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Mohd. Afzal Naik vs State Of J&K; on 30 November, 2018

HIGH COURT OF JAMMU KASHMIR
AT JAMMU
CRA No. 06/2006
Date of order: 30.11.2018
Mohd Afzal Naik Vs. State of JK
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For appellant (s) : M/s S. M. Wajahat S. C. Subash, Advocates
For respondent(s) : Mr. Ajaz Lone, GA.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. Appellant, Mohd. Afzal Naik, who has been convicted and
sentenced for rigorous imprisonment of seven years and fine of
Rs.10,000/- under section 376 RPC, in default, to further suffer
simple imprisonment for one year; and rigorous imprisonment of
five years and fine of Rs. 5000/- u/s 366 RPC, in default, to further
undergo simple imprisonment of six months, vide judgment of
conviction/order of sentence dated 07.02.2006/08.02.2006
respectively by the learned Additional Sessions Judge, Ramban,
has filed the present appeal with prayer for setting aside the same..

2. Brief facts of the case are that a criminal challan under Sections
366/376 RPC in FIR no. 65/2002 was filed by the Police Station,
Banihal against the present appellant in the Court of Judicial
Magistrate 1st Class, Banihal, who committed the same to the Court
of learned Additional Sessions Judge, Ramban on 17.07.2002.

CRA No.06/2006 Page 1 of 23

3. The allegations against the appellant are that the prosecutrix when
had gone to answer the call of nature at Har Beer, Kaskoot, the
appellant abducted her and took her to Moga in Punjab and Batote
where she was seduced to illicit intercourse against her will and
wish. A written report dated 16.05.2002 was lodged by the father
of the prosecutrix with the Police Station, Banihal and accordingly
FIR No.65/2002 under Section 376 RPC was registered and
investigation was started. During the investigation, the prosecutrix
was recovered from a room of the appellant‟s house situated at
Batote. She was medically examined and the medical report was
procured. The statements of the prosecution witnesses were
recorded u/s 161 Cr.P.C. and on completion of the investigation,
the police authorities filed the present challan against the accused
for the alleged commission of offences under Sections 366/376
RPC. The accused was charge sheeted and the prosecution was
directed to produce the evidence. During the course of trial, the
prosecution has produced PW-1 Mohd Ayub Khan, PW-2 Mst.
Misra Begum, PW-3 Wazir Mohd Khan, PW-4 Mst. “A”
(prosecutrix), PW-5 Mohd Ayub SPO, PW-6 Om Singh SPO, PW-
7 Dr. Rehana, PW-8 Mohd Iqbal Bhat and PW-9 Gulam Mohd,
H.C.

4. The learned Additional Sessions Judge, Ramban on consideration
of the matter found that the prosecution had succeeded in
establishing the case against the appellant and accordingly
convicted the appellant and sentenced him to seven years rigorous
imprisonment and fine of Rs.10,000/- under Section 376 RPC and

CRA No.06/2006 Page 2 of 23
five years rigorous imprisonment and fine of Rs.5000/- under
Section 366 RPC.

5. The appellant feeling aggrieved of the conviction and sentence
imposed on him, has challenged the same on various grounds inter
alia that the trial court has not properly appreciated the evidence;
the court has not considered various contradictions which emerge
in the prosecution witnesses; the judgment and the order impugned
are contrary to the facts of the case and law on the point; that the
prosecution case was unbelievable but the trial court has by wrong
appreciation of facts, convicted and sentenced the appellant on the
basis of insufficient evidence.

6. I have considered the matter and have gone through the trial court
record, particularly the statements of the witnesses recorded and
relied upon by the learned trial court in arriving at the conclusion
of guilt of the appellant.

7. Before commenting upon the merits of the case, the brief resume of
the prosecution witnesses is as under;

PW-1 Mohd Ayub Khan: On examination in chief by the APP,
the witness stated that he knows the accused present in the court.
Prosecutrix “Mst. A” is his daughter. On 11.05.2002 at 2 pm the
Army took him to Maira Mangat, who was left by the Army on the
next day at 2 pm and when he was taken by the Army, his daughter
“Mst. A” was present in the home and his wife had gone to her
parental house. When he reached back he did not find his daughter
in the house. He started searching for her and after 2/3 days of the

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occurrence he lodged the written report with the police. The
witness proved the written report marked as EXPW-1. On his
report the police registered the FIR No.65 of 2002, the witness
proved the contents of the FIR as well as also identified his
signatures on the same which is marked as EXPW-1/1. About 1 ½
month thereafter the police recovered his daughter and the accused.
The police handed over his daughter to him on the superdnama.
The witness proved the superdnama memo which is marked as
EXPW-1/2. The police seized the ladies suit which his daughter
was wearing and prepared the seizure memo. The witness proved
the seizure memo which has already been marked as EXPW-3/1.

