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2022 DIGILAW 582 (JK)

Union Territory of J&K v. Sandoor Singh

2022-10-19

PUNEET GUPTA, RAJNESH OSWAL

body2022
JUDGMENT 1. This acquittal appeal has been preferred against the judgment dated 17.10.2019 passed by the learned Additional Sessions Judge, Udhampur (hereinafter to be referred as the trial court) in file No. 87/Sessions, titled, State vs Sandoor Singh, whereby the respondent has been acquitted of the charge for commission of offences under sections 450, 376 and 342 RPC. 2. The present appeal has been filed by the appellant-State (Now Union Territory) on the ground that the learned trial court has not appreciated the evidence in its right perspective and as per the statement of prosecutrix, she was raped by the respondent but still the learned trial court acquitted the respondent. 3. Mr. R. S. Jamwal, learned AAG representing appellant has vehemently argued that there is abundant evidence on record that warranted the conviction of the respondent but the learned trial court has not appreciated the evidence in its right perspective and acquitted the respondent. 4. We have perused the record. 5. The brief facts are that the prosecutrix accompanied with her husband lodged a written report on 10.11.2018 at 2.30 PM stating therein that on 05.11.2008 at about 2 PM, she was working in her house and respondent suddenly entered inside her residential house and closed the door. He caught hold of her and she raised alarm but no one heard. Accused broke the string of her Salwar and committed rape upon her twice and thereafter he went away. Her husband had gone to Lakhanpur, Kathua whereas her children had gone to the school. Today her husband returned back to the house and accordingly she disclosed the incident to him. Pursuant to the said application, FIR No. 25/2008 for the commission of offences under sections 376 and 342 RPC was registered and during the course of investigation, Investigating Officer prepared the site plan and got the prosecutrix medically examined and also seized her clothes. Statements of the witnesses were recorded and medical report was also obtained. After conclusion of the investigation, charge sheet for commission of offences under sections 376, 342 and 450 RPC was filed before the learned trial court and thereafter the same was committed to the court of Sessions and thereafter, the case was transferred to the learned trial court. 6. The prosecution has examined as many as 7 witnesses. Before examining the contention of Mr. 6. The prosecution has examined as many as 7 witnesses. Before examining the contention of Mr. R. S. Jamwal, learned AAG, we deem it proper to observe that in an appeal against the acquittal, the only exercise that is to be undertaken by the appellate court is to find out as to whether the opinion formed by the learned trial court while acquitting the respondent is plausible/possible one and if it is so, then no interference is warranted. Taking this principle into mind, we will examine the contentions raised by Mr. R. S. Jamwal. 7. PW-1 (Prosecutrix) stated that one and half years ago, she was working inside her cattle room. Accused entered inside her house and closed the door. He gagged her mouth with a cloth and she fell down on the ground. He caught hold of her from the breast and committed forcible rape upon her for two minutes. At that time she was all alone at the house, as her children had gone to the school and the time was 2 PM. After that she asked her son to make a telephonic call to her husband as he was working at Lakhanpur. Her husband returned back after 5/6 days and thereafter, lodged a report. Police got her medically examined and visited her house. Police seized her Salwar and underwear. Seizure memo was prepared and she proved the seizure memo. 8. During cross examination, she stated that the father of the accused is her neighbour. Accused was born after her marriage. She has three children. Her elder daughter was married. At the time of occurrence, she was cleaning the cow dung. First of all accused caught hold of her from the hair and dragged her. She sustained injuries on her back and her shirt was torn. She did not raise alarm when accused dragged her. However, she was weeping. Accused committed rape upon her for two minutes and then ran away. She sustained injuries on her legs, belly and arms. She telephonically informed her husband at about 2/3 PM, who replied that he cannot return home rather will come after 5/6 days. She lodged a verbal report with the Police. After that, Police recorded it and her thumb impression was also taken. They went to the Police Station for lodging a report on the next day when her husband returned home. 9. PW-2 Mohd. She lodged a verbal report with the Police. After that, Police recorded it and her thumb impression was also taken. They went to the Police Station for lodging a report on the next day when her husband returned home. 9. PW-2 Mohd. Rafi stated that on 05.11.2009 at 2/2.30 PM while he was returning to his house from Jammu and taking rest in his house, accused came out running from the cattle room. He went to that place and found her sister-in-law weeping. On his asking, she told him that accused had torn her clothes and committed rape upon her. He made search of the accused but he remained untraced. Thereafter, he along with her sister-in-law telephonically informed her husband. He returned to the house after 4/5 days and lodged the report. During cross examination, he stated that he resides separately from Sadiq, however, their houses are adjacent. On the day of occurrence, her children and wife were not at home. He did not go to the Police Station to lodge the report. The land of Sadiq and accused is adjacent. However, there is no land dispute between them. It was wrong that Sadiq and father of the accused had a land dispute and made a false case against the accused person. 