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2023 DIGILAW 382 (JK)

Parvaiz Ahmad Lone v. State of Jammu and Kashmir

2023-08-10

RAJNESH OSWAL

body2023
JUDGMENT : 1. Through the medium of this appeal, the appellant has impugned the judgment of conviction dated 20th of November, 2003 and the order of sentence dated 10th of December, 2003 passed by the Court of learned 2nd Additional Sessions Judge, Srinagar (hereinafter referred to as “the trial Court”) in case titled ‘State v. Pervaiz Ahmad Lone & Ors.’, bearing FIR No. 347/1996 registered by Police Station Soura, whereby the appellant has been convicted for the commission of offences punishable under Sections 366, 376/511 RPC and sentenced to undergo rigorous imprisonment for a period of five years and payment of fine of Rs.5,000/- for offence under Section 366 RPC; and rigorous imprisonment for a period of five years and payment of fine of Rs.5,000/- for offences under sections 376/511 RPC. It was further directed that in the event the fine is not paid, then the accused/ appellant herein shall undergo a further rigorous imprisonment for a period of six months in both the offences, respectively and that the sentence shall run concurrently. The other two accused were acquitted by virtue of this judgment only. 2. The judgment of conviction and order of sentence have been impugned by the appellant, inter alia, on the grounds that the prosecution had miserably failed to bring home the guilt of the appellant and that the evidence adduced by the prosecution was not only doubtful but exaggerated as well and on the basis of such exaggerated evidence, the appellant could not have been convicted and sentenced by the trial Court. It is also pleaded that the statement of the prosecutrix has not been corroborated by the medical evidence and further that the trial Court has also observed that there is contradiction in the FIR and the statement of the prosecutrix and once the learned trial Court did not believe the statement of the prosecutrix and her husband with regard to commission of offence of rape by the appellant and other accused, the appellant could not have been convicted and sentenced by the learned trial Court. It is also stated that seizure of the clothes and pistol, allegedly seized by the investigating authority during the course of investigation, were not proved and also the disclosure statement was not proved, as such, in view of the serious infirmities in the prosecution case, the appellant was required to be acquitted of the charges levelled against him. 3. It is also stated that seizure of the clothes and pistol, allegedly seized by the investigating authority during the course of investigation, were not proved and also the disclosure statement was not proved, as such, in view of the serious infirmities in the prosecution case, the appellant was required to be acquitted of the charges levelled against him. 3. Mr N. A. Ronga, the learned Counsel for the appellant, submitted that once the learned trial Court did not believe the exaggerated statement made by the prosecutrix as well as her husband, so the appellant could not have been convicted by the learned trial Court. He also urged that the independent witness PW-Ghulam Hassan Mir has further caused a dent in the prosecution story by stating that when the prosecutrix came to him, she said that some unknown people were following her. He also urged that the disclosure statement attributed to the appellant has not been proved and also the torn clothes of the prosecutrix were not produced before the trial Court, despite the fact that the learned APP sought time to produce the same while recording the statement of the prosecutrix. It was also argued that the statement of the doctor also does not support the prosecution case, as no injuries were found on the body of the prosecutrix, particularly when she was examined few hours after the occurrence. 4. Per contra, Mr Sajjad Ashraf Mir, the learned Government Advocate, appearing for the respondent, submitted that the learned trial Court has rightly appreciated the evidence and that the prosecutrix had deposed in unambiguous terms with regard to the commission of offence of rape upon her by the appellant. 5. Heard learned counsel for the parties in extenso and perused the record of the trial Court. 