State Of J&K vs Beli Ram & Ors
2022 Latest Caselaw 1401 j&K

                                                              S. No. 30
             HIGH COURT OF JAMMU AND KASHMIR & LADAKH
                           AT JAMMU

                                            Crl A (AD) No. 26/2022


                                            Reserved on: 20.09.2022
                                            Pronounced on: 07.10.2022


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


                 Through :- Mr. R. S. Jamwal, AAG
                v/s

Beli Ram & Ors.                                          .....Respondent (s)

                  Through :- Ms. Garima Gupta, Advocate


Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
             HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE


                                JUDGMENT

Per Rajesh Sekhri-J

1. This Acquittal Appeal has been directed against the judgment dated

30.01.2016 delivered by learned Principal Sessions Judge, Udhampur

(hereinafter referred to as 'the trial court') in Crime No. 100/2012 of Police

Station Udhampur in File No. 22/Session, vide which respondents have been

acquitted of the charges.

2. Case of the prosecution, in brief, is that the prosecutrix (name withheld)

lodged a written report in Police Station Udhampur alleging inter alia that

respondents/accused Beli Ram, Pinky Devi, Shahnaz, Seema Devi and Subash

Chander were running brothels in different parts of Udhampur with the aid and

assistance of other accused persons. The allegation of the prosecutrix is that

while she was living in the house of her aunt near Housing Colony, Udhampur

for studies, she was trapped by her neighbourer namely, Pinky Devi (the

respondent). One Shahnaz alias Rozy and respondent-Seema Devi resident of

Dhar Road used to visit Pinky and son of Beli Ram also used to come there. The

prosecutrix further alleged that about one and a half years ago, respondent-Pinky

took her to the house of Rozy where Beli Ram was present and both of them

forced her to satisfy their friend Rozy. She was locked in a room of Rozy. Beli

Ram blackmailed to defame her. Thereafter, she was taken to the house of

respondent-Seema Devi at Dhar Road. Seema had taken a room on rent for flesh-

trade where girls use to be called and submitted to the customers. It is allegation

of the prosecutrix that she was also pushed to the flesh-trade and an amount of

Rs. 1000/- used to be charged from the customers, out of which the said women (

Seema and Shahnaz alias Rozy) would keep Rs. 500/- and Rs.500/- was paid to

her. According to the prosecutrix, Pinky, Shahnaz and Seema were running

brothels at Shiv Nagar and Dhar Road where innocent young girls used to be

trapped, deceived and pushed to the flesh-trade. Some males including Beli Ram

and Boby, husband of Seema were also involved in the said trade. The

prosecutrix further goes on to alleges that on 02.06.2012 while she was returning

home after paying obeisance, in Kali Mata Temple at Rambal, accused Pinky and

Beli Ram instead of alighting her from their Maruti Car bearing No. JK14A-5343

at Morda Morh, forced her for prostitution and while they were about to take her

to the house of Seema for some customers, she dissuaded them and jumped out

of the running car.

3. On the receipt of this report, the police agency, swung into action,

registered the FIR and the investigation came into vogue.

4. During investigation, the investigating agency raided a room in Ward No.

11, Shiv Nagar, Udhampur, taken on rent by accused Shahzada alias Rozy alias

Shahnaz Begum W/o Mohd Gulsher, in the presence of Executive Magistrate 1st

Class and on house search, besides accused Shahnaz alias Rozy, accused

Joginder Kumar, Ashok Kumar, Shoukat Ali were present in the said room, who

were identified by the prosecutrix and on search of the room, some objectionable

material was recovered and seized. During investigation, the aforesaid persons

confessed that they use to visit the said room to satisfy their sexual lust.

Accordingly, site map was prepared. Subsequently, the room obtained on rent by

respondent Seema Devi w/o Permanand in the house of Rakesh Kumar in Ward

No. 15 Shakti Nagar, Udhampur, was also raided in the presence of the

Executive Magistrate 1st Class, where respondent-accused Seema Devi alongwith

others were present and objectionable material was recovered and seized from

the said room as well. The investigating agency recorded statements of the

witnesses u/s 161 Cr.P.C and on being satisfied that accused-respondents were

involved in flesh-trade in different locations in Udhampur and that all the

accused were either involved in rape, pushing the young girls to the flesh-trade or

running brothels, presented a final report in terms of Section 173 of the Code of

Criminal Procedure 1989 (Cr.P.C for short).

5. Accused Pinky Devi, Shahnaz alias Shahzada, Seema, Subash and Kunj

Lal were charged by the trial Court for offences under Sections 3/4/5/7 of

Immoral Traffic (Prevention) Act (I.T.P Act, for short) read with Sections

376/109 of the Ranbir Penal Code, 1989 (R.P.C for short), accused Beli Ram was

charged for offences u/s 3/4/5/7 of the I.T.P Act read with Section 376 RPC.