On cross examination, the witness stated that it is correct that on
12th his wife informed him about the occurrence. He lodged the
report on 13th to the police but the police personnel advised him to
produce the written report to the police after 1 or 2 days. The
police did not search for the persons who were with the accused
about which his daughter told him. The vehicle was also not seized.
His daughter was neither abducted nor recovered in his presence.

PW-2 Mst.Misra Begum: On examination in chief by the APP,
the witness stated that the accused present in the court is known to
her. “Mst. A” is her daughter. About 5/6 months ago she had gone
to her parental home and when she returned back she came to
know that the accused present in the court had abducted her
daughter. She informed her husband about the occurrence when he
returned from the Army Camp. After about two months the

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prosecutrix was recovered from Batote. The prosecutrix told her
that she was abducted by the accused from the house.

On cross examination by the counsel for the accused, the witness
stated that the prosecutrix is matriculate.

PW-3 Wazir Mohd Khan: On examination in chief by the APP,
the witness stated that he knows the accused present in the court.
He also knows the prosecutrix. The accused abducted the
prosecutrix 9 months ago from her house. The prosecutrix was
recovered by the police and was handed over to her parents. The
Police seized the Salwar of the prosecutrix and prepared the seizure
memo. The witness proved the seizure memo EXPW-3/1.

On cross examination by the counsel for the accused, the witness
stated that the police recorded his statement.

PW-4 “Mst. A”: On examination in chief by the APP, the witness
stated that she knows the accused who hails from her village.
About 8 months ago in the evening, while her parents were not
present in the house and when she came out, the accused forcibly
dragged her out of the house towards the road where the vehicle
was parked in which two other persons were also sitting. The
accused took her to Moga. She does not know the other two
persons who were also in the vehicle. For four days she was kept in
a house in Moga City. The accused and the other two persons also
came there. During that period the accused present in the court
against her will committed sexual inter course with her. Thereafter
the accused brought her to Batote and kept her for a month and 10

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days in a house. The accused did not allow her to come out. During
the day the accused used to go out and bring food for her. At
Batote also the accused against her wish repeatedly committed
sexual inter course with her. The police recovered her from Batote
and took her to Banihal. The police got her medically examined
and handed over to her parents. The police recorded her statement.

On cross examination by the counsel for the accused, the witness
stated that two other persons who were with the accused were not
associated with the investigation by the police and the vehicle was
also not seized by the police. She has not reported that the accused
had threatened her. She does not know at what distance from the
road in the house the accused have kept her. She was recovered by
the Banihal police. The accused was with the police. The police
recorded her statement in the police station.

PW-5 Mohd Ayub,SPO: On examination in chief by the APP, the
witness stated that he knows the accused present in the court. On
30.06.2002 he was posted in the P/S, Banihal. The police recovered
the prosecutrix from Batote and prepared the recovery memo
which is already marked as EXPW-6/1. The witness also proved
the seizure memo. The accused was also arrested and the arrest
memo was prepared. The witness proved the arrest memo marked
as EXPW-6/2.

On cross examination by the counsel for the accused, the witness
stated that the recovery was affected after information was received
by the police. The prosecutrix was recovered from a room.

CRA No.06/2006 Page 6 of 23

PW-6 Om Singh, SPO: On examination in chief by the APP, the
witness stated that one girl was recovered and the recovery memo
was prepared. The witness proved the recovery memo EXPW-6/1.
The witness also proved the arrest memo of the accused marked as
EXPW-6/2.

On cross examination by the counsel for the accused the witness
stated that he did not went to the room from where the prosecutrix
was recovered.

PW-7 Lady Dr. Rehana: On examination in chief by the APP, the
witness stated that on 16.05.2002 she was posted at Emergency
Hospital, Banihal. On the request of the police she examined “Mst
A”, who was brought by the police. The witness proved the
medical certificate which is marked as EXPW-M/8. According to
her opinion “Mst A” had been subjected to inter course. At the time
of examination “Mst A” was above 18 years of age. No marks of
violence where found on the private parts of “Mst A” at the time of
examination “Mst A” was carrying the pregnancy for the last two
months.

On cross examination by the counsel for the accused, the witness
stated that the pregnancy test was not conducted in the hospital as
at that time the facility was not available in the hospital. The test
was conducted under her supervision. She examined “Mst A” on 1st
of July, 2002, whereas the alleged occurrence is of 16.05.2002.