6. The prosecution story, as it emanates from the charge sheet, is that the prosecutrix, on 29th of October, 1996, at about 14:30 hours, while crying, approached the Police Station, Soura and stated that yesterday, i.e., 28th of October, 1996, at around 19:30 hours, while she was in her matrimonial home, three masked persons entered the courtyard of the house and asked them to switch off the electricity. They called out her husband and asked him to bring out his wife as some enquiry was required to be made from her. They called out her husband and asked him to bring out his wife as some enquiry was required to be made from her. Her husband called her out and as she entered the courtyard, the said persons pounced upon her and one of the accused pointed pistol at the head of her husband and threatened that if he moved, he would be killed. The said persons covered her face and dragged her along with them and took her about half a kilometre away in a room of a deserted house. Thereafter, they tried to rape her, but she raised hue and cry and, in the meantime, her apparels, i.e., Pajama and Frock were torn. When she raised hue and cry, the said persons ran away. She immediately tried to return to her home and she tried to take shelter in the house of the neighbours, but due to darkness and fear, no one opened the door, but one of her neighbours, namely, Ghulam Hassan, opened the door and she went inside. She was made to drink water, where after she disclosed the whole of the occurrence to him and, thereafter, he, along with other neighbours, took her to her home. Out of three unknown persons, she could only identify the appellant. On receipt of this information, FIR No. 347/1996 was registered against the appellant and other two co-accused in Police Station, Soura for the commission of offences punishable under Sections 366, 376 and 511 RPC. The investigation was handed over to the Investigating Officer. During the course of investigation, the appellant as well as other accused were arrested and their disclosure statements were also recorded. After conclusion of the investigation, the Investigating Officer established the offences punishable under Sections 366, 376 and 511 RPC against the appellant and other accused. The charge sheet was laid before the Court of learned Judicial Magistrate (Judge Small Causes), Srinagar on 25th of February, 1997 and the same was committed to the Court of learned Principal Sessions Judge, Srinagar. The learned Sessions Judge, Srinagar, vide its order dated 22nd of March, 1997, transferred the charge sheet to the Court of learned 2nd Additional Sessions Judge, Srinagar, i.e., the learned trial Court herein. The learned Sessions Judge, Srinagar, vide its order dated 22nd of March, 1997, transferred the charge sheet to the Court of learned 2nd Additional Sessions Judge, Srinagar, i.e., the learned trial Court herein. The charge for the commission of offences punishable under Sections 366, 376 and 511 RPC was framed against the appellant and the other accused vide order dated 21st of August, 1997 and as the appellant and other accused did not plead guilty, the prosecution was directed to lead evidence. The prosecution examined five witnesses and the appellant also examined two witnesses in his defence. 07. In order to appreciate whether the learned trial Court has rightly appreciated the evidence or not and further as to whether the learned trial Court has ignored the various infirmities in the prosecution case and erroneously convicted the appellant, it is necessary to re-appreciate the evidence and that can be done only if this Court takes note of the prosecution evidence. 8. The prosecutrix, in her chief examination, stated that she knew the accused persons present in the Court, as they were her neighbours. One and a half years ago, when she was preparing meals at around 19:30 hours, the accused persons came outside their house and called her husband and asked him to bring his wife outside as their “Sahib” had to ask her some questions. The accused were having two pistols and they also asked her husband to switch off the light. She was having one child and the accused asked her husband to take care of the child. The accused then took her along with them, after wrapping her face and head with some cloth. While she was being carried, on the way, she was pushed down on one slope. The accused were talking that their “Sahib” had to talk to her. The accused were also beating her. She was taken 2 kilometres away from her home and they were threatening to kill her. She was taken to a deserted home where none was residing. The accused tied her two arms behind the back and directed the third accused-Bilal to remain outside and keep guarding them. The other two accused asked her to take off her clothes. She started crying and the Court asked her to give a true statement. She again stated that she refused to undress herself and pleaded them not to rape her. The other two accused asked her to take off her clothes. She started crying and the Court asked her to give a true statement. She again stated that she refused to undress herself and pleaded them not to rape her. Thereafter, the accused also beat her and tore her clothes. The two accused raped her one by one, but the said Bilal did not rape her. He identified the two accused persons in the Court as Parvaiz Ahmad and Zahoor Ahmad. Later, they released her arms. She removed the mask from the face of one the accused, who was identified as Parvez Ahmad. The accused, thereafter, gave her more beatings and they fled away. She also left the said house and went towards her house. It was almost 10 PM in the evening. None of the neighbours opened door to her out of fear and ultimately, she