State Of J&K; vs Ramesh Chander on 13 November, 2017

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Acq. Appeal No. 30/2017
Date of decision:13.11.2017
State of JK Vs. Ramesh Chander
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 Respondents(s) : Mr. Dhiraj Choudhary, Advocate.
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 29.10.2015 passed by
learned Addl. Sessions Judge, Udhampur, whereby acquitting respondent-
accused, namely Ramesh Chander in case FIR No.131/2009 of Police
Station Ramnagar registered under Sections 376/323 RPC, State has filed
Cr. Acq. Appeal No.30/2017.

2. It is pertinent to mention here that Cond.(Cr.) No.58/2016 seeking
condonation of delay of 145 days in preferring the appeal and SLAA
No.63/2016 seeking leave to file the appeal, already stand allowed vide
order dated 20.04.2017.

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
mentioned hereunder:-

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Prosecution case is that on 01-10-2009, the complainant alongwith one
Hari Chand R/o Palgran Tehsil Ramnagar lodged a written report before
SHO P/S Ramnagar stating therein that she is resident of village Badole
and on 01-10-2009 at about 5.30 P.M she had gone to house of Hari
Chand and at about 6.30 P.M when she was returning from the house of
Hari Chand, the accused Romesh Chander intercepted her way and started
ill-treating her and threatened her of life. He dragged her forcibly to a
distance of about 15-20 feet and broke the string of her salwar and raped
her. The complainant is 16 years of age and she had been terribly
threatened by the accused that if she discloses these facts to her parents
she will be done to death. She then came back to the house of Hari Chand
and narrated all the facts to the wife of Hari Chand. On getting this
information FIR No. 131/09 for commission of offence u/s 376/323 RPC
was registered at P/S Ramnagar and investigation was assigned to SHO
Niaz Ul Hassan. During the course of investigation, the complainant was
medically examined, Salwar of the complainant was seized, site plan of
place of occurrence was prepared, statements of witnesses u/s 161 Cr.PC
were recorded and on completion of the investigation offence u/s 376/323
RPC was prima facie proved by the investigating officer and accordingly
charge sheet was presented against the accused before this court for the
said offences in the court of learned Sub Judge, Ram Nagar, on 13-11-
2009 who committed the same to Court of Principal Sessions Judge,
Udhampur on same day. Principal Sessions Judge, Udhampur transferred
the challan to Additional Sessions Judge on the same day for disposal
under law.

Charge was framed against the accused on 15-1-2010 u/s 376/323 RPC.
The accused pleaded not guilty and claimed trial. 13 out of 14 cited
witnesses were examined. The prosecution evidence was closed on 3-4-

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2014. The statement of accused u/s 342 Cr.P.C was recorded on 9-5-
2014. Brief resume of the prosecution witnesses is as under:

PW-Verinder Kumar-in his examination in chief by APP, the witness
stated that he was employed as laboratory technician at Sub District
Hospital at Ramnagar in the month of October, 2009 also. In the month of
October 2009, He does not remember the date, the Doctor has sent
vaginal smear for examination regarding sperms to me. I have conducted
the test of vaginal smear and handed over to the said doctor. After test of
vaginal smear, I have seen the said report, it is the same which I have
prepared. I have appended my signatures on it, report is correct EXTP-12
is exhibited on it. No more question were asked. In cross-examination by
the defence counsel, the witness stated that I have not carried out the
blood test of the accused present in the court. I do not know that whose
semen was that. For that the blood test is necessary. It is not mentioned in
the report enclosed with the file which test was performed by him. No
more question was asked.

