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2021 DIGILAW 327 (JK)

State of Jammu and Kashmir v. Kaka Ram

2021-07-14

VINOD CHATTERJI KOUL

body2021
Judgment 1. This appeal has been filed against the judgement dated 28.04.2010, passed by Learned Additional Sessions Judge, Udhampur, (for short “Trial Court”), whereby while acquitting the accused of the charges, the Trial Court has dismissed the challan in which the accused was facing trial for having committed offence punishable under Section 376 RPC. 2. The aforesaid order of acquittal has been challenged by the appellant precisely on the ground that Trial Court has not properly appreciated the evidence produced by the prosecution, inasmuch as there was sufficient evidence in the shape of statement of the victim and that of her mother, which proved the charge against the accused. 3. Heard and considered. 4. The prosecution story, as is coming forth from perusal of the file, is that on 05.12.2005, Smt. Suran Devi, who is the mother of the victim, made a written complaint at police station Rehmbal, in which she alleged that on 04.10.2005 when the victim had gone to school and when she was on her way back, respondent-accused waylaid her and committed forcibly sexual intercourse with her against her wishes and due to act of sexual intercourse of accused, the victim became pregnant which she got terminated after consulting a lady doctor at Udhampur. 5. As per the report, the occurrence which took place on 04.10.2005 was reported to the Police on 05.10.2005 which resulted in registration of FIR No.106/2005 and after completion of investigation by the police, challan was presented against the accused for having committed offence punishable under Section 376 RPC. 6. During the course of investigation, the victim was got medically examined by the doctor and her statement was also recorded by the police before the Magistrate on 25.03.2006 under Section 164 Cr. PC. The report of the doctor who examined the victim was obtained vide EXPW-KG1. 7. The accused was charged for commission of offence punishable under Section 376 RPCon 01.06.2006, to which he pleaded not guilty and claimed to be tried. The prosecution produced complainant –Mst. Soran Devi, mother of the victim, victim – Suman Devi, Payare Lal Goswami, Principal, Dr. Makhan Lal, Dr. Kushal Gupta and I.O - Rajinder Kumar, while as PW Bodh Raj listed as PW - 3 was given up and other witnesses were not produced. 8. The prosecution produced complainant –Mst. Soran Devi, mother of the victim, victim – Suman Devi, Payare Lal Goswami, Principal, Dr. Makhan Lal, Dr. Kushal Gupta and I.O - Rajinder Kumar, while as PW Bodh Raj listed as PW - 3 was given up and other witnesses were not produced. 8. PW 1, Soran Devi, mother of the victim, stated that she knew the accused after the occurrence and that her daughter told her about the incident after one month of occurrence. She took her to doctor who told her that her daughter was pregnant. She got her aborted and expenses for the abortion were borne by her. She thereafter made a written report vide EXPW SD-1 that the victim did not appear in the examination due to humiliation. On her examination, she stated that she got her daughter aborted in a clinic and informed the father of the accused about the incident. The accused threatening her of dire consequences, if she gets married to any other person. She informed the father of the accused about the expenses incurred but he did not pay instead threatened her and the victim was detained in the same class for three to four times. 9. PW 2, the alleged victim, stated that she was a student of Badola School and on 04.10.2005 at 1:30 PM, when she was returning back from Kambal Banga to Sanadi, accused came from bushes, gagged her mouth, and took her down from the road about 50/60 feet. He tossed her on the ground, opened her shalwar (Trousers), she cried for help but no one came to her help. He inserted his penis in her vagina and had intercourse with her for 2/3 minutes. Accused warned her not to disclose the incident before anybody. The victim did not disclose till she was taken to doctor for examination by her mother as her menstruation period stopped as she had conceived pregnancy. Doctor gave medicines and got side of the pregnancy. Thereafter, police took her to doctor for examination, got her statement recorded before Magistrate concerned and she admitted her signature over FIR EXPWSD. On her cross-examination, she stated that she had failed three/four time in her examination and at the time of occurrence her age was fifteen year and was student of class 6th, but the accused was not the student of her school. On her cross-examination, she stated that she had failed three/four time in her examination and at the time of occurrence her age was fifteen year and was student of class 6th, but the accused was not the student of her school. He had met her three to four times but did not have any illegal relation with her. He was expressing his desire for marriage but she did not respond to his proposal. The accused used to harass her since 1 ½ years and wanted to marry her but she did not tell the same to her family. The accused hold her hand but did not tore her clothes. The Doctor had examined her and stated that her menstruation period started three/four days prior to the occurrence. It is incorrect that prior to occurrence accused had three/four times committed sex with her. 10. Prosecution has also produced PW Dr. Kushal Gupta Gynaecologist, PW Dr. Makhan Lal, Physician Specialist and PW Payara Lal Goswami, who is the Principal of New Modern School Badhola where the victim was studying and according to his statement, as per school record, her date of birth was 23.06.1990. 