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2023 DIGILAW 120 (JK)

State of J&K v. Haji Kala

2023-03-28

PUNEET GUPTA, RAJNESH OSWAL

body2023
JUDGMENT : Puneet Gupta, J. 1. The appeal has been preferred against the judgment dated 23.10.1999, passed by the court of learned Sessions Judge, Rajouri whereby the respondents (referred to as accused for the purposes of discussion) have been acquitted by the trial court. The respondent Nos. 2, 3, 6, 8, 9, 10 & 12 have died during the pendency of appeal and, therefore the appeal abates qua the said respondents-accused. 2. The brief facts of the case: Mst. Ghulam Bibi, mother of the prosecutrix, filed a written application with the court of learned CJM, Rajouri on 27.01.1982 that 13 persons, as named in the application, and about 20/25 other persons residents of Pharwala, Sankari and Kot Dhara armed with lathis, axes and knives entered the house on the intervening night of 26th and 27th January, 1982 at 12 O'clock with a purpose to kidnap Mst. Zeenat Bi but she was away with her father to High Court at Jammu. The accused failing to find Zeenat Bi caught hold of her other daughter, prosecutrix, studying in 4th standard and aged 12/13 years. The accused also committed theft of ornaments and clothes of her daughter-in-law and also cash amounting to Rs. 600/-. The prosecutrix was kidnapped by the accused and her nephew and child who was aged 7/8 years were beaten mercilessly by the accused when they resisted the accused. The prosecutrix was taken away after being kidnapped by the accused. The application also states of the action of the accused being in retaliation to the search warrant issued in terms of Section 100 Cr.P.C against Haji Kala who had confined the daughter of the applicant Zeenat Bi and who was recovered from the said accused-Haji Kala. On the application filed, the learned Magistrate directed the SHO Police Station, Rajouri for necessary action under Section 156(3) Cr.P.C which resulted into registration of FIR No. 25/1982 under Sections 363/109 RPC. On the completion of investigation, the challan was presented against the accused-Haji Kala, Haji Mohd. Shabir and Sattar Mohd. under Sections 363/376 and against accused Haji Mohd., Kramat under Sections 363/376/323 RPC. Some of the accused were also charged under Section 363 RPC and other offences as mentioned in the charge framed against them. The charges were framed against the accused including of the offences under Sections 363/376/149/367 RPC as detailed in order dated 20.10.1982. Shabir and Sattar Mohd. under Sections 363/376 and against accused Haji Mohd., Kramat under Sections 363/376/323 RPC. Some of the accused were also charged under Section 363 RPC and other offences as mentioned in the charge framed against them. The charges were framed against the accused including of the offences under Sections 363/376/149/367 RPC as detailed in order dated 20.10.1982. It may be mentioned herein that out of thirteen persons named in the application filed by the mother of the prosecutrix, Nazir Mohd., Mohd. Iqbal, Ahmed Din and Abdul Haq did not figure in the charge sheet and instead four other persons were named in the charge sheet though the application mentioned of 20/25 persons being participants in the occurrence. The accused indeed denied the charges and claimed trial. 3. The prosecution has examined number of witnesses in support of its case including PW-1 Mst. Ghulam Bibi (complainant), PW-2 prosecutrix, PW-3 Ghulam Fatima (daughter-in-law of the complainant), PW-6 Mohd. Alam (nephew of the complainant), PW-12 Naseem Choudhary, PW-13 Dr. Chanchal Gupta, PW-14 Dr. Inder Singh (Radiologist), PW-15 Dr. Anil Kumar and PW-18 Yaseen Shah (Investigating Officer). The statements of the accused under Section 342 Cr.P.C were recorded on the closure of prosecution evidence. The accused denied the incriminating material that came on record through the prosecution evidence. The accused also produced evidence in defence. 4. Learned Additional Advocate General appearing for the State-appellant has argued that the trial court has failed to appreciate the prosecution evidence in right manner and acquitted the accused erroneously. He has particularly referred to the statements of the prosecutrix and her mother to support his contention that the prosecution was able to prove its case against the accused beyond shadow of doubt. The accused are required to be punished of the offences committed by them. 5. Mr. Sunil Sethi, learned Senior counsel appearing for the accused has submitted that the trial court has taken all aspects into consideration while holding the accused not guilty of the charges framed against them. He has also referred to the statements of the doctors in conjunction with the statement of the prosecutrix to impress upon the court that the charge of rape was not made out against the accused persons. The prosecutrix was major at the time of occurrence and had accompanied the accused of her own will and was not kidnapped as alleged by the prosecution. 