PW-Sanjeev Sharma, in his examination in chief by APP, the witness
stated that in the month of October 2009, he was posted as Executive
Magistrate Ist Class Tehsildar Ramngar. On 12-10-2009, Mohd Ayub
Constable P/S Ramnagar, brought two sealed packets in my presence for
resealing. He resealed those packets with his office stamp and handed
over to Mohd. Ayub Head Constable along with an authority letter for
opening the seals by Director FSL Jammu. He has put his office seal on
that authority letter. Both the packets were resealed and impressions were
put. He admitted the contents of the authority letters enclosed with the file
and identified his signatures as EXTP-13. No more questions were asked.
In cross-examination by the defence counsel, the witness stated that he
did not know what was in those packets. In the authority letter he has
mentioned about the wearing apparel, It was done on the asking of police

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personnel. Neither the seal which was put by the police on the packets nor
its aks was not shown to him. The seal by which he resealed the packets
was the office seal and its impression was put on the authority letter but
he did not know what was the impression. He has kept the said seal in the
office. It was not given to police. No more questions were asked.

PW Sukhdev Singh, in his examination by APP, the witness stated that
he was posted at P/S Ramnagar in October, 2009. On 02-10-2009 at P/S,
Ramnagar, SHO that time has sealed one shalwar and one pant separately
in two different packets. The ring which was used for sealing the packet
was kept on the supurdnama of SPO Sher Singh. In this respect
supurdnama was prepared and my signatures were appended on it. The
Farad supurdnama EXT-P7 is exhibited and I identify my signatures in
the Farad enclosed with the file. The contents are read over to me which
is correct. In cross-examination by defence counsel the witness stated that
salwar and pant were kept in police station only.

PW-Makhna Devi SPO P/S Ramnagar, in her examination in chief by
APP, the witness stated that in Oct., 2009 she was posted at P/S
Ramnagar as SPO. On 01-10-2009 at P/S Ramnagar Mst Rajeshwari has
produced one Salwar which the IO has seized and the seizure memo was
prepared and her signatures were got appended over it. She admitted the
contents and identified her signatures on the exhibit EXT-2. She
identified the seized salwar in the court. In cross-examination by the
defence counsel the witness stated that the seized Salwar was worn by
Rajeshwari at that time. Rajeshwari Devi has worn salwar only. After that
another shalwar was taken from someone else, from the relative to be put
on by her. The shalwar was seized at about 1000 hours morning.

PW Sher Singh, in his examination in chief, the witness stated that in the
month of Oct 2009, he was posted as SPO in P/S Ramnagar. On 02-10-

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2009 one pant is seized in this case and one packet was prepared and
sealed in his presence. The ring which was used as seal is kept on his
supurdnama. The seizure memo exhibited as EXTP2-1 on it bears his
signatures. The contents of the seizure memo is correct. EXTP-7 is
exhibited on it. He submitted the said ring in the Court. On cross-
examination by defence counsel the witness stated that the pant was
seized at 10/11 O’clock. He does not know whether the accused was
under custody of the police or not. The accused has put on other pant
which may be called from the house. He does not remember whether
accused has put on under wear or not.

PW Shanker Dass, in his examination in chief by APP, the witness
stated that he knows the accused present in the Court. 17 months back his
daughter Ms. Rajni Devi had gone to her uncle’s (Taya) Hari Ram’s house
situated at Village Palamu. From there she went to temple of Kabir
Bhagat. The accused present in the Court was passing through that way.
The accused forcibly closed her mouth and committed rape on her. His
daughter returned back to Hari Ram’s house and Hari Ram reported the
matter at P/S Ramnagar. The police registered FIR and Hari Ram
informed the witness regarding the occurrence. On cross-examination by
the defence counsel, Hari Ram is my Massi’s (mothers sister son). When
his daughter left the house, he had already gone for labor work. At 1500
hours (3O’clock) She had gone to the house of Hari Ram and has gone
after informing her mother that she is going to Hari Ram’s house and she
had reached the house of Hari Ram. It takes 45 mins to reach to Hari
Rams house from their house. The entire pathway is unhabitated and
comprises of jungle only. There is no house nearby. She only told that she
went to Hari Ram’s house and then went to Mandir. She paid obeisance in
the Mandir. The accused was also in the Mandir and took her with him.
There are thick bushes near the temple and he took her there. He has not

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seen that place. That is about two Jareebs from the Mandir. There are
thorny bushes there. His daughter was un-married those days. After 8/9
months she got married. The police had recorded his statement after 15
days, it was not recorded earlier.

