Ghulam Qadir Lone vs Stat Of Jk And Another
2023 Latest Caselaw 1306 j&K/2

                                                             Sr. No. 15
                                                             Regular List
     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                           CRR No. 27/2013 c/w
                           CrlA (AS) no. 6/2019

Ghulam Qadir Lone                                    ...Petitioner(s)/Appellant(s)

Through:    Mr. Zahid, Advocate in CRR No. 27/2013
            Mr. Zahid Qais Noor, GA in CrlA (AS) No. 6/2019
                                     Vs.
Stat of JK and Another                                         ...Respondent(s)

Through:    Mr. Zahid Qais Noor, GA in CRR No. 27/2013
            Mr. Asif Ahmad Bhat, Advocate in CRR No. 27/2013
CORAM:

HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
                                ORDER

12.10.2023

Heard and considered CrlM No. 481/2019.

2. This is an application for condonation of delay in filing appeal. The

learned counsel for the appellant-UT submits that the appeal against the

acquittal order passed by the trial Court dated 08.08.2013 should have been

filed earlier but on account of the negligence on the part of the public

prosecutor who never informed the authorities of the State with regard to the

acquittal of the respondent by the Trial Court in a rape case, the appeal

could not be filed. Subsequently, the criminal revision bearing CRR

27/2013 was filed by the father of the prosecutrix before this Court and

during course of the hearing, this Court is stated to have sought an

explanatory report from the DGP & Secretary Law Department as to why the

appeal against the acquittal had not been filed by the State. It is only,

thereafter, that the appeal was filed by the erstwhile State in the year 2019.

2. The reason given in the application that the delay occurred on account

of the negligence of the Public Prosecutor in informing the appropriate

authorities in the State Government, appeals to this Court.

3. Under the circumstances, the delay in filing the appeal is condoned.

4. CM disposed of.

5. The appeal bearing CRR No. 27/2013 has been heard on merits

alongwith the criminal revision bearing CrlA (AS) No. 06/2019. The brief

facts of the case as born out from the judgment of the learned Trial Court are

that:

PW-1 Ghulam Qadir Lone, who is the father of the prosecutrix

testifies before the Trial court on 13.05.2012, that the prosecutrix went to

buy bread and did not return. After that he searched for a while and,

thereafter, an unknown person, a child, informed the witness that he saw the

respondent-Showkat Ahmad Wani dragging the prosecutrix. Thereafter, the

witness PW-1 filed a report with the police. Subsequently, the prosecutrix

was recovered from Wailoo, Byepass. In the cross examination, he states

that he has no personal knowledge whether prosecutrix was abducted or

whether she went on her own violation. He further states that he did not take

prosecutrix to the doctor. PW-2 to PW-6 are witnesses relating to production

of the prosecutrix by the police. They have, however, stated that the

prosecutrix was not apprehended in their presence and they saw her only in

the police station. Thereafter, they appended their signatures to the seizure

memo. They say that they are not conversant with the facts of the case as to

what happened to the prosecutrix or how she went away.

6. P.W-8 Dr. Shubana is the doctor before whom the prosecutrix was

produced on 15.05.2012, that is on the date when she was recovered. This

witness states that there were no external injuries anywhere in the body of

the prosecutrix and the hymen was torn and that she was habituated to

sexual intercourse. She further states that because the prosecutrix was

having periods, she did not examine her further.

7. Subsequently, PW-9 Dr. Masrat examined the prosecutrix once again

on 23.05.2012, and like, PW-8 has said that the prosecutrix was habituated

to sexual intercourse. The witness further says that the prosecutrix had no

external injuries on her body. The vaginal slides were prepared, however, the

vaginal slides tested negative for human sperm. In cross examination, Dr.

Masrat also says that the said tear in the hymen could happen on account of

non-sexual activity like riding a bicycle.

8. P.W.10 who is the Investigating Officer of this case, has stated that

the date of birth of the prosecutrix has been fixed at 17 ½ years on the basis

of the certificate of matriculation which was produced as evidence. He

further states that the statement of prosecutrix under 164-A Cr.P.C as

applicable to the State of J&K was recorded after 10/12 days of her

recovery. The court records, after examining the court file, that the 164-A

statement has been recorded after 20 days. The court also records that the

statement of the prosecutrix under 164-A reveals that she had deposed

before the Magistrate that she was beaten and threatened by persons in her

household compelling her to give a statement against the accused.

9. Learned counsel for the revisionists has argued that the learned Trial

Court has erred gravely on fact and in law as, the prosecution has established

the age of prosecutrix to be under 18 years as she was 17 ½ years on the

date of the incident.

10. Under the circumstances, he argues that the question of consent is

immaterial. He further submits that the prosecutrix has very clearly stated in

her court testimony that it was respondent who had taken away the

prosecutrix by force and committed rape upon her. As regards the marriage

certificate which was allegedly produced and also a part of the court

documents, learned counsel for the complainant submits that the same has

been incorrectly appreciated by the Trial Court as the prosecutrix states in

her court testimony that her signatures were taken in the vehicle and not

before any court. He further submits that the singular statement of the

prosecutrix should have been sufficient to convict the accused and no further

evidence was required. As regards the statements of the two doctors who are

PW8 & PW9, learned counsel for the complainant states that the statement

of these witnesses go to prove that there was sexual intercourse. He further

submits that merely because the prosecutrix was habituated to sexual

intercourse does not go to negate the fact of her having been raped as stated

by her before the Trial Court.

