Safina Kouser vs State And Another
2021 Latest Caselaw 911 j&K

     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU

                                                Reserved on : 04.08.2021
                                                Pronounced on : 18.08.2021

                                                  CRR No.26/2020
                                                  IA No.1/2015
                                                  CrlM No.601/2020

Safina Kouser                                                   .... Petitioner(s)

                    Through: Mr. Sunil Sethi, Sr. Advocate with
                             M/s Mohsin Bhat & Navyug Sethi, Advocates
        Versus

State and another                                             ......Respondent(s)

                    Through:      Mr. Bhanu Jasrotia, GA
                                  Mr. Aditya Sharma, Advocate

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



                                 JUDGMENT

1) The petitioner, a victim of rape, has invoked the revisional jurisdiction

of this Court to challenge the judgment and order of acquittal dated

23.04.2015 passed by the Court of learned Principal Sessions Judge, Rajouri

["the trial Court"] in file No.55/challan titled State of J&K v. Muzzafar

Hussain.

2) With a view to appreciate the challenge of the petitioner to the impugned

judgment of acquittal it is necessary to briefly notice material facts. As per

prosecution, a complaint written in Urdu was presented by Mohd. Nasir, the father

of the petitioner, before Judicial Magistrate 1st Class, Thannamandi on 16.10.2008,

which was forwarded by the learned Magistrate under Section 156(3) Cr.P.C. to

the Incharge Police Station, Thannamandi. It was stated in the complaint that the

daughter of the complainant, aged 17 years old, was enticed by respondent No.2.

He took her in confidence and committed rape on her. Respondent No.2 also

threatened her of dire consequences, if she discloses it to anybody. When his

daughter became pregnant, the complainant came to know the facts. The matter

was taken to panchayat, where respondent No.2 as also his parents were called.

Respondent No.2 admitted his guilt and undertook to keep complainant's daughter

with him and to bear all her expenses of maintenance. Respondent No.2, however,

later on backed out of his commitment. It was alleged that respondent No.2 was a

professional criminal and womanizer and had already married when he enticed the

daughter of the complainant. On the basis of this complaint forwarded by the

learned Magistrate, police registered FIR No. 125/2008 under Section 376 RPC

against respondent No.2 and ASI Mohd. Qayoom was entrusted the investigation.

Investigation in the matter was conducted by the Investigating Officer and,

accordingly, challan was presented before the trial court against respondent No.2

for offence under Section 376 RPC. With a view to substantiate challan and the

charge against respondent No.2, prosecution recorded statements of PW-Mohd.

Nasir, the father of the prosecutrix, prosecutrix, PW Mohd. Latief, the uncle of the

prosecutrix, PW Ulfat Begum, the mother of the prosecutrix, PW Karmat Ullah,

the uncle of respondent No.2, PW Mohd. Makaraf, brother of the prosecutrix, PW

Mushtaq Ahmed Shah, PW Mohd. Younis, PW Mohd. Ibrahim, PW-Dr. Neeraj

Gupta. On the conclusion of the prosecution evidence, statement of respondent

No.2 was recorded in terms of Section 342 Cr.P.C. He denied all charges but

chose not to lead any defence evidence.

3) The trial court, after considering the material on record including the

evidence led by the prosecution, came to the conclusion that the statement of the

victim did not inspire confidence of the Court nor the same had been corroborated

by any independent evidence. The trial court also relied upon the report of the

expert regarding paternity of the child that was given birth to by the prosecutrix to

disbelieve the prosecutrix and, thus, acquitted respondent No.2 of the charge of

rape.

4) The State is not aggrieved and has not challenged the judgment impugned

by way of acquittal appeal. The prosecutrix, however, is not satisfied with the

judgment of acquittal recorded by the trial court and is before this Court in this

criminal revision petition.

5) Mr. Sunil Sethi, learned Senior Counsel, representing the petitioner, being

well aware of the scope of interference by this Court with the judgment of

acquittal in the revisional jurisdiction restricted his arguments only to the question

as to whether the DNA report which was brought on record after the conclusion of

the prosecution evidence could have been relied upon by the trial court without

putting the same to the prosecutrix and without affording her an opportunity to

assail its veracity or authenticity.

6) It is vehemently argued by Mr. Sethi that neither DNA report placed on

record was proved by examining the author thereof nor the prosecutrix or the

prosecution was given any opportunity to cross examine the author of the report. It

is the further argument of Mr. Sethi that the judgment of acquittal has been passed

by the trial court being influenced by the DNA report and not on the basis of

insufficiency of evidence.

7) Having heard learned counsel for the parties and perused the record, I am of

the view that even if the DNA report which was brought on record by respondent

No.2 without leading any evidence in defence is ignored, prosecution evidence on

record is not sufficient to prove the charge of rape against respondent No.2 beyond

reasonable doubt. As correctly observed by the trial court that FIR in the instant

case was lodged on 17.10.2008 while the statement of the prosecutrix under

Section 164 Cr.P.C. was recorded on 12.12.2008 i.e. after about two months and in

the absence of statement of the Investigating Officer, the delay so caused has

remained unexplained and, therefore, puts a dent on the prosecution case. That

apart, the medical certificate issued by PW-Dr. Manisha was also not proved as

the said witness for the unexplained reasons was not examined by the prosecution.

It is, thus, not correct to say that acquittal of respondent No.2 has resulted only

because of DNA report, which apart from other material was also relied upon by

the trial court to arrive at the conclusion with regard to the acquittal of respondent

No.2.

8) This Court while hearing a revision petition cannot sit in appeal over the

judgment of acquittal and re-appreciate the evidence on record. Considering

Section 439 of the Code of Criminal Procedure pertaining to revisional

jurisdiction, the Supreme Court in D. Stephens v. Nosibolla, AIR 1951 SC 196

held that revisional jurisdiction under Section 439 of the Code of Criminal

Procedure ought not to be exercised lightly particularly when it is invoked by a

private complainant against the order of acquittal which could have been appealed

against by the government under Section 417 Cr.P.C. It could be exercised only in

exceptional cases where interests of public justice require interference for the

correction of manifest illegality or the prevention of a gross miscarriage of justice.

In other words, the revisional jurisdiction of the High Court cannot be invoked

merely because the trial court has taken a wrong view of law or mis-appreciated

the evidence on record. In the case of Duli Chand v. Delhi Administration,

(1975)4 SCC 649, the Apex Court reminded that jurisdiction of High Court in

criminal revision is severally restricted and it cannot embark upon re-appreciation

of evidence.

9) Keeping in view the circumscribed jurisdiction of this Court while

exercising revisional powers, I do not find it a fit case to interfere with the

judgment of acquittal recorded by the trial court, more so, when the State has not

filed any appeal under Section 417 Cr.P.C. The view taken by the trial court in the

face of evidence on record is possible view and, therefore, even if this Court on

evaluation of evidence, which course is though, not permissible, comes to a

different view, it would take the view that goes in favour of the accused.

10) For all these reasons, I find no merit in this revision, the same is,

accordingly, dismissed along with connected applications.

Record be sent back to the trial court.

(Sanjeev Kumar) Judge

JAMMU 18.08.2021 Vinod Whether the order is speaking: Yes Whether the order is reportable: Yes

VINOD KUMAR 2021.08.18 17:17 I attest to the accuracy and integrity of this document