PW-Koushalaya Devi stated in her examination in chief by APP, that
she knew the accused present in the Court. 17 months ago, when Raji was
going back from their house to her house, the accused forcibly committed
rape on her. After the occurrence she came back to their house and told
that the accused has committed rape on her. He told every thing to her
husband and her husband reported the matter to police Ramnagar and the
police started investigation. On cross-examination by defence counsel the
witness stated that Rajsehwari is the daughter of her husband’s friend. She
knew the accused present in the Court, as he hails from his parents
Village. Some times they visited their house also. The victim came to
their house in the evening at 1700 hours. She does not know that when
the prosecutrix came earlier and the purpose of her visit is also not known
to her but they visit each others house. She came at 1700 hours in their
house and went back at the same time. The place where the occurrence
took place is two kilometers away from their house. He has not visited the
occurrence site. The occurrence site is a jungle. There are no houses
around. There is no pathway. There are thorny bushes.

PW Shanti Devi stated in her examination in chief by APP that she knew
the accused present in the Court. About 1½ years back, her daughter
Rajeshwari had gone to her uncle’s (Taya) house. On her return from
there, the accused present in the Court forcibly interrupted her and took
her to nearby bushes and committed rape on her. The victim told all this
to her aunt Koushalaya Devi and Smt. Koushalaya Devi told to her
husband Hari Ram in respect of the occurrence. Hari Ram took her to
police station Ramnagar and victim was medically examined and then

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came to her house and she told her also regarding the occurrence. Police
recorded her statement. On cross-examination by defence counsel stated
that she has no real relationship with Hari Ram but he is friend and his
house is about 15 minutes distance by walk. She does not know about the
house of accused. It is about 20 KMs away. The accused’s village and the
village of the sister of the witness are the same. She does not know what
is the profession of the accused. Her daughter went to Hari Ram’s house
at 1600 hours in the evening. They usually visited Hari Ram’s house.
This case was taken up by Hari Ram. She has no knowledge whether
there is any dispute between the accused and Hari Ram. There was never
any talk between the accused and the victim regarding their marriage
between them. They went to police station on the other day (2nd day). The
victim and Hari Ram had never gone to police station earlier. She does
not know that how many cases of Hari Ram are pending in courts. She
has only heard about the occurrence site, but has not seen. She has no
knowledge as to how far is the occurrence site from the house of Hari
Ram.

PW-Rajeshwari in her examination in chief by APP stated that she knew
the accused present in the Court. On 01-10-2009 she had gone to the
house of her Aunt at Palran, at about 1730 hours. When she was coming
back to her house, the accused was hiding in the bushes on the way, who
caught hold of her hand and dragged her to the bushes and while dragging
he slapped her also and the accused committed rape on her for 15 minutes
and threatened to kill her if she told about the occurrence to anybody.
From there she returned to her aunt’s house. Her uncle had already left for
Ramnagar. She alongwith aunt went to Ramnagar and at Ramnagar, she
got an application written which she has seen enclosed with the case file.
It bears her signatures. She identified it. She identified the signatures as
Ext P-1. On the basis of this application, the said FIR was registered and

