State Of J&K; vs Shamas Din on 13 November, 2017

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

Cr. Acq. Appeal No. 38/2017
Date of decision:13.11.2017

State of JK Vs. Shamas Din
Coram:

Hon’ble Mr. Justice Dhiraj Singh Thakur
Hon’ble Mr. Justice Sanjay Kumar Gupta

Appearing counsel:

For the Appellant(s) : Mr. L. K. Moza, AAG.
For the Respondents(s) : None.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
Per: Sanjay Kumar Gupta-J

1. Feeling aggrieved of impugned judgment dated 27.09.2014 passed by
learned Sessions Judge, Kathua, whereby acquitting respondent-accused,
namely Shamas Din in case FIR No.75/2008 of Police Station Basohli
registered under Sections 376/511 RPC, State has filed Cr. Acq. Appeal
No.38/2017.

2. It is pertinent to mention here that Cond.(Cr.) No.53/2015 seeking
condonation of delay of 133 days in preferring the appeal and SLAA
No.67/2015 seeking leave to file the appeal already stand allowed vide
order dated 26.07.2017.

3. We have with the able assistance of learned Addl. AG, gone over the
judgment passed by learned trial Court and are of the view that the
conclusions reached therein resulting in the acquittal of the respondent do
not warrant any interference by this Court in view of the reasons

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mentioned hereunder:-

Prosecution case is that on the basis of complaint EXTP-1 made by
complainant Fathima, wife of Abdul Hamid, of Dodula Basohli with the
Police Station Basohli for offences punishable under Section 376/511
RPC. As per the complaint allegation against the accused is that on
02.10.2008 in the afternoon prosecutrix, daughter of complainant, had
gone to the house of Moli Begum where the accused with the criminal
intention tried to commit rape upon the prosecutrix, but due to sudden
arrival of Moli Begum Accused fled away from the spot. The allegation
against the accused thus is that he on 02.10.2008 in the afternoon
attempted to commit rape upon the prosecutrix in the house of Moli
Begum. On the basis of said report, FIR No.75/2008 was registered with
the police station Basohli for offences punishable under Section 376/511
RPC and investigation was started. The investigation in this case was
conducted by Head Constable Mohd. Yousaf. He visited the place of
occurrence, prepared the site plan, seized the clothes of prosecutrix,
recorded the statement of witnesses and found offences punishable under
Section 376/511 RPC established against the accused. Challan was
presented before JMIC Basohli who committed the same to the Court of
Sessions Judge, Kathua. Charges for the offences punishable under
Section 376/511 RPC was framed against accused on 25.05.2009.
Accused pleaded not guilty and opted for trial. Statement of the accused
was recorded under Section 342 Cr.P.C. and incriminating evidence was
put to him. He denied the statement and stated that he has been falsely
implicated. No evidence has been produced by him in defence.
Prosecution produced PWs Fathima Begum, Nagma Akhter, Moli
Begum, Razia Akhter, Sajad Ali, I/O Sh. Mohd. Shafi, Rattan Singh and
Sham Lal.

Court below after conclusion of trial came to conclusion that prosecution

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has not established its case beyond reasonable doubts and there are
inherent defects in case.

4. We have heard the counsel for State. Before re-appreciating the evidence,
the brief resume of the same is reproduced hereunder:
PW Moli Begum has stated that accused is not known to her and has no
knowledge about the case. Police had not inquired anything from her but
had taken her signatures on a plain paper. The witness was declared
hostile and cross-examined by prosecution. In her cross-examination by
PP she stated that her husband was working in Himachal as labourer. Her
land is at a distance of 200 meters from her house. Nagina is her
daughter. She is 15/16 years of age. She works at home and is not
married. Razia Begum (PW) is also known to her. She has denied that on
02.10.2008 when she had gone for cutting grass in the field, her husband
was at home. He was in Himachal working as labour. Her daughter
Nagina was at home and at about 1 PM she went on the roof and started
shouting “come home”. When she reached home she saw that accused
had laid Razia Begum on Cot and was trying to commit rape upon her as
suggested. Sajad Ali is known to her. She has further denied the statement
that Sajad Ali came on spot, when she reached home. Sajad Ali has also
witnessed the accused committing rape and thereafter running away from
the spot as suggested.

