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2021 DIGILAW 423 (JK)

Safina Kouser v. State

2021-08-18

SANJEEV KUMAR

body2021
JUDGMENT : 1) The petitioner, a victim of rape, has invoked the revisional jurisdiction of this Court to challenge the judgment and order of acquittal dated 23.04.2015 passed by the Court of learned Principal Sessions Judge, Rajouri [“the trial Court”] in file No.55/challan titled State of J&K v. Muzzafar Hussain. 2) With a view to appreciate the challenge of the petitioner to the impugned judgment of acquittal it is necessary to briefly notice material facts. As per prosecution, a complaint written in Urdu was presented by Mohd. Nasir, the father of the petitioner, before Judicial Magistrate 1st Class, Thannamandi on 16.10.2008, which was forwarded by the learned Magistrate under Section 156(3) Cr.P.C. to the Incharge Police Station, Thannamandi. It was stated in the complaint that the daughter of the complainant, aged 17 years old, was enticed by respondent No.2. He took her in confidence and committed rape on her. Respondent No.2 also threatened her of dire consequences, if she discloses it to anybody. When his daughter became pregnant, the complainant came to know the facts. The matter was taken to panchayat, where respondent No.2 as also his parents were called. Respondent No.2 admitted his guilt and undertook to keep complainant’s daughter with him and to bear all her expenses of maintenance. Respondent No.2, however, later on backed out of his commitment. It was alleged that respondent No.2 was a professional criminal and womanizer and had already married when he enticed the daughter of the complainant. On the basis of this complaint forwarded by the learned Magistrate, police registered FIR No. 125/2008 under Section 376 RPC against respondent No.2 and ASI Mohd. Qayoom was entrusted the investigation. Investigation in the matter was conducted by the Investigating Officer and, accordingly, challan was presented before the trial court against respondent No.2 for offence under Section 376 RPC. With a view to substantiate challan and the charge against respondent No.2, prosecution recorded statements of PW-Mohd. Nasir, the father of the prosecutrix, prosecutrix, PW Mohd. Latief, the uncle of the prosecutrix, PW Ulfat Begum, the mother of the prosecutrix, PW Karmat Ullah, the uncle of respondent No.2, PW Mohd. Makaraf, brother of the prosecutrix, PW Mushtaq Ahmed Shah, PW Mohd. Younis, PW Mohd. Ibrahim, PW-Dr. Neeraj Gupta. Nasir, the father of the prosecutrix, prosecutrix, PW Mohd. Latief, the uncle of the prosecutrix, PW Ulfat Begum, the mother of the prosecutrix, PW Karmat Ullah, the uncle of respondent No.2, PW Mohd. Makaraf, brother of the prosecutrix, PW Mushtaq Ahmed Shah, PW Mohd. Younis, PW Mohd. Ibrahim, PW-Dr. Neeraj Gupta. On the conclusion of the prosecution evidence, statement of respondent No.2 was recorded in terms of Section 342 Cr.P.C. He denied all charges but chose not to lead any defence evidence. 3) The trial court, after considering the material on record including the evidence led by the prosecution, came to the conclusion that the statement of the victim did not inspire confidence of the Court nor the same had been corroborated by any independent evidence. The trial court also relied upon the report of the expert regarding paternity of the child that was given birth to by the prosecutrix to disbelieve the prosecutrix and, thus, acquitted respondent No.2 of the charge of rape. 4) The State is not aggrieved and has not challenged the judgment impugned by way of acquittal appeal. The prosecutrix, however, is not satisfied with the judgment of acquittal recorded by the trial court and is before this Court in this criminal revision petition. 5) Mr. Sunil Sethi, learned Senior Counsel, representing the petitioner, being well aware of the scope of interference by this Court with the judgment of acquittal in the revisional jurisdiction restricted his arguments only to the question as to whether the DNA report which was brought on record after the conclusion of the prosecution evidence could have been relied upon by the trial court without putting the same to the prosecutrix and without affording her an opportunity to assail its veracity or authenticity. 6) It is vehemently argued by Mr. Sethi that neither DNA report placed on record was proved by examining the author thereof nor the prosecutrix or the prosecution was given any opportunity to cross examine the author of the report. It is the further argument of Mr. Sethi that the judgment of acquittal has been passed by the trial court being influenced by the DNA report and not on the basis of insufficiency of evidence. It is the further argument of Mr. Sethi that the judgment of acquittal has been passed by the trial court being influenced by the DNA report and not on the basis of insufficiency of evidence. 7) Having heard learned counsel for the parties and perused the record, I am of the view that even if the DNA report which was brought on record by respondent No.2 without leading any evidence in defence is ignored, prosecution evidence on record is not sufficient to prove the charge of rape against respondent No.2 beyond reasonable doubt. As correctly observed by the trial court that FIR in the instant case was lodged on 17.10.2008 while the statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 12.12.2008 i.e. after about two months and in the absence of statement of the Investigating Officer, the delay so caused has remained unexplained and, therefore, puts a dent on the prosecution case. That apart, the medical certificate issued by PW-Dr. Manisha was also not proved as the said witness for the unexplained reasons was not examined by the prosecution. It is, thus, not correct to say that acquittal of respondent No.2 has resulted only because of DNA report, which apart from other material was also relied upon by the trial court to arrive at the conclusion with regard to the acquittal of respondent No.2. 8) This Court while hearing a revision petition cannot sit in appeal over the judgment of acquittal and re-appreciate the evidence on record. Considering Section 439 of the Code of Criminal Procedure pertaining to revisional jurisdiction, the Supreme Court in D. Stephens v. Nosibolla, AIR 1951 SC 196 held that revisional jurisdiction under Section 439 of the Code of Criminal Procedure ought not to be exercised lightly particularly when it is invoked by a private complainant against the order of acquittal which could have been appealed against by the government under Section 417 Cr.P.C. It could be exercised only in exceptional cases where interests of public justice require interference for the correction of manifest illegality or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the trial court has taken a wrong view of law or mis-appreciated the evidence on record. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the trial court has taken a wrong view of law or mis-appreciated the evidence on record. In the case of Duli Chand v. Delhi Administration, (1975)4 SCC 649 , the Apex Court reminded that jurisdiction of High Court in criminal revision is severally restricted and it cannot embark upon re-appreciation of evidence. 9) Keeping in view the circumscribed jurisdiction of this Court while exercising revisional powers, I do not find it a fit case to interfere with the judgment of acquittal recorded by the trial court, more so, when the State has not filed any appeal under Section 417 Cr.P.C. The view taken by the trial court in the face of evidence on record is possible view and, therefore, even if this Court on evaluation of evidence, which course is though, not permissible, comes to a different view, it would take the view that goes in favour of the accused. 10) For all these reasons, I find no merit in this revision, the same is, accordingly, dismissed along with connected applications. Record be sent back to the trial court.