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she identified her signatures appended on the same and exhibited as
EXTP/I/1 put on it. After that the police took me to hospital Ramnagar
for Medical examination and the police has seized my salwar also. I have
seen my salwar in the Court which is same and my statement was
recorded at Udhampur Court. On cross-examination by the defence
counsel, the witness stated that Hari Ram is real uncle (Taya). My house
is at Badole and Hari Ram resides at Palran. There is 5 minutes distance
from their house. She simply went to his house. She went to his house at
1200 hours from her house and came back at 1730 hours in the evening.
She was returning all alone. The statement u/s 164-A
Cr.P.C is recorded
at Udhampur Court which is heard by me. It is written in that statement
that she went at 1730 hours from her house to uncle’s house but infact she
returned at 1730 hours from uncle’s house. From the occurrence site it
takes 15 minutes to reach at her uncle’s house but how much is the
distance I can not tell. There is only one pathway coming and going
(egress ingress) which is a common pathway. She has not worked as
tailor. She knew the accused person earlier itself because the house of the
accused and also the house of the aunt of the witness are nearer to each
other. The house of the accused and walking distance from their house to
the house of the accused is about ½ hours. The accused gagged her
mouth with his hand and broke the cord of Salwar. She had not worn
underwear. The accused had also not worn underwear. The accused
removed her half salwar. The accused had worn pant. The occurrence site
has only bushes. She did not suffer from any injury while the accused
dragging her to the bushes, When the accused put her on the ground and
committed rape upon her. She did not suffer from any injury. She tried
the best to get rid of him but the accused had closed her mouth with his
hand. After the rape white thick water like thing oozed out of her vagina.
She did not see below (on the ground) any more. She felt pain for 2/3

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days after the occurrence. This rape was committed first time with her.
She never had intercourse with anybody earlier, No injury or blood has
come out during rape on her. She reached her uncle’s house after 20
minutes of the occurrence. His aunt and uncle were present in their house.
There is no between Taya (uncle) and the accused and there was no talk
of marriage between her and the accused and the accused refused to
marry. There are only bushes on the occurrence site and in only five
minutes time from the pathway. When the accused dragged her, he
dragged through the bushes. The bushes were of Santha and it bears no
thorns. There was no passerby on that path. When she went back to Hari
Ram’s house there was no one there. She along with Uncle and Aunt
went to police station Ramnagar and it takes one hour to reach at police
station Ramnagar by walk. There are other houses near the house of uncle
but she did not talk to anyone as she talked to her Aunt only. She has read
up to 8th in Middle School Badole.

PW- Hari Ram in his examination in chief by APP stated that he knows
the accused person present in the Court. On 01-12-2009 his niece Mst.
Rajeshwari Devi came to his house at Parlan, he had gone to Ramnagar
and was returning home, again said, that he has returned home. At about
1800 Hrs in evening she was coming to his home crying, when his wife
asked her she told that Romesh Chander has beaten her and has also
threatened her and the blood was oozing from her nose. During this
period, some police personal were passing through that way towards
Ramnagar outside his house, they asked Rajeshwari about the reason then
she told that said person has misbehaved with her and on the suggestions
of the police he went to P/S, Ramnagar. Victim Rajeshwari was also with
him. They got the report lodged in the police station and then to hospital
Ramnagar for medical examination and on the other day, the wearing
apparels were seized by the police .The police has seized the pant of the

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accused. He admitted the contents of the seizure memo of the salwar and
the pant and identified his signatures exhibit EXT-P2 and EXT-P2/1. His
statement u/s 164-A
Cr.P.C were also recorded in the Court. The salwar
and the pant were seized and were sealed in a packet. He identified the
same in the Court. On examination by the defence counsel the witness
stated that he is resident of Ramen. The distance between the accused
house and his house is about 2 Kms. The father of the accused, and
victim’s father are friends of marriage. The accused is a tailor and works
in his house, the victim’s father has no relationship. Rajeshwari’s house is
about ¾ KMs by the road but by shortcut it is about one kilometer. The
victim usually comes to their house. The victim is an educated girl. He
was at Ramnagar on the day of occurrence. She came to their house in his
absence. He reached at home that day at 1830 hours. He never had any
talk with the victim. At 2000 hours when it was dark the police person
passed in front of his house. Two police personnel who passed through
their house and had talk with the victim, but not in his presence. Those
police personnel advised to take this girl to police station. The blood was
coming from her nose but it did not spread on her clothes. They reached
at police station at 2200 hours night. On the other day the salwar of the
victim was seized by police at 10/1100 hrs. next day. They stayed in the
police station at night. Till the Salwar was seized they remained in the
police station. And we informed at the house of victim and other salwar
was brought by the mother of the girl. He has not seen the occurrence
with his eyes. There is a temple in the way of his house which he has got
constructed himself. He is the Poojari (Priest) of the said temple. There is
one tank by the side of Mandir and there is house of his brother below.
There is a house between his house and his brother’s house. This is a
Kannu Rao’s house. He has not seen the salwar himself if there was
something on it or not. The accused was arrested that night. The pant of

