Jammu & Kashmir High Court
Reserved On:04.05.2022 vs Jai Paul And Another ( on 30 May, 2022
Sr. No. 36
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
SLA No. 41/2019
c/w
CRA No. 40/2019
[Crl A (D) No. 16/2019]
Reserved on:04.05.2022
Pronounced on:30.05.2022
State of Jammu & Kashmir (Appellant)
Through:- Mr. Suneel Malhotra, GA
Versus
Jai Paul and another (Respondents)
Through:- Mr. Piyush Anand, Advocate.
HON‟BLE MR. JUSTICE TASHI RABSTAN, JUDGE
Coram: HON‟BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
30. 05 . 2022
Per- Mohan Lal, J
1. Appellant (State of J&K) has preferred instant criminal acquittal appeal against
the judgment dated 31.01.2019 rendered by the Court of ld. Additional Sessions
Judge Doda in case (File No. 86/Challan) titled State of J&K versus Jai Paul
and another bearing F.I.R No. 22/2016 for the commission of offences under
Sections 363/376/342/506/109 RPC of Police Station Assar. Alongwith the
appeal, appellant has preferred an application for seeking leave of this Court to
file acquittal appeal, wherein, it is averred that the acquittal of
accused/respondents has caused serious miscarriage of justice, inasmuch as the
ld. Trial Court has failed to appreciate the prosecution evidence in proper
perspective, that there is every likelihood that the acquittal appeal is sure to
succeed on merits, the acquittal of the accused/respondents has shaken the
confidence of common man in the majesty of law and the same is bound to
encourage the offender. Prayer for special leave to file the acquittal appeal has
been made.
2. As per the contents of memo of appeal, prosecution is pregnant with the story
that on 14.07.2016 the complainant namely Brij Lal S/o Hari Ram Caste Gaddi
a/w connected matter.
R/o Chadota Patta Tehsil Assar alongwith his daughter („X‟- name withheld)
lodged a report in Police Station Assar in Urdu language alleging therein that
his minor daughter is studying in Government Higher Secondary School Assar
in 12th Class and is presently residing in rented accommodation in Assar
alongwith another girl namely („Y‟); "that on 20.05.2016, his daughter (X) and
another girl (Y) were staying in rented accommodation and at about 12 ° Clock,
other girl (Y) asked his daughter (X) to come with her as she was going to a
toilet, and while accompanying girl (Y) when his daughter (X) reached near
toilet, two (2) persons viz: respondents/accused were standing there and when
his daughter reached near the toilet, accused Jai Paul and Jeep Singh captured
his daughter, gagged her mouth with cloth, took her in Alto car bearing
registration No. JK19-2701 to Dogra Hotel Patnitop, threatened his daughter
that if she made any noise they will cut and throw her body into the river, while
the other girl (Y) was also accompanying the respondents/accused; that the
accused arranged dinner for his daughter (X) and the girl (Y), prepared video of
his daughter, put some intoxicating substance in the food and after eating, his
daughter and the girl (Y) fell unconscious and in the state of said
unconsciousness, his daughter does not know what happened to her; that it was
still dark in the morning when his daughter (X) woke up, she found her body
wet and naked with blood oozing out from her private parts, she was feeling
back pain, she was threatened by accused and was taken back in Alto car, and
after dropping his daughter (X) near Assar Army Camp, the
respondents/accused went to Thanda Paani road, and also threatened his
daughter (X) that if she narrated the incident to anyone, they will kill her and
she will not be in a position to study again".
3. On this report case F.I.R No. 22/2016 for the commission of offences under
Sections 363/376/342/506/109 RPC was registered against accused in Police
Station Assar and investigation started. During the course of investigation, I/o
(PW 23 Farooq Ahmed) visited the place of occurrence, prepared the site plan,
prepared site map of Dogra Hotel Patnitop where the alleged rape was
committed, seized the clothes of the victim which were worn by her and which
were washed by the victim several times, but they were not sent to FSL for
examination, got the medical examination of victim conducted at District
Hospital Doda by Gynecologist and obtained its report, got the date of birth
(D.O.B) certificate of victim regarding her age from Government Higher
a/w connected matter.
