State Of J&K; vs Surinder Kumar on 24 November, 2017

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SLAA No.13/2017
Date of Judgment : 24.11.2017.
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State of JK through P/S Purmandal
Vs.
Surinder Kumar
Coram:

Hon’ble Mr. Justice Badar Durrez Ahmed, Chief Justice.
Hon’ble Mr. Justice Sanjeev Kumar, Judge.
Appearing counsel:

For Petitioner(s)/appellant : Mr. Ehsan Mirza, Dy. AG.
For Respondent(s) : Mr.Rohan Nanda, Advocate.

i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
Sanjeev Kumar-J

1. This is an application by the State seeking leave of this court to file an
appeal against the order and judgment of acquittal dated 22.08.2016 recorded
by the Learned Principal Sessions Judge, Samba by virtue of which the
respondent has been acquitted of the charges u/s 458/376 RPC. Before
appreciating the grounds urged in this application , it would be apposite to take
note of the case set up by the prosecution, the evidence recorded and the
manner in which the same has been appreciated by the learned trial Court.

2. The case set up by the prosecution is that on 27.06.2012 at about 12:40
P.M., the prosecutrix (PW-1) alongwith her mother lodged a written report in
Police Station, Purmandal, Jammu alleging therein that she is the resident of
village Baabli Tehsil Samba and on the night before lodging of FIR, there was
a marriage in the village and her family members had gone to attend the same.
She was alone at home and at about mid- night, a boy entered her house and

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finding her alone, sexually assaulted her four times. It is further alleged that
when he left her after committing the crime, she raised alarm and few people
gathered on the spot and on seeing them, the boy ran away. Later on, she came
to know that the said boy was Surinder Kumar, resident of Dabuj.

3. On the basis of aforesaid written complaint lodged by the prosecutrix, FIR
No.12/12 u/s 458/376 RPC was lodged in Police Station Purmandal and
investigation was set in motion. The Investigating Officer (I.O) visited the spot,
prepared the site plan, seized the clothes of the prosecutrix, sealed and sent
them for FSL examination. The prosecutrix was got medically examined. The
statement of witnesses u/s 161 Cr.P.C were recorded. The statement of
Prosecutrix and her mother were however, recorded before the Judicial
Magistrate u/s 164-A
Cr.P.C. After obtaining the medical and FSL opinion and
on the basis of material collected during the investigation, challan in terms of
section 173 was presented before the Learned Chief Judicial Magistrate, Samba
which was committed by the Learned CJM on 16.07.2012 as the offence u/s
376 RPC was exclusively triable by the Court of Sessions. The Court of
Sessions Judge, Samba (hereinafter referred to as the trial court) framed the
charges against the respondent for offence u/s 458/376 RPC.

4. The prosecution with a view to sustain the charges against the respondent,
examined only eight out of the thirteen enlisted witnesses namely PW-
1(Prosecutix), PW-2 (Darshana Devi), PW-3(Nek Ram), PW-4(Waryam
Singh), PW-6(Asha Rani), PW-7(Ravi Kumar), PW-11(Dr. Rubia Afroze) and
PW-13 (Chaman Lal Gorkha), I.O. However, PWs 5, 8, 9, 10 and 12 which
included Dr. Davinder Bhat and Dr. Vijay, Director FSL, Jammu were not
examined during the trial for the reasons not explained by the I.O. The
evidence recorded during the course of trial was put to the accused and his
statement u/s 342
Cr.P.C was recorded on 10.09.2014. The accused pleaded
innocence and his false implication in the case. The accused also chose not to
lead any evidence in defence.

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5. The Learned Trial Court after meticulous examination of the statements of
prosecution witnesses particularly taking note of the statement of expert
witness i.e., Dr. Rubina Afroze who had conducted the medical examination of
the prosecutrix, came to the conclusion that in view of inherent contradictions
in the version of prosecutrix made in the written complaint lodged before the
police and statement recorded u/s 164-A
Cr.P.C as also the statement recorded
in the court and also medical opinion indicating that there was no evidence of
recent intercourse, the prosecution story was improbable and incapable of
inspiring confidence of the court. Accordingly, the trial court found that the
prosecution had miserably failed to prove the guilt of the accused beyond
reasonable doubt, and therefore, acquitted the respondent of the charges leveled
against him.

