Jamal Din And Others vs Jameel Ahmed And Others
2021 Latest Caselaw 817 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                     Reserved on 02.08.2021
                                     Pronounced on 05.08.2021

                                         CRR No.55/2014

Jamal Din and others                                    ...Petitioner(s)

                            Through:- Mr. M.P.Sharma, Advocate
       V/s
Jameel Ahmed and others                               ...Respondent(s)
                           Through:- Mr. Kumar Love, Advocate for
                                     R-1 & 2
                                     Mr. Vishal Bharti, Dyt. AG for
                                     R-4

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                         JUDGMENT(ORAL)

1) This acquittal appeal by the State is directed against the order

and judgment dated 31.12.2013 passed in File No.78/Challan titled

State v. Jameel Ahmed and others, whereby the Court of learned

Sessions Judge, Udhampur ["the trial court"] has acquitted

respondent Nos. 1 to 3 of the charges under Section 376/506 RPC.

Respondent No.3 having died during pendency of the appeal, has

already been deleted from the array of respondents in terms of order

of this Court dated 11.02.2020.

2) Briefly stated, the facts leading to the filing of this appeal by

the State are that PW-Jamal din, father of the prosecutrix, lodged a

complaint before the Police Station, Ramnagar that his daughter, 16

years old and a student of 8th class in the High School Chagotra

Tehsil Ramnagar, had given birth to a female child and wass

admitted in the hospital. It was alleged that the accused Asif and his

brother Jameel Ahmed had raped her, as a result whereof, she had

conceived and delivered a child. The accused-Asif being a married

person had refused to marry the prosecutrix. On the basis of this

statement, FIR No.03/2013 under Sections 376/506/109 RPC was

registered and investigation commenced. During investigation, the

Investigating Officer recorded statements of the prosecution

witnesses and also statement of the prosecutrix under Section 164-A

Cr.P.C. The Investigating Officer collected all the relevant

documents including those pertaining to the delivery and admission

of the prosecutrix in the hospital. The new born baby of the

prosecutrix was also handed over to the mother of the prosecutrix.

DNA sample of the new born child and accused in the presence of

Magistrate was taken for DNA testing. On investigation, the

Investigating Officer found that on the date of occurrence, the

accused Jameel and Asif, both sons of Mohd. Sharif R/o Balota

Tehsil Ramnagar intercepted the prosecutrix when she was going to

school, took her to an isolated place and committed rape upon her

and have also threatened to kill her in case she would narrate the

incident to anyone. The prosecutrix later gave birth to a female

child. On conclusion of the investigation, challan was presented

before the trial court for offences under Sections 376(2)/G/506/34

RPC against Jameel and Asif, whereas accused Mohd. Sharief was

challaned for offence under Section 376/109 RPC. The trial court

vide its order dated 19.03.2013 charged the respondents-accused for

the offences aforementioned. Respondent No.3-Mohd. Sharief was,

however, charged for offences under Section 202 RPC instead of

376/109 RPC. With a view to substantiate its case, the prosecution

recorded statements of prosecutrix, PW-Jamal Din, the father of the

prosecutrix, PW-Hans Raj, PW-Rashma Bibi, mother of the

prosecutrix, PW-Rano Devi, PW-Dr. Talib Hussain, PW-Dr.

Manisha Langar and PW-Vikram Kumar, Sub Inspector. After

closure of the evidence of the prosecution, statements of the accused

under Section 342 Cr.P.C. were recorded. The accused pleaded

innocence but chose not to lead any evidence in defence.

3) The trial court considered the entire prosecution evidence,

particularly, the statement of PW-Dr. Talib Hussain and PW-Dr.

Manisha Langar and came to the conclusion that the age of the

prosecutrix on the date of occurrence was more than 18 years and

sexual intercourse that had taken place between her and accused-

Mohd. Asif was consensual and, therefore, the offences alleged

against the respondents-accused were not established or proved. He,

accordingly, set free all the three accused and acquitted them of all

the charges levelled against them. The father of the prosecutrix i.e.