6. The prosecutrix was major at the time of occurrence and had accompanied the accused of her own will and was not kidnapped as alleged by the prosecution. 6. Heard and perused the record. 7. As this court is dealing with the appeal against the judgment of the acquittal recorded by the trial court, it is apt to examine the scope of interference with judgment of acquittal. In N. Vijayakumar v. State of T.N., (2021) 3 SCC 687 , Apex Court has held as under: "20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] has laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power CRR No. 48/2013 of the court to review the evidence and to come to its own conclusion. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power CRR No. 48/2013 of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 21. Further in the judgment in Murugesan [Murugesan v. State, [(2012) 10 SCC]] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction." 8. Taking into consideration the principle laid down by the Hon'ble Apex Court, we would examine the contentions of the contesting parties. 9. The alleged act of the accused persons on the intervening night of 26th and 27th January, 1982 in the house of the complainant PW-1 Mst. Ghulam Bibi and the subsequent sexual assault committed upon the prosecutrix led to the filing of the challan against the accused persons. At the outset, it may be mentioned that the trial court suspected the case set up against the accused persons on the ground that though 13 persons were mentioned in the complaint filed by PW-1 Mst. Ghulam Bibi and the subsequent sexual assault committed upon the prosecutrix led to the filing of the challan against the accused persons. At the outset, it may be mentioned that the trial court suspected the case set up against the accused persons on the ground that though 13 persons were mentioned in the complaint filed by PW-1 Mst. Ghulam Bibi yet the name of the 04 persons mentioned in the complaint did not figure in the challan and instead 04 other persons out of the alleged 20/25 persons who were stated to be part of the occurrence, namely, Haji Shabeer, Mohd. Hussain S/o Ghulam Mohd., Gulzar Hussain and Rafiq Hussain were arrayed as accused. The four aforesaid persons were nominated as accused in the challan and there is no explanation for the exclusion of those other 20/25 persons, as mentioned in the application, in the challan. The trial court is not wrong in stating that there appears to be manipulation and fabrication of the case against the accused persons on aforesaid account. The trial court has thrashed the statements of the prosecution witnesses and arrived at the conclusion that the case built by the prosecution that the accused persons entered the house of the complainant by forcibly pushing the door of the house and thereafter committing the act of beating the persons who were stated to be present in the house and forcibly taking the victim from the house of the complainant is not proved beyond shadow of doubt. 10. The court has well appreciated the evidence on record before arriving at the conclusion that there was no forcible entry in the house of the complainant by the accused persons. The court has thrashed the statement of the complainant, prosecutrix and also of PW-Abdul Hamid, PW-Abdul Rashid and PW-Mohd. Alam in this regard. The door of the room where the accused barged into was bolted from inside and when the door was pushed the bolt opened and the accused entered the room where the prosecutrix was also present in a way is the narration from the prosecution witnesses. Alam in this regard. The door of the room where the accused barged into was bolted from inside and when the door was pushed the bolt opened and the accused entered the room where the prosecutrix was also present in a way is the narration from the prosecution witnesses. The factum of the door of the house of the complainant being opened after the same was pushed by the accused persons is not established and gets contradicted from the statement of the witnesses as they speak that the door was bolted from inside loosely to another version also that the bolt being weak fell down and that the door opened itself after being pushed by the accused. The court has held that the door might not have been bolted from inside which resulted into entry of the accused in the room and, therefore, the story that was being highlighted by the prosecution that the bolt of the room was opened by the accused or the door being pushed by the accused cannot be said to be unreasonable or far-fetched one of the trial Court. 