State Of J&K; vs Sham Singh And Ors. on 13 November, 2017

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SLAA No. 83/2015
c/w
Condl(Cr.) No. 68/2015
Date of decision: 13.11.2017
State of JK Vs. Sham Singh and ors.
Coram:
Hon’ble Mr. Justice Dhiraj Singh Thakur
Hon’ble Mr. Justice Sanjay Kumar Gupta

Appearing counsel:

For the Appellant(s) : Mr. Ravinder Gupta, AAG
For the Respondent(s) : Mr. H.C. Jalmeria, Advocate for respondent

No.2.

i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. Feeling aggrieved of impugned judgment dated 30.12.2014 passed by
learned Sessions Judge, Udhampur, whereby acquitting respondents-
accused, namely Sham Singh, Prem Nath, Joginder Singh, Rekha
Devi, Vidya Devi Seema Devi in case FIR No.153/2012 of Police
Station Ramnagar registered under Sections 376/323/147/382 RPC, State
has filed SLAA No.83/2015 seeking leave to file Cr. Acq. Appeal. Since
there is a delay of 79 days in preferring the appeal, State has also filed
Condonation Application being Cond.(Cr.) No.68/2015 praying for
condonation of said delay.

2. For the reasons mentioned in the condonation application, we are
satisfied that a sufficient case for condoning the delay is made out.
Delay of 79 days in filing the appeal is condoned. Cond.(Cr.) No.68/2015
is disposed of.

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3. For the purpose of grant of leave to appeal, we deemed it appropriate to
go through the merits of the appeal. However, in order to satisfy
ourselves, we have with the able assistance of learned Addl. AG, gone
over the judgment passed by learned trial Court and record of court
below.

Prosecution case is that on 23rd of October, 2011 at about 4 PM the
prosecutrix was grazing her cattle in her field when the accused came to
the field caught hold of the prosecutrix and committed rape upon her. The
complainant raised hue and cry when the brother-in-law of the
complainant, Rakesh Kumar came on spot and on seeing him the accused
Sham Singh fled away from spot. That after an hour of the incident at
about 5 PM, the accused Rekha Devi wife of Lala, Vidya Devi wife of
Prem Singh, Seema Devi daughter Prem Nath, Joginder Singh, son of
Prem Nath, Prem Nath S/o Dhani Ram came to the field of the
prosecutrix and started beating the prosecutrix with sticks mercilessly. On
raising the hue and cry by the prosecutrix, complainant Chanchalo Devi
wife of Purshotam Kumar came on spot to save the prosecutrix but the
accused aforementioned beat Chanchalo Devi also; when the inhabitants
of the village came on spot, the accused persons fled away from spot.
That the accused also snatched golden nose rings of prosecutrix and
Chanchalo Devi and silver ear rings of both the ladies. On this report a
case under section 376/323/147/382 RPC under an FIR number 153/2011
was registered, after completing the investigation the charge sheet under
Section 323, 376/147 RPC was produced against six accused/respondents
before JMIC, Ramnagar on 27.12.2011. It was committed to the Court of
Principal Sessions Judge, Udhampur and accordingly the accused Sham
Singh was charge sheeted under Section 376 RPC and rest of the accused
were charge sheeted under Section 323/147 RPC. The accused denied the
accusation and prosecution was directed to produce the evidence.

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The brief resume of prosecution witnesses which were produced before
the Court below reads as under;

PW Dr. Pankaj Gupta has opined and regarding the injury sustained by
Chanchalo Devi, who has stated that he noted a linear bruise on the left
side of her back and also stated that her medical examination was
conducted on 25th of October, 2011.In cross-examination by the defence
counsel the witness has stated that the injury could be self inflicted or
possible by fall on at a rough surface.

PW Reno Manhas is the witness who has examined the prosecutrix on
25th of October, 2011 who has stated that there was no mark of any
external injury on her body and as per her examination Vagina of the
prosecutrix admitted two fingers easily and the prosecutrix was habitual
of sexual intercourse and there was no recent evidence of any sexual
intercourse and the vaginal fornix did not show any presence of
supermatozoa.