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the accused was seized after his arrest in the police station. No one from
the house of accused came there at night and no one came at the time of
arrest of the accused and he did not go to the house of the accused at the
time of arrest of the accused. There are bushes at both side of the
pathway.

PW-Dr Mohd Farooq Tak, Gynecologist, on examination in chief by
APP stated that he was posted as Assistant Surgeon in SDH Ramnagar.
On 02-10-2009 he examined one Rajeshwari, D/o Shanker Dass, R/o
Badole, Tehsil Ramnagar with alleged history of sexual assault brought
by Niaz Malik SHO P/S Ramnagar. There was a black mole on right side
of neck on the person as a mark of identification. On examination
following observations were made:-

1. She was conscious, co-operative and well oriented to time, place and
Person.

2. Her pulse 80/m and BP- 110/70 mm hg

3. LMP 14-9-09

4.Chest, CVS, Abd. Clinically NAD

5. Clothes not changed and bath not taken

6. Secondary sex character well developed. No sign of struggle detected.
No injury mark on her body.

7. Pubic hair present normally. No sign of local injury to vulva or
perineum, hymen not intact, old hymenal tear on the posterior aspect.
Vagina admitted two fingers, Vaginal smear taken ans sent for
examination for spermatozoa which showed the presence of spermatozoa
in the smear.

As per clinical examination and lab report, he is of the opinion that the
girl was exposed to recent sexual intercourse within 48 hours at the time
of examination. He issued a certificate which is part of the file bears my
signatures, contents whereof are correct and is exhibited as EXT-P10. On
cross-examination he stated that on the basis of his Observations, it is

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difficult to say that the person was habitual to sexual intercourse. He
observed that vagina admits two fingers does not necessarily means that
the person was used to sexual intercourse because it can be because of
some other physical reasons also. The opening of vagina to the extent of
two fingers can be made by physical act or by some external article or
may be because of sexual intercourse. There was no external injury on the
person of patient. Spermatozoa can be detected very easily up to 48 hours
and can also be detected up to 72 hours. Vaginal smear was not sent to
FSL but to laboratory of the hospital and was examined by the lab
technician. He did not know what test was applied to form the opinion by
laboratory technician. His opinion regarding sexual intercourse is based
upon the report of lab technician only.

PW-Dr Zakir Hussain in examination in chief stated that in Oct., 2009
he was posted as Asstt. Surgeon SDH, Ramnagar. On 10-10-2009, at the
request of the police he examined one Romesh Chand, S/o Isher Dass,
R/o Romain, Tehsil Ramnagar brought by H.C Mohd. Ayub of P/S
Ramnagar to determine the potency of the person. The patient was
conscious, Co-operative, well oriented. The secondary sexual characters
were developed. There was stitched wound over the supra orbital region
over which there was one stitch. On removing the stitch, wound showed
signs of healing. Duration of injury was more than seven days at the time
of examination. On local examination following observations were made:

a) Black pubic hair present.

b) Penis well formed and normal.

c) Both the testicles were normal

d) No local injury,
In his opinion there was nothing suggestive that the said person was
incapable of performing sexual intercourse. He issued a certificate which

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is part of the file bears his signatures contents whereof are correct. It is
exhibited as EXTP-11. No question was asked in cross-examination.

