Jammu & Kashmir High Court

Sudesh Kumari vs State Of J&K And Others on 8 July, 2021

                                                               S. No. 202
            HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU
                                    Reserved on : 03.07.2021
                                    Pronounced on 08 .07.2021

                                                CRR 30/2013
                                           (Through Video Conferencing)



Sudesh Kumari                                               ...Petitioner (s)


                 Through :- Mr. Sachin Gupta, Advocate

                v/s
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State of J&K and others                                    .....Respondent(s)
't




                 Through :- Mr. Bhanu Jasrotia, GA for R-1
                            Mr. Kabir Kotwal, Advocate for R-2 to 4


Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
                                 ORDER

1. This revision petition is directed against an order of acquittal

dated 13.05.2011 passed by learned Chief Judicial Magistrate, Rajouri

whereby accused persons have been acquitted of the charges for offence

punishable under Sections 451, 332, 354/382, 201/34 RPC.

2. The order of acquittal has been challenged by the complainants

on the grounds that the same is bad in law and facts. Four prosecution

witnesses have supported the prosecution case, but the trial court has not

given reasons for disbelieving their statements. The trial court has not

properly appreciated the evidence on record and has drawn adverse inference

on account of non-production and examination of Investigating Officer and

the Doctor. The trial court should have ensured their presence and examined 2 CRR 30/2013

them so as to meet the ends of justice. The trial court has not recorded

anything in the judgment as to what steps had been taken to ensure the

presence of the said witnesses and omission of the trial court in this regard

calls for interference of this Court.

3. Heard learned counsel for the petitioners and perused the material

on record.

4. As is evident from the judgment impugned the accused persons

were facing trial for offences punishable under Sections 451, 332, 354/382,

201/34 RPC in respect of which challan i.e., File No. 182/Challan was

presented on 18.01.2005. The said FIR in respect of which challan in question

was instituted was filed on the basis of a complaint lodged by Sudesh Kumari

and Kirana Kumari and after a trial of more than six years during which

number of opportunities were granted to produce prosecution evidence, the

challan was dismissed and accused were acquitted.

5. The prosecution story in brief is that on 2.11.2004, a written

complaint was lodged by the complainants, Sudesh Kumari and Kirana Kumar

at Police Station, Rajouri alleging therein that Sudesh Kumari is posted as a

teacher and complainant Kirana Kumari is posted as R.E.T teacher in Govt.

School, Kote Dhara and the accused- Gulshan Kumar (respondent No. 2

herein) who is posted as R.E.T teacher in the said school alone with his

brother Sushil Kumar (respondent No. 3 herein) and Sham Lal (respondent

No. 4 herein) entered into the School premises and all the accused persons

assaulted and dragged them. They also made filthy remarks and thereby

outraged their modesty. The complainants also alleged that during scuffle, one 3 CRR 30/2013

gold chain and a wrist watch of Kirana Kumari was lost. Hence, the

complainants approached the trial court.

6. After framing of the charges against the accused persons, on

02.03.2005 they were charged for the aforesaid offences. The witnesses were

produced and evidence of the prosecution was closed on 23.04.20210,

whereafter defence evidence was led by the accused persons. The trial court

after having considered the evidence of the prosecution as well as defence has

observed as under:-

"The complaint Sudesh Kumari and Kirna Kumari have filed a written report which is exhibited as EXPW-SK to the SHO Police Station Rajouri, and in the said application it has been only alleged that they and accused Gulshan Kumar are posted as teachers in the Govt. Primary School Kot Dhara and on some old enmity, the accused Gulshan Kumar, Sushil Kumar (brother of accused Gulshan Kumar) and accused Sham Lal Son of Bodh Raj intruded into the School premises and all the three accused assaulted Sudesh Kumari and Kirna Kumari and they even dragged them and made filthy remarks thereby outraged their modesty and during scuffle one golden chain weighing approximately 33 gram and a wrist watch of Ms. Kirana Kumari were lost in the occurrence, but during their statements, both Sudesh Kumari and Kirana Kumari have exaggerated and improved the prosecution story. The Prosecution witness Sudesh Kumari has stated that when she and Kirana Kumari were taking their classes at about 11 a.m, Gulshan Kumar went into the bushes behind the school and he came out from the bushes after about 10/15 minutes and he started accusing her, and in the meantime, the brother of accused Gulshan Kumar namely Sushil Kumar and Sham Lal who is uncle of the accused Gulshan Kumar, also came on spot and all the three assaulted her and 4 CRR 30/2013

