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2023 DIGILAW 420 (JK)

State of J&K v. Mithu

2023-08-21

ATUL SREEDHARAN, MOHAN LAL

body2023
JUDGMENT : Atul Sreedharan, J. 1. The present appeal has been preferred by the State which is aggrieved by the order passed by the learned Trial Court dated 24.03.2014 passed in File No.76/Sessions, whereby the learned Trial Court acquitted the respondent herein from the charge of rape under Section 376 RPC arising from FIR No.75/2006 instituted at P/S Udhampur (the original FIR has been seen which is FIR No.337/2012. The FIR number given by the learned trial court is not possible as the offence itself is of the year 2012 and not 2006). 2. The short resume of facts relating to this case is as follows : One Mast Ram, on behalf of his daughter the prosecutrix, moved an application before the CJM Udhampur stating therein that on 17.10.2012 when his minor daughters were at home when between 6-7 PM, the accused came to their residence and committed rape upon the prosecutrix against her will. He further stated that the prosecutrix shouted loudly, hearing which her mother, who was working in the field nearby to the house came running. It is further alleged that the accused fled away after committing rape and in the process, also while doing so assaulted the mother of the prosecutrix and threatened them with dire consequences. 3. The complaint was forwarded by the CJM Udhampur to SHO P/S Udhampur upon which the aforementioned case came to be registered against the respondent. The investigating officer of the case, Vijay Kumar SI was assigned the investigation. He got the MLC prepared of the prosecutrix and her mother. He also recorded the statement of witnesses under Section 161 CrPC and 164-A CrPC, obtained the opinion of the doctor regarding rape and thereafter handed over the same to the Constable Manga Ram, who arrested the respondent. After conclusion of the investigation, the charge sheet was filed against the respondent for offences under Section 376 RPC for the rape of the prosecutrix and under Section 323 RPC for the alleged injury caused to the mother of the prosecutrix. 4. As per the charge sheet, it was alleged that on 17.02.2012, the accused trespassed the dwelling place of the complainant/prosecutrix, concealed himself in the house, caught hold of the prosecutrix, tore her clothes and committed rape with her. 4. As per the charge sheet, it was alleged that on 17.02.2012, the accused trespassed the dwelling place of the complainant/prosecutrix, concealed himself in the house, caught hold of the prosecutrix, tore her clothes and committed rape with her. It is relevant to mention here that the respondent is the real uncle of the prosecutrix in relation, being the real maternal uncle (mama). It is also alleged in the FIR as hereinabove mentioned earlier that the mother of the prosecutrix was also assaulted by the respondent while escaping. 5. The charges were framed against the accused under Sections 376/323 RPC. The respondent pleaded not guilty and thereafter was tried. The prosecutrix has been examined as prosecution witness and she stated that on the date of occurrence, she was in the kitchen where the accused was concealing himself, who caught hold of her, tore her clothes and committed rape upon her. She further says that she shouted for her mother, who came within two minutes and tried to rescue her from accused who hit the mother on the nose, as a result of which, the mother started bleeding. She further says that her father also came home in the meanwhile. The time of the offence is shown as 6 pm in the evening. She further stated that how they came to the court next day for recording statement and thereafter had gone to the police station where she got her statement recorded by the police who also got her medical examination done. Her clothes were given by the father to the police and they were seen by the trial court also. 6. In cross examination, the prosecutrix states categorically that the accused is her uncle and has not committed rape on her. It is relevant to mention here that the age of the prosecutrix in the FIR is shown as about 15 years. The age of the accused in the arrest memo is shown as 22 years. On the date of the incident, her parents say they had gone to cut maize and she has three brothers and a sister in law who had gone to cut grass and was about 20 meters away from home. She further stated that there were 5/6 houses located nearby and the brother who was younger to her had gone with her parents. She further stated that there were 5/6 houses located nearby and the brother who was younger to her had gone with her parents. She further states that during the incident, she cried but no one responded. She further states that she had received some injuries on her back as a result of the sexual assault. She states that her vagina had not started bleeding. However, she says that the accused produced some white fluid from his penis and threw it on her and he made her lay on the ground and accused took 2-3 minutes to do the act. She says that when her mother reached there, she had not worn her underwear. She also stated before the Trial Court that she showed her injuries to the doctor which she received during the occurrence. 7. The next witness is Mast Ram who was the father of the prosecutrix. He states on the date of occurrence, he had come to home in the afternoon and had gone to sleep after taking food. He was informed by his wife that when she was cutting grass in the field and the prosecutrix was in the kitchen preparing food when the accused came there surreptitiously and caught hold of the prosecutrix. The father thereafter says that shopkeeper Suresh Kumar had informed his wife that his daughter was shouting and asked her to go home. When she reached home she saw the accused was committing rape on his daughter and when she tried to catch him, he hit her on the nose and ran away. It is pertinent to mention here that Suresh Kumar, the independent witness, has not been examined in this case as a prosecution witness. 8. Witness-Mast Ram further states that they searched for the accused but they could not trace him, that they went to the court and moved an application before the Judge and the case was registered thereafter. Three/four days after the incident, the statements of the prosecutrix and his wife were also recorded before the Magistrate under Section 164-A CrPC. The clothes of the prosecutrix were seized in the police station. Three/four days after the incident, the statements of the prosecutrix and his wife were also recorded before the Magistrate under Section 164-A CrPC. The clothes of the prosecutrix were seized in the police station. Lastly, it is stated that when the prosecutrix cried for help, his wife went to the house and on seeing the accused committing rape on her daughter, she tried to catch hold of the accused, who as stated earlier hereinabove, assaulted the mother of the prosecutrix and ran away from the scene of occurrence. 