Accused Ashok Kumar Gupta, Ashok Kumar, Shoukat Ali, Balvinder Kumar,

Shamus Din and Mukhtiar Ahmed were charged u/s 376 RPC, accused

Chanchala w/o Jagdev Singh was charged for offences 3/4/5/7 of the I.T.P Act,

accused Chanchala w/o Sardar Singh was charged for offence u/s 4/5 of the I.T.P

Act and accused Joginder Kumar and Yog Raj were charged offence u/s 5 of the

I.T.P Act. All the accused pleaded innocence and claimed trial. Therefore,

prosecution was directed to lead evidence.

6. The prosecution examined twenty (20) witnesses out of twenty five (25)

cited in the case. On the conclusion of the prosecution evidence, accused persons

were examined in terms of Section 342 Cr.P.C, whereby they denied

incriminating evidence against them and refused to enter the defence.

7. Learned trial court after analyzing the prosecution evidence has concluded

that prosecution failed to prove the guilt of accused persons beyond reasonable

shadow of doubt and consequently all the respondents were acquitted by the trial

Court.

8. The appellant has questioned the impugned judgment on the conventional

ground that trial court has failed to appreciate the prosecution evidence in the

right perspective as respondents are liable to be convicted on the basis of sole

testimony of the prosecutrix.

9. Having heard the rival contentions, we have carefully gone through the

material on record.

10. In order to appreciate the rival contentions, it shall be apt to a give brief

account of the prosecution evidence.

11. PW-1(prosecutrix) has identified accused persons, except accused Ashok

Kumar in the Court. She has deposed that she is a resident of Punjab but she was

staying in the house of her aunt in Housing Colony, Udhampur. She is a student

of 9th standard in Government Higher Secondary School, Udhampur. Accused

Beli Ram was running a Rehri near City Light Cinema. The neighbourer of her

aunt, accused Pinky Devi used to come to their house and revealed that her

brother-in-law was in love with her, who is running a Rehri outside City Light

Cinema and he wanted to talk to her. She stalled the request. The prosecutrix has

further stated that one day when she along with Pinky went to the market, Pinky

took her to Shiv Nagar Udhampur and wherefrom she was taken to a room on the

Jail Road, taken on rent by accused Pinky and Beli Ram from one Kaka Ram.

Accused Pinky asked to satisfy Beli Ram and closed the door from outside, while

accused Rozy was making some telephonic calls on the roof of the said room.

Accused Beli Ram locked the room from inside gagged her mouth and

committed rape upon her. She was threatened to be defamed and humiliated if

she raised hue and cry. When she cried, the door was opened by accused Pinky,

who told her that this happens to every girl and this is the life. Thereafter, she

along with Pinky returned in an auto. Fifteen days later, on the insistence of

accused Pinky, she went to her house, where accused Beli Ram was present, who

locked the room and raped her. Since Pinky did not return, she came back to her

aunt's house. After about 7/8 days she was again insisted by Pinky to accompany

her to Srinagar on the pretext that she had arranged a job for her to earn money

and thinking that it might be a job of tuition, she went to Srinagar where accused

Beli Ram, Seema, Subash and some girls namely Radhika, Ruchi and Sheetal

were present. Accused Kunj Lal along with two black complexioned persons

appearing to be army personnel came over there and asked for some girls,

accused Pinky told them that girls were available. She was taken to Parshotam

building near D. C. Office and to the residence of Kunj Lal where she was raped

by one army personnel. The army personnel gave Rs.1000/- to Pinky, out of

which, she was paid to her Rs. 500/-. 7/8 days after Pinky threatened to expose

her and took her to Srinagar where in the same room Yog Raj and Joginder were

present and Yog Raj raped her. Subsequently on the threat by Rozy she had sex

with Shoukat Ali. 7/8 days thereafter she along with Pinky went to Dhar Road in

a shop where owner of the said shop namely Ashok Kumar had come.

Afterwards she along with Pinky, Rozy and Beli Ram went to Jaganoo where she

was raped by Mukhtiar. On 2nd June while she along with Pinky and Beli Ram

were going to Vaishno Devi and they reached near Krishna Palace Udhampur, an

auto in which Balvinder was present appeared. She protested that Balvinder was

her brother-in-law. But in the night she was taken to a room in a hotel where

Balvinder did wrong to her. Balvinder paid Rs. 2000/- to Pinky in the morning

and on the way they met accused Shamus Din and went to a Guest House where

she was raped by accused Shamus Din, who gave Rs. 2000/- to Pinky. In the

evening she accosted accused Beli Ram and Pinky, who offered a car ride to her

room. She was asked to come to Srinagar but she refused and jumped out of the

running car at Omara Morh. She was shifted to the hospital by CRPF personnel.