11. The prosecution alleged that the accused had entered the room of the house where the complainant, prosecutrix, Abdul Hamid and Abdul Rashid were sleeping in the room. The court disbelieved the version of the prosecution that six inmates were present in one room of the house though as per some of the prosecution witnesses the house had three rooms. The trial court has pointed out the contradiction in the size of the room qua the presence of the six persons in that room when the accused entered the room. The court did not falter in holding that the presence of the six persons in one room at the time of alleged occurrence was improbable. The witnesses though have mentioned that all the witnesses slept in one room and the prosecutrix making the statement in such a manner as if there was only one room of the house and not three rooms as mentioned by other witnesses so as to make the court believe that there was only one room where the all the occupants were sleeping on the night of occurrence. All the persons including males and females would have cramped themselves in one room of not big size is somewhat doubtful more so when some of the occupants were grown up persons. All the persons including males and females would have cramped themselves in one room of not big size is somewhat doubtful more so when some of the occupants were grown up persons. The trial Court has justifiably improbabalize the presence of all the persons and sleeping in one room keeping in view the size of the room. 12. The trial court has discussed the aspect if the manner in which the accused are alleged to have kidnapped the prosecutrix could be believed in the light of the evidence that came on record. 13. The complainant Mst. Ghulam Bibi has deposed that six persons including Haji Kala, Haji Kramat, Haji Bashir and Sattar Mohd. had entered the room whereas the other accused stationed themselves at the door of the room. The witness has also deposed that the prosecution witnesses present in the house tried to rescue the prosecutrix but the accused persons were successful in leaving the room with the prosecutrix but only after inflicting injuries upon the persons present in the room. Admittedly, there is no medical evidence on record to show that the family members of the prosecutrix received injuries including fractures as mentioned by the complainant witnesses except that Mohd. Alam had a bruise over the right side of the face as per Dr. Anil Kumar Amla. The court has also noticed that whereas PW-Abdul Rashid has stated that the family members of the complainant were held up by the accused persons for about half and an hour, on the other hand, PW-Mohd. Alam has deposed that the accused entered the room and left the place with prosecutrix within 5/7 minutes. PWs-Abdul Rashid and Abdul Hamid are stated to have received blows on their body and the clothes were also torn but neither any injury is proved nor the torn clothes were seized by the police. Infact the complaint did not mention the names of these two witnesses and appears to have been brought in the picture only with a purpose to cement the case of the prosecution but that does not convince the court in any manner for the reasons mentioned above. 14. PW-Mohd. Alam particularly mentions that he sustained the injury while lying on the bed and was unable to move on account of his being suffering from Kyphosis. 14. PW-Mohd. Alam particularly mentions that he sustained the injury while lying on the bed and was unable to move on account of his being suffering from Kyphosis. The trial Court has disbelieved this version of the witness for the reason that PW-Abdul Rashid had stated that PW-Mohd. Alam had received injury from iron rod though the same is not the case set up by the prosecution qua the weapons used by the accused during the occurrence. The complainant has also stated that clothes of Mohd. Alam was blood stained due to injuries but the clothes were not produced by the victim during investigation. Thus, the so called injury received by Mohd. Alam was on account of the attack made by the accused persons is not established. In totality of the circumstances, the finding of the trial court on the above evidence disbelieving this part of the prosecution evidence is not perverse or can be said to be unconvincing in any manner. 15. It is the case of the prosecution that during the course of occurrence, hue and cry was raised by the persons present in the house of the complainant when the prosecutrix was being kidnapped by the accused persons and this is what is deposed by the complainant Ghulam Bibi. Infact all the members of the family have deposed about raising a noise during the course of occurrence in the house. PW-Abdul Hamid has even gone to the extent of saying that the noise was raised even on the road after the accused left the house. 