State of J&K and Ors. v. Qasim Khan

Judgment

1. The appellant-State is aggrieved of the judgment dated 23.06.2009, passed by the Court of learned Additional Sessions Judge, Pulwama, whereby the respondent has been acquitted of the charges framed under offences of Section 376/354 RPC by the Trial Court, on the ground that the judgment is against facts and circumstances of the case and is not sustainable in law; that the Trial Court has relied upon contradictions of the prosecutrix which were not material and, therefore, could not lead to the acquittal of the respondent. The respondent for the purposes of the discussion is referred to as accused in the judgment.

Heard Mr. Asif Maqbool, learned Dy. AG and Mr. B. S. Bali, learned Advocate for the respective parties and perused the file.

3. The record of the Trial Court is also before the Appellate Court for perusal.

4. The case of the prosecution before the Trial Court was that a written report came to be lodged with Police Station, Tral on 13.06.1997 CRAA 6/2009 by the prosecutrix (name withheld) in presence of her father. It was reported that the prosecutrix was alone and grazing her cattle half a kilometer away from her house in the Jungle when the accused caught hold of her and committed rape upon the prosecutrix. It was further mentioned in the application that she raised the noise and later Bashir Gujar came on spot and took her to her house. The accused tore the clothes of the victim and also caused injuries to her. The prosecutrix while filing the complaint also orally stated before the police that as she was grazing the cattle on 12.06.1997 in the Jungle, the accused who was waiting for her in the Jungle caught hold of her, tied her hands, felled her on the ground, untied her trouser and brought her trouser down to knees, opened his trouser and tried to commit rape but she foiled the attempt. Bashir Gujar S/o Nikka, on hearing the noise reached the spot and saved her from the clutches of accused. When she was trying to wriggle out from the clutches of the accused, her wrist watch was also snatched by the accused. On the written complaint FIR No. 97/1997 came to be registered against the accused u/s 354, 379, 376/511 by the concerned Police Station. The investigation followed and on the completion of the same challan was filed u/s 354/376 against the accused. The Trial Court framed the charges u/s 354/376 RPC against the accused after the challan was committed to the said court. As the accused denied the charges, the prosecution was directed to produce the evidence in support of its case. Of the six witnesses cited in the challan the prosecution examined only three witnesses. It is profitable to detail out the statements of the prosecution witnesses.

5. PW-1, prosecutrix, in her statement has deposed of her knowing the accused even before the occurrence and the happening of the CRAA 6/2009 occurrence while she was grazing her cattle. She has deposed that accused came on spot at 5:00 PM, caught hold of her hand and brought her trousers down to ankles. The accused is stated to have also opened his trouser, gagged the mouth of the prosecutrix and committed rape upon her for some time. The victim tried to save herself from the accused but the accused had tied her hands. The victim was pinned down by the accused and as there were stones on the spot she received injuries on her stomach and arms. She gave oral report to the police. The trouser and the pheran were seized by the police and seizure memo was prepared which is marked as Ex-PA. She was also got medically examined on the day of occurrence. In her cross-examination she has deposed that she recorded her statement before the police as well as JMIC, Tral. She had deposed before the magistrate that her trouser was torn by the accused and after this she became unconscious and when she regained her consciousness the accused was not present on spot. The witness has also stated that she became unconscious when the accused committed the rape. As per the witness, no one came on spot to rescue her from the accused. She has denied that Qasim S/o Ayob Gujjar had come on spot on hearing her noise as mentioned in her statement recorded before the police. In case the police have recorded so in the statement the same is not correct. She had visited the police station on the day of occurrence at 5:00 PM. She had shown her injuries to the doctor. She did not raise any noise when the accused caught hold of her and the police have wrongly recorded this fact in the statement which is attributed to her. She tried to resist the accused but the accused tore her clothes which were seized by the police. The clothes were not shown to her in the court. The accused remained over top of her body for about two hours and she was unconscious for about CRAA 6/2009 one and a half hours. She could not raise voice as the accused had gagged her mouth with one hand and caught hold of her with other hand. She did not bleed though blood oozed from the injury received on the stomach. She had no enmity with the accused. The accused used to frequent her house. She is married. The accused had once abused her and the matter was resolved in the community.

