Jammu & Kashmir High Court
State Of J&K vs Ravi Kumar on 25 March, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No. 224/2014
Reserved on:- 18.03.2021
Pronounced on:- 25.03.2021
State of J&K. .....Appellant(s)
Through :- Mr. Vishal Bharti, Dy. A.G.
V/s
Ravi Kumar .....Respondent(s)
Through :- Mr. Sachin Sharma, Advocate.
CORAM :
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar-J
1. The instant appeal is directed against the judgment dated
30.04.2014 passed by the learned Sessions Judge, Udhampur, whereby the
learned Trial Court while dismissing the charge-sheet arising out of FIR No.
141/2012 for offences under Sections 366 and 376 RPC has acquitted the
respondent (hereinafter referred to as the "accused").
2. Briefly stated the case of the prosecution before the learned Trial
Court was that on 20.08.2012, the prosecutrix, who happens to be a deaf and
dumb girl, was abducted by the accused after taking undue advantage of her
innocence and simplicity, whereafter she was subjected to wrongful
confinement and repeated forcible sexual intercourse for seven days. The
criminal prosecution against the accused was initiated with the lodging of a
missing report in respect of the prosecutrix by her father-PW-Dev Raj on
20.08.2012. In the said report, the age of the prosecutix was given as 16½
years. On 21.08.2012, the complainant again approached the police, informing
that the prosecutrix had been allured, enticed and kidnapped by the accused.
On the basis of this information, the police registered a case under Section 363
of the RPC and set the investigation of the case into motion. During
investigation of the case, mobile cell of the accused was kept under
surveillance and as per the tower location, the said cell phone was found to be
operational in Gulab Garh area. Accordingly, the police proceeded to said area
and on 26.08.2012, the police recovered the prosecutix from the accused while
the two were in a bus, that was lying parked in Gulab Garh Bazar. The said
bus was scheduled to proceed to Jammu.
3. Upon recovery of the prosecutrix, she was got medically
examined. The accused was also got medically examined. From the certificate
issued by the School, where the prosecutrix had studied upto 8 th standard, her
date of birth was found to be 25.10.1992, which means that she was about 20
years of age at the time of the alleged occurrence. The investigation also
revealed that the prosecutrix had been subjected to wrongful confinement and
sexual assault. Thus, offences under Sections 366, 376 & 343 RPC were found
established against the accused and the charge-sheet was laid before the Court.
4. On 20.10.2012, charge for offences under Sections 366, 376 and
343 RPC was framed against the accused and he was put to trial. During the
trial of the case, the prosecution examined as many as eight witnesses, whereas
the accused examined four witnesses in defence. The learned Trial Court after
analyzing the evidence on record came to the conclusion that the prosecutrix
had eloped with the accused out of her own free will and volition and as such,
the charges pertaining to kidnapping, rape and wrongful confinement against
the accused are not proved.
5. The appellant-State has called-in-question the impugned judgment
of the learned Trial Court on the grounds that the learned Trial Court has not
properly appreciated the evidence while recording the judgment of acquittal in
favour of the respondents; that the learned Trial Court has taken a
hypertechnical approach and ignored the circumstantial evidence on record and
that the impugned judgment is against law and facts.
6. We have heard learned counsel for the parties, perused the
impugned judgment, the grounds of appeal and the record of the Trial Court.
7. As aleardy noted the case of the prosecution against the accused is
that on 20.08.2012, he enticed the prosecutrix to go with him, whereafter he
kept her in wrongful confinement for seven days and subjected her to forcible
sexual assault. In the cases relating to sexual assault, the victim happens to be
the most important and crucial witness. However, in the instant case, the
prosecutrix happens to be a deaf and dumb girl, who as per the prosecution
case was aged about 20 years at the relevant time. It has been vehemently
contended by the learned counsel for the appellant that the fact that victim in
the instant case was a deaf and dumb girl, the learned Trial Court was expected
to analyze her statement and approach the case with more sensitivity, which the
learned Trial Court has failed to do.
8. In order to test the merits of the above argument, we need to
analyze the statement of the prosecutrix and the manner, in which the same has
been appreciated by the learned Trial Court while passing the impugned
judgment. The prosecutrix in this case being deaf and dumb has been examined
by the learned Trial Court with the assistance of an interpreter. As per the Trial
Court record, for recording the statement of the prosecutrix, assistance of an
interpreter, namely, Sh. Vijay Kumar Chabbra of All India Federation of Deaf,
Panchkuian Road, Delhi has been taken. The interpreter has been administered
oath by the learned Trial Court, whereunder he undertook to honestly decode
the signals/ signs by the witness.
9. As per the statement of the prosecutrix, as decoded by the
interpreter, the prosecutrix is stated to have gone out for easing herself when
the accused gagged her mouth and forcibly took her away. She has further
stated that the accused tore her clothes and subjected her to rape. She also
stated that she was given intoxicating drugs by the accused. However, in her
cross-examination, the prosecutrix stated that the accused applied sindoor
(vermilion) to her. She further stated that the accused also made her to wear
Mangalsutra and further he presented to her two suits. She also admitted that
she kissed the accused and took photographs with him in different poses. She
further admitted that one of the photographs was taken by her with an old lady,
who was staying nereby. In fact, when she was confronted with these
photographs, she admitted the genuineness of these photographs.
