Ut Of J&K vs Hadayatullah Sheikh And Others
2022 Latest Caselaw 1426 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                                    Reserved on : 22.09.2022
                                                    Pronounced on : 14.10.2022

                                                    Crl A(AD) No. 12/2022

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


                      Through: Mr. R. S. Jamwal, AAG.
                 Vs
 Hadayatullah Sheikh and others                               ..... Respondent(s)


                      Through: Mr. Jagpaul Singh, Advocate.

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

PER OSWAL-J

1. The judgment of acquittal dated 30.06.2021 delivered by the court of

learned Principal Sessions Judge, Bhaderwah in case titled "State vs. Mohd.

Aqib and others" arising out of FIR No. 76/2014 acquitting the respondents

of the charges for commission of offences under Section 376(2) (G), 342,

363, 506 RPC, has been impugned by the appellant on the ground that the

learned trial court has not properly appreciated the evidence and has given

undue importance to the delay in lodging the FIR. Further that the non-

examination of the Investigating Officer was not fatal to the prosecution

case, as the prosecutrix had proved the case beyond any shadow of doubt.

2. Before we consider the present appeal, it is found that the record of the case

was reconstructed by the trial court, as the court file was gutted in a fire

incident that took place on 31.12.2020.

3. Mr. R. S Jamwal, learned AAG argued that the prosecutrix had proved the

case against the respondents but still the learned trial court acquitted the

respondents by wrongly appreciating the evidence.

4. Mr. Jagpaul Singh, learned counsel appearing on behalf of the respondents

vehemently argued that the material witnesses were withheld by the

prosecution and even the father of the prosecutrix was not produced for

cross-examination and more so, there are material contradictions in the

statement of the prosecutrix and other witnesses, as such the learned trial

court has rightly acquitted the respondents.

5. Heard and perused the record.

6. The brief facts as they stem out from the charge-sheet are that on

19.07.2014 the prosecutrix along with her parents submitted a written

application forwarded under Section 156(3) Cr. P.C. by JMIC Gandoh,filed

against the accused persons, namely Mohd. Aqib S/o Hadayatullah Sheikh,

Hadayatullah Sheikh S/o Ahemdullah Sheikh, Mohd. Ayub S/o

Ahemdullah Sheikh, Mohd. Afaq Sheikh S/o Nizam Din Sheikh and

Mansoor Ahmed S/o Nizam Din for registration of case for commission of

offences under Sections 376, 109 and 342 RPC. It was alleged that the

prosecutrix was studying in 10th class. The respondents were having enmity

with her father since long, for which a panchayat was organised and

panchayatnama was prepared. On 14.07.2014, in the evening when her

father and brother had gone to offer Namaz Travi in the Mosque, she was at

home with her mother. After prayers, her father and brother came back. Her

parents went to sleep. She was busy in preparing food for Sehri. At around

10/11 P.M. she went out to bring firewood. When she was picking up the

firewood, the accused Mohd. Aqib, Mohd Afaq Sheikh and Mansoor

Ahmed suddenly came and kidnapped her and took her to the house of

Mohd. Ayub, where the accused/respondents reside. She and Mohd. Aqib

were kept in one room and Mohd. Afaq and Mansoor Ahmed went out of

the room. Mohd. Aqib raped her for whole night. Before Sehri, they lifted

her and kept her in a field at Neeli and Mohd. Aqib told her that he would

come back and they would go somewhere else. She was in unconscious

condition and was afraid that her parents might be looking for her. On

15.07.2014, she went to the house of her paternal Aunt at Koko and

narrated the whole incident to her. The respectables tried to enquire the

matter, but only Hadayatullah Sheikh appeared before them and rest of the

accused did not respond to the call of the respectables. On 17.07.2014 there

was a panchayat at Bus Stand, Gwari, where the respondent No. 1 came but

he lingered on the matter and did not give any response. On the basis of this

written report, FIR for commission of offences under Section 342, 376 and

109 RPC was registered.

7. During the investigation, the prosecutrix was medically examined,

statements of the witnesses were recorded under Section 164 Cr. P. C. After

completion of the investigation, the Investigating Officer proved the

offences against the respondents and Mohd. Aqib under Sections 342, 376

and 109 RPC and submitted the charge-sheet before JMIC, Gandoh on

29.12.2014 and on the same day the same was committed to the trial court.