She was fed up with the said work and informed the police. She filed a report on

4th. The prosecutrix has further stated that accused Ashok Kumar S/o Gouri

Shanker had also raped her and thereafter she met accused Chanchala, who took

her to Chenani, where two boys were sitting in a white colour van, who gave

Rs.6000/- to Chanchala, to took her to Kud, where the said boys did wrong with

her in a hotel room. She has admitted FIR EXTP 1/1 and identified her

signatures. The prosecutrix has alleged that accused Kunj Lal, Beli Ram, Subash,

Pinky and Chanchala resident of Ramnagar were involved in illegal activities.

She has denied the identification memo of Ashok Kumar Gupta S/o Sham Lal but

admitted the identification memos EXTP ½ to EXTP 1/13. In cross-

examination she has admitted that she had been doing this work for the last

about one to two years.

12. PW2-Anoop Singh, PW-3 Nitu Singh, PW-4 Kaka Ram, PW-8 Vidya

Devi, PW-10 Onkar Singh, PW-12 Mulkh Raj, PW-13 Dheeraj Sharma, PW-14

Rakesh Kumar Sharma and PW-16 Priya Rajput have turned hostile.

13. Rest of the prosecution witnesses, are formal as PW-5 Ober Singh is the

witness having taken video film of the room and PW-6 Charanjeet Singh is

photographer.

14. PW-7 Sunny Kumar is witness to the identification parade and he has

admitted the identification memo EXTP-1/5 and stated that the prosecutrix had

identified accused Shamus Din only. PW-9 Anita Katyal, at the relevant time,

was posted as SHO, Women Cell, Udhampur. She was member of the SIT

constituted by SSP Udhampur. She has stated that on the statement of the

prosecutrix she raided a house at Shiv Nagar Udhampur and recovered condoms

from one of the rooms in which accused Shahnaz along with 2/3 persons was

present. She also raided the house of Seema at Shakti Nagar, Udhampur and

recovered some liquor bottles and condoms. In cross examination she has stated

that 3/4 locals were called at the time she raided the room of Shahnaz.

15. PW-11 Dr. Savita Amla is the Medical Officer, who has examined the

prosecutrix. She has stated that in June, 2012 that she was posted in District

Hospital Udhampur as Gynecologist. On 06.06.2012, she examined Miss

Shabnam D/o Gurnam Singh. The detailed findings noticed by her have been

given in the report which bears her signature. The prosecutrix was habitual to

sexual intercourse but there was no evidence of any recent intercourse at the time

of her examination. She has admitted the medical report EXT-P30.

16. PW-15 Ved Parkash, Naib Tehsildar, is the Executive Magistrate in whose

presence the room of accused Shahzada in the house of one Kaka Ram at Shiv

Nagar Udhampur was raided by the investigating agency and thereafter the room

of Seema Devi at Shakti Nagar, Udhampur was also raided in his presence. He

has admitted the identification memo EXTP -1/5 and stated that the prosecutrix

had identified accused Shamus Din in the Police Station.

17. PW-17 Noor Ahmed has stated that in June, 2012 he was posted in Police

Station Udhampur. On 06.06.2012 he along with Dy SP and others called the

prosecutrix and recorded her statement in which prosecutrix had stated that

accused Beli Ram, Pinky Devi, Shahzada and Seema Devi had forced and

introduced her into prostitution. He has also stated that the police party raided the

room of Shahzada at Shiv Nagar, Udhampur and recovered some condoms. The

house of Seema was also raided by the police. He has admitted the supurdnama

of seal EXTP -15.

18. PW-18 Pradeep Singh, Naib Tehsildar is also an Executive Magistrate in

whose presence room of Chanchala Devi at Shakti Nagar, Udhampur was raided

by the police and couple of packets of condoms were recovered. Thereafter

two/three rooms of the office of SFC were also raided and two/three packets of

condoms were recovered and seized on the spot. He has admitted the

identification memos EXTP 1/I to EXTP -1/XIII and EXTP -34/I.

19. PW-19 Dr. Sudesh Kumar, is the Medical Officer, who examined accused

Chanchala Devi and Pinky Devi. He has admitted his certificates EXTP 32 and

EXTP -32/1.

20. PW-20 Rakesh Kumar who is the owner of the house, who had given a

room on rent to accused Seema Devi.

