State Of J&K vs Shabir Ahmad Khan
2023 Latest Caselaw 567 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                 LADAKH AT SRINAGAR


                                               Reserved on:  20.04.2023
                                               Pronounced on: 9.05.2023

                          CRAA No.17/2017

STATE OF J&K                                      ... APPELLANT(S)
       Through: -   Mr. Sajad Ashraf, GA.

Vs.

SHABIR AHMAD KHAN                              ...RESPONDENT(S)
       Through: -   Mr. Shah Ashiq Hussain, Advocate

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) The instant appeal is directed against the judgment and order

dated 23.02.2017 passed by learned 2nd Additional Sessions Judge,

Srinagar, whereby respondent herein has been acquitted of the charges

for offences under Section 354, 376/511 RPC.

2) As per the prosecution case, on 05.04.2006, the prosecutrix

lodged a report with the police stating therein that she is a student of

6th class studying in New Era Public School , Rajbagh, and on the said

day, when, after the school hours, she was proceeding towards her

house, at Mehjoor Nagar, Srinagar, the accused/respondent, who

happens to be her cousin brother, met her. He offered to accompany

the prosecutrix to her home and told her that he has to get some

articles from a house belonging to a Sikh gentleman. Accordingly, the

prosecutrix accompanied by the accused to the said house and at the

relevant time there was no occupant in the said house. It was further

alleged by the prosecutrix that the accused/respondent made her to

take off her school uniform and tried to sexually assault her. When the

prosecutrix raised hue and cry, the accused/respondent tied a rope

around her neck and gagged her mouth. The prosecutrix raised an

alarm and some people came on spot, whereafter the

accused/respondent fled away from there leaving her in a naked

condition. The prosecutrix further narrated to the police that some

person standing over there gave his shirt to her to cover her body.

3) On the basis of aforesaid report, FIR No.33/2006 for offences

under Section 307, 376/511 RPC was registered by the police of

Police Station, Rajbagh and investigation was set into motion. After

investigating the case and subjecting the prosecutrix to medical

examination, offences under Section 307, 376/511 RPC were found

established against the respondent/accused and challan was laid before

the trial court. Vide order dated 30.12.2006, passed by the learned

trial court, charges for offences under 354, 376/511 RPC were framed

against the accused/respondent and he was put on trial.

4) In order to prove the charges against the respondent/accused,

the prosecution examined as many as five out of nine witnesses cited

in the challan. Vide order dated 17.02.2016, passed by the trial court,

evidence of the prosecution was closed and thereafter statement of the

respondent/accused under Section 342 of the J&K Cr. P. C was

recorded. While explaining the incriminating circumstances appearing

in the evidence against the respondent/accused, he stated that he has

been falsely implicated due to enmity. He, however, admitted his

relationship with the prosecutrix. No evidence in defence was led by

the respondent/accused.

5) The learned trial court, after appreciating the evidence on

record and after hearing the parties, came to the conclusion that the

prosecution has failed to establish the charges against the

respondent/accused beyond reasonable doubt and, accordingly, he has

been acquitted of the charges in terms of the impugned judgment.

6) It has been contended in the appeal that the learned trial court

while passing the impugned judgment of acquittal has not appreciated

the prosecution evidence in its right perspective. It has been submitted

that the prosecutrix while making her statement has supported the

prosecution case, but the learned trial court has discarded her

testimony on flimsy grounds, though as per the settled position of law,

testimony of victim of a sexual assault deserves to be accepted

without insisting for its corroboration. It has been further contended

that merely because there were certain discrepancies and

inconsistencies in the statement of the prosecutrix, it was not open to

the learned trial court to disbelieve the whole of her testimony.

7) I have heard learned counsel for the parties and perused the

trial court record, grounds of appeal and the evidence led before the

trial court.