Mohd. Aqib was found to be Juvenile and SHO was directed to produce

separate challan against him before the competent court. Respondents,

however, were charge-sheeted for commission of offences under Sections

376(2)(G), 363 and 506 RPC on 21.08.2015. The prosecution was directed

to lead evidence and out of 10 witnesses, the prosecution examined 5

witnesses.

8. In order to appreciate the contentions raised by the parties, it is necessary to

have a brief resume of the relevant portion of the prosecution evidence.

9. PW-1 Bashir Ahmed Malik, who happens to be father of the prosecutrix

was examined and his statement was deferred but thereafter, he was never

produced in the court for cross-examination.

10. PW-2 Prosecutrix stated that she knows the accused persons as well as

Mohd. Aqib. On 14.07.2015 at around 10 P.M. when she had gone out to

bring firewood, Mohd. Aqib and Mohd. Afaq took her to the house of

Mohd. Ayub where Mohd. Ayub, Mansoor Ahmed and one more person

namely Hadayatullah were present. Accused Mohd. Aqib committed wrong

with her and outraged her modesty there in the room. The other accused

persons remained outside the room. In the morning at about 3/4 A.M. the

accused persons and Mohd. Aqib again lifted her and took her to the field

where they threatened her that if she raised alarm she would be killed.

Thereafter, the accused went away. She went to the house of her paternal

aunt that was near to the field and narrated her the whole incident. Shahida

Begum called her father. Then her father and maternal uncle-Naser Ahmed

also came there and her father took her to house of Sarpanch, where her

father disclosed the occurrence to him. The accused persons also attended

the Panchayat. She was also in the Panchayat but the accused later fled

away from there. Thereafter, she along with her father went to the Police

Station Gandoh and lodged the report. She was also medically examined

and her statement was recorded before the court. In cross-examination, she

stated that there are houses of 2/3 persons in front of her house. Accused

Mohd. Aqib was a student of her school and was senior to her by one class.

He is resident of her village and that is why she knows him. She knows

Mohd. Zakir S/o Shah Din but he is not related to her. She denied that

Mohd. Zakir started the talks of her engagement with Mohd. Aqib. Her

father had filed a case in the Police Station Gandoh against Mohd. Zakir

and on the day of occurrence, his wife and children were present in the

house of accused Mohd. Ayub. She tried to get rid of the accused-Mohd.

Aqib when he was out-raging her modesty and blood did not ooze out,

however, there was bleeding when Mohd. Aqib did wrong with her. She

raised hue and cry but none came. There are houses of many people on the

way to the house where she was taken by Mohd. Aqib and Mohd. Afaq but

nobody from the houses came for her rescue though she cried a lot. Both

the accused lifted her one after another. She reached the house of Mohd.

Ayub at about 10/11 P.M. During investigation, she narrated the same

occurrence. She remained in the field for 2/3 hours where accused took her

and at about 5/6 A.M. she had gone to the house of her paternal aunt. Her

father and maternal uncle reached the house of aunt at about 3/4 P.M. When

she was lifted, her father had lodged a report with the Police. She has no

enmity with the accused. She does not know why Mohd. Aqib took her

forcibly. She did not use to talk with Mohd. Aqib in the school. The

accused fled away from the Panchayat saying that they had not committed

any act with her. On 16th, she had gone to the Police to lodge a report.

