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2022 DIGILAW 99 (JK)

Shabir Ahmad Malik v. State of J&K

2022-03-09

SANJAY DHAR

body2022
JUDGMENT : SANJAY DHAR, J. 1. Appellant has challenged judgment dated 31.08.2021 passed by learned Additional Sessions Judge/P.O. Fast Track Court, Kulgam, whereby he has been convicted for offences under Sections 366 and 376 RPC. Challenge has also been thrown to order dated 06.09.2021 passed by the learned trial court whereby appellants has been sentenced to undergo ten years rigorous imprisonment and a fine of Rs. 5000/- for commission of offence under Section 376 RPC and a rigorous imprisonment of five years and a fine of Rs. 3000/- for commission of offence under Section 366 RPC. Both the sentences have been directed to run concurrently. 2. The appellant has challenged the impugned judgment of conviction and order of sentence on the grounds that the same are illegal and contrary to law, that the evidence has not been appreciated by the learned trial court in its right perspective and that there are inherent contradictions in the prosecution case which have been overlooked by the trial court. 3. Before coming to the grounds of appeal, it would be apt to give a brief background of the facts leading to filing of this appeal. 4. On 22.01.2017, father of the prosecutrix lodged a written report with Police Station, D.H. Pora, stating therein that his daughter had gone to the house of her maternal uncle a few days back but after leaving for her home from her maternal uncle's house, she did not reach home. It was further alleged in the report that appellant/accused may have kidnapped the prosecutrix. The police registered FIR No. 02 of 2017 for offences under Sections 342, 363 RPC and started investigation of the case. During investigation of the case, the prosecutrix was recovered from the custody of the appellant/accused on 22.01.2017 and she was subjected to medical examination. It was found that the prosecutrix is more than 18 years of age. Her statement under Section 164-A of J&K Cr.P.C. was recorded before the Magistrate and after investigation of the case, offences under Sections 366 and 376 RPC were found established against the appellant/accused. Accordingly, charge sheet was laid before the trial court. 5. On 08.03.2017, learned trial court framed charge for offences under Sections 366, 376 RPC against the accused who denied the same and claimed to be tried. The prosecution was, accordingly, directed to lead evidence in support of its case. Accordingly, charge sheet was laid before the trial court. 5. On 08.03.2017, learned trial court framed charge for offences under Sections 366, 376 RPC against the accused who denied the same and claimed to be tried. The prosecution was, accordingly, directed to lead evidence in support of its case. Prosecution examined all the eleven witnesses cited in the challan. After completion of prosecution evidence, statement of the appellant/accused under Section 342 of Jammu and Kashmir Cr.P.C. was recorded in which he termed the case of the prosecution as false. No evidence in defence was led by the appellant/accused and, as such, the case was set down for final hearing. The learned trial court, after hearing the parties, vide the impugned judgment came to the conclusion that the statements of prosecution witnesses, particularly that of the prosecutrix, are reliable and that no corroboration is required for placing reliance upon the testimony of the prosecutrix. On the basis of these observations, the learned trial court came to be conclusion that the evidence on record unerringly point towards the guilt of appellant/accused. It is this judgment of conviction and the order of sentence passed pursuant thereto which are under challenge in this appeal. 6. I have heard learned counsel for the parties and perused the grounds of appeal, the impugned judgment and the evidence led before the trial court. 7. The charge against the appellant/accused is that he abducted the prosecutrix and thereafter committed forcible sexual assault on her. The most material and important witness in a case relating to a sexual assault is the prosecutrix. In such cases, the Court has to rely heavily on the statement of the victim of sexual assault and there is no rule of law that there has to be corroboration to her testimony before placing reliance upon her statement. It is a settled position of law that conviction for rape can be founded on the sole testimony of the prosecutrix and her statement is more reliable than the statement of an injured witness. However, before placing reliance upon the statement of a prosecutrix, its evidentiary value and quality has to be assessed and tested on the touchstone of cross-examination. 8. Now in the backdrop of the aforesaid legal position as regards the principles pertaining to appreciation of statement of a victim of rape, let us now proceed to analyze the statement of the prosecutrix. 8. Now in the backdrop of the aforesaid legal position as regards the principles pertaining to appreciation of statement of a victim of rape, let us now proceed to analyze the statement of the prosecutrix. It has to be borne in mind that even as per prosecution case, the prosecutrix was aged more than 18 years, which means that she had attained the age of ‘consent’ as contemplated in Section 375 RPC. 9. The prosecutrix has, in her examination-in-chief, deposed that on 16.05.2017, she proceeded to the house of her maternal uncle where she conversed with appellant/accused on telephone. The appellant/accused promised to pay Rs. 10,000/- to her and, accordingly, she went to meet the appellant/accused, who asked her to board a TATA Sumo vehicle. She was offered oranges and sweets by the appellant/accused whereafter he took her to some unknown place in a lake of water. The two spent time in the boat over there. She wanted to leave the place but she was forcibly raped during night by appellant/accused. On next night also, she was again raped by the appellant/accused. On the third day, she along with appellant/accused boarded a vehicle and proceeded towards Kulgam. When they got down from the vehicle near auto stand, Kulgam, she saw her father along with police over there. Her statement under Section 164-A Cr.P.C. was recorded and she was subjected to medical examination. 