PW Shonku Ram has stated that Sunitha Devi and Chanchalo Devi are
his daughters in law and on 23rd of October, 2011 he was present on his
mili where he was working when Sunitha Devi and Chinchilla Devi
reached here at 5:30 PM and told that accused Sham Singh has done
wrong thing with prosecutrix and that Chinchilla Devi had received
injuries on her back and the other accused had also assaulted her. He has
further stated that since it was late so they lodged the report on the next
day and the medical examination of the daughters in law was conducted
on 25th of October, 2011. He has further stated that the ring with which
the trouser of the prosecutrix was sealed had been kept on his superdnama
but the same has been lost. However, he identifies his signatures on the
exhibit EX TP 5 which is true and correct and the same pertains to the
seizure of the trouser and another memo pertains to the superdnama
EXTP 5/1. In cross-examination by the defence counsel the witness stated

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that it takes about three hours to reach police station around in the from
the Village Satian. A dispute between him and accused Prem Nath is
going on her last more than one year and all the villagers have
complained against the accused regarding his occupation of state land
from where he has been evicted. It is wrong to suggest that on the date of
occurrence the accused Sham Singh had restrained them from driving the
cattle into the land was arrested by him where they wanted the cattle to
graze on which the case was registered. He has further stated that the
trouser which had been warned by the prosecutrix on the date of
occurrence was ceased on the same day.

The prosecutrix whose statement was recorded on 24th of September,
2012 well has stated in her examination in chief that on 23th of October,
2011 she had gone into her field along with her cattle at 4 PM when the
accused Sham Singh came who started driving out her cattle from the
field. She objected. He dragged her. He brought down her trousers and
committed rape upon her forcibly. She started weeping. Meanwhile, her
brother-in-law, Rakesh came and when he saw her naked the accused
Sham Singh ran way. On seeing him Rakesh went to call her sister in law
who brought trousers from her home and gave it to her and thereafter the
other accused Prem Nath with their Devi, Seema Devi, Rekha Devi,
Joginder came on spot and assaulted and also beat both, her and
Chanchalo Devi. Thereafter they went to the father in law on his mill. He
took the chowkidar. By that time it was dark. Next day they went to
Ramnagar. They moved an application before the Court. Thereafter they
went to Police Station. Thereafter they were medically examined. Her
trouser was seized by Police. She has gone through the contents of
seizure memo EXTP1/1 and EXTP1/2 . Her statement was recorded on
spot. In cross-examination by the defence counsel, the witness stated that
when she had gone to graze her cattle she had gone on the own land. The

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land of the accused is situated at our place. Accused Sham Singh had
driven and out her cattle. He had driven them forcibly. Her home is near
the place of occurrence and there is no other house situated nearby. It is
wrong to suggest that there is dispute between them and the accused were
land. Before this occurrence the accused had not assaulted them. She has
not mentioned in her report that the accused want to drive her out from
the village. First of all she had narrated about the occurrence to her father
in law and the place of occurrence is visible from the home. Her trouser
was torn. There was no injury on her body. She tried to save herself and
struggled for 15 minutes and her brother in law was seeing her struggle
from his home. Why the accused Sham Singh had come on spot for
driving the cattle out she does not know. Her trouser was not torn,
however, its string had been broken by the accused. Sham Singh did
wrong thing with her and thereafter left. Something had come out of his
pennis after doing the act. Her brother-in-law had seen this act. She did
not call any other person on spot. It takes about one hour to reach from
the place of occurrence to the mill where her father in law was working.
First information report was got written by her father in law. What was
mentioned in the same, she does not know. However, she had narrated
about the occurrence to police. Had the accused not assaulted them that
they would not file a case against them.