Secondary School Assar which depicted the date of birth of victim as
28.12.1999 as a minor, got the medical examination of respondent No.
1/accused (Jai Paul) conducted regarding his potency, seized vehicle Alto Car
bearing registration No. JK19-2701 as a piece of evidence in the case, seized the
mobile phone and the sim cards of accused persons and victim, obtained the call
details of sim numbers 84938-81442, 97974-17552 and 90184-59934 from the
Voice Logger Computer Section DPO Doda, got the statements of the
complainant, his daughter (X) and another girl (Y) recorded under Section 164-
A Cr.PC and also recorded statement of other prosecution witnesses under
Section 161 Cr.PC, after completion of the investigation, the offences under
Sections 363/376/342/506/109 RPC were established against the
accused/respondents, and laid the charge sheet in the Court of law.
4. Ld. Additional Sessions Judge Doda after hearing the prosecution and the
defence, framed charges against the accused persons for the commission of
offence under Sections 363/376/342/506/109 RPC on 26.10.2016. Accused
persons denied the charges and claimed trial. Prosecution in a bid to prove its
case examined its witnesses, and after completion of the trial, the Ld. Additional
Sessions Judge Doda acquitted the accused persons on 31.01.2019 from the
charges framed against them.
5. The impugned judgment of the acquittal dated 31.01.2019 has been assailed by
the appellant/State on the grounds, that the judgment is contrary to law and
against the facts of the case, has been passed in a mechanical manner without
appreciating the evidence on record, the conclusion of prosecution drawn is
against the weight of evidence, occurrence has been proved, there is sufficient
material on record to convict the accused persons but the learned trial Court by
ignoring the evidence has based his judgment on surmises and conjectures
which has to led the acquittal of the accused persons from the commission of
offences indicted against them.
6. Impugned judgment depicts that the prosecution has examined as many as 17
witnesses to prove the case against the accused. In their statements recorded
under Section 342 Cr.PC, the accused have completely denied the incriminating
circumstances/evidence appearing in the depositions of prosecution witnesses
against them, have pleaded innocence and their false implication in the case.
The material and star witnesses of the prosecution are, PW-1 Brij Lal (F/o the
Victim), PW 2 („X‟) Victim/Prosecutrix and PW 3 („Y‟ another girl), while
a/w connected matter.
other witnesses viz. PW-4 Madan Lal, PW 5 Tilak Raj, PW 6 Ranjeet Singh,
PW 7 Yog Raj, PW 8 Inder Singh, PW 11 Rajinder Singh, PW 12 Roshan
Kumar (Hotel Employee), PW 13 Sanjay Kumar (Hotel Employee), PW 14
Jagdev Singh, PW 15 Omkar Singh, PW 16 Joginder Singh, PW 18 Ashok
Kumar, PW 19 Bandesh Kumar are formal witnesses, while PW 23 Farooq
Ahmed is the Investigating Officer (I/o) of the case.