took the shelter in the house of her neighbour, i.e., Ghulam Hassan. Later, few other neighbours also came. She narrated them the whole story. Early morning, they approached the police and she narrated the whole story to the police. The accused later on threatened other neighbours and asked them to desist from giving any evidence against them. The police came to her home and asked her to show them the path wherefrom she was abducted. Later on, the police apprehended the accused and seized one toy pistol. She showed her clothes to the police which were seized by them. Her statement was deferred as the seized property was not available. In her further statement, she stated that when she came back from the place of occurrence, she was wearing only Frock and Pajama. The clothes were torn and she was bare feet. She could not sleep that night. Her father-in-law and mother-in-law and one guest, namely, Abdul Rashid were also there. At around 8: 00 AM, she went to the Police Station. The police had seized one pistol in her presence and also seized her clothes. She was medically examined on the same date, when she approached the police. During cross-examination, the prosecutrix stated that the accused had approached her home at around 08:30 PM. She could not identify the accused on the way and she could not do so till the accused detained her in a deserted house. She was medically examined on the same date, when she approached the police. During cross-examination, the prosecutrix stated that the accused had approached her home at around 08:30 PM. She could not identify the accused on the way and she could not do so till the accused detained her in a deserted house. The house where she was detained was not having any light and it was quite dark inside the house, however, there was a little light coming from the moon. When she was taken from her home, her husband, four children, mother-in-law and father-in-law were also present. Her mother-in-law and father-in-law were not aware of the occurrence. She could not make noise because the accused had gagged her mouth. She did not receive any injury during the struggle. During the rape, she could not identify the persons, but identified one of them when her hands were opened by the accused and when she removed the mask from his face. She could not identify the rest of the accused. The said accused-Parvaiz Ahmad was residing near her house. She gave the statement to the police that she was raped, but if the police had written that only an attempt was made to rape her, then the same was wrong. She had not given any such statement before the police that she identified the accused by their voice. After the occurrence, she was carried to home by Ghulam Hassan and brother of accused, Fayaz Ahmad. 9. PW-Bashir Ahmad Mir, the husband of the prosecutrix stated that he knew the accused. The prosecutrix was his wife. In the month of November, 1996, at around 7:30 PM in the evening, the accused knocked at the door of his house and directed him to switch off the lights. He switched off the lights and lit a candle, but the accused asked him to extinguish the candle as well, which he did. They were sitting in a dark room of the house and one of the accused entered therein and two remained outside to cover him. Accused Parvaiz Ahmad dragged him out by pointing a pistol towards his head and asked him to get his wife as their leader had to talk to her. His wife had given birth to a child only one month ago and she was under treatment. Accused Parvaiz Ahmad dragged him out by pointing a pistol towards his head and asked him to get his wife as their leader had to talk to her. His wife had given birth to a child only one month ago and she was under treatment. The accused Parvaiz Ahmad snatched the child from the lap of the mother and would have thrown the child away, had he not intervened. The accused Parvaiz Ahmad detained him, while the other two accused forcibly abducted his wife. He was pushed aside as a result of which he became unconscious for some time. He pleaded with his neighbours, but they refused to help on the pretext of turmoil due to militancy. At around 10:30, his wife came back. She was frustrated and crying. She was accompanied by three persons, namely, Ghulam Hassan, Abdul Rashid and Ali Mohammad Shah. The said Abdul Rashid is the brother-in-law of the accused, Zahoor. The next day he went to the police. The police recorded their statements and his wife was examined by a lady doctor. The police also seized the clothes of his wife and prepared the seizure memo. During cross-examination, he stated that at the time when the accused came to his house they were masked. One of the accused had wrapped himself with white cloth and the other had veiled themselves with black cloth. He identified them by their voice. He could not raise any hue and cry because the accused Parvaiz Ahmad had kept pistol on his head. He was informed by his wife that the accused raped her and he told the same story to the police. It was wrong that