, the statement of the prosecutrix is to be appreciated and evaluated in the same manner as we would appreciate and evaluate the statement of any other grown up major girl. Her statement has been recorded with the assistance of an expert interpreter regarding which there is no challenge at least from the appellant/prosecution. As already noted, the statement of the prosecutrix when evaluated in the light of the surrounding circumstances established on record leads us to only one conclusion that she had out of her free will and volition accompanied the accused. Thus, the statement of the prosecutrix has been properly analyzed and appreciated by the learned Trial Court in the light of other material on record, as discussed herein before. Therefore, we do not find any reason to take a view, which is different from the view taken by the learned Trial Court. 16. It is a beaten law that the appellate court interferes with the order of acquittal only under compelling circumstances when the impugned order is found to be perverse. The appellate court has to be bear in mind presumption of innocence of the accused and further that the Trial Court's acquittal bolsters presumption of his innocence. Therefore, interference in a routine manner without any good reason is not permissible. In this backdrop, we do not find any reason muchless a good reason to interfere with the judgment of acquittal recorded by the learned Trial Court. 17. The appeal is, accordingly, dismissed and the impugned judgment dated 30.04.2014 passed by the learned Sessions Judge, Udhampur is upheld.