10. PW-3 Sadiq Ali (husband of the victim) stated that on 05.11.2008 he was on his duty at Lakhanpur. He got telephonic call from his wife that when the children had gone to the school, the accused came in the house and attacked her. She raised alarm but accused gagged her mouth with cloth. It all happened in the cattle room of the house when she was cleaning the cow dung. He came back to the house on 8th of November and went to the Police Station on 09.11.2008 for lodging the report. He further stated that the accused had committed rape upon his wife. In cross examination, he stated that he received a telephonic call on 05.11.2008 at 2/2.30 PM and at that time, his wife told him that the accused attacked upon her. On 08.11.2008 when he came to the house, she stated that accused had raped her. His wife had sustained injuries. She had bluish marks on her body. 11. PW-4 Romal Singh did not support the prosecution case. 12. PW-5 Hans Raj is the witness to the seizure of the clothes (Ext.P-1). 13. On 08.11.2008 when he came to the house, she stated that accused had raped her. His wife had sustained injuries. She had bluish marks on her body. 11. PW-4 Romal Singh did not support the prosecution case. 12. PW-5 Hans Raj is the witness to the seizure of the clothes (Ext.P-1). 13. PW-6 Dr. Koushal Gupta (Retd. Gynaecologist) stated that in November, 2008, she was posted as Gynaecologist in District Hospital, Udhampur. On 11.11.2008, she examined the prosecutrix with alleged history of rape twice, five days back. Upon examination, no mark of injury was found on her. Hymen showed old tears and admitted two fingers easily. Slides made from posterior fornix were sent for microscopic examination. The microscopic examination of the slides shows dead spermatoazoa. In her opinion, the patient was habitual of sexual intercourse and duration of intercourse is more than 24 hours and less than seven days. She issued the certificate in this regard. She proved the certificate (Ext.P-6). During cross examination, she stated that there were no superficial injuries on the body of the injured. In the case of forcible sexual assault, possibility of marks of struggle are there on the body of the victim. 14. From the record, it is evident that there is delay in lodging the FIR as the date of occurrence has been mentioned as 05.11.2008 and the FIR was lodged on 10.11.2008 at 2.30 PM. Though, on the issue of delay, the prosecution case cannot be rejected. However, the delay is required to be explained. The prosecutrix has stated that she had informed her husband telephonically. She asked her son to make telephonic call to her husband as he was working at Lakhanpur. However, the husband of the prosecutrix PW3 Sadiq Ali has categorically stated that on 05.11.2008 the prosecutrix had called and simply told him that the accused had attacked her and at that point of time, no complaint for commission of rape against the respondent has been made by the prosecutrix. No doubt the conviction can be recorded on the basis of solitary statement of the prosecutrix but for that, her statement should be of a sterling quality. More so, in her written application, she had mentioned that she made hue and cry but no one came, whereas in her statement before the trial court, she stated that she did not raise alarm when accused dragged her. More so, in her written application, she had mentioned that she made hue and cry but no one came, whereas in her statement before the trial court, she stated that she did not raise alarm when accused dragged her. We have found that the statement of the husband of the prosecutrix is contradicting the version of the prosecutrix with regard to the information provided to the husband regarding rape committed on her by the respondent. So far as medical evidence is concerned, Dr. Kaushal Gupta has specifically stated that on examination of the prosecutrix, no injury was found on the body of the prosecutrix but the prosecutrix has specifically stated that her mouth was gagged and she sustained injuries on her legs, belly and arms. The medical evidence is also not supporting the version of the prosecutrix regarding injuries claimed to be have been sustained by her at the hands of the respondent. Last but not the least, even PW-2 Mohd Rafi who happens to be the brother-in-law of the prosecutrix did not lodge any report with regard to the commission of offence of rape against the respondent, particularly when on the same day of occurrence, the prosecutrix had disclosed to him the commission of offence. 15. In view of above infirmities, it cannot be said that the prosecution has proved its case beyond reasonable doubt. 16. We have gone through the judgment passed by the learned trial court and it is not that the opinion formed by the learned trial court while acquitting the respondent is contrary to the evidence brought on record by the prosecution. Learned trial court has rightly appreciated the evidence. 17. Viewed thus, there is no merit in the instant appeal, as such, the same is dismissed.