State Of J&K; vs Pawan Kumar on 30 November, 2017

Serial No. 13
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SLAA No.103/2016
c/w
CONCR No.95/2016

Date of order: 30.11.2017

State of JK vs Pawan Kumar
Coram:
Hon’ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon’ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Petitioner(s) : Mr Ravinder Gupta, AAG
For the Respondent(s) :
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No

CONCR No.95/2016

1. Notice was issued to the respondent. The report of the Station House
Officer, who was directed to effect the service, is that the respondent refused to
accept the notice. Such refusal would amount to service. It is in these
circumstances that we are taking up the consideration of the applications in the
absence of the respondent.

2. The delay which is sought to be condoned is of 137 days. For the reasons
stated in the application and upon hearing the counsel for the State, we allow the
application for condonation of delay and accordingly condone the delay.

SLAA No.103/2016

3. This is an application seeking leave to appeal against the order of acquittal.
By virtue of the judgment dated 03.12.2015 rendered by the Principal Sessions

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Judge, Udhampur in file No. 10/Sessions, the appellant has been acquitted of the
charges framed against him under Sections 376/458/511 RPC. The case emanated
from FIR No. 64/2013 under the said offences, which was registered in Police
Station, Ram Nagar, on 29.05.2013.

4. A written complaint was filed on 29.05.2013 in the Police Station, Ram
Nagar, by the complainant/prosecutrix-Mst Z (The name has been withheld to
protect the identity of the prosecutrix). As per the contents it was alleged that in
the previous night at about 12 midnight in Village Surni when the prosecutrix
alongwith her children were sleeping in the room, the respondent having a
criminal intention entered the room and took her outside into the field where he
allegedly tore her clothes forcibly and after that he attempted to rape her. On her
raising a hue and cry, witnesses rescued her. She also alleged that during the
occurrence two of her gold rings had gone missing. Pursuant to the registration of
the FIR, the investigation ensued and the Investigating Officer (PW-4 Nazir
Ahmed) presented the challan against the accused in court. Charges were framed
against the respondent, as pointed out above, under Section 458/376/511 RPC.
Since he pleaded innocence, trial ensued. The prosecution examined only four
witnesses Mst. Z (the Prosecutrix); PW-2 Vidya Devi (the Sister-in-law of the
prosecutrix); PW-3 Faquir Chand (the husband of the prosecutrix) and PW-4
Nazir ahmed (the Investigating Officer).

5. Mst. Z proved the contents of the complaint exhibit P1-1. She stated that
while she was with her children and was sleeping in her room at night, as it was
summer time, the door of their room was open. The electric bulb was on in the
room as the children do not sleep in darkness. She stated that the respondent
entered her room at night and gagged her mouth and forcibly carried her outside.
The respondent then took her to the field and tore her clothes and thereafter tried
to rape her. She stated that she started crying and thereafter went to the court
alongwith her husband to file an application. Subsequently, she went to the Police
Station. The police came to the spot and seized her clothes and recorded her

SLAA No.103/2016 c/w CONCR No.95/2016 Page 2 of 5
statement. In cross-examination she stated that the house of Mulkh Raj is behind
her house and that the house of the respondent and her uncle are adjacent to her
house. Her elder son Roshan who was 18 years of age, lived in the house of some
officer, but on the day of the occurrence her other son Ravi aged 15 years and
daughter Arti aged 10/11 years were sleeping with her. In the adjacent room her
mother-in-law and sister-in-law were sleeping. She stated that when the accused
gagged her mouth, she had tried to resist on the bed itself, but could not succeed.
The accused then dragged her to the field from the room. She also stated that
before that she had a scuffle with the respondent for about 5 to 7 minutes, but her
children, mother-in-law and sister-in-law did not know about the occurrence
because her mother-in-law remained ill and her sister-in-law was taking
medicines and becomes unconscious after taking such medicines. She also alleged
that she sustained scratches on both her legs. Even upon her raising hue and cry
nobody came from the house of Mulkh Raj or Shiv Ram. Only her sister-in-law
had come. She also denied that she had a dispute with the accused with regard to
passage of animals.