PW Fatima Begum stated that her daughter’s name is prosecutrix .
Accused present in the Court is known to her. 3-4 years ago her husband
Abdul Hamid was in UP in connection with his work. She had gone to
field along with her live stock. On hearing hue and cry from Moli Begum,
she went to the house of Moli Begum and enquired from her daughter
who was crying who told her that accused quarreled with her. They
chased the accused but he fled away from the spot. The girl thereafter
narrated the whole incident. Her statement was recorded by police and

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not in Court. She has identified her signature on the spot that she has
made with the police station “EXTP-1”, and FIR “EXTP-11/1”. In her
cross examination she stated that the statement that she had made with the
police has been read over to her by the police. Firstly she stated that she
went to Razia Akhter’s house then she said she went to Nagina Akhter’s
house, finally she said that she went to the house of Qasim Ali father of
Nagina Akhter’s house in the afternoon after hearing hue and cry. Her
daughter told her that the accused had only beaten her. At the time when
accused was beating her Nagina Akhter and Sajad Ali were on spot. Sajad
Ali came later on. FIR was registered on the same day. Statements were
recorded on date 10th. There was quarrel only.

PW Nageena Akhter has stated that accused present in the Court is
known to her. 3 to 4 years ago accused came to her house at Dadola.
Accused entered into house and she does not know what happened there.
Her statement was neither recorded in the Court nor before the police.
Sajad S/o Shamim had also come to her house. The witness was declared
hostile. In cross examination she has stated that Razia Akhter is known to
her. Her father’s name is Abdul Majid and she resides in Dadola. Razia
Akhter was not in the house when accused came there. She was outside
the house. She does not know whether accused took her inside the house
or not. She was told by Shajad S/o Shamim that accused tore string of
Razia Begum’s salwar and tried to commit rape upon her. On the date of
occurrence Razia Begum narrated the same to her. She did not hear any
hue and cry of Razia Begum. She stated in her statement before police
that she was outside the house and accused went inside the room and
when she left Sajad told about the occurrence. She had stated before the
police that she has no knowledge about the occurrence. Accused lives in
her village. It is incorrect that she is trying to save the accused by stating

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so. In cross examination she has stated that police had not read over the
statement to her.

PW Prosecutrix has stated that accused present in the Court is known
to her. She has no knowledge about the date and year of the occurrence
but accused laid her on the cot and tore string of her salwar. He also tore
her clothes. PW Sajad, S/o Shamim, R/o Dadola came on spot and saved
her. Her father filed a written report in police station. Her statement was
not recorded in the Court. In cross-examination she stated that accused
lives at a little distance from her home. It is incorrect that there was any
quarrel between accused and her regarding grazing of goats as suggested.
The house in which accused tried to commit rape belonged to Qasim, S/o
Not Known, R/o Dadola. At the time of occurrence Nagina, D/o Qasim
and Sajad, S/o Shamim were present on spot. Police did not seize her
trouser and clothes. She has no knowledge when her father made report in
the police station.

PW Sajad Ali has stated that accused is known to him. It was holiday on
02.10.2008, he had gone to see the JCB machine. Shamas Din closed the
door of the house of Moli Begum’s and heard cries of female from that
house. He went inside and found Shamas Din had laid prosecutrix on cot
and was attempting to commit rape upon her. Accused pushed him and
fled away. He chased accused but could not catch him. His statement was
recorded by the police as well as in the Court. In his cross-examination
stated that his statement was recorded by the police and not before any
Magistrate. In cross-examination by defence counsel he stated that his
statement was recorded on 02.10.2008 by the police. Razia’s house is at a
distance of about 150 meters from his house. Razia Akhter is his cousin.
When he went to Razia’s house he heard cries, he saw accused Shamas
Din committing rape upon prosecutrix. Shirt of the prosecutrix was torn
from her chest and the string of her salwar was also torn.