PW Mool Raj Scientific Officer FSL Jammu in his examination stated
that he has examined the articles contained in the packets marked A B
in the laboratory and have given the report with the observations. The
report is in his hand and bears his signatures. The report has been read by
him and the same is true and correct. It bears his seal and signatures and
the same is exhibited as EXPW-MR. In cross examination, he stated that
he cannot say as to whom this semen belongs to. He has not conducted
the DNA Test. There is no facility of DNA Test in the laboratory. He has
only applied those tests from which it could be gathered the presence of
the semen/human spermatozoa. The semen remains preserved depending
upon the environmental condition and it can be detected even for one year
if properly preserved.

PW Noor Ahmed, in his examination in chief stated that he was posted
at P/S Ramnagar in October, 2009. On 02-10-2009, a ring was kept in
supurdnama of Sher Singh. Memo of supurdnama was prepared. He had
signed on it. He identified his signatures on supurdnama memo as Ext P-1
and admitted its contents. No question was asked in cross examination.

Defence evidence

DW Ishar Dass, S/o Tej Ram, R/o Ramen, Tehsil Ramnagar, on
examination by learned counsel of the accused stated that he knew
Shankar Dass, prosecution witness, he resides about 7/8 KMs away from
his house. He knew Hari Ram prosecution witness also, he resides about
5/6 Kms away from his house. He has no relationship with them. Hari
Ram visited my house in the year 2009 in summer season 2/3 times; for
engagement of Rajeshwari, D/o Shanker Dass, but he refused flatly for
this marriage relationship. There were talks in the village that Rajeshwari

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had no character and she was being caught with one or the other boy of
the village every 2nd or 3rd day. On his refusal to marry his son with her,
Hari Ram threatened him. After that he filed this complaint against him.
On cross examination by learned APP he stated that except this case there
is no other case against the accused. The police has cooked this false case
of rape against the accused. He has not filed complaint against high
ranking officers. He has not invoked the power of the Court in this
regard. The victim was unmarried and he is not aware about her age. He
does not know the chalan witnesses 1 to 5. He knows that accused had no
grudge against them.

The learned trial Court after appreciating the evidence on record,
acquitted the accused observing that the testimony of prosecutrix and
PWs 2-5, non examination of I.O, the associated circumstances and
medical evidence leave a mark of doubt to treat the testimony of
prosecutrix as so natural and truthful to inspire confidence of Court. It can
be stated with confidence that the evidence of the prosecutrix is not of
such quality which can be placed reliance upon.

4. Heard Mr. Ravinder Gupta, learned AAG representing State and Mr.
Dhiraj Choudhary, Advocate appearing on behalf of respondent.

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 reads
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)
the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has been

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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 witnesses. If the
trial court takes a reasonable view of the facts of the case,

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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. As already held, the trial court has acquitted the accused on the grounds
that there are many infirmities and improbabilities in the statements of
prosecutrix and other witnesses.

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. No doubt, the conviction can be based on the solitary uncorroborated
statement of the prosecutrix, if it is found to be liable.

9. The court below has noticed that prosecutrix has stated that she went to
the house of her aunt PW Koshalya Devi at 17.30; in cross examination
she has deposed that house of his uncle Hari Ram, the husband of
Koshalya Devi, is situated at a distance of 5 minutes; that when she
went there her aunt was at home. But PW Koshalya Devi in examination
before Court has stated that prosecutrix came to her at 1700 hours and
went back at the same time. She has also stated that place of occurrence
is at a distance of two kilometers away from their house and it is a jungle
and thorny bushes. PW Shanti Devi, mother of prosecutrix, stated in
cross examination that prosecutrix left her place at 4 p.m. in the evening.
PW Shankar Dass, father of prosecutrix, has stated in cross examination
that prosecutrix left her house at 3 p.m.