11. PW Dr. Makhan Lal, Physician Specialist, has stated that he examined the accused. In his cross examination, he stated that he did not find any injury marks on the penis of accused. 12. PW Dr. Kushal Gupta, Gynaecologist, has stated that after examining the prosecutrix, she gave her opinion and on the basis of pathology report there was nothing suggestive of sexual intercourse. Opinion was also sought by him from the police with regard to two facts: 1. Whether the victim has undergone abortion and 2. In case she had given abortion then approximate date of abortion to this occurrence doctor has given his opinion vide EX PW KG1. “Keeping in view the MLC report of Miss Suman Devi who was examined by me on 5/12/05 at 3.45 PM through police, the girl was examined in detail. On gynaecological examination as there was no evidence of sexual intercourse and also no procedure findings regarding abortion found. Sd/- Dr. Kushal Gupta (16.11.2007)” 13. During the course of investigation, Police has also recorded statement of victim under Section 164 Cr.PC before the Magistrate, where she stated about the incident in question and that she had informed her mother after 03/04 days of occurrence. 14. Sd/- Dr. Kushal Gupta (16.11.2007)” 13. During the course of investigation, Police has also recorded statement of victim under Section 164 Cr.PC before the Magistrate, where she stated about the incident in question and that she had informed her mother after 03/04 days of occurrence. 14. I have considered the arguments and have also gone through the record. I am of the opinion that there is nothing wrong in the judgment passed by the Trial court whereby respondent-accused has been acquitted. The reasons for recording such opinion is that the occurrence in question took place on 4.10.2005 at 2 PM when the victim was on her way to her house and the report regarding the incident was reported before the police on 05.12.2005 by making a written complaint. In the written complaint, the complainant, mother of the victim, stated that she was informed by her daughter about the incident in question after a period of one month and as she found her daughter to be pregnant, she was taken to the doctor at Udhampur and advice of the doctor was to terminate the pregnancy of the victim. 15. After registration of FIR, police recorded the statement of complainant and also got statement of the victim recorded under Section 164 Cr.P.C. In the statement recorded under Section 164 Cr.P.C, the victim had stated that she informed her mother about the incident after 03/04 days, whereas the complainant says that she was informed by her daughter, victim, after a period of one-month where after the victim was examined and pregnancy terminated. The FIR shows that the report about the incident was not made immediately after the alleged incident even when it was claimed by the complainant that she was informed about the incident after one month. The report has been made by the police after about two months i.e., on 05.12.2005. No explanation has been given for such a delay in registering the FIR. The statement and allegations made by the complainant and victim that the victim due to alleged sexual intercourse became pregnant and her pregnancy was terminated is not supported by the medical evidence. The medical evidence ruled out that the sexual intercourse has been committed. Regarding pregnancy and termination of pregnancy, opinion of the doctors vide EXPW KG and EXPW KGI and statement of Dr. The medical evidence ruled out that the sexual intercourse has been committed. Regarding pregnancy and termination of pregnancy, opinion of the doctors vide EXPW KG and EXPW KGI and statement of Dr. Koushal Gupta, Gynaecologist, established that there is nothing suggestive of the sexual intercourse and there was no evidence of sexual intercourse. Same is true about the alleged pregnancy and abortion. The statement of doctors does not support the prosecution story. The statement of victim also falsifies the statement of the complainant. Trial Court, after properly appreciating the evidence, has acquitted accused. 16. In view of above, it is held that there is no illegality in the order passed by the Trial Court, as such, while upholding the order of acquittal passed by the Trial Court, this appeal is dismissed. Bail bonds and personal bonds shall stand discharged. Trial Court record, if summoned/received, be sent down along with copy of this judgement.