PW-8 Dr. Mohd Iqbal Bhat: On examination in chief by the APP,
the witness stated that on 1st of July, 2002 he was posted as

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Assistant Surgeon in Emergency Hospital, Banihal and on the said
day he examined accused Mohd Afzal brought by the authorities of
police station, Banihal. On examination it was found that accused
present in the court was sexually a potent man. The witness proved
the certificate placed on the file and is marked as EXPW-9/1.

On cross examination by the counsel for the accused the witness
stated that the process of ejaculation of semen was not one under
his supervision.

PW-9 Gulam Mohd, H.C: On examination in chief by the APP,
the witness stated that in the month of May 2002 he was posted in
the police station, Banihal. He conducted the investigation of case
FIR No.65/2002.During the investigation he went on the spot and
prepared the site plan. The witness proved the site plan EXPW-
12/1. He recorded the statements of the prosecution witnesses u/s
161 CrPC. The search of abductees was conducted who was
recovered after a long time. The abductees were recovered and the
recovery memo was prepared which is marked as EXPW-6/1. He
also prepared the site plan of the place of recovery which is marked
as EXPW-12/2. On the next day of recovery “Mst A” was
medically examined, the salwar of the abductees and the under
wear of the accused were seized and the seizure memo was
prepared which is marked as EXPW-3/1. From his investigation
the accused was found to have committed the offences u/ss
366/376 RPC.

CRA No.06/2006 Page 8 of 23

On cross examination by the counsel for the accused, the witness
stated that from his investigation “Mst A” was brought on foot
from house to the Bazar and not on a vehicle. The occurrence took
place on 11.05.2002 and the report with regard to the same laws
lodged on 16.05.2002. The police station is situated at a distance of
about 2 km from the place of occurrence. Abductee is about 19/20
years old. The abductee was recovered on 30.06.2002 from a house
situated at Batote. The abductee was recovered after one month and
19 days after the occurrence. At the time of recovery PW Mohd
Ayub SPO and PW Om Singh SPO were with him. On the very
same day of the recovery the abductee was taken to the hospital at
Banihal and since it was closed due to Sunday, as such she could
not be examined on the said day. She was thereafter taken on the
next day to the hospital for examination.

The statement of the accused as required u/s 342 CrPC was
recorded. He has refuted the allegations leveled against him in the
prosecution evidence and has claimed that he is innocent. In order
to prove his innocence the accused has examined only Asadullah
Naik as witness in his defence. The resume of the defence witness
is as under:

DW-Asadullah Naik: On examination in chief by the counsel for
the accused, the witness stated that he knows the accused Mohd
Afzal who hails from his village and is a gentle person. He is an
agriculturist. He knows the complainant Mohd Ayub. In his village
the police never came and he has also not heard that the accused

CRA No.06/2006 Page 9 of 23
has abducted any one. He had heard that the daughter of the
complainant had gone somewhere for 2/4 days.

On cross examination by the APP, the witness stated that after 2/4
days “Mst A” came back to her house. The accused was not
arrested on the same day when the prosecutrix was recovered.

This is the total evidence in file. Court below has based his
conviction on the grounds that statement of victim when
appreciated with the statements of PWs 1, 2 and 3 and medical
evidence, it inspires confidence of court. Court below has further
held that victim has stated sequence of events as to how she was
abducted from her residence and taken to Moga Punjab and then
back to Batote, from where she was recovered. She has also stated
that she was repeatedly raped at Punjab and Batote. Court below
has also based his conviction on relying the presumption as given
in section 114 (b) of Evidence Act.

8. I have given my thoughtful consideration to whole aspects of the
matter and law on the subject.

9. In criminal trial, the burden always lies on prosecution to establish
the case against the accused and the accused person is presumed to
be innocent of the offence charged till the contrary is established.
The presumption of innocence always applies to accused. The
prosecution has to discharge its onus of proving the case against the
accused beyond all reasonable doubts, which is cardinal principle of
criminal jurisprudence. In determining the guilt of person charged
with crime, onus of proving everything essential to the established

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of the charge against the accused persons lies on the prosecution.
The evidence must be such as to exclude moral certainty, every
reasonable doubt of the guilt of the accused. In the matter of doubt,
it is safer to acquit the accused, because it is better that several
guilty person should escape than that one innocent person suffer. If
there be any gap or lacunae in the prosecution evidence, it is the
accused and not the prosecution, would be entitled to get the benefit
of doubt. It is the duty of the prosecution to ensure all diligence
and carefulness required to see that all are brought on record and
that prosecution does not fail to such neglect. The weakness in
defence established by the accused persons is no help to
prosecution, because the prosecution has to prove its case beyond
all shadow of doubt. Mere creation of suspicion is not enough.
There is inevitably long distance to travel between „may be true‟
and „must be true‟. The distance to travel must be covered by the
prosecution by legal, reliable and unimpeachable evidence before
an accused can be convicted. More the heinous offence, strict
proofs are required.