10. In the statement recorded under Section 342 RPC, the accused has
taken a defence that the prosecutrix had accompanied him out of her own will
for undertaking Machail Mata Yatra. He has further taken a defence that on
her way back, the prosecutrix entered into wedlock with him and that he did
not force her into anything. Throughout the cross-examination of the
prosecution witnesses, the accused has developed the same defence. In order
to probablize his defence, the accused has besides placing on record his
photographs with the prosecutrix, which the prosecutrix admitted to be
genuine, also produced DWs-Pooja Devi, Sonu Devi, Laxmi Devi and Joginder
Sharma as witnesses.
11. The prosecutrix in her cross-examination has admitted that she
was learning tailoring from DW-Sonu Devi and she has also admitted that she
also knows DW-Pooja Devi. DWs- Pooja Devi and Sonu Devi have confirmed
that the prosecutrix was working in the Handicraft Center with them. They
have further stated that the prosecutrix was in deep love with the accused. In
fact, both DWs-Pooja Devi and Sonu Devi have stated that the prosecutrix had
engraved the name of the accused on her left arm and narrated to them that she
would like to run away with him. In addition to this, we have on record the
medical certificate of the prosecutrix-EXTP-9, which has been issued by
PW-Dr. Nidhi Mahajan. It is recorded in the said certificate that the
prosecutrix had made a writing before the said doctor that she ran away on
20.08.2012 with somebody and got married with him. The doctor in her
statement deposed that although no such written statement was given by the
prosecutrix, yet she gathered this from her gestures and the dates, which she
gave in writing.
12. From the foregoing statement of the prosecutrix, defence
witnesses and the statement of the doctor, it becomes clear that the prosecutrix,
who was a major person, possessing sound mind at the relevant time, was
having an affair with the accused. The defence of the accused that the
prosecutrix had accompanied him out of her own will and volition and without
any force, gets established from the foregoing evidence. Therefore, the finding
of the learned Trial Court that the prosecutrix had eloped with the accused out
of her own will and volition and that it was not a case of forcible sexual
intercourse, appears to be logical and well founded.
13. The case of the prosecution is further dented by the fact that the
medical evidence on record does not support the theory of forcible sexual
intercourse. Dr. Nidhi Mahajan, the doctor, who conducted the medical
examination of the prosecutrix has stated that as per her examination, the
prosecutrix had not been subjected to sexual intercourse in the recent past and
she explained in her cross-examination that by recent past, she means for more
than two weeks. The prosecutrix has been subjected to medical examination
on 26.08.2012, i.e., the day on which she was recovered by the police. As per
the prosecution case, she was repeatedly subjected to sexual intercourse for
seven days. If that would have been the case, then certainly, there wlould have
been not only marks of violence on her body, but also some evidence of sexual
intercourse on her person. Nothing of the sort has been found by the doctor,
who examined her. Thus, the theory of forcibe sexual intercourse upon the
prosecutrix is negated by the medical evidence on record.
14. That takes to the argument of learned counsel for the appellant
that since the case involved the sexual assault upon a deaf and dumb girl, as
such, a more sensitive approach was needed while considering the case at hand.
There can be no quarrel with the proposition propounded by Mr. Vishal Bharti,
learned Dy. A.G, apearing on behalf of the appellant. However, it does not
mean that in all cases, where the alleged victim happens to be deaf and dumb,
it is to be presumed that the accused has committed the offence irrespective of
the fact whether there is any evidence to support the same.
15. Though in the instant case, the prosecutrix happens to be deaf and
dumb, yet there is not even an ioto of evidence on record to show that she was
not of sound mind. Not even the parents of the prosecutrix have stated that she
was not of sound mind. Therefore, the statement of the prosecutrix is to be
appreciated and evaluated in the same manner as we would appreciate and
evaluate the statement of any other grown up major girl. Her statement has
been recorded with the assistance of an expert interpreter regarding which there
is no challenge at least from the appellant/prosecution. As already noted, the
statement of the prosecutrix when evaluated in the light of the surrounding
circumstances established on record leads us to only one conclusion that she
had out of her free will and volition accompanied the accused. Thus, the
statement of the prosecutrix has been properly analyzed and appreciated by the
learned Trial Court in the light of other material on rocord, as discussed herein
before. Therefore, we do not find any reason to take a view, which is different
from the view taken by the learned Trial Court.
16. It is a beaten law that the appellate court interferes with the order
of acquittal only under compelling circumstances when the impugned order is
found to be perverse. The appellate court has to be bear in mind presumption
of innocence of the accused and further that the Trial Court's acquittal bolsters
presumption of his innocence. Therefore, interference in a routine manner
without any good reason is not permissible. In this backdrop, we do not find
any reason muchless a good reason to interfere with the judgment of acquittal
recorded by the learned Trial Court.
17. The appeal is, accordingly, dismissed and the impugned judgment
dated 30.04.2014 passed by the learned Sessions Judge, Udhampur is upheld.
(Sanjay Dhar) (Tashi Rabstan)
Judge Judge
JAMMU
25.03.2021
(Ram Krishan)
Whether the order is speaking? Yes
RAM KRISHAN
2021.03.25 11:34 Whether the order is reportable? Yes
I attest to the accuracy and
integrity of this document