16. PW-Parmanand and PW-Kasturi Lal are the persons who are stated to have reached the house of the prosecutrix on hearing the noise raised by the complainant party. The complainant in her statement has even deposed that other 30 to 40 persons also gathered on the spot but could not name any of them which appears to be not credible version as the persons who are alleged to have come on spot will surely be the ones from the nearby area of the occurrence. It has come in the evidence that PWs-Parmanand and Kasturi Lal reside not far away from the house of the prosecutrix and were on the spot of occurrence within a very short period of time. It has come in the evidence that PWs-Parmanand and Kasturi Lal reside not far away from the house of the prosecutrix and were on the spot of occurrence within a very short period of time. The prosecution evidence also reveals that the crying of the prosecutrix could be heard from the bank of the river and not to speak of the noise coming from the house of the complainant and noise travelling outside the house for some distance. The trial court has rightly taken note of the absence of Isher Dass from the case set up by the prosecution as he was as per the site plan EXPW-18 was residing on the same side of the road and the prosecutrix has also mentioned that Isher Dass reached the spot. Why the said Isher Dass who happens to reside at a close distance of 30 to 40 yards of the house of the complainant and would have in all probability heard the noise coming from the house of the complainant has not been produced as a witness in the case is best known to the prosecution only. He was indeed an all important witness in the case but has been left out by the police to support its case. It is evident from the evidence that in case the accused would stay in the house for a very short duration it will not probably attract the attention of any outsider and the scuffle having taken place or the injuries as reported by the witnesses would have also not occurred. The witnesses though mention of reaching the spot but they also failing to depose that they saw the accused taking away the prosecutrix shows that the occurrence has not happened in the manner it is projected by the prosecution. 17. The next point for discussion is the allegation of rape leveled against the accused-Haji Kala and some other accused and if can be sustained in the present facts and circumstances of the case. The medical evidence though may not conclusively prove the happening or not of rape yet the same cannot be brushed aside and can aid the court in determining the allegation of rape leveled against the accused. 18. The prosecution has examined three doctors in the case. PW-Dr. Inder Singh, who has been examined regarding the certificate given by the Radiologist Dr. 18. The prosecution has examined three doctors in the case. PW-Dr. Inder Singh, who has been examined regarding the certificate given by the Radiologist Dr. Manjeet Arora as the said Doctor was not available and had gone to Saudi Arabia, has given opinion regarding the age of prosecutrix to be above 14 and not less than 16 on the basis of said certificate. The opinion of the radiologist regarding the age of the prosecutrix and based upon the ossification test is not conclusive as the margin of two years regarding the age can be taken while determining the age of the victim. Thus, the age of the prosecutrix could be between 16 and 18 and even more also though the appellant has tried to convince the court that the victim was below age of 16 years when the occurrence took place. 19. The prosecution though claims that the prosecutrix was minor though not specifying the age yet the same cannot be accepted for another reason that school certificate or any other evidence was not produced evidencing the age of the prosecutrix at the time of occurrence. There is no credible evidence that the victim was in 4th standard when the occurrence took place. 20. Keeping in view the aforesaid opinion of the radiologist and absence of any documentary evidence from the school, the trial court has held the age of the victim could be between 16 to 18 years. The age could even be more than eighteen years if seen in the light of the statement of above witness. 21. PW-Dr. Naseem who conducted the medical examination of the prosecutrix has recorded that there was no evidence of rape and the prosecutrix was used to intercourse and has further stated that in case of gang rape as is the case set up by the prosecution the prosecutrix was bound to have number of injuries which may not be present on the private part but on other parts of the body but the same were not found during the examination. The prosecutrix was also examined by Dr. Chanchal Gupta may be for the reason that the prosecution was not satisfied with the opinion of Dr. Naseem. The evidence of Dr. Chanchal Gupta is not in a way contrary to what had been opined by Dr. The prosecutrix was also examined by Dr. Chanchal Gupta may be for the reason that the prosecution was not satisfied with the opinion of Dr. Naseem. The evidence of Dr. Chanchal Gupta is not in a way contrary to what had been opined by Dr. Naseem as she has stated that there was no presence of spermatozoa as well as the private part hymen of the prosecutrix was torn bearing old tears and vagina easily admitting two fingers. As per this doctor also, the