6. PW 3 Bashir Gujar did not support the prosecution case and turned hostile. In cross-examination the prosecution could not elicit any positive response from the witness. He has denied that he knew of the occurrence or was informed by the prosecutrix of the occurrence though he states that he along with the prosecutrix was grazing the cattle in the Jungle.

7. PW 6 Abdul Naseer Mir, Investigating Officer has deposed of the filing of written complaint filed by the prosecutrix in presence of her father, examining of the prosecutrix by the doctor and seizure of the clothes as per Ex-PA, recording the statement of witnesses before the magistrate, preparation of site plan exhibited as Exp-W/6 and that the case was proved against the accused u/s 354/376 RPC. In cross- examination the witness has deposed that the complainant had reached the police station at about 1:30 PM. The site plan was prepared on

15.06.1997 on the identification of the prosecutrix. The trouser of the complainant was torn and the complainant had bruises on her face and that the complainant had visited the police station in those clothes. The case was registered against the accused u/s 376 RPC. The clothes mentioned in Ex-PA had been produced by the prosecutrix in the police station. He cannot say of the date on which the clothes were seized as no date has been mentioned in the seizure memo. There was no specific identity mark of the place where the alleged occurrence had taken place. CRAA 6/2009 PW Bashir Gujar is not eye-witness to the occurrence and had visited the spot soon after the occurrence had taken place.

8. As no other witness was produced by the prosecution, the statement of the accused u/s 342 Cr.P.C was recorded wherein he denied the incriminating evidence that came on record during the prosecution evidence. The accused did not produce any evidence in defence.

9. The perusal of the judgment reveals that the trial Court while acquitting the accused has pointed out the discrepancies in the statement of the prosecutrix which proved fatal for the prosecution.

10. The statement of the prosecutrix is indeed the mainstay of the prosecution in a case like the present one. The statement of the prosecutrix if in the facts and the circumstances of the case is found to be reliable and credible the court can of course base the conviction upon such sole statement of the prosecutrix. The contradictions which occur in the statement of the prosecutrix are significant and material ones as held by the trial court so as not to believe the prosecution case is required to be seen by the Appellate Court. The Appellate Court will not ordinarily set aside acquittal of the accused unless the court is convinced that the Trial Court has overlooked vital aspects of the case, considered the irrelevant facts and finds the reasoning perverse. It is only when this court is of the view that the findings of the Trial Court noticeably contrary to what has come on record that the Appellate Court will be constrained to upset the finding of the Trial Court.

11. The hon’ble Supreme Court in cr. Appeal no. 78/2022 titled Geeta Devi versus State of U.P. & Ors.(decided on 18.1.2022) has reiterated the aforesaid proposition of law. CRAA 6/2009

12. Learned Dy. AG has argued that the Trial Court has not analyzed the evidence produced by the prosecution and particularly the statement of prosecutrix in its right perspective. The statement of the prosecutrix is credible as she has stated in unmistakable term that the accused had committed rape upon her while she had gone for grazing the cattle in the Jungle. There is no blemish in the statement of the prosecutrix when viewed as a whole by the court.

13. Learned counsel appearing for the respondent has argued that the Trial Court has carefully dissected the statement of the prosecutrix and has rightly held that the discrepancies whch occur in the statement of the prosecutirx are not minor in nature and, therefore, the order of acquittal of the accused was passed.