10. The fact in issue can be established by direct evidence or by
indirect evidence.

11. In case of rape, the evidence of Prosecutrix carries value, other
evidence are only of corroborating in nature. Now law is well
established that court can base his conviction in rape case, only on
sole testimony of Prosecutrix, if her testimony inspires confidence of
court.

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12. Rape has been defined under section 375 RPC, which has been
amended in 2014; it says that if any person has sexual intercourse
with a woman under seven circumstances, then it can be termed as
rape. These are 1) against the WILL of Prosecutrix; 2) Without her
consent; 3) with her consent when consent has been obtained by
putting her or any other person in whom she is interested, in fear of
death; 4) With her consent, when the man knows that he is not her
husband and her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully
married; 5) With her consent when at the time of giving consent she
was by reason of unsoundness of mind or intoxication was unable to
understand the nature of consent; 6) with or without her consent
when she is under 18 years; and 7) When she is unable to
communicate consent.

In term of clause 6 of section 375 RPC, consent if given by a girl
below 18 years carries no value and person is liable to be convicted.

13. Further, in case of rape, the statement of Prosecutrix is very
important since in such cases normally direct evidence is not
available. Court has to draw its conclusion from attending
circumstances and probability of facts stated by victim. Conduct of
Prosecutrix is very important in order to appreciate her evidence on
right perspective. There should not be animus against the accused
by victim or her relative; there should not be artificiality and
unnaturalness in version of victim.

CRA No.06/2006 Page 12 of 23

14. In AIR 2012 (SC) 2281 in case titled “Narinder Kumar Vs. State
(NCET of Delhi), it has been held as under:

“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 defense 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 defense. 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 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.”

15. From bare perusal of statements of prosecution witnesses PWs
Mohd. Ayub Khan, the father of victim; Mst. Misra Begum, the
mother of victim; Wazir Mohd Khan, Mohd Ayub SPO and PW-
Om Singh SPO, it is evident that they have not seen the accused
enticing away the victim on day of occurrence. Only the prosecutrix
in the case has narrated about the occurrence.

CRA No.06/2006 Page 13 of 23

16. Learned counsel for the appellant has vehemently argued that the
trial court has not properly appreciated the defence of the accused
and has believed the solitary statement of the prosecutrix and
convicted the accused, while as this statement does not inspire
confidence of the Court as the prosecutrix has given completely a
false statement about the occurrence. According to the learned
counsel, the court has not taken into consideration the circumstances
that the prosecutrix had remained with appellant for quite long time,
she went along with appellant from Ramban to Moga in Punjab and
remained there for three days and thereafter she came back with
appellant and remained at Batote for more than one month. During
this period, she never narrated her abduction to any person as she
having a sufficient chance to narrate her abduction to the person.
The girl has gone with the appellant out of her own.

17. As per prosecution case, victim was abducted by accused-appellant
on 11.05.2002; written FIR was lodged on 16.05.2002; the age of
victim has been given as 19/20 years; she was thus major; she was
recovered on 30.06.2002 after 1-1/2 months from the date of
abduction from the possession of accused-appellant from Batote i.e.
the house of accused.

18. PW Victim has stated that about 8 months ago in the evening, while
her parents were not present in the house and when she came out,
the accused forcibly dragged her out of the house towards the road
where the vehicle was parked in which two other persons were also
sitting. The accused took her to Moga. She does not know the other
two persons who were also in the vehicle. For four days she was

CRA No.06/2006 Page 14 of 23
kept in a house in Moga City. The accused and the other two persons
also came there. During that period the accused present in the court
against her will committed sexual inter course with her. Thereafter
the accused brought her to Batote and kept her for a month and 10
days in a house. The accused did not allow her to come out. During
the day the accused used to go out and bring food for her. At Batote
also the accused against her wish repeatedly committed sexual inter
course with her.

In cross examination she has stated that she has not reported that the
accused had threatened her. She does not know at what distance
from the road in the house the accused have kept her.