prosecutrix was used to sexual intercourse and no definite opinion regarding the rape in the recent past can be given. It may also be mentioned that the prosecutrix was advised by Dr. Naseem for medical examination after 20 days for confirmation of pregnancy but the prosecutrix never turned for medical examination thereafter as per advice. The allegation of rape leveled against the accused who have been charged for the said offence cannot sustain and the finding recorded by the trial court on this aspect of the case does not in any manner require reversal of the said finding by this court in appeal when viewed in light of other circumstances of the case. 22. It would be advantageous to take note of the judgment of the Hon'ble Apex Court passed in Criminal Appeal No. 1095 of 2018 (arising from SLP (Crl.) No. 8578/2017) titled "Dola @ Dolagobinda Pradhan & Anr. v. The State of Odisha" wherein the Hon'ble Apex Court observed as under:- "In our considered opinion, the Trial Court as well as the High Court have convicted the appellants without considering the aforementioned factors in their proper perspective. The testimony of the victim is full of inconsistencies and does not find support from any other evidence whatsoever. Moreover, the evidence of the informant/victim is inconsistent and self-destructive at different places. It is noticeable that the medical record and the Doctor's evidence do not specify whether there were any signs of forcible sexual intercourse. It seems that the First Information Report was lodged with false allegations to extract revenge from the appellants, who had uncovered the theft of forest produce by the informant and her husband. The High Court has, in our considered opinion, brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court has, in our considered opinion, brushed aside the various inconsistencies pointed out by us only on the ground that the victim could not have deposed falsely before the Court. The High Court has proceeded on the basis of assumptions, conjectures and surmises, inasmuch as such assumptions are not corroborated by any reliable evidence. The medical evidence does not support the case of the prosecution relating to the offence of rape. Having regard to the totality of the material on record and on facts and circumstances of this case, it is not possible for this Court to agree with the concurrent conclusions reached by the courts below. At best, it may be said that the accused have committed the offence of hurt, for which they have already undergone a sufficient duration of imprisonment, inasmuch as they have been stated to have undergone two years of imprisonment. Accordingly, the appeal is allowed. The judgments of the Trial Court as well as the High Court are set aside. The appellants are acquitted of the charges levelled against them. They should be released forthwith, if they are not required in any other case." 23. The trial court has also minutely discussed the other aspects of the charge of rape if having been established by the prosecution. As per the statement of the prosecutrix she was initially stripped of her shalwar by the accused Haji Kala and shalwar was kept under her body when the rape was committed and that her shalwar was washed after the rape was committed upon her and the same shalwar was worn by her. The prosecutrix is allegedly raped later by other accused persons charged of said offence. The court has rightly reasoned that if the shalwar was washed and the same was seized by the police during investigation then the statement of the complainant-mother that the clothes of the victim were tattered when her daughter came to her house cannot be countenanced. The seizure of the shalwar becomes doubtful which is stated to have been worn by the victim during her stay with the accused persons. In addition to above, the forensic report from FSL Jammu revealed the presence of semen/human spermatozoa on the seized shalwar and presence of blood. The seizure of the shalwar becomes doubtful which is stated to have been worn by the victim during her stay with the accused persons. In addition to above, the forensic report from FSL Jammu revealed the presence of semen/human spermatozoa on the seized shalwar and presence of blood. The chemical examination from FSL Calcutta did not determine blood group of the stain and thus there is no matching of blood group on the shalwar with that of the prosecutrix. The presence of spermatozoa and blood stains on the shalwar is contrary to the findings of the doctors who had examined the prosecutrix during investigation and, therefore, from that angle also the charge of rape against the accused cannot be said to be proved beyond shadow of doubt. 