8) It is a settled position of law that the prosecutrix in a case

relating to sexual assault is the most important witness. It is also a

settled position of law that testimony of a victim of sexual assault has

to be ordinarily relied upon unless there are compelling reasons

necessitating the need for its corroboration. If the Court finds that

testimony of the prosecutrix in a case relating to sexual assault is

reliable, conviction can be based upon it without insisting for

corroboration. In the face of this position of law, it would be apt to

refer to the statement of the prosecutrix recorded before the trial court

so as to determine whether and to what extent her statement can be

relied upon.

9) The prosecutrix has stated that the accused happens to be her

cousin brother. She has further stated that in the year 2006 she was

studying in 6th class in New Era Public School. She has gone on to

state that in the month of April, when she was coming back from her

school at about 2.00 pm, accused met her and asked her to accompany

him inside a house where he had to get some bag. She accompanied

the accused to the said house, but the accused tied a rope around her

neck and gagged her mouth with a cloth. She has further stated that

the accused laid her on ground on two or three occasions and made

bedding over her. She has further stated that at the relevant time she

was wearing school uniform. She did not know as to what accused

was trying to do with her, perhaps he was trying to kill her. The

witness was declared hostile and was examined by the APP.

10) In her cross-examination by APP, the prosecutrix has stated that

she could not raise alarm because her mouth had been gagged. She

has further stated that the accused was standing there and after some

time she heard the sound of opening of door and she saw the accused

going out of the house. She has further stated that she went out of the

house through a window and at that time she was wearing only her

lowers without any shirt because the accused had taken off her shirt.

She has stated that she had gone unconscious and during this period

the accused had taken off her shirt. She had not narrated to the police

that the accused had committed rape upon her. When she reached

home, she did not feel that the accused had committed rape upon her.

She does not know as to why the accused had taken off her shirt.

When she went out of the house, she narrated the occurrence to a

person who was standing over there and she was taken to the police

station in a vehicle. On the road, one person gave his sweater to her.

She put on the said sweater and went to the police station from where

she was taken to a doctor.

11) In her cross-examination by the defence counsel, the

prosecutrix has stated that the police enquired only about her name.

12) Another important witness, whose statement is required to be

noticed, is PW(2) Feroz Ahmad Dar. He has stated that about two

years back, the accused had brought a minor girl aged about 14/15

years to the house of a Sikh gentleman. He further stated that the

accused was working as a Chowkidar in the said house. The witness

has also stated that he is an auto rickshaw driver and while he was

waiting for a passenger, he saw a girl coming over there and she was

crying. He has further stated that the girl was only wearing an

undershirt and he offered his sweater to the girl and she put it on. He

has also stated that he along with PW Reyaz Ahmad went inside the

house and in his presence, police came on spot and they made

enquiries from the girl who narrated to the police that the accused is

her neighbourer and he attempted to commit sexual assault upon her.

The girl was taken to the police station and the accused was also

arrested by the police. The police seized the school uniform of the

prosecutrix, a blood-stained bedsheet and certain other articles vide

seizure memos EXTP3/I and EXTP3/II.

13) PW (3) Reyaz Ahmad Rather has not supported the prosecution

case and he has stated that he did not witness the occurrence with his

own eyes.

14) The statement of another witness, which is important from the

perspective of the prosecution case, is that of PW(4) Constable Nazir

Ahmad. The witness has stated that in April, 2006, he was posted as

security guard of Mr. Nasir Sogami. On the date of occurrence, while

he was on duty, he saw about 10 to 15 people entering the house of a

Sikh gentleman. He saw a minor girl aged about 15 years in a naked

condition and she was only wearing a pajama. He made the girl to

board his gypsy and took her to police station. The girl narrated to the

police that the accused, who is her cousin brother, had tried to commit

an illegal act with her. The witness has further stated that the accused

had brought the girl in school uniform inside the house and tried to

outrage her modesty and that the girl put on a sweater near the post

office.