6. PW-2 Vidya Devi who is her sister-in-law, stated that when Mst Z (the
prosecutrix) raised hue and cry, on coming out of the house, she saw that the
respondent and the complainant were in the field and the respondent was
committing ‘an offence’ with the prosecutrix. She called out, whereupon the
respondent ran away. She stated that in the moon light she had seen the
respondent running away. She also stated that the clothes of the prosecutrix were
torn. During cross-examination she deposed that no fight had taken place in the
evening and that she had awoken upon hearing the cries of the prosecutrix. She
also stated that her mother did not wake up due to her illness. The children also
were sleeping at that time. She, of course, revealed that on the night of the
occurrence she had seen the prosecutrix and the respondent in the land of Rattan
Lal from a distance of 100 yards and that she had seen the respondent while he
was running away.

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7. The next witness is Faquir Chand PW-3 who is the husband of the
prosecutrix. He, of course, was not present on the date of the occurrence as he
stated that he had gone to Jammu to take medicines for his mother. He, however,
stated that at 12 O’clock he had reached home, at that point of time, the
prosecutrix (his wife) had told him that last night there had been a scuffle between
her and the respondent and in that scuffle her shirt had been torn. He, however,
stated that he was not informed as to why he tore the shirt. He then stated that he
and his wife went to the Police Station to file a report and the Police came on the
third day. Of course this witness was declared hostile by the prosecution and was
permitted to be cross-examined by the Public Prosecutor. The only other witness
produced by the prosecution was PW-4 Nazir Ahmed who was the I.O. in the
case. Nothing material has been stated by him. The defence produced one Geeta
Devi as their witness, who was the Naib Sarpanch of the Village. She however,
stated that there was some dispute between the prosecutrix and the respondent
over land, although she did not know as to whether such dispute had reached the
court or not.

8. It is pertinent to note that this is the sum total of the evidence that is on
record. There was no attempt made by the Investigating Officer to have the
prosecutrix medically examined in order to corroborate or establish that she
indeed received injuries on her legs as she claimed in her examination in chief.
Therefore, there is nothing to verify as to whether there was actually any scuffle
and whether the prosecutrix did received injuries as alleged by her. The learned
trial court has examined the entire evidence and has analyzed the same in detail.
After doing so, the trial court did not find the prosecutrix to be a credible witness
and did not think it wise to convict the respondent for the offences for which he
had been charged as there was enough doubt in the matter and there was several
gaps in the prosecution story. We also note that on the one hand the prosecutrix
stated that she was gagged and on the other hand she stated that she raised a hue
and cry. Furthermore, her husband Faquir Chand (PW-3) has not corroborated her

SLAA No.103/2016 c/w CONCR No.95/2016 Page 4 of 5
testimony, though he is the one who accompanied her to the police station for
lodging the complaint. There is also no evidence that there was any discord or
dispute between the prosecutrix and her husband so as to enable us to infer that he
did not support the prosecution for that reason. It is in this backdrop that the
learned trial court came to the conclusion that the respondent could not be
convicted for the offences for which he was charged. In any event we may note
that as pointed out in State of Rajasthan v. Raja Ram (2003) 8 SCC 180, the
principle to be followed by the appellate court considering an appeal against a
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable, it is a compelling reason for interference. However, the learned
counsel for the State has not been able to point out any such unreasonableness in
the impugned judgment, nor has any perversity been pointed out. It is also not the
case that some valuable and clinching evidence has been ignored or that the
analysis of the evidence is so unreasonable to enable us to interfere with the
judgment of acquittal.

9. For all these reasons, in our view, there is no case made out for the grant of
leave to appeal against the judgment of acquittal. Consequently, the application is
dismissed.

(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
30.11.2017
Pawan Angotra

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