24. Last but not the least as far as kidnapping of the victim by the accused persons is concerned, the same cannot sustain though the appellant has tried to make out a case for the same. The prosecutrix is alleged to have been recovered from the house of Mohd. Hussain where the prosecutrix along with the accused Haji Kala was present in one room. The door of the room where both were found was not closed and the prosecutrix was wearing a new dress at that time. They were sitting on a cot and the prosecutrix was found in good condition. PW-Prem Nath in whose presence the prosecutrix was recovered from the house of Mohd. Hussain has stated so. PW-Abdul Hamid, Chowkidar has deposed in the same terms and has further stated that the accused did not attempt to flee from the house when the police came on spot nor the prosecutrix was found weeping at the time of recovery nor the girl informed that she had been raped. PW-Yaseen Shah, Investigating Officer, has also deposed that the room was open and Haji Kala was sitting there at the time of recovery of the prosecutrix from the house of accused-Mohd. Hussain. He has further deposed that all family members of Mohd. Hussain were present in the house. No witness who was present at the time of recovery of the girl has deposed that the prosecutrix admitted having been harassed or raped by the accused persons during her stay with the accused. Hussain. He has further deposed that all family members of Mohd. Hussain were present in the house. No witness who was present at the time of recovery of the girl has deposed that the prosecutrix admitted having been harassed or raped by the accused persons during her stay with the accused. It would be but natural for the prosecutrix to state this fact to the witnesses who were present at the time of recovery but the witnesses have not stated so in their deposition in the court. The prosecutrix having gone to the house of Mohd. Hussain of her own will and volition from her house cannot be ruled out. It is also very relevant to take note of the fact that the wife of Mohd. Hussain where the prosecutrix allegedly stayed and also recovered was also present in the house and as per the statement of the prosecutrix, she had even provided milk to her during her stay in that house. Investigating Officer has also mentioned that all the family members of the said Mohd. Hussain were present when the prosecutrix was recovered from the house of said Mohd. Hussain. It is very unlikely that in the presence of the wife of accused Mohd. Hussain and family members, the accused-Haji Kala and others, who are facing rape charges would have been allowed by the family members including the female occupants of the house to commit such grave activity as attributed to those accused persons. 25. The prosecution has to stand on its own legs to prove the case against the accused beyond shadow of doubt irrespective of the defense evidence that may have come on record. The court is of the view that the trial court has acquitted the accused persons after thrashing the evidence in a proper manner. The finding of the trial court is neither perverse nor improbable. If two views are possible from the evidence that comes on record, the one which favours the accused should be taken is a trite proposition of law. 26. The accused have produced defense evidence in order to show the divorce between Zeenat Bi and Alaf Din had been granted by the court of District Judge, Rajouri and this fact is mentioned in the marriage agreement between Haji Kala and Zeenat Bi dated 25.04.1981 registered with Registrar, Rajouri and which is on the file. 26. The accused have produced defense evidence in order to show the divorce between Zeenat Bi and Alaf Din had been granted by the court of District Judge, Rajouri and this fact is mentioned in the marriage agreement between Haji Kala and Zeenat Bi dated 25.04.1981 registered with Registrar, Rajouri and which is on the file. PW-Abdul Hameed is witness to the document and surprisingly in his statement before the Court denies the knowledge of marriage of Zeenat Bi with Haji Kala. After the divorce of Zeenat Bi with Alaf Din, the prosecutrix had Nikkah with the accused-Haji Kala. The statements recorded by the defense witnesses do speak of the same fact. The version of PW-complainant Ghulam Bibi that her daughter was married to Alaf Din apparently gets belied by the document placed on record which shows that Zeenat Bi and Alaf Din had divorced and Zeenat Bi was married to the accused-Haji Kala. Irrespective of what has been produced by the defense, the prosecution has failed to establish that the accused entered the house of the complainant forcibly, took away the prosecutrix from her house against her will, the victim was minor at the time of occurrence, the rape alleged against the accused persons charge sheeted for the same. There is no reason for this Court to take contrary view to what has been taken by the trial Court while acquitting the respondents-accused. 27. The appeal has no merit and is dismissed. 28. Record of the trial Court be sent back. The trial Court shall proceed against the accused-Karamat Hussain who has been proceeded in terms of Section 512 Cr.PC.