started beating her and accused Gulshan Kumar beat her with legs and blows and she received injury on her face below eye.

Accused Gulshan Kumar also threw her „Dopatta‟ and tore her shirt and she was made naked in front of the students. She has further stated that accused Sushil Kumar caught her from the arm, accused Sham Lal from the hair and accused Gulshan Kumar from the breast and they dragged her inside the school. When she cried her school students came in spot. Kirna Kumari also came on spot on hearing the hue and cry, to rescue her and accused Sushil Kumar caught hold of her and the other two accused also assaulted Kirna Kumari also came on spot on hearing the hue and cry, to rescue her and accused Sushil Kumar and severely beat her and she received injury on her face and after beating Kirna Kumari her golden chain was taken by accused, Gulshan Kumar and he put the chain in his pocket and accused Sham Lal snatched the Citizen watch of Kirna Kumari. When the school students raised hue and cry, prosecution witnesses Ejaz and Ravi Chand also came on spot and they rescued them from the accused.

In the basic report which is exhibited as EXPW-SK it has only been stated that all the three accused has assaulted her and Kirana Kumari and they have used filthy remarks and has thereby outraged their modesty. It has not been mentioned in the EXPW- SK that any of the accused has caught the prosecution witness Sudesh Kumari from her breast. Further, in the application which is exhibited as EXPW-SK it has beeb alleged by the prosecution witnesses Sudesh Kumari and Kirana Kumari that the golden chain and wrist watch has been lost on spot due to scuffle, but in the statements recorded in the court, Sudesh Kumari has deposed that accused Gulshan Kumar has taken away the golden chain of Kirana Kumari and accused Sham Lal has taken away her Citizen wrist watch and by saying so, prosecution witness Sudesh Kumari has tried to level the offence of extortion against the 5 CRR 30/2013

accused, Gulshan Kumar and Sham Lal. Almost, a similar statement has been given by the prosecution witness Kirna Kumari with a variation that she has further stated that all the three accused has also dragged them into the bushes, whereas Sudesh Kumari has nowhere stated in her statement that accused has dragged them into the bushes. She has also stated that accused Gulshan Kumar has also caught her from the breast and her clothes has been torn as she was dragged into the bushes. Both these prosecution witnesses namely Sudesh Kumari and Kirana Kumari are near relatives and both these prosecution witnesses are also posted as teacher and R.E.T teacher in G.P.S. Kote Dhara, and from the statements of these witnesses, it appears that they have putforth a fabricated story against accused Gulshan Kumar, who is also posted as R.E.T teacher in the same school and his brother and uncle have been roped in order to harass accused Gulshan Kumar, and this appears to be the apparent reason that both prosecution witnesses, Sudesh Kumari and Kirna Kumari have tried to improve their basic application which is exhibited as EXPW-SK. There is no mention in the EXPW-SK that accused Gulshan Kumar has caught both these prosecution witnesses from the breast. There is also no mention that the clothes of prosecution witnesses Sudesh Kumari and Kirna Kumari were torn by the accused or, they were dragged into the bushes. There is also no mention that the golden chain and wrist have been stolen by accused Sham Lal, but in thei statements in the court, both Sudesh Kumari and Kirna Kumari have deposed that accused Gulshan Kumar have caught both these prosecution witnesses from the breast. Both these witnesses have also stated that accused Gulshan Kumar has taken away the golden chain and accused Sham Lal a wrist watch of prosecution witness Kirna Kumari. Both these witnesses have stated that their clothes were torn in the scuffle. The prosecution witness Kirana Kumari has further stated that they were dragged into the bushes, whereas Sudesh Kumari have not been such a statement. The 6 CRR 30/2013