PW Rakesh Kumar whose statement was recorded on 24th of
September, 2012 has stated in his examination in Chief that he knows the
prosecutrix and the accused also. The prosecutrix is his sister in law. On
23rd of October, 2011 he was standing outside his house when at 4 PM
and alarm was raised. He went on spot towards the direction from where
the alarm was being raised. The accused had opened in the trousers of the
prosecutrix and had committed a wrong thing with her. On seeing the
same he returned to his house and send Chinchilla Devi there. He did not

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go to save his sister in law. Because he was ashamed as to why the same
thing had happened with the prosecutrix. In cross-examination by the
defence counsel the witness stated that he continued to see the occurrence
for about 3 to 4 min. at a distance of about 10 yards from the place. He
had told Chinchilla Devi that they were being defamed. He had asked her
to go and bring the prosecutrix with her. There is no dispute with the
accused. They are on talking terms with the accused.
PW Godawari Devi has expressed ignorance about the occurrence and
she has been turned hostile who has stated in cross-examination that
when she reached on spot, the quarrel had ended.

PW Kuldeep Kumar has stated that on 23rd of October, 2011 the father-
in-law of the prosecutrix had come to him at 6 PM who had told him that
a quarrel took place between the accused and the ladies. He asked him to
come on spot. He had gone on spot and there was no one. He was
declared hostile. He has stated that it is wrong to suggest that say that had
told him that accused has committed rape with the prosecutrix.
PW Sarnu has stated that on 23rd of October, 2011 Rakesh told him that
the accused Sham Singh has insulted the prosecutrix and that he had seen
the accused fleeing away. At that time the prosecutrix was in bushes, who
was weeping. In cross-examination by the defence counsel he has stated
that he has got no relationship with the prosecutrix, however, Rakesh is
the son of his aunt.

PW Mohammad Farooq has been given up.

PW Subash Komar, Naib Tehsildar, is the witness of resealing and
sending of authority letter to the Forensic Science Laboratory.
PW Rattan Chand has stated that he knows the parties and on the day of
occurrence he was going to his field and when he reached near he heard
the alarm of the prosecutrix. He was declared hostile. In cross-
examination by Public Prosecutor, he has stated that he had recorded in

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his statement before the Police that the prosecutrix told him that accused
Sham Singh has done wrong with her. In cross-examination by the
defence counsel, he stated that he is an illiterate. Police had taken his
thumb impression on papers. He does not know as to why the prosecutrix
and accused are having dispute over land.

4. On appreciating the evidence on record, the Trial Court has acquitted all
the accused by observing that victim has stated that the accused Sham
Singh came first of all, who drove out the cattle out of the field, and she
objected the accused, all of sudden, pulled down her trouser and
committed rape upon her. Then her brother in law (Jeth) Rakesh came on
spot who saw the occurrence and on seeing him he (the accused) left, then
the other accused also came who assaulted her and her sister-in-law
Chanchlo Devi; that she was pulled rather dragged by the accused at
some distance and she tried to resist the act of rape committed upon her
by the accused and she could not save herself.

5. But the doctor who has examined her has opined that there was no
apparent external injury on the body of the prosecutrix. Doctor has also
stated in cross-examination stated that she did not receive any external
injury. So Court of the view that the statement of the victim is not
corroborated by the evidence of the doctor.

6. Court below further held that PWs Rattan Chand, Godawari Devi and
Kuldeep Kumar have not supported the prosecution version. These
witnesses have been turned hostile and the I.O. has also not been
produced in the case. Therefore, Court below concluded that there was no
material to convict the accused/respondents.

7. We have given thoughtful consideration to whole of the matter and law
on the point. It is settled law that the conviction can be based on solitary
statement of the prosecutrix. It is easy to level allegations of rape but it is

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very difficult to prove the same. Because as per Criminal Jurisprudance
everything is upon prosecution to prove the case.

8. In AIR 2012 (SC) 2281 in case titled “Narinder Kumar Vs. State
(NCET of Delhi), it has been 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.”

