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State Of J&K; vs Ashok Kumar on 16 February, 2018

Serial No.9
Regular List

CRAA No. 74/2017
Date of order: 16.02.2018

State of JK v Ashok Kumar
Hon’ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon’ble Mr Justice Dhiraj Singh Thakur, Judge.
For the Appellant(s) : Mr Ravinder Gupta, AAG.
For the Respondent(s) : Mr Sudesh Sharma, Advocate.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No

Badar Durrez Ahmed,CJ (Oral)

01. The present appeal is directed against the judgment dated 16.05.2016
delivered by the Principal Sessions Judge, Udhampur, in File No.124/Sessions.
By virtue of the said judgment, the respondent has been acquitted of the charge
under Section 376 RPC. The said case arose out of FIR No.176/2015 which was
registered at Police Station, Udhampur on 23.05.2015.

02. The said FIR was registered on the oral complaint of PW-1 (Rekha Devi),
who is the mother of the victim, Mst. „Z‟. According to the complainant, she is a
resident of State of Orissa and was residing near Vikas Palace, Udhampur in the
house of one Birbal (father of the respondent Ashok Kumar), as a tenant for the
last three months or so. As per the complainant, about 10/12 days earlier, she had
gone to her village in Orissa and her daughter Mst. „Z‟ and son (Rattan Sahu)
PW-2 were in Udhampur. She returned on 22.05.2015 and was informed by her
daughter (Mst. „Z‟) that Ashok Kumar (the respondent herein), who is the son of
the landlord (Birbal), had for four days raped her on four occasions.

CRAA No. 74/2017 Page 1 of 5

03. Upon the registration of the said FIR, the investigation ensued and
ultimately, the challan was presented in the Court. The respondent was charged of
having committed the offence under Section 376 RPC. Since he claimed
innocence, the trial ensued. The prosecution produced seven witnesses in support
of its case.

04. PW-1/Rekha Rani (mother of the victim) stated that she had resided in the
house of the accused as a tenant for four months and that on 11th of May, 2015 she
had gone to her house in Orissa and returned on 22.05.2015. On 23.05.2015, in
the evening, her daughter Mst. „Z‟ informed her that they should leave the room
and also said that the respondent had raped her. In examination-in-chief, the said
witness further stated that on enquiry, her daughter informed her that on
22.05.2015 at about 2/2:30 in the afternoon, the respondent had raped her
(„committed a wrong act‟). She further deposed that on 23.05.2015, she had
informed the parents of the respondent about the occurrence but they argued with
her and, thereafter, on 23.05.2015 itself she filed a report in the Police Station. In
cross-examination she, however, stated that though the respondent had committed
the offence on 22.05.2015 i.e., the day on which she returned from Orissa, her
daughter did not tell her about the occurrence on that day and informed her only
on the next day in the evening of 23.05.2015. She also stated that on 23.05.2015,
she and the parents of the respondent had a quarrel and the neighbours had also
gathered on the spot.

05. PW-2/Rattan Sahu, who is the brother of Mst. „Z‟, stated that he was
residing in the house of the accused on rent. He, however, stated that he learnt
from his mother (PW-1 Rekha Devi) that the respondent had raped his sister and
thereafter they went to the Police Station. In cross-examination, he has stated that
when his mother returned from Orissa, he did not know as to why she had a fight
with the family of the accused because he was not at home at that point of time.

06. The victim PW-3 (Mst. „Z‟) stated that she was 18 years of age on
28.09.2015 and that she was not going to school at that time. She stated that her

CRAA No. 74/2017 Page 2 of 5
mother had gone for work and she was at home and the respondent entered her
room and stated that he loved her and wanted to marry her. She told him that she
did not love him and did not want to marry him. Whereupon the respondent
forcibly entered the room and raped her. She also stated that she was gagged and
her clothes were removed. She stated that her mother had gone home (Orissa).
She further stated that when her mother returned home, she informed her of the
offence and it is thereafter that the report was lodged at the Police Station. In the
course of cross-examination, she stated that her mother had gone to Orissa on 11th
but did not remember the month. She further stated that the occurrence had taken
place two days prior to her mother going to Orissa and had taken place in the
morning. She further stated that on that day when her mother returned from work
she had informed her about the occurrence but her mother went to Orissa two
days later and when she returned about 10/12 days later, on the 23rd of May, 2015,
she had quarrel with the accused and his parents and then the FIR was lodged in
the Police Station.