7. PW 1 Brij Lal (F/o PW 2 „X‟) in his testimony before the trial Court has
deposed as under :-
"That it is the occurrence of 20.05.2016 that about 12° Clock in the
night girl „Y‟ asked girl „X‟ to accompany her up to the toilet, and
when both of them had gone to the toilet, accused persons were
standing there, accused Jai Paul captured girl „X‟ and covered her face
with a piece of cloth and accused persons took his daughter „X‟
forcibly into car while girl „Y‟ also sat along with girl „X‟ who were
taken to Dogra Hotel Patnitop where the accused provided dinner to
them, after taking dinner accused-Jai Paul asked girl „Y‟ and accused
No. 2 Jeep Singh to leave the room, whereafter the accused/respondent
No. 1 did forcibly with girl „X‟. Something was mixed in the food
whereby his daughter „X‟ fell unconscious. In the morning girl „X‟
woke up and found her clothes removed and from her private parts
blood started oozing out. He lodged report/ F.I.R in the Police Station
whereby the accused were apprehended. He identifies his signatures on
the complaint Ext-p1 dated 14.07.2016 as true and correct"
8. PW 2 ( girl X) is victim/prosecutrix of the case and in her deposition before the
trial Court she has categorically deposed as under:-
"that she knows the accused persons who took her and girl „Y‟ into the
car to Dogra Hotel Patnitop where accused No. 1 Jai Paul turned girl
„Y‟ and accused No. 2 Jeep Singh out of the room, looked the room
from inside and tried forcibly with her. She asked for water from
accused Jai Paul but without water she felt unconscious and when in
the morning at about 5-5.15 a.m she woke up, she found herself
without clothes and her whole body was wet and blood was oozing out
from her private parts. Thereafter, the accused took her into their
vehicle Alto car and dropped her near Assar Army Camp. In cross-
examination, PW 2 (girl „X‟) has specifically stated that her statement
a/w connected matter.
was recorded in terms of Section 164-A Cr.PC before the Judicial
Magistrate, wherein, she has categorically refuted in her deposition
before the trial Court that in her statement under Section 164-A Cr.PC,
she told the learned Judge that the accused persons kidnapped her and
girl „Y‟ and it is also incorrect that she was kidnapped from her rented
accommodation alongwith girl „Y‟".
9. PW 1 Brij Lal (F/o PW 2 Prosecutrix) is not the eye witness of the occurrence
but is the complainant of the case whereby he has lodged FIR in police station
Assar and has identified his signatures on the complaint/application Ext-p1
dated 14.07.2016. As per the contents of the complaint, the occurrence has taken
place on 20.05.2016 but the complainant has lodged FIR in police station Assar
on 14.07.2017 after a delay of one (1) year and about two months. It is settled
law that delay in filing FIR is always fatal to the prosecution case. When
prosecution fails to explain the delay, FIR should be viewed with suspicion.
Unexplained delay of more than one year in lodging FIR in the case in hand
gives rise to suspicion of the prosecution version shaking the very edifice of the
prosecution story. Critical appreciation of the deposition of PW 2 prosecutrix
depicts, that in her examination in chief, prosecutrix (girl „X‟) has never uttered
a single word regarding the act of forcible sexual intercourse (rape) by accused
No. 1-Jai Paul with her. Her deposition categorically demonstrates that inside
the room accused No. 1 tried forcibly with her, but what was the forcible act,
prosecutrix has not clarified or tendered an explanation as to what she meant by
forcible act. In her cross-examination, prosecutrix PW-2 has categorically
refuted that in her statement recorded under Section 164-A Cr.PC, she told the
judge that accused persons kidnapped her and girl „Y‟. She has further resiled
from her 164-A statement to the extent that the accused persons covered her
mouth and took her into the car where girl „Y‟ came and sat and she even did
not get recorded in her statement under Section 164-A Cr.PC that when she
reached Patnitop along with accused, she refused to come out of the car on
which she, accused Jeep Singh went inside the car and accused Jai Paul and girl
„X‟ forcibly took out of the car and took her in Dogra Hotel. Her statement
recorded under Section 164-A Cr.PC even did not mention that at Patnitop,
when she finished her dinner, she asked accused Jeep Singh and girl „Y‟ not to
leave her alone upon which accused Jai Paul locked the door and started
harassing her forcibly, but such deposition is not found in her statement
a/w connected matter.
recorded under Section 164-A Cr.PC. The cross-examination of PW 2 (girl
„X‟)(Victim) categorically demonstrates, that when she was leaving the room of
the hotel, she did not make any noise to attract the attendance of the hotel
management/staff. If she was not a consenting party with the accused persons,
why she/victim has not raised any voice/hue & cry during her stay with the
accused at Patnitop. Moreso, the distance between the Assar and Patnitop is
about 100 kilometers, and in between Asssar and Patnitop there are at least two
police stations, and one/two check posts at Batote and Assar, and why the
victim remained silent, leads to the inference that she was a consenting party.