9. In the present case, we are of the considered opinion that finding of court
below is not perverse in nature; as the statement of the prosecutrix if
considered along with other attending circumstances, it does not inspire
confidence of court, as facts narrated by her are not supported with
medical evidence as held by the Court below; bare perusal of certificate of
Doctor PW Renu Manhas EXTP-12, it is evident that doctor has
categorically stated that there is no definite opinion of recent inter-course
as no spermatozoa and no mark of injury on body has been found;
further PW Shonku Ram father of prosecutrix has stated nothing
substantial incriminating against the accused persons, he has stated that
her daughters told that accused has committed has some wrong with
prosecutrix; he has also admitted the dispute between him and accused
Prem Nath; PWs Kuldeep Kumar and Rattan Chand, have been declared
hostile. PW Mohd. Farroq has been given up; PW Goawari Devi has
stated nothing, she has deposed that she has no personal knowledge of
incident. PW Rakesh Kumar has stated that on 23.10.2011, it was 4 pm;

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he was at home; he heard noise and went there and saw Sham Singh has
opened string of salwar of victim and committed wrong act; on seeing the
same he returned to his house. Bare perusal of conduct of this witness, it is
evident that his conduct is strange as instead of rescuing the victim, he
came home. Further, statement of prosecution witnesses have been
recorded on 25.10.2011 under section 161 Cr.P.C. , whereas the statement
of prosecutrix under
section 164-A Cr.P.C. has been recorded on 17.11.
2011, after more than 20 days of occurrence. The FIR in the case has been
sent to Court on 25.10.2011. I/O in the case has not been examined, so
delay in sending FIR to court and delay in recording statements of
witnesses has been remained unexplained.

10. In SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011, State of
Karnataka Vs. Shivanna @ Tarkari Shivanna decided on 25 April,
2014, it has been held as under:-

“On considering the same, we have accepted the suggestion offered by
the learned counsel who appeared before us and hence exercising
powers under
Article 142 of the Constitution, we are pleased to issue
interim directions in the form of mandamus to all the police station in
charge in the entire country to follow the direction of this Court
which are as follows:

(i) Upon receipt of information relating to the commission of
offence of rape, the Investigating Officer shall make immediate
steps to take the victim to any Metropolitan/preferably Judicial
Magistrate for the purpose of recording her statement under
Section 164 Cr.P.C. A copy of the statement under Section 164
Cr.P.C. should be handed over to the Investigating Officer
immediately with a specific direction that the contents of such
statement under
Section 164 Cr.P.C. should not be disclosed to
any person till charge sheet/report under
Section 173 Cr.P.C. is
filed.

(ii) The Investigating Officer shall as far as possible take the
victim to the nearest Lady Metropolitan/preferably Lady
Judicial Magistrate.

(iii) The Investigating Officer shall record specifically the date
and the time at which he learnt about the commission of the
offence of rape and the date and time at which he took the

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victim to the Metropolitan/preferably Lady Judicial Magistrate
as aforesaid.

(iv) If there is any delay exceeding 24 hours in taking the victim
to the Magistrate, the Investigating Officer should record the
reasons for the same in the case diary and hand over a copy of
the same to the Magistrate.

(v) Medical Examination of the victim: Section 164 A Cr.P.C.
inserted by Act 25 of 2005 in
Cr.P.C. imposes an obligation on
the part of Investigating Officer to get the victim of the rape
immediately medically examined. A copy of the report of such
medical examination should be immediately handed over to the
Magistrate who records the statement of the victim under
Section 164 Cr.P.C.”

11. As per above law, statement of prosecutrix was required to be recorded
within 24 hours and in case of fail, the Investigating Officer should
record the reasons for the same in the case diary and hand over a copy of
the same to the Magistrate. As already held, I/O has not been examined.
So, these aspects of the matter have remained unexplained.

12. Resultantly, we decline to grant leave to appeal against the judgment of
acquittal earned by the respondents-accused. SLAA No.83/2015 is
dismissed accordingly. Consequently, Cr. Acq. Appeal also dismissed.

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

Jammu,
13.11.2017
Narinder

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