15) From the statement of the prosecutrix and the statements of

PWs Feroz Ahmad Dar and Constable Nazir Ahmad, as reproduced

hereinbefore, it clearly emerges that the accused/respondent, who

happened to be the cousin brother of the prosecutrix, had taken her to

a secluded house on the fateful day. While the prosecutrix in her

statement made before the police had narrated that she was sexually

assaulted by the accused and he tried to commit rape upon her inside

the house but in her statement before the Court, she has stated that she

did not know as to what accused intended to do with her. The

prosecutrix did not support the prosecution version, as such, she was

declared hostile and was cross-examined by the APP but one thing is

clear that she did state that the accused, who happens to be her cousin

brother, took her to a secluded house where she was laid to ground by

the accused on two or three occasions, bedding was made over her

and the accused took off her uniform. She has also stated that after the

accused left the house, she went out of the said house in a naked

condition and later on she was given sweater by a person standing on

the road.

16) The learned trial court has disbelieved the statement of the

prosecutrix by observing that she has made inconsistent statements,

inasmuch as she has stated before the police that she was sexually

assaulted by the accused/respondent but before the Court she has

resiled from her said statement. It is true that the prosecutrix has

turned hostile and has not fully supported the version of occurrence

given by her before the police but the question arises as to whether

because of this reason only, whole of her statement is liable to be

discarded.

17) The Supreme Court in the case of Himanshu v. State (NCT of

Delhi), (2011) 2 SCC 36, has held that the evidence of a hostile

witness in all eventualities ought not stand effaced altogether and that

the same can be accepted to the extent found dependable on a careful

scrutiny. Similar views have been expressed by the Supreme Court in

the case of Khujji vs. State of M. P. (1991) 3 SCC 627. Again, in

the case of Koli Lakhmanbhai Chanabhai v. State of Gujarat,

(1999) 8 SCC 624, the Supreme Court held that the evidence of a

hostile witness remains admissible and it is open for a court to rely on

the dependable part thereof as found acceptable and duly corroborated

by other reliable evidence available on record.

18) Again the Supreme Court has, in the case of Bhajju alias

Karan Singh vs. State of Madhya Pradesh, (2012) 4 SCC 327,

discussed the effect of the testimony of hostile witnesses in the

following manner:

"35. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Cr.P.C., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross- examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in- chief as well as the cross-examination of the said witness in so far as it supports the case of the prosecution.

36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put

any question to him which might be put in cross- examination by the adverse party.

37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases :

(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624;

(b) Prithi v. State of Haryana (2010) 8 SCC 536;

(c.) Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1; and,

(d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525

19) From the foregoing analysis of law on the subject, it is clear

that testimony of a hostile witness cannot be discarded as a whole.

The Court has to scrutinize the testimony of such a witness and accept

that portion of the testimony which is dependable and discard the

other portion which cannot be relied upon. If the portion of the

testimony of a hostile witness, which is reliable, finds corroboration

from other evidence on record, such portion of the testimony of a

hostile witness deserves to be accepted.

20) Coming to the facts of the instant case, the prosecutrix has

clearly stated that she was taken by the accused to a secluded house

where she was laid to ground on a number of occasions by the

accused. She has further stated that she was undressed by the accused

though she has stated that she does not know as to why accused had

done this to her. She has also stated that when she came out of the

secluded house, she was naked and was given a sweater by a

bystander which she put on and went to the police station.This part of

the statement of the prosecutrix has remained unchallenged during her

cross examination by the defence. Her statement to the aforesaid

extent is corroborated by the statements of PWs Feroz Ahmad Dar

and Constable Nazir Ahmad. PW Feroz Ahmad Dar has clearly stated

that he saw the prosecutrix coming out of the house crying in a naked

condition and he gave his sweater to her. He has also stated that the

prosecutrix had been assaulted by the accused. PW Constable Nazir

Ahmad has given his statement on similar lines, inasmuch as he has

stated that he saw the girl in a naked condition and that she was given

sweater by a person.

21) Thus, it is established from the statement of the prosecutrix,

which stands corroborated by the statements of PWs Feroz Ahmad

Dar and Constable Nazir Ahmad, that the respondent/accused took her

to a secluded house, laid her to ground a number of times and

undressed her, though it is not established that the accused tried to

commit rape upon her.