Even when she was travelling with the accused persons and girl „Y‟ in the car in
Batote market, she did not raise any voice to attract the attendance of people to
convey that she has been kidnapped by the accused persons. The examination-
in-chief as well as the cross-examination of the victim by no stretch of
imagination leads to the irrestible conclusion that the offence of forcible sexual
intercourse/rape has been committed by accused/respondent No. 1. The mere
fact that the victim found herself without clothes on her wet body and bleeding
from private part does not lead to the conclusion that she was forcibly sexually
molested by the accused No. 1. PW 3 (girl „Y‟) is the another girl which as per
the prosecution story and deposition of PW 1 Brij Lal and PW 2 (girl „X‟ )was
accompanying with accused persons and victim „X‟. PW 3 has denied the
knowledge of occurrence. She was the star eye witness accompanying the
victim during the kidnapping of victim by the accused persons to Patnitop but
during her deposition before the trial Court, PW 3 (girl „Y‟) has completely
denied the knowledge of occurrence and has been declared hostile by the
prosecution. When subjected to cross-examination by the learned APP, she has
categorically deposed that it is wrongly recorded in her statement under Section
164-A Cr.PC that accused No. 1 Jai Paul offered her and girl „X‟ to go on a
picnic and when they refused accused Jai Paul took her and girl „X‟ forcibly into
his car and took them to Patnitop during night and stayed in Dogra Hotel. She
has categorically stated that her whole statement is falsely recorded under
Section 164-A Cr.PC that when they reached Patnitop at 2-2.30 p.m, they
altogether took the dinner, after having the dinner, the accused Jai Paul turned
her and accused Jeep Singh out of his room, and girl „X‟ and accused Jai Paul
were in one room. In her cross-examination by counsel for accused No. 2, PW 3
has deposed that she does not know the accused Jeep Singh nor he kidnapped
a/w connected matter.
her. The depositions of PW 1 Brij Lal, PW 2 (girl „X‟ )Victim/Prosecutrix and
PW 3 (girl „Y‟) by no stretch of imagination prove that girl „X‟ was kidnapped,
kept in wrongful confinement and raped by accused No. 1 in Dogra Hotel
Patnitop.
10.PW 4 Madan Lal and PW 5 Tilak Raj are the cousin brothers of PW 1 Brij Lal
and are only witnesses to the seizure of vehicle and clothes of victim „X‟ which
are marked as EXT-p4 and EXT-p4(1). PW 6 Ranjeet Singh has stated that he
had gone to Police Station Assar where SHO took him & girl and her father
with some police men to Dogra Hotel Patnitop where the accused persons were
alleged to have stayed, SHO called the hotel manager alongwith record where it
was found that there was no entry in the name of accused persons in the Hotel.
PW 7 Yog Raj has deposed that he has no knowledge of occurrence but only
identified his signatures of seizure memo of mobile phone marked as "YR". PW
8 Inder Singh has no knowledge of occurrence but only identified his signatures
on seizure memo of mobile phone marked as "A". PW 11 Rajinder Singh is the
owner of the house where girl „X‟ and „Y‟ were living in the rented
accommodation. His evidence is to the effect that on 20.05.2016 both the girls
were in his house, had not gone anywhere in the night, none came there to take
them and both the girls never complained to him or his family member. PW 12
Roshan Kumar and PW 13 Sanjay Kumar are the hotel employees of Dogra
Hotel at Patnitop and have deposed that the accused persons had not come in the
Dogra Hotel.
11.PWs 14, 15, 16, & 18 namely Jagdev Singh, Omkar Singh, Joginder Singh and
Ashok Kumar are witnesses to supardnama of mobile phones and vehicle, and
their evidence by no stretch of imagination connect the accused persons with
commission of crime. PW 19 Bandesh Kumar has no knowledge of case nor
knowledge about the mobile phones.
