State Of J&K vs Meet Masih
2021 Latest Caselaw 1453 j&K

         HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                          AT JAMMU

CJ Court                                                Reserved on   05.10.2021
                                                        Pronounced on 12.11.2021
Case: CRAA No. 72 of 2017

State of J&K                                             .....Appellant/Petitioner(s)

                                Through :- Sh. Aseem Sawhney, AAG

                          v/s

Meet Masih                                                        .....Respondent(s)

                                Through :- None


Coram:       CORAM:
             HON'BLE THE CHIEF JUSTICE
             HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                   JUDGMENT

Per Rajnesh Oswal J

1. This instant criminal acquittal appeal has been preferred by the

State/U.T of J&K-appellant against the judgment dated 27.08.2014

passed by the learned 3rd Additional Sessions Judge, Jammu

(hereinafter to be referred as the trial court) by virtue of which, the

respondent has been acquitted of the charges under sections 363 and

376 RPC arising out of FIR bearing No. 156/2010 of Police Station,

Satwari, District Jammu.

2. The instant appeal has been filed on the grounds that there is sufficient

material on record to convict the respondent and the prosecution has

established the case against the respondent by adducing documentary as

well as oral evidence, that is sufficient to prove the guilt of the

respondent. It is further stated that the learned trial court has taken

hyper technical approach while considering the date of birth of the

appellant, as such, the judgment impugned is bad in the eye of law.

3. The brief facts those are necessary of the disposal of the present appeal

are that on 18.09.2010, a written report lodged by Janak Raj, the father

of the minor prosecutrix at Police Station Satwari that that his daughter,

student of 8th Class, aged 15 years went missing yesterday. He made a

search of his daughter but no clue was found, however, after inquiry, he

came to know that his daughter had been enticed by the respondent

herein, who kidnapped her and took her to unknown place. After the

aforesaid report, the Police registered the FIR against the accused for

commission of offence under section 363 RPC and investigation

commenced. The Investigating Officer visited the spot from where

prosecutrix was kidnapped and prepared a site plan and recorded the

statement of the witnesses under section 161 Cr.P.C. The date of birth

of the prosecutrix was also obtained from the Government Middle

School, Sure Chak and as per said certificate, the date of birth of the

prosecutrix was 15.07.1997.

4. The respondent was arrested on 22.11.2010 and at that time, the

prosecutrix was with him and thereafter, the medical examination of the

prosecutrix was conducted by the Police and after that she handed over

to her father. It came to fore from the investigation that the respondent

took the prosecutrix to Punjab and other places and after enticing her,

committed the forcible sexual intercourse for about two months. After

the medical report, the prosecutrix was found carrying a pregnancy of

5/6 weeks. Her statement was recorded under section 164-A Cr.P.C.

before a Magistrate.

5. After the completion of the investigation, the final report was filed by

the Police against the respondent in the court of Chief Judicial

Magistrate, Jammu on 27.12.2010 for commission of offences under

sections 363 and 376 RPC and that was committed to the court of

learned Sessions Judge Jammu and was later on transferred to the court

of learned 2nd Additional Sessions Judge, Jammu and was finally

transferred to the trial court. The charges were framed by the learned

trial court against the respondent for commission of aforesaid offences,

to which the respondent did not pleaded guilty and claimed to be tried.

The prosecution has examined as many as seven witnesses.

6. After the completion of the prosecution evidence, the respondent was

examined under section 342 Cr.P.C. wherein he denied the truth of the

prosecution evidence and stated that he had been implicated in a false

case and he was innocent.

7. That the learned trial court after hearing both the parties, acquitted the

respondent vide judgment impugned herein.

8. Mr. Assem Sawhney, learned AAG has vehemently argued that the

judgment impugned is bad in the eye of law as the prosecutrix was

minor and carrying the 5/6 weeks pregnancy at the time of her custody

with the respondent. He further stated that as per school record

produced by the Headmaster before the trial court, the date of birth of

the prosecutrix was mentioned as 15.07.1997 and the trial court has

wrongly rejected the documentary evidence regarding the date of birth

of the minor prosecutrix.

9. Heard and we have perused the record.

10. Before appreciating the contention of Mr. Aseem Sawhney, AAG, it is

appropriate to have brief resume of the prosecution evidence.

11. PW-1 Janak Raj, father of the prosecutrix deposed about the missing

of his daughter and subsequent recovery of the daughter-prosecutrix

from the custody of the respondent and further handing over of the

custody of the prosecutrix to him. He deposed that the prosecutrix told

him that she was raped by the respondent. He proved the missing report

lodged on 18.09.2020, recovery and the supurdnama. In cross

examination, he deposed that he came to know about the kidnapping of

his daughter from one hotelier. He denied that he went to Gurdaspur

and also denied that he at any point of time executed any affidavit. He

could not specify the exact date of birth of the prosecutrix. He further

admitted that the Police informed him that his daughter had been

recovered. He showed ignorance about the marriage between the

prosecutrix and the respondent. He admitted that prior to the recovery

of prosecutrix, he had once gone to Gurdaspur and resided in the house

of the accused-respondent.