he told the police that there was only an attempt to rape her wife. 10. PW-Ghulam Hassan Mir stated that he knew the prosecutrix. One night, while he was sleeping in his home, his door was knocked. The person who knocked the door was prosecutrix. He opened the door and asked her to come inside. She entered into his home and told him that some persons were following her. He enquired about their particulars, but she said that she did not know. Thereafter, he carried prosecutrix to her home. He did not try to see the persons who were following her. The prosecutrix was without her scarf, but was wearing some clothes. She entered into his home and told him that some persons were following her. He enquired about their particulars, but she said that she did not know. Thereafter, he carried prosecutrix to her home. He did not try to see the persons who were following her. The prosecutrix was without her scarf, but was wearing some clothes. During cross-examination, stated that she came inside her house and he made her drink some water. He made this statement to the police which was given before the Court. He expressed ignorance in respect of any seizure made by the police. 11. The Medical Officer stated that on 26th of October, 1996, he examined the prosecutrix and issued a certificate dated 29th of October, 1996 (EXPW-1). In her cross-examination, she stated that there was no mark of violence on the victim. The victim was a married woman. They could detect an act of intercourse if the lady is produced for examination within 24 hours. 12. PW-Abdul Karim Rishi (Investigating Officer) stated that in October, 1996, he was posted in Police Station, Soura. He had conducted the investigation in this case. The prosecutrix had come to the police station while weeping and reported that some unknown persons entered into the house of her husband. They were asked to switch off the lights. They dragged her out in the night and took her to a deserted home in a deserted place and tried to rape her. She raised hue and cry and identified one of the accused-Parvaiz Ahmad. Due to her resistance, the accused fled away. He registered the case and conducted the investigation. He arrested the accused. He recovered one toy pistol at the instance of one of the accused. He prepared the seizure memo (EXPW-1/6). He sent application to the medical officer for medical check up of the prosecutrix (EXPW-2/6). He also prepared the seizure memo of the clothes (EXPW-2/6). The seizure memo of the toy pistol was in his handwriting and is correct (EXPW-5). He recorded the confessional statement of the accused (EXPW-6/6). The accused Bilal Ahmad also made a confessional statement (EXPW-7/6). Similarly, Zahoor Ahmad also made a confessional statement (EXPW-8/6). He recovered the toy pistol at the instance of accused, Zahoor Ahmad and prepared seizure memo (EXPW-4/6). After the conclusion of the investigation, he found the accused guilty of offences punishable under Sections 366, 376/511 RPC. The accused Bilal Ahmad also made a confessional statement (EXPW-7/6). Similarly, Zahoor Ahmad also made a confessional statement (EXPW-8/6). He recovered the toy pistol at the instance of accused, Zahoor Ahmad and prepared seizure memo (EXPW-4/6). After the conclusion of the investigation, he found the accused guilty of offences punishable under Sections 366, 376/511 RPC. During cross-examination, he stated that the prosecutrix reported the matter early in the morning of 29th of October, 1996. She was sent to hospital on the same day. As the prosecutrix had stated that only an attempt of rape was made, so clothes were not sent for examination. The complainant did not show the actual place where the attempt was made during the night. She pointed out towards a deserted place which was far from the village. She also pointed towards a deserted house. On the basis of her guess, he recorded the same as place of occurrence. During search nothing worth seizure was found there. He did not examine the owner of the deserted house as he did not think it was necessary. He did not send the toy pistol for examination as he knew how to fire by a pistol. The place from where the pistol was recovered is near the village. 13. The accused persons also produced two witnesses, namely, Sonaullah Shah and Abdul Rashid Shah. They have denied the allegations levelled against the petitioner with regard to abduction of the prosecutrix. 