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PW Mohd. Yousaf has stated that on 10.10.2008 he was posted as Head
Constable in Police Station, Basohli. Investigation in the case bearing FIR
No. 75/2008 of Police Station, Basohli, u/s 376/511 RPC was handed
over to him. He went to Dodula for investigation on the same date. On
11.10.2008 investigation was started and prosecutrix showed him the
place of occurrence. He prepared the site plan, recorded statements of the
witnesses u/s 161
Cr.P.C, seized one yellow ladies suit torn from chest.
Accused Shamas Din, S/o Mohd. Iqbal was arrested on 13.10.2008 after
that he on the order of police officer handed over the investigation to
Sham Lal SI. Site Plan “EXTP-9”, Seizure Memo “EXTP-6”, Search
Memo “EXTP-9/1”, Arrest Memo “EXTP-9/2” is in his handwriting and
are correct. As per his investigation offences punishable u/s 376/511 RPC
was established against accused. In cross-examination he states that he
left from police station at 03.10 and reached at 8.30 on the place of
occurrence. He has not mentioned as to on whose identification site plan
was prepared. Site Plan is not of Razia’s house but of the house of qasim
Din, S/o Mohd. Khan. On the basis of written complaint made by Razia
Akhter’s mother FIR was registered. On 02.10.2008 occurrence took
place. FIR was registered on 10.10.2008. In report “EXTP-1” no eye
witness has been mentioned. Medical examination of the prosecutrix was
not conducted as the prosecutrix was not willing for the same. He did not
get the statements of witnesses recorded u/s 164-A
Cr.P.C. In his
investigation he found offences proved against the accused on the basis of
Site Plan, Statement of Razia Begum and other witnesses and Seizure
Memos. Clothes of Razia Begum were recovered and seized from the
house of prosecutrix. The delay in registration of FIR has not been
mentioned. It is correct that FIR was registered on the basis of the written
complaint. It is also correct that being a Head Constable he is not
competent to investigate the case in offences u/s 376/511 RPC. On that

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date he and SHO were in police station and there was no other police
officer present there that is the reason the investigation in the said case
was entrusted to him.

PW Rattan Singh stated that accused is known to him. Police seized the
clothes of prosecutrix and prepared seizure memo in his presence. Shirt
was torn from the chest and string of the salwar was also torn. He
admitted the contents of seizure memo “EXTP-6” and identified his
signatures on the same. The clothes shown to him in the Court are same
that were seized by the police. In cross-examination he stated that clothes
were seized, on 11.10.2008. Clothes were seized from the house of Razia
Akhter’s maternal uncle. Razia’s father, maternal grandmother, maternal
uncle Raiz Ahmed and Razia were present at the time of seizure when he
put signatures on the seizure and nobody signed the seizure in his
presence. He was called by the police and the clothes were given by the
prosecutrix.

PW Sham Lal has stated that investigation of the case was handed over
to him on 17.10.2008 and during investigation accused was bailed out. He
was transferred on 02.11.2008.

This is only evidence of prosecution. The statement of accused was
recorded under
section 342 Cr.P.C and Court after hearing the arguments,
acquitted the accused.

5. The scope of power of appellate court in case of acquittal appeal has been
highlighted by Apex Court in AIR 2014 SC 2200 in case titled
‘Muralidhar alias Gidda anr. v State of Karnatka’ [Criminal
Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which read as
under :-

“10. Lord Russell in Sheo Swarup[1], highlighted the approach of
the High Court as an appellate court hearing the appeal against
acquittal. Lord Russell said, “… the High Court should and will
always give proper weight and consideration to such matters as (1)
the views of the trial Judge as to the credibility of the witnesses; (2)

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the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to the benefit of
any doubt; and (4) the slowness of an appellate court in disturbing
a finding of fact arrived at by a Judge who had the advantage of
seeing the witnesses.” The opinion of the Lord Russell has been
followed over the years.

11. As early as in 1952, this Court in Surajpal Singh[2] while
dealing with the powers of the High Court in an appeal against
acquittal under
Section 417 of the Criminal Procedure Code
observed, “…………the High Court has full power to review the
evidence upon which the order of acquittal was founded, but it is
equally well settled that the presumption of innocence of the
accused is further reinforced by his acquittal by the trial court,
and the findings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence can be reversed
only for very substantial and compelling reasons.”