10. In this way, there is contradiction in the statements of prosecutrix and
other prosecution witnesses mentioned above with regard to time of
leaving of house by the prosecutrix. This contradiction led the court
below as one of the aspects in disbelieving the statement of prosecutrix.
Coming to the second aspect of the matter in disbelieving the statement
of prosecutrix by the court below is a relation of PW Hari Ram with
prosecutrix. Prosecutrix in her statement has stated that Hari Ram is his
real uncle (Taya) whereas PW Shanti Devi, her mother, has stated in

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examination in chief that prosecutrix had gone to her real uncle (Taya)
but in cross examination she has stated that she has no relation with PW
Hari Ram, but he is friend. PW Shanker Dass, the father of the
prosecutrix, has stated that PW Hari Ram is his Massi’s son. Whereas
PW Koshalaya, wife of Hari Ram, has stated that prosecutrix is daughter
of her husband’s friend. Hari Ram has stated that prosecutrix is his niece.
So there is also contradiction with regard to relationship of Hari Ram
with prosecutrix.

11. Next, PW prosecutrix has stated in cross examination that accused earlier
was known to her as house of accused and house of her aunt are near to
each other, whereas her aunt PW Shakti Devi, stated that she does not
know the accused. PW Hari Ram has stated in cross examination that
father of the accused and prosecutrix are friends of marriage. Thus, it
clearly means that prosecutrix and accused knew each other very well.
Further, prosecutrix has stated that rape was committed by the accused
when she came back from the house of her aunt and her uncle had
already left for Ramnagar. She along with her aunt went to Ramnagar
and got written one application and lodged the FIR, but in cross
examination she stated that her uncle and aunt were in house. On
contrary, PW Koushalya stated that after prosecutrix told her about rape,
she told everything to her husband who reported the matter to the police
station. PW Hari Ram stated that prosecutrix was coming to his house
crying at about 6 pm and on asking by his wife, she told her that accused
beaten her and threatened her. Meanwhile, some police personnel were
passing though that way towards Ramnnagar outside his house. They
asked the prosecutrix about the reason, and then prosecutrix told the
police personnel that accused misbehaved with her. On suggestion of
said police men, he went to police station Ramnagar along with
prosecutrix . But in the FIR and in the statement of the prosecutrix, there

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is no mention of police personnel. Further, in cross examination PW
Hari Ram has stated that when he reached home at 6.30 PM ; it was
darkness outside when police person passed ,who talked with victim and
not to him. As already held there is no such mention of police persons in
FIR and statement of victim. This was material discrepancy in
prosecution story. Further story of victim that she was caught hold and
dragged by accused is not supported by Medical Evidence ; PW Dr.
Mohd. Farroq has stated that he has not observed any injuries on body
and no marks of violence were observed.

12. The learned counsel for State has argued that so far rape with victim by
accused is concerned that has been established by Doctor and FSL
expert. He has relied on the testimony of PW Doctor Mohd. Zakir, who
has observed that girl was exposed to recent intercourse. The Vaginal
swabs and Salwar was found to have spermatozoa. He has relied upon
2017 (1) CRIMES (HC) 219 in case titled State of MP anr. Vs.
Veerendra and anr., wherein it has been observed that Vaginal swabs
of victim girl showed presence of semen and human spermatozoa and in
absence of any DNA test would not mean that remaining evidence of
prosecution was to be disbelieved.

13. I have gone through this aspect of the matter. The court below has
repelled this aspect of matter on two grounds. First that prosecution has
not established that semen were of accused by not conducting DNA test
and secondly if there would have been intercourse that was not rape as
no injury was found on private part of victim by Doctor. Court has
relied upon 2009 ST (7) 45 (
Tameezuddin v. State of (NCT) of Delhi)
wherein it is held by Apex Court as under:-.