11. PW-3 Naveda Begum (Mother of the Prosecutrix) stated that about three

and a half years ago on 14th at about 11 P.M. her son and husband went to

their rooms after performing the prayers and she was preparing food for the

Sehari for the next morning in another room. Her daughter-prosecutrix had

gone out to bring firewood. When she did not return in five minutes, she

awakened her husband and son and they started searching her and thought

that wild animals might have taken her. They continued to search her whole

night but could not trace her. Next day, at 3/4 P.M. they received a

telephonic call form Shahida Begum, who told them that the prosecutrix

was in her house. They were called at her house. Thereafter, they reached

and saw their daughter there. Prosecutrix disclosed to them that when she

had gone to take firewood in the verandah, there were 2/3 persons who

covered her face and eyes and took her to the house of Mohd. Ayub, where

she was kept in a room with closed windows and doors. Mohd. Aqib

committed rape upon her. Her statement was recorded in the court. During

cross-examination, she stated that their house has four stories and the

Kitchen is on the 2nd floor and there is a Veranda on the 2nd floor. There is

no veranda on any other floor. There is only one gate to come or go to their

house. When her husband and son returned from prayer, they closed the

main gate. The ground floor is for the cattle. There are many houses in their

village but they are at some distance. They did not disclose to the

neighbours about the missing of their daughter on that night but on the next

day they disclosed the same to the neighbours. Neighbours too joined them

in searching the prosecutrix. When prosecutrix narrated the occurrence, her

husband and son were present there. After 4/5 days, Panchayat was

organised as they wanted to settle the dispute amicably but Mohd. Ayub did

not agree. They said that they had not committed any crime so why they

should admit. She had not participated in the said Panchayat. Accused

Mohd. Ayub filed complaint against them firstly and thereafter they filed

complaint against the accused. She does not know that prior to the

occurrence Mohd.Ayub and the prosecutrix had any terms with each other

or not. In the Panchayat they asked for solemnization of the marriage of the

prosecutrix with the accused-Mohd. Aqib, so as to end the matter. The

prosecutrix has been engaged but her marriage has not been solemnized.

12. PW-4 Abdul Aziz Malik stated that in the month of July 2014 Bashir

Ahmed came to his house and told him that on the same day at about 4

P.M., his daughter-prosecutrix returned back to her house on her own.

Bashir Ahmed did not disclose to him about the circumstances in which his

daughter was missing and also did not disclose as from where the

prosecutrix was recovered. He also disclosed that he would convene a

Panchayat regarding missing of his daughter. No Panchayat was convened

regarding missing of the prosecutrix. In cross-examination, he stated that

the prosecutrix was not handed over to her father in his presence. His

statement was recorded before the court in Doda and prior to that he did not

knew Aqib.

13. PW-5 Shokat Ali, SPO in examination-in-chief stated that he was posted

in Police Station, Gandoh in July 2014. On 19.07.2014, he accompanied the

Investigating Officer-Lal Hussain to the house of Bashir Ahmed and

prosecutrix was handed over to Bashir Ahmed on Supurdnama in his

presence, regarding which Supurdnama was prepared and he put his

signatures on it as witness and the Investigating Officer had recorded his

statement in this case. In cross-examination, he stated that he has not seen

the said supurdnama in the court today. When he accompanied the

Investigating Officer to the house of Bashir Ahmed, no other person was

with them. The prosecutrix was already in the house of Bashir Ahmed.

Except supurdnama of the prosecutrix nothing was done by the

Investigating Officer in his presence.

14. Before we examine the evidence led by the prosecution, it is required to be

taken note of that in appeal against the acquittal, the only issue that is

required to be considered is as to whether the opinion of the trial court is

possible on the basis of evidence led by the parties and if it is so then no

interference is warranted.

15. The case of the prosecution is that on 14.07.2014, at about 10/11 P.M.

Mohd. Aqib, Mohd. Afaq and Mansoor Ahmed abducted the prosecutrix by

putting a cloth in her mouth and took her to the house of Mohd. Ayub

where she was raped by Mohd. Aqib. As the father of the prosecutrix was

not produced for cross-examination, so the only evidence that requires

appreciation is the statement of the prosecutrix and her mother. The

prosecutrix in her testimony has deposed that at about 10/11 P.M. when she

had gone out for getting the firewood, the accused Mohd. Aqib and Mohd.