21. PW-21 Suram Singh is the Investigating Officer. He has stated that during

investigation he conducted the requisite formalities, recorded statements of

witnesses, prepared various documents and memos of recovery and seizure and

on the conclusion of the investigation filed final report against accused persons.

22. This is the entire prosecution evidence on record.

23. Before we advert to analyse the prosecution evidence, it may profitable to

recall that the prosecution case is that prosecutrix was deceived, ravished,

blackmailed, exploited and pushed into flesh-trade by the accused persons. It is

further case of the prosecution that in the process, the prosecutrix was taken to

various locations by the accused persons where she was subjected to rape. It is

evident from the brief account of prosecution evidence, narrated above that the

entire prosecution case hinges on the testimonial potency of the prosecutrix only

as rest of the prosecution witnesses have either turned hostile or given up by the

prosecution or formal witnesses.

24. There is no doubt that conviction can be sustained on the sole testimony of

the prosecutrix subject to the caveat that testimony of the prosecutrix inspires

confidence and is worthy of credence.

25. It is trite position of law that a prosecutrix who is alleged to be a victim of

the offence of rape is not an accomplice and her testimony can be accepted

without any corroboration on material particulars for she has to be placed on

higher pedestal than an injured witness. However, if a court on studied scrutiny

of the prosecution evidence finds it difficult to accept the version of the

prosecution, because it is not irreproachable, there is requirement for search of

such direct or circumstantial evidence which would lend assurance to her

testimony. Corroboration of testimony of the prosecutrix as a condition for

judicial reliance is not a requirement of law but a guidance of a prudence under

given facts and circumstances of the case, though minor contradictions or

insignificant discrepancies cannot be made a basis for throwing the case of

prosecution overboard. In such circumstances, the testimony of the prosecutrix is

required to be appreciated on the principle of probabilities just as a testimony of

the any other witness. It is also true that the courts while trying an accused on the

charge of rape is expected to deal with the case with utmost sensitivity,

examining the broader probabilities of a case and not get swayed by minor

contradictions or insignificant discrepancies.

26. The reliance placed by the learned trial court on Rajoo v. State of

Madhya Pradesh, reported as AIR 2009 SC 858, in this context is well

founded and relevant extract of the said judgment is reproduced below for the

facility of reference:

"Ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. The court however, further observed:"....It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication....... There is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."

27. A similar view has been taken by Hon'ble the Supreme Court in

Tameezuddin @ Tammu v. State (NCT of Delhi) [(2009) 15 SCC 566] in the

following words:

"It is true that in a case of rape the evidence of the prosecutrix must be given pre-dom consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."

28. Now, let us cut across to the case on hand. As already discussed that the

entire prosecution case is perched on the sole testimony of the prosecutrix and it

is manifest from a sheer glance of the statement of the prosecutrix that the tenor

of her testimony neither inspires confidence nor is worthy of credence, to say the

least. The prosecutrix is not a minor girl. She was a student at the relevant time,

living in the house of her aunt. Though she claimed to have been trapped by

accused Pinky Devi, there is nothing in her statement to suggest as to what

prevented the prosecutrix from revealing the first incident to her aunt. According

to the prosecutrix she was taken by accused Pinky to a room at Jail Road,

Udhampur where she was ravished by accused Beli Ram. However, 15 days after

she accompanied the same accused Pinky Devi and on her insistence only she

went to the room of accused Beli Ram. Later she would accompany the same

accused Pinky to Srinagar and subsequently to different locations and to different

hotels. It is hard to believe that the prosecutrix is alleged to have been raped by

different person on different occasions and at different locations but she never

reported the matter to any body or to the police. It is evident from her statement

that she was not under the control of accused persons all the time. She is stated to

have visited different places, those were frequented by people. She is stated to

have travelled with accused Pinky Devi and Beli Ram to several places and even

to Srinagar and she never reported the matter to anybody. In these circumstances,

the testimony of the prosecutrix is highly un-believable and cannot be made basis

to convict the respondents. The quality and character of the evidence of the

prosecutrix is such that it shall be highly unsafe to make it a base to sustain

conviction of the respondents.

27. Having regard to what has been discussed hereinabove, we do not find any

illegality muchless perversity, in the impugned judgment, which is otherwise

well reasoned. We have not been persuaded to take a view different from the one

taken by the trial court.

28. Thus, considered, the present appeal is dismissed and the impugned

judgment is upheld.

29. Record of the trial court be returned forthwith.

                                 (RAJESH SEKHRI)                     (RAJNESH OSWAL)
                                    JUDGE                                  JUDGE

JAMMU
07.10.2022
Vijay
                                  Whether the order is speaking?            Yes/No
                                  Whether the order is reportable?          Yes/No