22) In the face of aforesaid established facts, the question arises as

to what offence has been established against the respondent/accused.

One of the charges for which the respondent/accused has been put to

trial is the charge for offence under Section 354 of RPC, which reads

as under

"354. Assault or criminal force to women with intent to outrage her modesty: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with the imprisonment of either description for a term which shall not be less than one year, but which may extend to five years and shall also be liable to fine."

23) From a perusal of the aforesaid provision, it is clear that the

offence defined under the aforesaid provision is established once it is

shown that the offender has assaulted or used criminal force to a

woman intending to outrage or knowing it to be likely that he will

thereby outrage her modesty.

24) The Supreme Court has, while considering the definition of

the expression 'modesty' used in Section 354 of IPC in the case of

Rupan Deol Bajaj vs. Kanwar Pal Singh Gill and another, (1995)

6 SCC 194, observed as under:

"14. Since the word 'modesty' has not been defined in the Penal Code, 1860 we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word 'modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English

Dictionary (1933 Edn.) the meaning of the word 'modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".

25) Again, in the case of State Of Punjab vs Major Singh, AIR

1967 SC 63, the Supreme Court has, while answering the question

whether a reasonable man would think that the female child on whom

the offence was committed can be said to be possessed of modesty

which could be outraged, held that when any any act done to or in the

presence of a woman is clearly suggestive of sex according to the

common notions of mankind that act must fall within the mischief of

Section 354 of IPC. It was further observed by the Supreme Court that

essence of a woman's modesty is her sex and from her very birth she

possesses the modesty which is the attribute of her sex.

26) Applying the aforesaid legal position to the facts established

in the present case, it is to be noted that although the prosecutrix, who

happened to be a minor girl of 14 years, did not know as to what the

accused/respondent intended to do with her, yet the ultimate test for

ascertaining whether her modesty has been outraged is the action of

the respondent/accused. If his action is perceived as one which is

capable of shaking the decency of a woman, the charge for offence

under Section 354 RPC would get established. The action of

respondent/accused in repeatedly laying down the prosecutrix on

ground and thereafter undressing her, can clearly be perceived as an

action that would shake the sense of decency any woman. Therefore,

merely because the prosecutrix did not know what the

respondent/accused intended to do with her, it cannot be stated that

the respondent/accused did not intend to outrage modesty of the

prosecutrix.

27) In the instant case, while appreciating the evidence on record,

the fact that the prosecutrix has turned hostile has to be considered in

the backdrop of the fact that the accused happens to be the cousin

brother of the prosecutrix. It is quite probable that after the

registration of FIR, the prosecutrix must have been subjected to pulls

and pressures by her relatives to resile from her statement given to the

police, which probably has prevented her from supporting the

prosecution case in its entirety. Merely because the prosecutrix has

turned hostile would not efface the evidence with regard to assault on

her modesty by the respondent/accused. In this context, it would be

apt to quote the following observations of the Supreme Court in the

case of State vs. Sanjeev Nanda, (2012) 8 SCC 45:

"101....If a witness becomes hostile to subvert the judicial process, the Courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 of the IPC imposes punishment for giving false evidence but is seldom invoked."

28) Again, the Supreme Court has, in the case of Hemudan

Nanbha Gadhvi vs. State of Gujarat, (2019) 7 SCC 523, observed

as under:

10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the rule of law. Neither the accused nor can the victim be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat [Zahira Habibullah Sheikh v. State of Gujarat, and Mahila Vinod Kumari v. State of M.P. If the medical evidence had not confirmed sexual assault on the prosecutrix, the TIP and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.

11. It would indeed be a travesty of justice in the peculiar facts of the present case if the appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the appellant in the dock, in view of the other overwhelming evidence available.

