Jammu & Kashmir High Court
State Of J&K vs Zoora on 7 October, 2021
Sr. No. 10
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
CJ Court
Case: SLA No. 90 of 2016
State of J&K .....Appellant/Petitioner(s)
Through :- Sh. Aseem Sawhney, AAG
v/s
Zoora .....Respondent(s)
Through :- Mr. A. K. Shan, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
ORDER
1. The instant application has been filed by the applicant/appellant
seeking leave to file appeal against the judgment dated 23.12.2015
passed by the learned Principal Sessions Judge, Kathua (hereinafter to
be referred as the trial court) in File No. 67/Sessions titled as State vs.
Zoora arising out of FIR bearing No. 132/2013 for commission of
offences under Sections 363/376/344 RPC registered with Police
Station, Kathua.
2. Brief facts necessary for disposal of the present application are that on
14.04.2013, PW-Mohd. Shafi lodged a written report with Police Post,
Nagri Parole, alleging therein that his daughter, the prosecutrix, aged
about 16 years was missing since 27.03.2013, regarding which he had
already lodged a report on 31.03.2013. It is further alleged in the
report that he has come to know that the prosecutrix had been
kidnapped by the respondent after enticing her to go with him. On the
basis of said report, FIR No. 132/2013 for commission of offences
under Sections 363/109 RPC was registered against the respondent.
3. During the investigation, naka was laid by the Police and one
motorcycle bearing No. PB21E-5030 that was being driven by the
respondent was intercepted. The prosecutrix was a pillion rider on the
said motorcycle. The motorcyclist tried to run away but he was
nabbed by the Police. After recording of the statements of the
prosecutrix and the witnesses, challan for commission of offences
under Sections 363/376/344 RPC was filed against the respondent.
4. During the course of the trial, the prosecution has examined as many
as 15 witnesses, namely, PW-1 Mohd Shafi, PW-2-the prosecutrix,
PW-3 Farman Ali, PW-4 Tooda Mohd., PW-5 Smt. Shambi, PW-6
Attar Din, PW-7 Puran Chand, PW-8 Kasturi Lal, PW-9 Davinder
Sharma, PW-10 Bashir Ahmed, PW-11 Mool Raj, PW-12 Dr. Susheel
Sharma, PW-13 Dr. Sanjeev Prihar, PW-14 Dr. Pushpa Raina and
PW-16 Hukam Chand ASI.
5. After the prosecution concluded its evidence, the statement of the
accused-respondent was recorded under Section 342 of Cr.P.C and
thereafter, learned trial court, after hearing both the parties, has
acquitted the respondent herein. Learned trial court has acquitted the
respondent on the ground that the age of the prosecutrix at the time of
occurrence was in the range of 18-19 years and further in view of the
evidence, allegations of kidnapping and rape of the prosecutrix by the
respondent are not substantiated from the statement of the prosecutrix.
Further, the evidence on record suggested that the prosecutrix had
accompanied the respondent out of her free volition and enjoyed sex
with him with her voluntary consent.
6. The statement of PW-1 Mohd Shafi is only with regard to the lodging
of missing report and the FIR under reference. The most important
witness is PW-2-the prosecutrix. The statement of PW-2 reveals that
she had travelled to Jalandhar along with the respondent on his
motorcycle and both of them had stayed in house for three days.
Thereafter from that place, they proceeded to another house where 5-6
persons were residing and they stayed there for about 5-6 days. It has
also come in her statement that the respondent used to go away for
about 4-5 hours, thrice or four times a day leaving her behind and he
would come back on his own. She has stated that the respondent
forced himself upon her and did not allow her to talk to any of her
relatives on phone. She admitted that the respondent was not carrying
any weapon with him. PW-3 Farman Ali is a witness with regard to
the missing of the prosecutrix and he has deposed in his statement that
they had informed the police that the respondent had taken away the
prosecutrix and the respondent along with the prosecutrix was
proceeding from Pathankot-Lakhanpur towards Jammu. Later on, they
were apprehended at naka. The said witness admitted that first naka of
J&K Police from Punjab towards Jammu is at Lakhanpur, thereafter,
there are nakas at Hatlimorh and Kalibari. PW-4 Tooda Mohd has
stated about the missing of the prosecutrix and her recovery from the
custody of the respondent but he had not supported so far as seizure
memo is concerned. PW-5 Smt. Shambi, who happens to be mother of
the prosecutrix has turned hostile. Further, she had admitted after
recovery of the prosecutrix that the prosecutrix had told her that the
respondent had raped her at several places. PW-6 Attar Din is the
witness with regard to the missing of the prosecutrix. He has stated
that the prosecutrix was recovered when she was coming on
motorcycle along with the respondent. He further stated that by the
time, he reached on spot, police had already arrested the respondent
and recovered the prosecutrix. PW-7 Puran Chand is the witness with
regard to the seizure memo, who has proved the same. PW-8 Kasturi
Lal deposed that he was posted as Naib Tehsildar, Executive
Magistrate 1st Class, Nagri. He re-sealed two packets marked as A and
B and issued the authority letter in the name of FSL. PW-9 Davinder
Sharma deposed that he was posted as Moharir in Police Post, Nagri.
He proved the missing report lodged by the complainant. PW-10
Bashir Ahmed who also posted as Moharir in Police Post, Nagri is the
witness with regard to the handing over of the file relating to the
prosecutrix to the Investigating Officer. PW-11 Mool Raj is the
chemical analyst and he has proved the FSL report. PW-12 Dr.
Susheel Sharma, Radiologist in his statement has deposed that he is of
the opinion that radiological age of the person was between 17-19
years on the date when X-ray films were taken. PW-13 Dr. Sanjeev
Prihar has examined the respondent and found him to be physically
and mentally fit for performing all physical activities. PW-14 Dr.
Pushpa Raina examined the prosecutrix and found that there were no
marks of violence on any part of body. He deposed that the hymen
was found ruptured (old) and as per her opinion, the prosecutrix was
habitual of sexual intercourse. PW-16 Hukam Chand ASI,
Investigating Officer has deposed with regard to the investigation
conducted by him.
7. From the evidence brought on record, it is evident that one certificate
issued by the District Registrar, Births and Deaths, Kathua was placed
on record to demonstrate the age of the prosecutrix as 25.03.1997.
However, the same was not proved by the prosecution. From the
evidence of PW-12-Dr. Susheel Sharma, it is evident that in his
opinion, the age of the prosecutrix was in the range of 17-19 years. So,
learned trial court has rightly held the age of the prosecutrix in the
range of 18-19 years. Further, learned trial court has rightly come to
the conclusion that the prosecutrix with her consent had travelled to
the Jalandhar i.e. at a distance of more than four hours from the place
where she boarded the motorcycle and further, there is evidence on
record that the respondent used to leave her behind for 4-5 hours and
still she did not make any attempt to run away. She did not make
protest, shout, scream or complain when she was being taken. All
these circumstances clearly demonstrate that the prosecutrix was a
consenting party and had voluntarily gone with the respondent.
Learned trial court has rightly come to the conclusion with regard to
the factum of age of the prosecutrix and further with regard to her
being a consenting party to sexual intercourse.
8. In view of all what has been discussed above, no fruitful purpose shall
be served in the event any leave is granted to the applicant/appellant.
As such, we do not find any reason to grant leave to file the criminal
acquittal appeal. The application bearing SLA No. 90 of 2016 is,
accordingly, dismissed. As a result, the accompanied proposed appeal
shall also stands dismissed.
(RAJNESH OSWAL) (PANKAJ MITHAL)
JUDGE CHIEF JUSTICE
JAMMU
07.10.2021
Neha
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