10. The witness in her cross-examination has stated that she knew appellant/accused for last one year and she used to talk to him on phone. She further stated that there were a number of passengers in the TATA Sumo vehicle which she had boarded along appellant/accused at Village Bohu. After reaching Kulgam, appellant and prosecutrix boarded another TATA Sumo vehicle and reached Anantnag. The prosecutrix went on to state that she slept with appellant/accused for two nights under a single blanket. She further stated that when she fled away along with appellant/accused, she did not take any clothes or money with her. She admitted that she did not receive any injuries during the sexual intercourse which was committed upon her by the appellant/accused nor the clothes were torn. The prosecutrix went on to state that there were other passengers in the TATA Sumo vehicle when she travelled to Srinagar. According to the prosecutrix, they spent two nights in a houseboat. She admitted that she did not receive any injuries during the sexual intercourse which was committed upon her by the appellant/accused nor the clothes were torn. The prosecutrix went on to state that there were other passengers in the TATA Sumo vehicle when she travelled to Srinagar. According to the prosecutrix, they spent two nights in a houseboat. She further stated that she did not tell other passengers anywhere during her journey that appellant/accused has caused harm to her. 11. From the foregoing statement of the prosecutrix, who, admittedly, was more than 18 years of age at the relevant time, it can be safely inferred that she had accompanied the appellant/accused out of her own free will and volition. The circumstances that she boarded public service vehicles full of other passengers and travelled from the village of her maternal home to Kulgam and thereafter from Kulgam to Anantnag and from Anantnag to Srinagar with appellant/accused but still did not tell anybody that appellant/accused has kidnapped her, clearly shows that she willingly accompanied the appellant/accused. The prosecutrix did not narrate the incident of sexual intercourse which she had with appellant/accused to any passenger on her way back from Srinagar to Kulgam. She did not receive any injuries during the sexual intercourse nor her clothes were torn. Her medical examination did not reveal any marks of injury nor has she claimed that she put up any resistance to the act of sexual intercourse. The sequence of events, as have been narrated by the prosecutrix in her statement, unerringly point towards the fact that she had accompanied the appellant/accused out of her own free will and volition and had enjoyed sexual intercourse with her own consent. 12. The learned trial court, while appreciating and analyzing statement of the prosecutrix, has completely missed the aforesaid sequence of events narrated by the prosecutrix herself. The appreciation of evidence, particularly the appreciation of statement of the prosecutrix, has not been undertaken by the learned trial court in its correct perspective. The statement of a witness is required to be analyzed on the touchstone of common sense and reasonableness having regard to for normal human conduct and course of events. The appreciation of evidence, particularly the appreciation of statement of the prosecutrix, has not been undertaken by the learned trial court in its correct perspective. The statement of a witness is required to be analyzed on the touchstone of common sense and reasonableness having regard to for normal human conduct and course of events. The trial court has failed to appreciate the statement of the prosecutrix in the aforestated manner, as a result of which it has failed to take into consideration the sequence of events that have been brought to fore by the prosecutrix during her crossexamination. A trial court while appreciating statement of a witness, has not only to take into consideration what the witness has stated in examination-in-chief but it has also to test the veracity of the statement on the touchstone of cross-examination, which in the present case has not been done by learned trial court. The statement of the prosecutrix in her examination-in-chief that she was forcibly raped by appellant/accused a number of times becomes absolutely unreliable in the light what she has stated in her cross-examination which clearly goes on to show that she had accompanied appellant/accused out of her own free will and she had sexual intercourse with her free consent. The learned trial court has relied upon the statement of the prosecutrix made by her in her examination-in-chief while ignoring what she had divulged in her cross-examination. 13. Apart from the above, the remaining evidence led by the prosecution lends credence to the inference that the prosecutrix had accompanied the appellant/accused out of her own will. It has come in the evidence on record that the prosecutrix and the appellant/accused were caught by police while they got down from the vehicle in Kulgam. It is not a case where the police raided the premises of appellant/accused and recovered the prosecutrix from his custody. It has also come in the statement of PW Ghulam Mohammad Ganie, who happens to be the grandfather of the prosecutrix, that when police recovered the prosecutrix, she refused to go with her father. The witness has further admitted the suggestion that the prosecutrix eloped with the appellant/accused. He further stated that there were relations between the prosecutrix and the appellant/accused. The witness has further admitted the suggestion that the prosecutrix eloped with the appellant/accused. He further stated that there were relations between the prosecutrix and the appellant/accused. These circumstances clearly go on to show that it is not a case of abduction and rape but it is a case of elopement of the prosecutrix with appellant/accused out of her own will and volition, which the learned trial court has failed to discern despite there being enough evidence on record to this effect. 14. For what has been discussed hereinbefore, it is clear that the learned trial court, while passing the impugned judgment, has not appreciated the evidence on record in its proper perspective which has led it to perverse conclusions. The impugned judgment passed by the learned trial court is, therefore, not sustainable in law. The appeal is, accordingly, allowed and the impugned judgment of conviction and the order of sentence are set aside. The appellant/accused is directed to be set at liberty forthwith. 15. Copy of this order be sent to learned trial court for information.