14. From the statement of the prosecutrix it transpires that she was raped by the two accused and one accused remained outside the house. She has further deposed that after the commission of offence she went to the house of the PW Ghulam Hassan, where other neighbours also arrived and se narrated the whole story to them. PW Ghulam Hassan in his deposition has stated that the prosecutrix came to his house in the night when he was sleeping and she stated that some persons were following her and on enquiry she told him that she did not know them. It is settled law that the conviction for commission of offence of rape can be recorded on the basis of solitary statement of prosecutrix but her statement has to be of sterling quality. It is settled law that the conviction for commission of offence of rape can be recorded on the basis of solitary statement of prosecutrix but her statement has to be of sterling quality. In Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 , Apex Court has held as under: “22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 15. In Nand Lal and Ors. versus State of Chhatisgarh, 2023 AIR(SC) 1599, the Apex Court has held as under: “32. Undisputedly, the present case rests on the evidence of interested witnesses. No doubt that two of them are injured witnesses. This Court, in the case of Vadivelu Thevar v. The State of Madras, has observed thus: “11. ……Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial……” 33. It could thus be seen that in the category of “wholly reliable” witness, there is no difficulty for the prosecution to press for conviction on the basis of the testimony of such a witness. It could thus be seen that in the category of “wholly reliable” witness, there is no difficulty for the prosecution to press for conviction on the basis of the testimony of such a witness. In case of “wholly unreliable” witness, again, there is no difficulty, inasmuch as no conviction could be made on the basis of oral testimony provided by a “wholly unreliable” witness. The real difficulty comes in case of the third category of evidence which is partly reliable and partly unreliable. In such cases, the court is required to be circumspect and separate the chaff from the grain, and seek further corroboration from reliable testimony, direct or circumstantial. 16. In this case, the prosecutrix in FIR had levelled allegations only in respect of commission of offence of abduction and attempt to rape. During the investigation also, no allegation of rape was levelled upon the accused and because of this reason only, the charge sheet for commission of offence under section 376, 511, 366 RPC was laid against the appellant and the other accused. The prosecutrix in FIR stated that she was taken half a km away from her house to a deserted house where as in her statement in the court she stated that she was taken two kms away from her home. The prosecutrix was not able to identify the place where she was allegedly taken and raped, as the Investigating Officer namely Abdul Karim Rishi stated that the prosecutrix could not show the actual place of attempt as the occurrence took place at night. It is difficult to believe that the prosecutrix could not identify the place of occurrence, when she came towards her home alone and knocked the doors of the neighbours. The evidence of the prosecutrix cannot be termed of sterling quality and the trial court has also disbelieved the story of rape projected by the prosecutrix meaning thereby that the prosecutrix was neither wholly reliable nor wholly unreliable. Under such circumstances, the statement of the prosecutrix must get corroboration from other evidence. The Medical Officer has also stated that there was no injury on the body of the prosecutrix. The prosecutrix has stated that she was beaten while she was being taken away and also after she was raped. She also stated that she was thrown down from slope. The Medical Officer has also stated that there was no injury on the body of the prosecutrix. The prosecutrix has stated that she was beaten while she was being taken away and also after she was raped. She also stated that she was thrown down from slope. When she was beaten and thrown down from the slope, it is difficult to comprehend that she would not get any injury. Further PW Ghulam Hassan, who is an independent witness destroys the evidence of the prosecutrix when he stated that on enquiry the prosecutrix told her that she did not know the persons following her. In such circumstances, it cannot be said that the prosecution has succeeded in proving the guilt of the appellant beyond reasonable doubt. 17. This court has examined the judgment passed by the learned trial court and the judgment is more on emotions than on the evidence led by the prosecution. In view of the evidence led by the prosecution, the appellant deserves the benefit of doubt. 18. In Ram Niwas vs. State of Haryana, 2022 Livelaw (SC) 670, the Hon”ble Apex Court has held as under: “20. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.” 19. Accordingly, the judgment of conviction dated 20th of November, 2003 and the order of sentence dated 10th of December, 2003 passed by the Court of learned 2nd Additional Sessions Judge, Srinagar (hereinafter referred to as “the trial Court”) in case titled ‘State v. Pervaiz Ahmad Lone & Ors.’, bearing FIR No. 347/1996 registered by Police Station Soura is set aside. The appellant is acquitted and the charge-sheet stands dismissed. The bail and personal bonds stand discharged. 20. The record of the trial court be sent back and the copy of the judgment be sent to trial court for information.