Jammu & Kashmir High Court
State Of J&K vs Faiz Ali on 2 December, 2021
Sr. No.10
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CRAA No. 122/2013
State of J&K ....Petitioner/Appellant(s)
Through :- Mr. Ravinder Gupta, AAG
V/s
Faiz Ali ....Respondent(s)
Through :- M/s Masood Ahmed & Amit Kumar
Maski, Advocates
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT (ORAL)
1. This appeal by the State is directed against the judgment of
acquittal dated 24th January, 2013 recorded by the Court of learned
Sessions Judge, Samba ["the Trial Court"] in file No.97-A/Session
entitled State v. Faiz Ali, whereby the Trial Court has acquitted the
respondent of the charge under Section 376 RPC.
2. As prosecution story goes, the prosecutrix on 8 th June, 2009 was
grazing her cattle in a jungle where she was called upon by the
respondent to help him in finding out his goat. When the prosecutrix
reached near him he caught hold of her and forcibly took her to jungle
and raped her there. After committing crime, the respondent threatened
her that he would murder her in case she discloses the incident to
anybody. It was the complaint of the prosecutrix that she came home
but did not disclose the incident to anybody because of the fear of the
respondent. It was only on 30th June, 2009, she narrated the whole
incident to her mother, who, in turn, narrated the same to her father,
who came home on the said day. On the basis of the written complaint
filed on 2nd July, 2009, FIR No.56/2009 for commission of offence
under Section 376 RPC was registered against the respondent and
investigation set in motion. After investigation, offence under Section
376 RPC was found established by the police and Final Police Report
in this regard was laid before the Court of Additional Munsiff, JMIC,
Samba, who committed the case to the trial Court for judicial
determination.
3. The trial Court framed charges against the respondent for
commission of offence under Section 376 RPC on 20.09.2010 and put
the respondent to trial. The respondent, however, pleaded not guilty and
claimed to be tried. With a view to prove its case, the prosecution
examined prosecutrix, PW-2 Ravi Bhagat, PW-3 Mohd. Latief, PW-4
Sharifa Bibi, PW-5 Mohd. Hamid, PW-6 Dr. Rashmi Sharma and PW-
7 Dr. K.S.Chauhan. Incriminating circumstances and evidence
appearing against the respondent were put to him and his statement
under Section 342 Cr.P.C was recorded. The respondent, however, led
no evidence in defence.
4. The trial Court, after considering the evidence on record and
after hearing the Public Prosecutor and learned counsel for the defence,
came to the conclusion that the prosecution has failed to prove case
against the respondent beyond any reasonable doubt and, therefore,
giving benefit of doubt to the respondent, acquitted him of the charge
framed against him vide judgment dated 24th January, 2013. It is this
judgment of the trial Court, which is impugned in this appeal by the
State.
5. The impugned judgment of acquittal has been assailed by the
State primarily on the ground that the trial Court has failed to
appreciate the law and the evidence on record in its true perspective
and has erred in giving benefit of doubt to the respondent. It is
contended that the prosecutrix as well as other prosecution witnesses
have fairly explained the delay in lodging the FIR and, therefore, the
Trial Court should have accepted their version and convicted the
respondent accordingly. It is also argued by the learned counsel
appearing for the appellant that the conviction in the cases of sexual
assault can be based on the solitary evidence of the prosecutrix and no
further corroboration is required in law. It is, thus, argued that the
statement of the prosecutrix inspires confidence and is sufficient
enough to convict the respondent.
6. Per contra, learned counsel appearing for the respondent submits
that though it is true that the conviction in rape case can be based on the
solitary evidence of the prosecutrix, yet the Court has to be sure and
satisfied that the statement of the prosecutrix inspires confidence and is
free from any doubt or ambiguities. It is urged that having regard to the
contradictory statements of the prosecution witnesses on record, it was
not fair to convict the respondent and this is what exactly has been done
by the trial Court.
7. Having heard learned counsel for the parties and perused the
record, I am of the firm opinion that the view taken by the trial Court in
the matter was the only plausible view that could have been taken in
light of the evidence on record.
8. The trial Court has found that there was unexplained delay in
lodging the FIR and that different versions have emerged from the
statement of the prosecutrix, her mother and brother and, therefore, it is
not fair to base conviction on the solitary statement of the prosecutrix,
more so, when there is no ocular evidence to the occurrence.
9. I have gone through the impugned judgment minutely and the
statement of the prosecution witnesses. The prosecutrix in her
statement has supported the version given in the FIR but in her cross-
examination she has stated that she narrated the incident to her mother
after two days because she was in fear of threat of the accused. If that
statement of the prosecutrix is to be believed on its face value, it
remains to be explained as to why the mother waited for lodging of the
FIR till 2nd July, 2009. As per the the statement of the prosecutrix, FIR
was lodged when her father came back and her mother narrated the
incident to him. There is nothing on record to show whether the father
was out of station and returned home only on 30 th June, 2009 and if it
was so, why he took further two days to go to the Police Station when
the Police Station was not at a far off distance.
10. As noted above, there is no convincing evidence nor does
medical evidence support the commission of offence of rape. There are
no marks of injury observed by the doctor nor was there any fresh
evidence of rape upon the prosecutrix. Otherwise also, prosecutrix was
examined after the FIR was lodged i.e. after almost one month of the
occurrence and therefore, there was hardly any evidence of the alleged
offence left to be taken note of by the doctor. Statement of PW-6 Dr.
Rashmi Sharma is that the prosecutrix was habitual of sexual
intercourse and, therefore, of no avail for the determination of guilt of
the respondent.
11. I am at one with the trial Court that the prosecution has
miserably failed to connect the respondent with the commission of
alleged offence and that the evidence on record is not sufficient to
come to the conclusion that the charge against the respondent has been
proved beyond any reasonable doubt.
12. For all these reasons, I do not find it a fit case for interference
with the acquittal appeal, more so, when the role of the Appellate Court
hearing acquittal appeal is well circumscribed. It is trite law that when,
on the basis of evidence on record, two views are possible, the view
that favours the accused is to be adopted.
13. In the result, I find no merit in this appeal, the same is
accordingly, dismissed.
(Sanjeev Kumar)
Judge
Jammu:
02.12.2021
Vinod, PS
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