12. The approach of the appellate court in the appeal against
acquittal has been dealt with by this Court in Tulsiram Kanu[3],
Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir
Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10],
Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13],
Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16],
Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20],
Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K.
Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is
not necessary to deal with these cases individually. Suffice it to say
that this Court has consistently held that in dealing with appeals
against acquittal, the appellate court must bear in mind the
following:

(i) There is presumption of innocence in favour of an
accused person and such presumption is strengthened by
the order of acquittal passed in his favour by the trial
court,

(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the
appeal against acquittal,

(iii) Though, the power of the appellate court in
considering the appeals against acquittal are as extensive
as its powers in appeals against convictions but the
appellate court is generally loath in disturbing the finding
of fact recorded by the trial court. It is so because the trial
court had an advantage of seeing the demeanor of the

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witnesses. If the trial court takes a reasonable view of the
facts of the case, interference by the appellate court with
the judgment of acquittal is not justified. Unless, the
conclusions reached by the trial court are palpably wrong
or based on erroneous view of the law or if such
conclusions are allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of the appellate
court in interfering with such conclusions is fully justified,
and

(iv) Merely because the appellate court on re-appreciation
and re-evaluation of the evidence is inclined to take a
different view, interference with the judgment of acquittal
is not justified if the view taken by the trial court is a
possible view. The evenly balanced views of the evidence
must not result in the interference by the appellate court in
the judgment of the trial court.

13. In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450, the Court has
culled out the principles relating to the appeals from a judgment of
acquittal which are in line with what we have observed above.”

6. The trial court has acquitted the accused on the grounds that statements of
prosecutrix does not inspire confidence and is not corroborated by any
independent evidence.

7. In case of rape the statement of prosecutrix carries value. In AIR 2012
(SC) 2281 in case titled “Narinder Kumar Vs. State (NCET of Delhi)”,
it is held:

“23. The court while trying an accused on charge of rape, must deal with
the case with utmost sensitivity, examining the broader probabilities of a
case and not get swayed by minor contradictions or insignificant
discrepancies in the evidence of witnesses which are not of a substantial
character.

However, even in a case of rape, the onus is always on the prosecution to
prove, affirmatively each ingredient of the offence it seeks to establish
and such onus never shifts. It is no part of the duty of the defence to
explain as to how and why in rape case the victim and other witness have
falsely implicated the accused.

24. Prosecution case has to stand on its own legs and cannot take support
from the weakness of the case of defence. However, great the suspicion
against the accused and however strong the moral belief and conviction
of the court, unless the offence of the accused is established beyond
reasonable doubt on the basis of legal evidence and material on record,
he cannot be convicted for an offence. There is an initial presumption of

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innocence of accused and the prosecution has brought home the guilt
against he accused by reliable evidence. The accused is entitled to benefit
of every reasonable doubt. Prosecution has to prove its case beyond
reasonable doubt and take support from weakness of case of defense.
There must be proper legal evidence and material on record to record
the conviction of accused. Conviction can be based on sole testimony of
Prosecutrix provided it lends assurance of her testimony. However, in
case the court has reason not to accept version of Prosecutrix on its face
value, it may look for corroboration. In case the evidence is read in its
totality and story projected by Prosecutrix is found to be improbable the
prosecution case is liable to be rejected.”

8. In present case, the prosecution has stated that on 02.10.2008 in the
afternoon the prosecutrix had gone to the house of Moli Begum, where
accused attempted to commit rape upon her and because of sudden arrival
of Mst. Moli Begum accused fled away. Before trial Court prosecutrix
has stated that she has no knowledge about the date and year of the
occurrence but accused laid her on the cot and tore string of her salwar.
He also tore her clothes. PW Sajad, S/o Shamim, R/o Dadola came on
spot and saved her. The house in which accused tried to commit rape
belonged to Qasim S/o not Known, R/o Dadola. At the time of occurrence
Nagina, D/o Qasim and Sajad, S/o Shamim were present on spot.

Whereas PW Fatima Begum complainant-mother of prosecutrix has
stated on the day of occurrence she had gone along with the live stock
towards the fields and when she heard cry from the house of Moli Begum
she went there where she asked her daughter why she was crying, her reply
had accused quarreled with her. So she has not stated about attempt to
rape by accused with her daughter.