14. The alleged occurrence of 12.06.1997 when the rape of the prosecutrix was stated to have been committed by the respondent is in focus in the case in hand. The so called written complaint filed by the complainant-prosecutrix is not exhibited wherein she has stated that while she was grazing her cattle in the Jungle day before filing of the complaint she was raped by the accused. The complainant while filing the complaint before the Police Station Tral also recorded before the police that the accused tried to commit rape upon her but she foiled the attempt of the accused. The contradiction in the case starts exhibiting from what was mentioned in the written report and what was orally mentioned by the prosecutrix and which is recorded in the FIR. It may be necessary to note that initially the FIR was registered against the accused u/s 354, 379 and 376/511 RPC. On the completion of the investigation the challan was produced u/s 376/354 RPC and the offence initially registered u/s 379 was dropped for want of sufficient evidence. CRAA 6/2009

15. The perusal of the statement of the prosecutrix reveals of the occurrence having taken place at 5:00 PM. She has deposed of her being caught by the accused and having committed rape upon her for some period after he opened his trouser and that of the prosecutrix. During cross-examination the witness has deposed that her trouser was torn by the accused and after this she became unconscious. She also deposes that the accused remained on top of her body for about two hours during the course of occurrence. The statement of the prosecutrix in a way reveals that the accused had remained in bodily touch with the prosecutirx for about two hours which is not otherwise believable. It is also to be noted that the seizure memo Ex. PA of the clothes prepared by the police does not mention the date which means that the prosecution has failed to prove as to when the clothes of the victim were seized by the police. There is no forensic examination of the clothes of the victim which were seized by the police as per the record. The doctor has also not been examined in the case. The statement of the witness is not free from blemish as she has at one point of time stated that she became unconscious after the accused removed her trouser and at another point she has stated that she became unconscious after the act was committed by the accused. Further, it is also revealed from the statement recorded of the prosecutrix in the court the witness has not deposed about the presence of PW–Bashir Gujar on the spot after the alleged occurrence took place though in her statement recorded before the Judicial Magistrate she has deposed that PW–Bashir Gujar came on spot and comforted her. Even in the complaint filed before the police the witness has deposed of PW– Bashir Gujar taking her to her house after the act was committed by the accused. The witness has also denied the visit of Qasim S/o Ayoub Gujar on spot on hearing her CRAA 6/2009 noise as recorded in her statement before the police and which she states to be not true during her deposition in the court. It is suffice to mention herein that the statement of PW-3 Bashir Gujjar has been recorded in the court and has turned hostile as he has not stated of his presence on spot after the alleged occurrence took place or otherwise stating that he escorted the victim to her house or found her in unconscious state at the place of occurrence. The occurrence in fact took place on the day the FIR was lodged or one day prior to the lodging of the FIR is also not proved by the prosecution. The complaint on the basis of which the FIR was lodged with the police station mentions of the crime having been committed a day before filing of the complaint whereas the prosecutirx has unequivocally mentioned in her statement recorded during trial that she lodged the complaint on the day of occurrence itself and had visited the police station at 5 p.m. The alleged date of occurrence as reported in the complaint and as recorded in the court do not reconcile with each other. The statement of the prosecutrix does not inspire the confidence. Merely stating in the court that she was raped by the accused does not by itself establish the guilt against the accused. It is the overall impact of the statement of the witness which is required to be assessed by the court. The statement of the PW-Abdul Naseer Mir (Investigating Officer) by itself cannot advance the case of the prosecution in the case.

16. Thus, on analyzing prosecution evidence it is made out that there is discrepancy so far as the day of alleged occurrence is concerned, the contradictions in the statement of prosecutrix are material, date of seizure of clothes of the victim is not proved. The Trial Court has found the discrepancies in the statement of the prosecutrix as material ones and thus disbelieved the prosecution case as set up against the accused and CRAA 6/2009 this court also does not find compelling reason to upset the conclusion drawn by the trial court. There is no perversity in the findings of the Trial Court which may require interference in the appeal. The prosecution had failed to prove its case against the accused beyond shadow of doubt before the trial court.

17. In view of the discussion made above, the appeal is held to be without merit and is, accordingly, dismissed.

18. Record of the trial court be sent back. (PUNEET GUPTA) JUDGE (ALI MOHAMMAD MAGREY) JUDGE SRINAGAR 17.05.2022 “Amir”