9. Dr. Nidhi Mahajan is the gynecologist who examined the prosecutrix and has testified before the trial court as a prosecution witness. She had examined the prosecutrix on 18.10.2012 and has recorded in the report that there were no marks of injury on body or the genitals of the prosecutrix and that, she was habituated to sexual intercourse and that there was no evidence of recent sexual intercourse. The MLC is EXTP 7 issued by her and she has stood by its contents. The doctor says that as the vagina of the prosecutrix admitted one finger easily she reached to the conclusion that the prosecutrix was habituated to sexual intercourse. 10. Dr. Shivani Kotwal is another prosecution witness who was Medical Officer and has stated that she examined the mother of the prosecutrix on 19.10.2012 and that she had blunt trauma nose with swelling. The X-ray report did not reveal any bony injury. Sudesh Kumar, the shop keeper has been declared hostile. The court records in Para 11 of the Judgment that PW Sudesh Kumar who was the independent witness was given up by the prosecution as it was believed that he would turn hostile. 11. PW Shalloo Devi, mother of the prosecutrix has stated that the respondent is her real brother and that prosecutrix is her daughter and on the date of the incident she had gone to cut maize crop when her daughter was alone in the house and at about 6.30 pm, she started crying and shouting, a shop keeper (presumed to be PW Sudesh Kumar who was given up by the Prosecution) informed her that her daughter was shouting and when she went to her house, she saw her daughter-in-law had gone out, and the accused was tying his pant and her daughter was in a bad condition with injuries. She further states that when she tried to apprehend the respondent he hit her and ran away. She thereafter reiterates the same factual sequence as stated by her husband Mast Ram. In cross examination, this witness says that she has three sons and elder son is married. She further states that on the date of incident, her sons were not at home and her elder son had gone for work. She also states that her daughter-in-law had gone with the cattle and for cutting grass. She says that nearer her house is the shop of Sudesh Kumar and it was he who informed her that the prosecutrix was shouting. She further states that her husband had not come home. He had come to the home only in the evening. It is pertinent to mention here that the said statement is in contradiction with the statement of her husband Mast Ram who states that at the time of the incident he had already come home, had food and then gone to sleep. This witness further states that the accused used to visit her home being her brother and before that there was no complaint about him. She also states that her daughter has received injuries on her back which again is not supported by the statement of the doctor who prepared the MLC which discloses there were no injuries anywhere on the body of the prosecutrix. 12. These are the most material witnesses, the remaining witnesses being police witnesses and witnesses of a formal nature. Learned trial court has appreciated the statements of the material witnesses and has come to the conclusion that there are material variations between the statements given by the prosecutrix and that of her mother who was the alleged first responder who arrived at the scene of occurrence immediately after the incident. The trial court has also appreciated the fact that the medico legal certificate of the prosecutrix does not reveal that she has received any injuries anywhere on the body or on genital parts which would go to contradict the testimony of the prosecutrix before the trial court that she has suffered injuries during the course of the act. The trial court has also appreciated the fact that the medico legal certificate of the prosecutrix does not reveal that she has received any injuries anywhere on the body or on genital parts which would go to contradict the testimony of the prosecutrix before the trial court that she has suffered injuries during the course of the act. As regards the statement of the mother, the trial court has discussed her statement and says how she had come to know about the incident from Sudesh Kumar who has not been examined by the prosecution before the learned trial court, who is stated to have informed the mother of the prosecutrix that her daughter was shouting and that there was a sexual assault upon the prosecutrix. The learned Trial Court has also considered the contradictions between the statements of the prosecutrix and her mother and the medical evidence on record. The trial court has also considered the fact that if the allegations leveled against the respondent were correct, then the factum about the seminal ejaculation on the clothes of the prosecutrix would have been verified in an FSL examination which has not been done. Therefore, a piece of evidence which could have been affirmed through scientific evidence has not been brought on record. 13. Besides the above, we had also examined the report relating to the potency of the respondent to perform sexual intercourse. The report of the doctor concerned is there in the charge sheet but the doctor has not been examined as a witness and therefore, an important document being the report of the ability of the respondent to perform sex has not been proved before the trial court. It is also necessary to state here that the school leaving certificate of the prosecutrix issued by the Head Master which shows her the year of birth to be 1995 is there in the charge sheet but the Head Master concerned was not examined as a witness and the said document also has not been exhibited, and therefore, there is a question mark relating to the age of the prosecutrix. Undoubtedly, there was no way of considering whether there was consent or not in this particular case but at the same time the statement of the prosecutrix and that of her mother which are in direct conflict with the medical evidence, goes to contradict both these witnesses and also when seen in the light of the statement of the father of the prosecutrix which reveals that he was there in the house at the time when incident took place and was sleeping though he did not say that he was woken up by any kind of shout or screaming of the prosecutrix which also makes us arrive at the conclusion that the father who was sleeping in the house and was closest in proximity to the place of incident, it would only have been natural for him to be woken up and become the first responder to the incident and who could have witnessed the incident if the prosecutrix had actually shouted and screamed for help as stated by her. Overall, the case of the prosecution is extremely doubtful and therefore the benefit of the same should go to the accused. 14. Under the circumstances, having gone through the impugned order and the statement of the witnesses and the finding and appreciation of the learned Trial Court on the evidence recorded during the course of the trial, we are of the opinion that far from being perverse, the order is just and proper and therefore the acquittal granted by the learned trial court to the respondent is something that we do not have to interfere with. The appeal is dismissed.