names of the prosecution witnesses have not been mentioned in the F.I.R. The prosecution witness Sudesh Kumari has stated that the incident has taken place in front of the school students and they have raised hue and cry. Both Sudesh Kumari and Kirna Kumari were well knowing the names of the students of their school, but they have not mentioned the name of any witness in the basic report which is exhibited as EXPW-SK and, this further shows that the prosecution witnesses are planted witnesses and they are not the actual witnesses.

The prosecution witness Ravi Chand also appears to be untrustworthy and no credence and reliance can be placed on his statement. He has stated that Sudesh Kumari and Kirna Kumari have received injuries at their faces and blood was oozing from the said injuries, but neither PW Sudesh Kumari nor PW Kirna Kumari has stated that the blood was oozing from their face injuries. Accused Gulshan Kumar is admittedly posted as R.E.T in G.P.S. Kote Dara, but this witness has stated that none of the accused was posted as teacher in the said school. Hence, I find that this witness Ravi Chand is unworthy of credit and no reliance can be placed on his statement. PWs Kirana Kumari has stated that both Sudesh Kumari and she was dragged into the bushes by the accused, but this witness Ravi Chand has stated that only the prosecution witness Kirana Kumari was dragged into the bushes by the accused Gulshan Kumar. Further, Sudesh Kumari and Kirana Kumari have deposed that the prosecution witnesses Ravi Chand and Ejaz Ahmed have rescued them but, this witness Ravi Chand has stated that when they reached on spot, accused ran away.

The prosecution witness Ejaz Ahmed has nowhere deposed in his statement that accused Gulshan Kumar has caught the prosecution witness Sudesh Kumari from her breast, but he states that when Kirana Kumari came to rescue Sudesh Kumari, the 7 CRR 30/2013

accused Gulshan Kumar caught her from the breast and accused Sushil Kumar caught hold of Kirana Kumari and the school students also came on spot and they raised hue and cry. The statement of prosecution witness Ejaz Ahmed thus, also does not appear to be true and this witness is also a planted witness. The name of this witness has not been mentioned in the F.I.R. This witness has given contradictory statement from the statements of other prosecution witnesses and hence, no reliance can be placed on his statement also.

There are glaring contradictions and inconsistencies between the F.I.R. and the statements of the prosecution witnesses, and the whole prosecution story appears to be false, concocted and manipulated. All the prosecution witnesses have stated in their statements that the occurrence has taken place in the School compound at 11 a.m. and the prosecution witnesses Sudesh Kumari and Kirana Kumari were teaching the students and the students have seen the occurrence, but none of the school student has been produced and examined as prosecution witness to prove the occurrence. Further, the prosecution witnesses Sudesh Kumari and Kirana Kumari have not reported the matter to their immediate Superior Officer. They have lodged the report into the Police station without informing their immediate Superior officer which also creates suspicion and serious doubt about the truthfulness of the prosecution case. Why the students of the school have not been cited and examined as prosecution witnesses, is another circumstance which also creates suspicion and doubt about the truthfulness and worthiness of the prosecution story. Thirdly, the names of the prosecution witnesses have not been mentioned in the F.I.R. which also creates a suspicion and serious doubt about the truthfulness and worthiness of the prosecution story.

The prosecution witnesses, Sudesh Kumari and Kirana 8 CRR 30/2013

Kumari have deposed in their statements that the golden chain and wrist watch of Kirana Kumari have been snatched and taken away by accused Sham Lal, but in the F.I.R. these have been alleged to be lost in the scuffle between the complainants and accused and thus, statements of the prosecution witnesses, Sudesh Kumari and Kirana Kumari appears to be exaggerated and made, with the malafide intention to falsely implicate the accused persons on the basis of some grudge. There are also many other contradictions between the statements of the prosecution witnesses and the F.I.R. and the whole prosecution story appears to be untrustworthy and fabricated with malafide intention to falsely implicate the accused persons.