PW-Jamal Din along with his wife and daughter feel aggrieved of

the judgment of acquittal recorded by the trial court and have

invoked the revisional jurisdiction of this Court to set aside the

impugned judgment and order and convict the respondents for

offences under Section 376/506 RPC.

4) The impugned judgment has been assailed by the petitioners

on the ground that the trial court has failed to appreciate the

evidence in proper perspective and has landed itself in an error by

acquitting the respondents of the commission of heinous offence of

rape. It is submitted that the prosecution by leading cogent and

satisfactory evidence has proved the allegations beyond any

reasonable doubt and, therefore, the trial court had no option but to

convict all the accused and sentence them to maximum punishment

provided by law. It is submitted that the petitioners were waiting for

the State to file acquittal appeal but when the State showed its

reluctance to do so, the instant revision petition was filed.

5) Having heard learned counsel for the petitioners and learned

counsel appearing for the respondents, I find no merit in this

revision petition. The only evidence on record to prove the age of

the prosecutrix is statement of expert witness PW-Dr. Manisha

Langar, Radiologist, who had examined the prosecutrix and issued

the certificate exhibited as Ext.P-13. As per the certificate issued

and proved by Dr. Manisha Langar, age of the prosecutrix is stated

to be more than 17 years but less than 19 years. As rightly held by

the trial court, margin of two years on both sides is required to be

given to work out the age and if it is done in the instant case, age of

the prosecutrix could not be less than 18 years. Observations of

Hon'ble Supreme Court in paragraph 13 of the judgment in Jyoti

Prakash Rai v. State of Bihar, (2008) 15 SCC 223 are very apt to

be noticed.

"13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283], opined:

"20. It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact."

In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side."

6) That apart, going by the doctors report, age of prosecutrix

could be between 17 years to 19 years. In such situation the only

way to arrive at the age of prosecutrix is to find out mean of the two

i.e. 17+19=36/2 i.e. 18 years. In many cases, Supreme Court has

adopted this method to work out the age of a person, particularly

when there are more than one medical opinion with regard to age of

such person. For the aforesaid reason, I concur with the view of the

trial court.

7) Once the prosecutrix is held to be major in light of the

evidence on record, charges of rape upon the prosecutrix would fall

flat.

8) As per her own statement, prosecutrix wanted to marry

respondent-Asif, who too was happy to marry the prosecutrix but it

was only because of the father of the accused, accused-Asif was

married to some other girl. This made the prosecutrix annoyed with

accused-Asif and his brother Jameel and she filed case against them.

During her cross-examination, she has stated that she was having

relations with accused-Asif for about 12 years but they had not

disclosed about it to their parents. There is no evidence on record

nor it can be culled out from the statement of the prosecutrix that the

accused-Asif or his brother had sexual intercourse with her without

her consent or against her will. There is no other evidence of sexual

assault. In these circumstances, the trial court had no other option

than to acquit the accused and the trial Court did exactly the same.

9) I have thoroughly gone through the judgment and the

evidence on record, but could not persuade myself to take a view

contrary to the one taken by the trial court. Even otherwise also,

power to interfere with the judgment of acquittal in revisional

jurisdiction is limited and restricted only to perversity in the

impugned judgment of acquittal.

10) As discussed above, I have found no legal infirmity or

perversity in the judgment of the trial court. Therefore, I am not

inclined to interfere with the order of acquittal recorded by the trial

court.

11) Accordingly, the revision petition is found to be without

merit, hence dismissed.

(Sanjeev Kumar) Judge

Jammu 05.08.2021 Vinod, PS. ``` Whether the order is speaking :Yes Whether the order is reportable: Yes

VINOD KUMAR 2021.08.05 14:52 I attest to the accuracy and integrity of this document