07. PW-4/Ashok Kumar was declared hostile. In any event, he has not stated
anything of relevance.

08. PW-5/Dr. Pankaj Gupta is a vital and important witness in this case. He is
the Doctor who had medically examined Mst. „Z‟ on 24.05.2015. In terms of the
medical report, EXP-PG, there was no sign of any injury on the person of Mst. „Z‟
and there was no evidence of any sexual intercourse in the recent past. It must be
noted that the medical examination took place on 24.05.2015 when the alleged
rape was said to have taken place on 22.05.2015.

09. PW-6/Som Dutt is the Investigating Officer and PW-7/Mahesh Sharma is
the person who deposed as to the registration of the FIR No.176/2015 (EXTP-

10. After examining the entire evidence which was put forth by the
prosecution, the trial court came to the conclusion that although a conviction

CRAA No. 74/2017 Page 3 of 5
could be based entirely on the testimony of the prosecutrix, but before that could
be done, the testimony would have to be of a stellar quality.

11. The learned Trial Court while examining the testimonies of PW-1 (Rekha
Devi) and PW-3 (Mst. „Z‟) correctly concluded that there was a serious
contradiction in their testimonies. Moreover, the behaviour on the part of two
witnesses as regards reporting of the crime was quite unnatural. On the one hand
PW-1 (Rekha Devi) stated that the incident occurred on 22.05.2015 on the day
when she returned from Orissa, but PW-3 (Mst. „Z‟) had informed her about the
incident only on the next day i.e., 23.05.2015. On the other hand, PW-3 (Mst. „Z‟)
states that the incident happened much earlier and that she had reported the same
to her mother (Rekha Devi) on that very day but PW-1 Rekha Devi had left for
Orissa two days later and only after her return, the FIR was lodged on 23.05.2015.
There are, therefore, clear contradictions between the versions put forth by PW-1
Rekha Devi and PW-3 Mst. „Z‟. Additionally, it is strange that though PW-3 had
allegedly reported the offence to her mother on the very same day on which the
rape allegedly occurred, the mother did not take heed of it and two days later left
for Orissa and only on her return the FIR was lodged. Thus, apart from the fact
that the testimonies of the two witnesses are contradictory, their behaviour is also
quite unnatural.

12. On the top of this, the testimony of PW-5 (Dr. Pankaj Gupta) runs contrary
to the prosecution case. Dr. Pankaj Gupta has categorically stated that there was
no evidence of any recent sexual intercourse and he also did not find any injury
mark on the person of PW-3 (Mst. „Z‟).

13. Considering the totality of circumstances, the Trial Court had in the
absence of any clear cut evidence, acquitted the respondent. The principles to be
adopted by the Appellate Court in appeals against acquittal have been analyzed in
State of JK through SSP Srinagar v. Abdul Majid Makroo ors. (Cr. Acq.
Appeal No.06/2006), decided on 04.10.2017. After referring to the Supreme
Court decisions in Vijay Kumar v. State : (2009) 12 SCC 629 and Upendra

CRAA No. 74/2017 Page 4 of 5
Pradhan v. State of Orissa : (2015) 11 SCC 124, the Division Bench of this
Court held as under:-

“It will be noted from the above discussion that the order of acquittal
should not generally be interfered with because the presumption of
innocence of the accused is strengthened by the acquittal order.
Normally, in a case where admissible evidence is ignored by the trial
court, a duty is cast upon the appellate court to re-appreciate the
evidence in a case where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the accused committed
any offence or not. As the Supreme Court pointed out, the principle
to be followed by the appellate court, considering an appeal against
the judgment of acquittal is to be interfered only when there are
compelling and substantial reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a compelling reason for

14. In the present case, the learned counsel for the appellant has not been able
to point out any perversity in the Trial Court decision. In fact, the Trial Court had
examined the entire evidence, albeit scanty, produced on the part of the
prosecution. On examining the decision of the Trial Court as also on surveying
the evidence, we cannot come to the conclusion that the Trial Court decision was
un-reasonable or the findings returned by the Trial Court were perverse.
Therefore, we do not find any reason to interfere with the decision of the Trial
Court in acquitting the respondent.

15. The appeal is dismissed.

(Dhiraj Singh Thakur) (Badar Durrez Ahmed)
Judge Chief Justice
Pawan Angotra

CRAA No. 74/2017 Page 5 of 5

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