29) In the backdrop of aforesaid legal position, it is clear that just

because the prosecutrix in the instant case has turned hostile and given

inconsistent versions about the occurrence in her statement before the

police and in her statement before the trial court, the case of the

prosecution cannot be thrown away, particularly when certain portions

of the statement of the prosecutrix are dependable and are

corroborated by the other evidence on record.

30) The learned trial court while analysing and appreciating the

evidence led by the prosecution has completely ignored the legal

position with regard to appreciation of evidence of a hostile witness

and has arrived at findings by ignoring and excluding the relevant

material. The learned trial court while acquitting the accused and

disbelieving the testimony of the prosecutrix has ignored the portion

of the testimony of the prosecutrix which is dependable in nature and

which is corroborated by the other evidence on record. The findings

recorded by the learned trial Court are, therefore, perverse which

deserve to be set aside.

31) It has been contended by learned defence counsel that the

prosecution has not examined the Investigating Officer and the Doctor

in this case, as such, an adverse inference deserves to be drawn

against it. It is true that during the trial of the case, neither the Doctor,

nor the Investigating Officer has stepped into the witness box but

then, in the facts and circumstances explained hereinbefore, their non

examination does not have any fatal effect on the prosecution case. As

per the evidence on record, charge for offence under Section 354 RPC

has been established against the respondent/accused. Having regard to

the nature of the charge, evidence of the Doctor may not be necessary

at all. Merely because the Investigating Officer has chosen not to step

into the witness box, the credible testimony of the prosecutrix and two

other witnesses who were present in the vicinity of the place of

occurrence cannot be discarded. The argument of learned counsel for

the respondent is, therefore, without any substance.

32) So far as scope of power of the appellate Court under Section

378 of Cr.PC (Section 417 of J&K Cr.PC) is concerned, it is a settled

law that the appellate Court has full powers of reappreciation and

reconsideration of the evidence led before the trial Court and if it finds

upon reappreciation of evidence on record that the findings of fact

recorded by the trial Court are perverse, or the same have been arrived

at aby ignoring or excluding the relevant material or by taking into

consideration irrelevant/inadmissible material, the judgment of

acquittal can be reversed and converted into one of conviction. In the

instant case, as already noted, the trial Court has ignored and excluded

the relevant material, as such, the impugned judgment of acquittal

deserves to be reversed.

33) Accordingly, the appeal is allowed and the impugned

judgment of acquittal passed by the learned trial court is set aside. In

view of the discussion made hereinbefore, the charge for offence

under Section 354 RPC is proved against the respondent/accused

beyond any reasonable doubt and he is, accordingly, convicted of the

said offence.

34) Having regard to the fact that the respondent/accused has

faced trial before the trial court for more than ten years and keeping in

view the fact that there is nothing on record to show that the

respondent/accused has any criminal background, he does not deserve

to be sentenced to maximum punishment. However, while awarding

punishment, it has to be noted that the respondent/accused happens to

be the cousin brother of the prosecutrix and having regard to their

relationship, the prosecutrix had reposed trust and confidence in him

and accompanied him to a secluded place. By indulging in an

abhorrent act of outraging modesty of the prosecutrix, the

respondent/accused has shattered the trust and confidence of the

prosecutrix. Therefore, an adequate and appropriate punishment is

required to be awarded against the respondent/accused.

35) Having regard to the aggravating and mitigating

circumstances peculiar to the instant case, the respondent/accused in

proof of charge for offence under Section 354 RPC, IS is sentenced to

undergo simple imprisonment for a period of four months and to pay a

fine of Rs.10,000/-. In default of payment of fine, the

respondent/accused shall undergo a further imprisonment of similar

description for a period of two months.

36) The respondent/accused shall surrender before the trial court

within a period of 15 days from the date of announcement of this

judgment and in case he does not do so, the learned trial court shall

issue warrants for his arrest and send him to jail for serving the

sentence.

37) The trial court record along with a copy of this judgment be

sent back.

(Sanjay Dhar) Judge Srinagar 09 .05.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:              Yes
                   Whether the order is reportable:            Yes