PW Nagina Akhter is eye witness she says that about 3/4 years back
accused came to her house but she does not know what happened there.
Her statement was not also recorded by the police. So she has also stated
nothing against accused.

PW Moli Begum has not supported the prosecution case. She has stated
that accused is not known to her and has no knowledge about the case and

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was declared hostile. So version of the prosecutrix that accused tried to
commit rape in her house is belied.

PW Nagina Akhtar, who as per the statement of prosecutrix, was present
at the time when accused tried to commit rape has stated about the arrival
of accused but says that she has no knowledge as to what happened there.
So again the version of prosecutrix is belied.

PW Sajjad Ali has stated that on 02.10.2008, he had gone to see the JCB
machine. Shamas Din/accused closed the door of the house of Moli
Begum’s and heard cries of female from that house. He went inside and
found Shamas Din had laid prosecutrix on cot and was attempting to
commit rape upon her. Accused pushed him and fled away. He chased
accused but could not catch him. His statement was recorded by the police
as well as in the Court. In cross-examination by defence counsel he stated
that his statement was recorded on 02.10.2008 by the police. Victim house
is at a distance of about 150 meters from his house. When he went to
Razia’s house he heard cries, he saw accused committing rape upon
prosecutrix. Shirt of the prosecutrix was torn from her chest and the string
of her salwar was also torn.

The version of this witness becomes doubtful because he has stated that his
statement was recorded on 2.10.2008, but FIR in the case has been
registered on 10.10.2008. Admittedly FIR has been registered on
10.10.2008, whereas incident took place on 02.10.2008; there is a delay of
8 days.

9. Learned AAG has argued that in rape cases, delay in lodging FIR does not
matter, because complainant and her family are rustic villagers.

10. This argument does not hold good. Prompt lodging of FIR in cognizable
offence is most important, because it is on this basis, police commences
investigation in criminal case. FIR in a criminal case and particularly in
heinous cases is a vital and valuable piece of evidence for the purpose of

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appreciating the evidence led at the trial. The object of insisting upon
prompt lodging of the FIR is to obtain the earliest information regarding
the circumstance in which the crime was committed, including the names
of the actual culprits and the parts played by them, the weapons, if any,
used, as also the names of the eye-witnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a creature of an afterthought.
On account of delay, the FIR not only gets bereft of the advantage of
spontaneity, danger also creeps in of the introduction of a coloured version
or exaggerated story.

11. In present case as already held occurrence took place on 02.10.2008 in the
afternoon, whereas the report of the matter was lodged on 10.10.2008.
There is no proper explanation regarding delay in lodging the FIR. No
doubt, mere delay in lodging the FIR cannot be regarded itself as fatal for
the prosecution case, however, it is obligatory on the part of the court to
take notice of the delay and examine in the backdrop of the case whether
any acceptable explanation has been offered by the prosecution and if such
an explanation has been offered, whether the same deserves acceptance
being found to be satisfactory.

12. There is no medical examination of the prosecutrix has been conducted
during trial to show whether any injury was suffered by her or not. Further,
as per the prosecutrix the torn shirt and salwar was not seized by the
police. But PW Rattan Singh has stated that police seized clothes of
prosecutrix vide EXT-P6; so when prosecutrix has stated that no clothes
were seized then this seizure has no value.

13. Although the learned trial Court has also noticed certain other weaknesses
in the prosecution case, but we do not feel the necessity of entering into
detailed discussion on all those aspects as aforesaid material weaknesses in
the prosecution case are enough to discard it or to say that it casts doubt on
the prosecution story.

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14. As already held, no doubt, the conviction can be based on the solitary
uncorroborated statement of the prosecutrix, if it is found to be reliable.
However, in the case on hand, the statement of the prosecutrix is suffering
from many basic inherent infirmities of law and facts.

15. In view of above discussion, finding no merit in the appeal, the same is
dismissed.

(Sanjay Kumar Gupta) ( Dhiraj Singh Thakur )
Judge Judge

Jammu
13.11.2017
Narinder

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