“———In this background, merely because the vaginal swabs and the
salwar had semen stains thereon would, at best, be evidence of the
commission of sexual intercourse but not of rape. Significantly also, the
semen found was not co-related to the appellant as his blood samples had

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not been taken. In this background the evidence of the defence witness,
Mohd. Zaki becomes very relevant. This witness testified that there was
no occasion for PW.2 to have come to the factory as no payment was due
to him on any account. The courts below were to our mind remiss in
holding that as no written accounts had been maintained by Mohd. Zaki
and no receipt relating to any earlier payment to PW.2 had been
produced by him, his testimony was not acceptable, the more so, as the
factory was a small one and Mohd. Zaki was a petty factory owner.”

14. The citation (Veerendra’s case) produced is quite distinguishable,
because that was a case of rape and murder of 8 years victim; and there
was enough other material. So this finding of court below is correct and
does not suffer from any infirmity of Law.

15. There is difference between rape and intercourse by consent. Consent
means that both people in a sexual encounter must agree to it, and either
person may decide at any time that they no longer consent and want to
stop the activity. Consenting to one behaviour does not obligate you to
consent to any other behaviour. Rape is a serious matter that can leave a
person suffering, often in silence, with painful physical and
psychological effects. The person may feel frightened, guilty, angry,
ashamed, sad, hurt, and may have problems eating and sleeping. The first
step in dealing with these difficult feelings knows what rape is and that it
is never the fault of the victim. It does not matter if they dressed a certain
way, at a certain place, drunk, alone, or flirting .Rape is never okay and
it is never the fault of the victim. Non-consensual sex is rape, and rape is
a crime. If you are a survivor of sexual assault, remember that with time,
and support, it is possible to heal. You have survived the hardest part on
your own and you do not have to do the rest alone.

16. There is also evidence that victim and accused were knowing to each
other prior to occurrence. Further, court below has found that it would be
most improbable that accused was hiding in bushes in wait of victim,
when he was knowing her. Further court below has categorically held
that victim did not raise any hue and cry when she was allegedly raped;

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21

this observation is also correct. There is also delay of two days in
sending FIR to court. The I/O in the case has not been examined. State
counsel has relied on 2002 (3) SCR 1 case titled Krishan Mochi ors.
Vs. State of Bihar etc., where it has been held that Non examination of
I/O is not fatal, unless it is shown that accused has been prejudiced.
There is no dispute in this regard.

17. Prejudice means injustice caused to accused during trial due to non
examination of I/O; it depends upon facts and circumstances of each
case. In present case, there is delay in sending FIR to court, it has been
sent on 3.10.2009, whereas every proceeding during investigation was
completed on 2/10/2009; there is delay in sending the seized articles to
FSL, because seizure of salwar was made on 1.10.2009 and pent of
accused was made on 2.10.2009; but it was resealed from EMIC on
12.10.2009 after 10 days and was sent to FSL on 14.10.2009 . These
aspects of matter can be clarified, had the I/O been examined. So, we
are of the view that prejudice has been caused to accused /respondent
during trial. Trial court has noted 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.

18. Even otherwise, scope of interference in a case of acquittal is limited.

No doubt, the Appellate Court in an appeal against acquittal has to re-
appreciate the entire prosecution case but would interfere only when
miscarriage of justice has occurred in acquitting the accused. In rape
case court cannot give moral conviction. Prosecution has to prove his
case on touchstones of legal principles and probabilities of facts. There
should be legal evidence to base conviction.

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19. In nutshell, impugned judgment is a well reasoned judgment based on
appreciation of entire evidence available on record. In view of what has
been discussed above, we do not find any infirmity of law and facts in
the judgment of acquittal passed by Court below. It is upheld
accordingly.

20. Resultantly, Cr. Acq. Appeal No.30/2017 is dismissed.

(Sanjay Kumar Gupta) ( Dhiraj Singh Thakur )
Judge Judge
Jammu
13.11.2017
Narinder

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