12. Prosecutrix (PW No.4) in her statement stated that on 17.09.2010, in

the morning, when she went for attending the nature call, the

respondent asked her to accompany him as he would purchase some

articles for her and thereafter would leave her at her home. The

prosecutrix initially showed hesitation in accompanying the respondent

but later on went with him as the respondent used to visit the shop near

her residence. He also used to tease her. The respondent took the

prosecutrix to Gujarat in the train. The respondent started working in a

Crusher and the respondent raped her number of times in Gujarat. The

respondent used to say that he would marry with her. She stated that

they could not marry because both belonged to different communities

but the respondent stated that he would convince his parents. The

prosecutrix went with the respondent for Vaishno Devi and they were

caught at Satwari Chowk. In cross examination, she stated that her date

of birth was 25.01.1997 but she expressed ignorance as to whether the

same was mentioned in the record of Municipality or not. She admitted

that the respondent used to say that he loved her. The respondent took

her in Auto. She was travelling in Auto with her free will. She admitted

that she was taken by the respondent to his relative's house at Nagrota.

There were number people at Railway Station but she never raised hue

and cry. After three days, they reached Gujarat. They remained there for

two months. The respondent used to work in Crusher and she used to

cook meals at the room that was taken on rent. She was brought from

Gujarat by the accused at his home in Gurdaspur where he had taken a

room on rent. She admitted that marriage was solemnized in the Temple

and documents were also prepared in the court at Chandigarh. She

admitted that papers were prepared in the temple and she signed the

same. At the same time, she stated that she did not recognize the said

marriage as valid marriage. She further stated that marriage was

solemnized by force.

13. PW-3 Raman Choudary is a witness with regard to the recovery of the

prosecutrix from the custody of the respondent at Satwari Chowk.

14. PW-7, Soma Devi who is mother of the prosecutrix, deposed about the

missing of the prosecutrix and further that after she was recovered from

the respondent, she had disclosed that the respondent had raped her. She

could not depose about the exact date of birth of the prosecutrix but

stated that on 25th of that month, the prosecutrix would turn 15 and that

statement was made by the witness on 20.01.2012. She further stated

that when she found the prosecutrix, she was wearing 'chura' (a set of

bangles traditionally worn by a bride on her wedding day and for a

certain period after that). She further stated that in case respondent

breaks the marriage, then she has no quarrel with the respondent.

15. PW No. 8, Tahira Choudhary stated that she was working in the

Government High School, Seora Chak and as per the Record of

Admission and Withdrawal Register of the School, the date of birth of

the prosecutrix has been recorded as 15.07.1997 at serial No. 1444. She

further stated that this entry was made pursuant to the record of the

Pankaj Public School, Haripur, R. S. Pura where the prosecutrix was

earlier studying and the School Leaving Certificate of that School was

submitted to the Government High School, Seora Chak, R. S. Pura at

the time of admission of the prosecutrix in that School and on that basis,

her date of birth was entered as 15.07.1997. In cross examination, she

stated that when the prosecutrix was admitted in the school, she was not

working in the said school and she joined the said School in the year,

2010. The parents of the prosecutrix did not furnish any record of

Municipality or the Police with regard to the birth of the prosecutrix.

16. PW No. 11 Dr. Pawan Kumari, Gynecologist stated that the medical

examination of the prosecutrix was conducted by her and the

prosecutrix was found to be 5-6 weeks pregnant at the time of her

examination as per reports.

17. PW No. 13, Mohd. Arif deposed about the investigation conducted by

him.

18. The first issue that arises for consideration is about the age of the

prosecutrix. The only evidence with regard to the age of the prosecutrix

is the statement of PW-8 i.e. Tahira Choudhary. She has categorically

stated that the date of birth of the prosecutrix is 15.07.1997 but

simultaneously she stated that the said entry was made on the basis of

School Leaving Certificate issued by the Pankaj Public School, Haripur,

R. S. Pura. In view of this evidence, it was obligatory on the part of the

Investigating Officer to have examined the record of the Pankaj Public

School, Haripur, R. S. Pura, so as to find out the record pursuant to

which the entry was made in the said School. It is also required to be

noted that the father of the prosecutrix has not deposed anything with

regard to the age of the daughter whereas the mother of the prosecutrix

has stated that she would be 15 years of age in that month, when her

statement was recorded in the year, 2012. There is no evidence on

record as to who admitted the prosecutrix in the Pankaj Public School,

Haripur, R. S. Pura and the record of the Pankaj Public School, Haripur,

R. S. Pura was the most material evidence so as to determine the age of

the prosecutrix particularly in view of the fact that in her marriage

certificate dated 31.10.2010, where the prosecutrix has appended her

signatures, the age of the prosecutrix has been mentioned as 18 and half

years. The prosecutrix has admitted the execution of such documents in

the Chandigarh court and also admitted that the marriage was

solemnized in the temple. Further in her deposition before the court she

stated that her date of birth was 25.01.1997.