12.PW 23 Farooq Ahmed is the Investigating Officer (I/o) of the case. In his
examination-in-chief, he has categorically deposed that the offences under
Sections 363/376/342/506/109 RPC were prima-facie established against the
accused persons during the investigation, and the challan was produced in the
Court. In cross-examination, he has specifically stated that according to his
investigation, it was not established that the victim was forcibly kidnapped, but
she had gone with accused by her own consent as she was not a minor, the
landlord of the house namely Rajinder Singh and his family members were the
a/w connected matter.
most important witnesses in the case but they have not been cited as prosecution
witnesses. I/o has further deposed that the occurrence is of 20.05.2016 and the
complaint was filed on 14.07.2017. Critical appraisal of evidence of PW 23, I/o
Farooq Ahmed demonstrates that during investigation, it was not established
that PW 2 prosecutrix was kidnapped and she was minor, however, she went
with accused of her own will and consent.
13. The medical evidence of Dr. Maya Shanker depicts that there was no injury on
the person of the prosecutrix including her private part which clearly establishes
that proseuctrix has never been subjected to forcible sexual intercourse and any
kind of violence on her body including her private parts. The entire conduct of
prosecutrix shows that she was the consenting party. The evidence of PW 23 I/o
Farooq Ahmed reveals that though he seized the clothes of victim but he did not
send them to FSL for examination because the clothes were washed by the
victim. I/o even did not seized the entry registry of Dogra Hotel at Patnitop
where incident/crime is alleged to have taken place. Even the employees of
Dogra Hotel Patnitop have categorically denied that the accused persons along
with girl „X‟ & „Y‟ stayed in their hotel.
In AIR 2012 SC 2281; Narender Kumar vs. State (NCT of
Delhi, the Hon‟ble Supreme while apprising the testimony of
prosecutrix/victim, has held as under:-
"When the evidence of prosecutrix is found
suffering from serious infirmities and
inconsistencies with other material, prosecutrix
making deliberate improvements on material point
with a view to rule out consent on her part and
even there being no injury on her person even
through her version may be otherwise, no reliance
can be placed on her evidence."
14. It is apt to reiterate here, that when the evidence of PW2 (Victim) and evidence
of other PWs is critically appraised, the story projected by the prosecutrix
becomes so improbable that is unbelievable and is not worth of credence. The
whole of the prosecution story has its edifice upon the testimony of prosecutrix
PW 2 (girl „X‟) whereas the rest of the entire evidence of prosecution is either
hearsay and have not supported the prosecution case. Be it noted, that PW 3 (girl
„Y‟) who is the roommate of girl „X‟ has denied the occurrence/commission of
crime and has not even supported the testimony of PW 2 (girl „X‟) prosecutrix
thereby has turned hostile to the prosecution. PW 23, I/o of the case has
a/w connected matter.
categorically deposed in his cross-examination that he has added the offence of
rape under Section 376 RPC against the accused persons merely on the
assumption and presumption, as the prosecutrix has nowhere stated before him
or before the Court that she was subject to forcible sexual intercourse by the
accused/respondent No. 1.
15.In view of the above discussion, we are of the considered view, that the evidence
led by the prosecution is weak, fragile, scanty and unworthy of reliance.
Accordingly, we feel that on the appraisal of the deposition of all the
prosecution witnesses examined, no ground has been made by the appellant for
seeking leave of this Court to file instant acquittal appeal against the
accused/respondents. The application for seeking special leave to file appeal
being devoid of any merit is out rightly rejected and dismissed.
16.We do not find any illegality, perversity or impropriety in the impugned
judgment of acquittal dated 31.01.2019 rendered by the trial Court which stands
upheld/confirmed.
17.SLA with appeal stand disposed of.
(Mohan Lal) (Tashi Rabstan)
Jammu Judge Judge
30.05.2022
Tarun