The two eye prosecution witnesses namely Shokat Ali and Mohd. Irfan have been got deleted by the prosecution on the application of prosecution witness Sudesh Kumari, and the statements of these two important eye prosecution witnesses have not been recorded in the court. The non-examination of these two witnesses further creates a suspicion about the truthfulness of the prosecution story. The second I.O. who has conducted the whole investigation and has produced the challan in the court, has not been produced and examined by the prosecution, and no explanation has been given by the prosecution on for his non production and non examination, and therefore, a serious prejudice has been caused to the accused by the non examination of the I.O. The accused have not been able to put the material questions to the I.O for his clarification, for example whey he has not cited the school students who have seen the occurrence as eye witnesses and also why the recovery was not made from accused Gulshan Kumar and Sham Lal if actually there was extortion of golden chain and wrist watch. The prosecution witness No. 9 Dr. Khalid Mawashuar has not been produced and examined, and the medical certificate issued by the Doctor has not been proved and exhibited and cannot be read in evidence.

9 CRR 30/2013

Thus, for what has been said and discussed above, I come to the conclusion that the prosecution has failed to prove the charges leveled against the accused persons, by leading clear, cogent clinching and convincing evidence beyond a reasonable shadow of doubt, and hence accused persons are acquitted for the commission of offences for which they were charged in the present case. Their surety and personal bonds shall stand discharged. The file shall consigned to records after its due compilation U/R.

7. As is clear from the judgment impugned, the trial court had taken

into account the prosecution story and after having appreciated the evidence in

its proper manner decided the challan and acquitted the accused persons by

holding that charges have not been proved beyond a reasonable doubt.

8. The petitioners herein are the complainants on whose complaint

the FIR in question was lodged and accused persons were put to trial. So far as

the question about the maintainability of revision is concerned, there is no

dispute regarding the same and it has been rightly so held by the trial court.

9. The question now arises as to whether in the circumstances of the

case and the grounds taken up by the petitioners, the order of acquittal

recorded in this case can be set side or converted into conviction or whether

retrial or remanding of the case is warranted.

10. In D. Stephens Vs. Nosibolla, 1951 SCR 284, the Supreme

Court has held that :-

"The revisional jurisdiction conferred on the High Court under Section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a 10 CRR 30/2013

right of appeal under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice."

11. Thus, jurisdiction is not ordinarily invoked or used merely

because lower court has taken a wrong view of the law or has not properly

appreciated the evidence on record.

12. This view has been acquired by the Supreme Court in several

judgments. The view that has consistently emerged is that revision by a

private party against the acquittal is entertainable only in exceptional

circumstances and that to very cautiously. The circumstances in which a

revision may be entertained or referred are those cases where the interests of

public justice requires interference for the correction of a manifest illegality or

for prevention of gross miscarriage of justice.

13. In Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583, the Hon‟ble

Supreme Court has held that:

"8. The unrestricted right of appeal from acquittal is specifically

conferred only on the State and a private complainant is given

this right only when the criminal prosecution was instituted on

his complaint and then also subject to special leave by the High

Court. It is further provided in Section 439(5) CrPC, that where

no appeal is brought in a case in which an appeal is provided, no

proceedings by way of revision would be entertained at the

instance of the party who could have appealed. The State 11 CRR 30/2013

Government, therefore, having failed to appeal, cannot apply for

revision of an order of acquittal. Again, on revision, the High

Court is expressly prohibited from converting an acquittal into a

conviction. Considering the problem facing the Court in this case

in the background of this scheme, the High Court when

approached by a private party for exercising its power of revision

from an order of acquittal, should appropriately refrain from

interfering except when there is a glaring legal defect of a serious

nature which has resulted in grave failure of justice. It is not

expected to act under Sections 435/439 CrPC as if it is a hearing

on appeal in spite of the wide language under Section 435 which

empowers it to satisfy itself as to the correctness, legality or

propriety of a finding, sentence or order and as to the regularity

of any proceeding and also in spite of the fact that under Section

439 it can exercise inter alia the power conferred on a Court of

appeal under Section 423 CrPC. The power being discretionary,

it has to be exercised judiciously and not arbitrarily. ..."