6. The State is aggrieved of the judgment impugned and has assailed the
same primarily on the ground that there is no proper appreciation of evidence
by the trial court and that respondent was involved in committing the heinous
offence and, therefore, contradictions pointed by the Learned trial court were
inconsequential and in any case not fatal to the prosecution case. The
judgment, however, has not been assailed on any specific ground, as is evident
from a bare reading of memorandum of appeal

7. The Learned Counsel for the State, during the course of arguments, also
could not point out any perversity in the findings of fact recorded by the trial
court nor could he put forth any argument to reconcile the contradictions
between the testimony of the prosecutrix, her mother, other witnesses and the
medical opinion. As is rightly pointed out by the learned trial court that the
prosecutrix in her written report lodged in the police station did not mention
that she had suffered any injury during the course of rape committed by the
accused with her but during her statement in the court particularly when she
was cross examined, she made a huge departure from her statement. She had
stated in her report lodged with police that when the accused pushed her in the

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house, she got bruises in her arms also. PW-11 Dr. Rubina who conducted
medical examination of the prosecutrix also found no marks of violence or
injury on any part of her body or on the private parts. It was deposed by the
prosecutrix before the trial court that after the respondent had committed the
act, she raised hue and cry and on hearing the same, her mother came on the
spot and saw the accused running. However, in her report lodged in the Police
Station, she has not mentioned all these facts. As rightly noted by the learned
trial court, the prosecutrix made improvements during her deposition in the
court. In the report, as noted by the learned trial court, the prosecutrix had
stated that on her raising hue and cry, a few people had gathered on the spot
and saw the boy who had committed the crime leaving the scene. But, in her
deposition before the court, she states that it was her mother and uncle who
came to the place of occurrence on hearing the hue and cry and except the
aforesaid two persons, none else had come. PW-3 Nek Ram uncle of the
prosecutrix, however, deposed in his statement before the court that he never
went to the house of prosecutrix along with the mother of the prosecutrix (PW-

1). He even stated that PW-2 never told him about the occurrence. As has been
rightly noted by the trial court after appreciating the evidence properly, there
are major contradictions in the statements of prosecutrix and her mother, which
cannot be brushed aside as minor contradictions but, are the contradictions
which make the story projected by the prosecution highly doubtful and lacking
credence. The occurrence appears to be of the intervening night of 26.06.2012
and 27.06.2012 at about 12:30 A.M and on the very next day in the morning,
the Prosecutrix was subjected to medical examination. The Doctor who
conducted the medical examination i.e., PW-11, has categorically stated that
there was no evidence of recent sexual intercourse with the prosecutrix. She
also stated that she did not find any mark of violence or injury anywhere in her
body or on her private parts nor any fresh bleeding was noted. The learned trial
court, therefore, correctly appreciated the oral evidence in the light of the

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medical examination and came to the conclusion that the prosecution had
miserably failed to prove the guilt of respondent beyond any doubt. We, also
do not find any reason to differ with the finding of fact recorded by the learned
trial court,

8. It may be noted that this is an appeal against an order of acquittal and the
jurisdiction of the court to hear the acquittal appeal, is circumscribed by the
said parameters laid down by the Supreme Court in Vijay Kumar Vs. State;
(2009) 12 SCC 629, paragraph 12 whereof reads thus:

“(1) In an appeal against an order of acquittal, the High Court possesses all the
powers, and nothing less than the powers it possesses while hearing an appeal
against an order of conviction.

(2) The High Court has the power to reconsider the whole issue, reappraise the
evidence and come to its own conclusion and findings in place of the findings
recorded by the trial court, if the said findings are against the weight of the
evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider each
ground on which the order of acquittal was based and to record its own
reasons for not accepting those grounds and not subscribing to the view
expressed by the trial court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the
fact that the presumption of innocence is still available in favour of the
accused and the same stands fortified and strengthened by the order of
acquittal passed in his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and
other material on record, is of the opinion that there is another view which can
be reasonably taken, then the view which favours the accused should be
adopted.

(6) The High Court has also to keep in mind that the trial court had the advantage
of looking at the demeanour of witnesses and observing their conduct in the
Court especially in the witness box.

(7) The High Court has also to keep in mind that even at that stage the accused
was entitled to benefit of doubt. The doubt should be such as a reasonable
person would honestly and conscientiously entertain as to the guilt of the
accused.”

9. It is equally well settled that in acquittal appeal, if the appellate court on
appreciation of evidence finds that another view different from the one taken
by the learned trial court is also possible, the view which favours the accused
has to be taken ( see Hari Ram Vs State of Rajasthan ;(2000)9 SCC 136).

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That being the principle of law defining the scope of interference in acquittal
appeals, we do not find any merit in this application and accordingly the leave
prayed for by the State for filing the acquittal appeal is declined. Consequently,
this application is dismissed.

( Sanjeev Kumar ) (Badar Durrez Ahmed)
Judge Chief Justice

JAMMU : 24.11.2017
RSB.Secy.

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