11. Learned counsel for the respondent on the other hand submits that the

scope of this Court to interfere with an order of acquittal is extremely

limited. He further submits that merely because a better view could be held

by this Court than that what was taken by the Trial Court, was no reason

under the law to interfere with an order of acquittal. He further submits that

even otherwise, the case of prosecution, as has evolved before the Trial

Court is taken as gospel truth, the same did not prove guilt of the respondent

beyond reasonable doubt. He further refers to the judgment of the Trial

Court to state that the view taken by Trial Court was extremely probable and

reasonable and the Trial Court has correctly given the benefit of doubt to the

accused. The gist of the arguments of learned counsel for the complainant is

to accord the benefit of doubt to the prosecution and not to the accused.

Learned counsel for the respondent further submits that though, a person can

be convicted for the offences under Section 376 RPC, singularly on the

statement of the prosecutrix, the same must be of sterling quality that it

inspires the confidence of the court that no further corroboration is required.

He further submits that in this particular case though, it could be inferred

that the prosecutrix was habituated to sexual intercourse, the same is

inadequate to draw the inference that the respondent had sexual intercourse

with the prosecutrix.

12. Learned counsel for the respondent further draws attention of this

Court to the 164-A statement of the prosecutrix in which, as noted also by

the learned Trial Court, the prosecutrix has clearly stated that she was

compelled by her own family members who had beaten her and threatened

her with dire consequences on account of which she was compelled to give a

statement against the respondent herein.

13. Heard learned counsel for the parties and perused the record of Trial

Court.

14. In this case what is clear is that the day on which prosecutrix went

missing is 13.05.2012. She was recovered two days thereafter by the police

on 15.05.2012. The unknown child who informed the father of the

prosecutrix i.e. PW1-Ghulam Qadir Lone, with regard to the respondent

having dragged away the prosecutrix, his identity has never been established.

That child was never been produced as a witness. In other words, the genesis

of the case itself is in doubt. Subsequently, the police has recovered the

prosecutrix allegedly from Wailoo, Bypass, and was, thereafter, taken to the

police station. PW2 to PW6 have seen the prosecutrix and the respondent in

the police station only. Though, they have affixed their signatures on the

seizure memo, all these witnesses have categorically stated that the

prosecutrix was not recovered in their presence though produced before

them in police station. All these witnesses have also stated that they are

unaware with regard to the facts of the rape or abduction.

15. PW-8 Dr. Subana, who examined the prosecutrix on 15.05.2012,

records that the body of the prosecutrix shows no external injuries and her

hymen was torn and she was habituated to sexual intercourse. She further

states on account of the periods of the prosecutrix she has not further

examined her.

16. PW9-Dr. Masrat, who examined the prosecutrix for a second time on

23.05.2012, like PW8 has held that the prosecutrix is habituated to sexual

intercourse. She further states that vaginal slides were prepared but the same

have tested negative for human sperm. In cross examination, this witness has

stated before the Trial Court that the hymen can break even on account of

strenuous activity by the prosecutrix, such as, riding a bicycle etc.

17. PW10, who is the investigating officer of this case, has proved that the

prosecutrix is 17 ½ years old on the basis of the date of birth recorded in the

said matriculation certificate of the prosecutrix. However, the investigating

officer does not give the reason for delay in getting the statement of

prosecutrix recorded under Section 164-A Cr.P.C (as applicable to the State

of Jammu and Kashmir). As per his contentions, the statement of the

prosecutrix was got recorded under 164-A almost 10/12 days after the

incident. That delay itself is fatal when court looks at it dispassionately

because that gives sufficient time to the prosecutrix to give a premeditated

statement. Further, the learned Trial Court after going through the court file

and examining 164-A statement records the fact that the statement under

164-A Cr.P.C was recorded after a period of 20 days of the incident. The

reason for delay has not been given by the Investigating Officer.

18. Of utmost relevance in this case is the statement given by the

prosecutrix herself under Section 164-A Cr.P.C where she states that she

was compelled by her own family members who had inflicted violence and

threats of dire consequences upon her if she does not testify against the

respondent/accused. The Trial Court has rightly observed that the

prosecutrix has changed her version before the Trial Court, where she has

stated that she was forcibly taken away by the respondent and she was raped

for nearly two days while being kept in captivity.

19. The finding of the learned Trial Court with regard to rape having been

committed on the prosecutrix which has not been proved according to the

learned Trial Court, is based upon the fact that the prosecutrix was with the

respondent for nearly two days before she was recovered. The absence of

any external injuries on the body of the prosecutrix, when seen in the

backdrop of the fact that the prosecutrix was 17 ½ years old and was in a

position to offer resistance which would have resulted in either abrasion or

confusion injuries on some part of the body or other if the act of sexual

intercourse was indeed forcible carries a serious doubt in the prosecutrix

case. However, the statement of PW-9 which says that the torn condition of

the hymen was as old as one year prior to her examination on 23.05.2012,

goes to reflect that there was no evidence brought on record by the

prosecution to show that sexual intercourse has taken place between the

respondent and prosecutrix. This is further strengthened by the view that

the vaginal slides that were taken of the prosecutrix, returned a negative

finding with regard to human sperm.

20. In view of what has been argued and considered by this Court, this

Court is of the opinion that the acquittal recorded by the Trial Court is

reasonable and just and cannot be said to be perverse.

21. Under the circumstances, the order does not call for any interference

by this Court, the Criminal Revision bearing CRR No. 27/2013 and Criminal

Appeal bearing CrlA (AS) No. 6/2019 are dismissed.

(ATUL SREEDHARAN) JUDGE SRINAGAR:

13.10.2023 ARIF

Whether approved for reporting? Yes/No