Afaq came there and forcibly lifted her and took her to the house of Mohd.

Ayub. In her statement before the court she has not deposed about the

involvement of Mansoor Ahmed in her abduction and she has named only

Mohd. Aqib and Mohd. Afaq. Further, in her testimony, there is no whisper

by her that in her mouth a piece of cloth was put by the accused, as

mentioned by her in the application on basis of which FIR was registered.

The prosecutrix also stated that she bled when Mohd. Aqib did wrong with

her, but this version of the prosecutrix story has not been supported by the

medical evidence, as perusal of the same reveals that there was no sign of

recent sexual intercourse and there was no bleeding. From the statement of

prosecutrix, it is evident that she went to the house of her paternal aunt at

about 5/6 A.M. and she has also stated that while she was in the field she

did not raise any hue and cry as the accused had threatened her. This has

also not been reflected in the application pursuant to which FIR was

registered. The prosecutrix has categorically stated that she disclosed the

occurrence to Shahida Begum but she has not been produced in the court

for recording of her statement but was left over. Besides prosecutrix, she

was the most important witness and her non-examination casts doubt about

the prosecution story. The prosecutrix in her initial complaint had

categorically stated that the accused were having enmity with her father

since long and committed wrong for which a Panchayat was convened and

Panchayatnama was prepared, but in her testimony before the court, she

deposed that she had no enmity with the accused and she does not know as

to why Mohd. Aqib took her forcibly. So far as the mother of the

prosecutrix i.e. PW-3 Naveda Begum is concerned, she stated that when

they received a telephonic call from Shahida Begum, they reached the

house of Shahida Begum at 4 P.M. where the prosecutrix told them about

the occurrence. When we examine the statement of the prosecutrix, it is

found that she has deposed that at about 3/4 P.M. her father and maternal

uncle reached the house of her paternal aunt and she has not deposed about

the presence of her mother at the house of her paternal aunt. More so it has

come in the statement of PW-Naveda Bgum that Mohd. Ayub filed the

complaint initially and thereafter they filed the complaint against the

accused. PW-4 Abdul Aziz Malik has further caused a dent in the

prosecution case by stating that the prosecutrix returned back to her house

on her own and father of the prosecutrix did not disclose to him as from

where she was recovered.

16. No doubt, that the sole testimony of the prosecutrix is sufficient for

convicting the accused for commission of rape, but in the instant case there

are no allegations that any of the respondents herein had committed rape

upon the prosecutrix and rather the allegation for commission of rape has

been levelled against Mohd. Aqib, whose challan was segregated being a

juvenile. The statement of the prosecutrix is not of sterling quality that can

be relied upon for convicting the respondents.

17. We have examined the judgment impugned. The learned trial court has

taken note of various infirmities in the prosecution case as also the delay in

lodging the FIR and the improbability of the prosecution story that when

the prosecutrix was crying at the time of her abduction, no one came for her

rescue. The trial court has also taken note of the fact that material witnesses

including the Investigating Officer have not been examined by the

prosecution. The opinion formed by the learned trial court cannot be said to

be contrary to the evidence brought on record. It is settled law that

judgment of acquittal is not to be interfered when merely on the

appreciation of the evidence, view other than that of the trial court is also

possible. Rather, the learned trial court has appreciated the evidence in its

right perspective and has rightly acquitted the respondents.

18. Viewed thus, there is no infirmity in the judgment impugned. We do not

find any reason, whatsoever, to disagree with the findings returned by the

learned trial court. As such, the judgment of the learned trial court is upheld

and this appeal is, accordingly, dismissed, as is found to be without any

merit.

                                 (RAJESH SEKHRI)                      (RAJNESH OSWAL)
                                      JUDGE                                JUDGE
 Jammu
 14.10.2022
 Sahil Padha
                             Whether the order is speaking:     Yes/No.
                             Whether the order is reportable:   Yes/No.