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2021 DIGILAW 634 (JK)

State of J&K v. Faiz Ali

2021-12-02

SANJEEV KUMAR

body2021
JUDGMENT : 1. This appeal by the State is directed against the judgment of acquittal dated 24th January, 2013 recorded by the Court of learned Sessions Judge, Samba [“the Trial Court”] in file No. 97-A/Session entitled State v. Faiz Ali, whereby the Trial Court has acquitted the respondent of the charge under Section 376 RPC. 2. As prosecution story goes, the prosecutrix on 8th June, 2009 was grazing her cattle in a jungle where she was called upon by the respondent to help him in finding out his goat. When the prosecutrix reached near him he caught hold of her and forcibly took her to jungle and raped her there. After committing crime, the respondent threatened her that he would murder her in case she discloses the incident to anybody. It was the complaint of the prosecutrix that she came home but did not disclose the incident to anybody because of the fear of the respondent. It was only on 30th June, 2009, she narrated the whole incident to her mother, who, in turn, narrated the same to her father, who came home on the said day. On the basis of the written complaint filed on 2nd July, 2009, FIR No. 56/2009 for commission of offence under Section 376 RPC was registered against the respondent and investigation set in motion. After investigation, offence under Section 376 RPC was found established by the police and Final Police Report in this regard was laid before the Court of Additional Munsiff, JMIC, Samba, who committed the case to the trial Court for judicial determination. 3. The trial Court framed charges against the respondent for commission of offence under Section 376 RPC on 20.09.2010 and put the respondent to trial. The respondent, however, pleaded not guilty and claimed to be tried. With a view to prove its case, the prosecution examined prosecutrix, PW-2 Ravi Bhagat, PW-3 Mohd. Latief, PW-4 Sharifa Bibi, PW-5 Mohd. Hamid, PW-6 Dr. Rashmi Sharma and PW-7 Dr. K.S. Chauhan. Incriminating circumstances and evidence appearing against the respondent were put to him and his statement under Section 342 Cr.P.C. was recorded. The respondent, however, led no evidence in defence. 4. Latief, PW-4 Sharifa Bibi, PW-5 Mohd. Hamid, PW-6 Dr. Rashmi Sharma and PW-7 Dr. K.S. Chauhan. Incriminating circumstances and evidence appearing against the respondent were put to him and his statement under Section 342 Cr.P.C. was recorded. The respondent, however, led no evidence in defence. 4. The trial Court, after considering the evidence on record and after hearing the Public Prosecutor and learned counsel for the defence, came to the conclusion that the prosecution has failed to prove case against the respondent beyond any reasonable doubt and, therefore, giving benefit of doubt to the respondent, acquitted him of the charge framed against him vide judgment dated 24th January, 2013. It is this judgment of the trial Court, which is impugned in this appeal by the State. 5. The impugned judgment of acquittal has been assailed by the State primarily on the ground that the trial Court has failed to appreciate the law and the evidence on record in its true perspective and has erred in giving benefit of doubt to the respondent. It is contended that the prosecutrix as well as other prosecution witnesses have fairly explained the delay in lodging the FIR and, therefore, the Trial Court should have accepted their version and convicted the respondent accordingly. It is also argued by the learned counsel appearing for the appellant that the conviction in the cases of sexual assault can be based on the solitary evidence of the prosecutrix and no further corroboration is required in law. It is, thus, argued that the statement of the prosecutrix inspires confidence and is sufficient enough to convict the respondent. 6. Per contra, learned counsel appearing for the respondent submits that though it is true that the conviction in rape case can be based on the solitary evidence of the prosecutrix, yet the Court has to be sure and satisfied that the statement of the prosecutrix inspires confidence and is free from any doubt or ambiguities. It is urged that having regard to the contradictory statements of the prosecution witnesses on record, it was not fair to convict the respondent and this is what exactly has been done by the trial Court. 7. It is urged that having regard to the contradictory statements of the prosecution witnesses on record, it was not fair to convict the respondent and this is what exactly has been done by the trial Court. 7. Having heard learned counsel for the parties and perused the record, I am of the firm opinion that the view taken by the trial Court in the matter was the only plausible view that could have been taken in light of the evidence on record. 8. The trial Court has found that there was unexplained delay in lodging the FIR and that different versions have emerged from the statement of the prosecutrix, her mother and brother and, therefore, it is not fair to base conviction on the solitary statement of the prosecutrix, more so, when there is no ocular evidence to the occurrence. 9. I have gone through the impugned judgment minutely and the statement of the prosecution witnesses. The prosecutrix in her statement has supported the version given in the FIR but in her cross-examination she has stated that she narrated the incident to her mother after two days because she was in fear of threat of the accused. If that statement of the prosecutrix is to be believed on its face value, it remains to be explained as to why the mother waited for lodging of the FIR till 2nd July, 2009. As per the statement of the prosecutrix, FIR was lodged when her father came back and her mother narrated the incident to him. There is nothing on record to show whether the father was out of station and returned home only on 30th June, 2009 and if it was so, why he took further two days to go to the Police Station when the Police Station was not at a far off distance. 10. As noted above, there is no convincing evidence nor does medical evidence support the commission of offence of rape. There are no marks of injury observed by the doctor nor was there any fresh evidence of rape upon the prosecutrix. Otherwise also, prosecutrix was examined after the FIR was lodged i.e. after almost one month of the occurrence and therefore, there was hardly any evidence of the alleged offence left to be taken note of by the doctor. Statement of PW-6 Dr. Otherwise also, prosecutrix was examined after the FIR was lodged i.e. after almost one month of the occurrence and therefore, there was hardly any evidence of the alleged offence left to be taken note of by the doctor. Statement of PW-6 Dr. Rashmi Sharma is that the prosecutrix was habitual of sexual intercourse and, therefore, of no avail for the determination of guilt of the respondent. 11. I am at one with the trial Court that the prosecution has miserably failed to connect the respondent with the commission of alleged offence and that the evidence on record is not sufficient to come to the conclusion that the charge against the respondent has been proved beyond any reasonable doubt. 12. For all these reasons, I do not find it a fit case for interference with the acquittal appeal, more so, when the role of the Appellate Court hearing acquittal appeal is well circumscribed. It is trite law that when, on the basis of evidence on record, two views are possible, the view that favours the accused is to be adopted. 13. In the result, I find no merit in this appeal, the same is accordingly, dismissed.