19. In Satpal Singh v. State of Haryana,1 the Apex Court has observed as

under:

"28. Thus, the law on the issue can be summarized that the entry made in the official record by an official or person authorized in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.

29. In case, the issue is examined in the light of the aforesaid settled legal proposition, there is nothing on record to corroborate the date of birth of the prosecutrix recorded in the school register. It is not possible to ascertain as to who was the person who had given her date of birth as 13-2-1975 at the time of initial admission in the primary school. More so, it cannot be ascertained as who was the person who had recorded her date of birth in the primary school register. More so, the entry in respect of the date of birth of the prosecutrix in the primary school register has not been produced and proved before the trial court. Thus, in view of the above, it cannot be held with certainty that the prosecutrix was a major. Be that as it may, the issue of majority becomes irrelevant if the prosecution successfully establishes that it was not a consent case."

20. In Rajak Mohammad v. State of H.P2, the Apex Court acquitted the

appellant by observing as under:

"3. Apart from the above, from the evidence of Bimla Devi (PW 7) it appears that the prosecutrix has remained with the appellant-

accused for about two days in Kullu in the house of PW 7 and that there were about 60-70 houses in the village. The materials on record also indicate that the prosecutrix remained in the company of the appellant-accused for about 12 days until she

(2010) 8 SCC 714

(2018) 9 SCC 248

was recovered and that she had freely moved around with the appellant-accused in the course of which movement she had come across many people at different points of time. Yet, she did not complain of any criminal act on the part of the appellant-accused.

5. In this regard, we have considered the evidence and materials on record. The age of the prosecutrix has been sought to be proved by the prosecution by bringing on record the school admission form (Ext. PW 5/A) and the certificate (Ext. PW 5/B) issued by one Jasdeep Kaur (PW 5), JBT Teacher of Government School Dungi Plate. PW 5 in her deposition has stated that the writings in the school admission form (Ext. PW 5/A) are in her handwriting and the signature affixed is that of the mother of the prosecutrix.

6. In cross-examination, PW 5 had stated that the details mentioned in Ext. PW 5/A have been obtained from the school leaving certificate issued by the Government Primary School, Tambol. The certificate issued by the Government Primary School, Tambol on the basis of which the details in the admission form (Ext. PW 5/A) was filled up by PW 5 has not been exhibited by the prosecution.

7. Nothing hinges on the document exhibited by the prosecution as Ext. PW 5/B as that is the consequential certificate issued on the basis of the entries in Ext. PW 5/A. The mother of the prosecutrix who had allegedly signed Ext. PW 5/A has not been examined by the prosecution."

21. In view of this conflicting evidence regarding the age of the

prosecutrix, it cannot be said that the prosecution has discharged its

burden of proving the prosecutrix as minor girl.

22. The other issue that arises is whether the prosecutrix was a consenting

party or not. In view of the overwhelming evidence on record that the

prosecutrix was taken to Nagrota and thereafter the prosecutrix

travelled for three days along with the respondent in train for Gujarat

and remained for two months in Gujarat where she used to cook meals

in a rented accommodation and the respondent used to work at a

Crusher and further that both the prosecutrix and the respondent went to

Vaishno Devi and during that period, the prosecutrix neither made any

hue and cry nor made any attempt to run away even when she was all

alone, as such it is discernible that the prosecutrix had accompanied the

respondent with her own free will. Further the execution of the

documents in court at Chandigarh and admission by the respondent that

the marriage was solemnized in the temple and she had signed the

certificate clearly reveals that she had voluntarily gone with the

respondent and had even solemnized the marriage. This Court has not

expressed any opinion with regard to the validity of the marriage but

nonetheless, it can be safely gathered from the above facts that there

was no coercion or force upon the prosecutrix and she had physical

relations with her consent. The Apex Court in Rajak Mohammad v.

State of H.P (supr) acquitted the accused when the prosecutrix

remained with the accused for 12 days and roamed freely, yet did not

make any complaint.

23. Learned AAG has not been able to convince us that the opinion formed

by the learned trial court is perverse and contrary to the facts led by the

prosecution. No doubt the powers of the appellate court in appeal

against acquittal are no less than in an appeal against conviction. It is

only when the approach of the trial court in acquitting an accused is

found to be clearly erroneous in its consideration of evidence on record

and in deducing conclusion there from, the appellate court can interfere

with the order of acquittal. We have also perused the judgment passed

by the trial court and we find that the finding recorded by the trial court

can neither be termed as perverse, contrary to the evidence nor

erroneous, therefore no case for any interference is made out.

24. For all what has been discussed above, the trial court has rightly

acquitted the respondent. In the result, this appeal is without any merit

and is hereby dismissed.

                                (RAJNESH OSWAL)                (PANKAJ MITHAL)
                                     JUDGE                       CHIEF JUSTICE
JAMMU:
 12.11.2021
Rakesh

                           Whether the order is speaking:     Yes/No
                           Whether the order is reportable:   Yes/No