14. In Sheetala Prasad v. Sri Kant, (2010) 2 SCC 190, the Hon‟ble

Supreme Court has observed that:

"12. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of a private complainant 12 CRR 30/2013

(1) where the trial court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence, and (5) where the acquittal is based on the compounding of the offence which is invalid under the law.

13. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered."

15. In K. Ramachandran v. V. N. Rajan, (2009) 14 SCC 569, the Hon‟ble Suprem e Court has observed with respect to cases which would justify the High Court in interfering with the finding of acquittal in revision that:

"40. This question has been considered in the celebrated judgment of Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583 : 1973 SCC (Cri) 903] , where, after considering the judgments of D. Stephens v. Nosibolla [AIR 1951 SC 196 : 1951 SCR 284] , Logendranath Jha v. Polai Lal Biswas [AIR 1951 SC 316 : 1951 SCR 676] , K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 3 SCR 412] and Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC 707 : (1968) 2 SCR 287] this Court came out with categories of cases which would justify the High Court in interfering with the finding of acquittal in revision:

13 CRR 30/2013

(Akalu Ahir case [(1973) 2 SCC 583 : 1973 SCC (Cri) 903] , SCC pp. 587-88, para 8) "(i) where the trial court has no jurisdiction to try the case, but has still acquitted the [appellant-]accused;

(ii) where the trial court has wrongly shut out evidence which the prosecution wished to produce;

(iii) where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;

(iv) where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and

(v) where the acquittal is based on the compounding of the offence which is invalid under the law."

Of course, these categories were declared by this Court to be illustrative and this Court observed that other cases of similar nature could also be properly held to be exceptional in nature where the High Court could justifiably interfere with the order of acquittal."

16. In Johar v. Mangal Prasad, (2008) 3 SCC 423, the Hon‟ble Supreme Court has observed that:

23. In Mahendra Pratap Singh v. Sarju Singh [AIR 1968 SC 707 : (1968) 2 SCR 287] this Court stated the law thus: (AIR pp. 708- 09, para 8)

"8. The practice on the subject has been stated by this Court on more than one occasion. In D. Stephens v. Nosibolla [AIR 1951 SC 196 : 1951 SCR 284] only two grounds are mentioned by this Court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of justice. In explaining these two propositions, this Court further states that the High Court is not entitled to interfere even if a wrong view of law is taken by the Court of Session or if even 14 CRR 30/2013

there is misappreciation of evidence. Again, in Logendranath Jha v. Polai Lal Biswas [AIR 1951 SC 316 : 1951 SCR 676] this Court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no appraisal of the evidence at all. This Court observes that it is not sufficient to say that the judgment under revision is „perverse‟ or „lacking in true correct perspective‟. It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however much the High Court may caution the subordinate court, it is always difficult to re-weigh the evidence ignoring the opinion of the High Court. Again in K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788 : (1963) 3 SCR 412] it is pointed out that an interference in revision with an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the Court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had overlooked some evidence. Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court."

17. Having regard what has been stated above and the law referred

above, I do not find any ground in bringing this case within the parameters of

the law laid down warranting interference with the order of acquittal recorded

by the trial court. The trial Court has after the trial being going on for so many

years, appreciated the evidence produced by the prosecution and has come to

the conclusion based on the proper appreciation of evidence produced. There

is nothing on the file or brought before the Court and substantiated by learned

counsel for the petitioners to establish that the findings of the trial court was 15 CRR 30/2013

perverse or is manifestly erroneous in order to warrant this Court to interfere

with the finding or to send the case back for re-trial before the trial court.

18. Therefore, holding that there is no merit in this petition, the same

is, accordingly, dismissed.