19. So far as Section 366 RPC is concerned, the essential ingredients
are: (i) kidnapping or abducting any woman; (ii) such kidnapping or
abducting must be (a) with intent that she may be compelled or
knowing it to be likely that she will be compelled to marry any
person against her will; or (b) in order that she may be forced or
seduced to illicit intercourse or knowing it to be likely that she will
be forced or seduced to illicit intercourse. The second part of the
section requires two things. (1) By criminal intimidation or abuse of
authority or by compulsion inducing any woman to go from any
place; and (2) such going must be with intent that she may be, or
with knowledge that it is likely that she will be, forced or seduced to
illicit intercourse, with some person. If the girl was eighteen or over,
she could only be abducted and not kidnapped, but if she was under
eighteen she could be kidnapped as well as abducted if the taking
was by force or the taking or enticing was by deceitful means. The

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intention of the accused is the basis and the grave men of offence
under Section 366. The volition, the intention and the conduct of the
woman do not determine the offence; they can only bear upon the
intent with which the accused kidnapped or abducted any woman
and the intent of the accused is the vital question for determination
in each case. Kidnapping and abduction are two distinct offences.
The ingredients of the two offences are entirely different.
Kidnapping except kidnapping from India is an offence against
guardianship. It consists of enticing or removing a girl from the
keeping of the lawful guardian without her consent. Abduction is an
offence as defined in Section 362 when a person is by force
compelled or by deceitful means induced to go from any place. In
abduction the person abducted may be a minor or a major.
Kidnapping is punishable per se in terms of Section 363. Abduction
on the other hand is not punishable per se, and is punishable only
when accompanied by a particular purpose as contemplated
in sections 364 to 366. But as kidnapping also may be for the same
purposes, Sections 364 to 366 deal with both kidnapping and
abduction for the purposes stated therein and prescribe the
punishments.

20. It may be well to recall at this stage, the age old maxims which run
like a golden thread through our criminal jurisprudence. They are
that the accused is presumed to be innocent unless proved guilty, the
quality of proof must be beyond any reasonable doubt, the Court
must be morally certain of the guilt of the accused before recording
conviction of the accused and in case any doubt remains lurking in

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the mind of the Court in this behalf, the benefit thereof must go to
the accused. The basic idea behind these principles is that the liberty
of an individual is a most valuable and fundamental right which
inheres in him and it should never be jeopardized unless the court,
after bringing its judicial experience and acumen to bear upon the
facts placed before it, comes to an inescapable conclusion that the
guilt against the accused before him has been proved beyond all
reasonable doubt.

21. Now looking at the facts of the case in hand in the light of the above
foregoing principles, I feel that the conviction of the accused is not
sustainable. In fact, this Court is constrained to observe that the trial
court has not cared to use his judicial acumen and experience while
appreciating the evidence on record. It is clear that in order to hold a
person guilty of an offence under Section 366 of the Ranbir Penal
Code, it must be proved that the accused played an active part in
taking away a female , for seducing her to illicit intercourse. Apex
Court in Sadashiv Ramrao Hadbe v. State of Maharashtra (2006) 10
SCC 92, wherein it has been observed that it is true that in a rape
case the accused could be convicted on the sole testimony of the
prosecutrix if it is capable of inspiring confidence in the mind of the
Court and if the version given by the prosecutrix is supported by
medical evidence and the whole surrounding circumstances makes
the case set up by the prosecutrix highly probable and believable.
Therein it is also observed that the Court shall be extremely careful
in accepting the sole testimony of the prosecutrix when the entire
case is improbable and unlikely to happen. The Apex Court

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in Narayan v. State of Rajasthan reported in (2007) 6 SCC 465, held
that though evidence of prosecutrix can alone sustain conviction of
the accused but if the evidence is found so artificial that it cannot be
accepted, conviction and sentence imposed upon the accused for
offences punishable under Sections 363, 366 and 376 IPC is liable to
be set aside.

22. On appreciation of evidence led by prosecution, I am of the
considered opinion that court below has completely misdirected
itself by relying on the statement of victim with regard to
commission of rape and abduction. Victim has stated that the
accused forcibly dragged her out of the house towards the road
where the vehicle was parked in which two other persons were also
sitting. The accused took her to Moga. She does not know the other
two persons who were also in the vehicle. This story of victim
appears to be false as I/O has not involved other two persons in
commission of crime; accused single handed cannot drag victim
from her house and put him in vehicle standing on road. I/O Gulam
Mohd. has belied this version of victim who has stated that from his
investigation victim was brought on foot from house to the Bazar
and not on a vehicle.

23. Removing of girl from residential house to Bazar or to road side and
made her to sit in vehicle, is possible only if she would have gone
with her own consent; further it is not probable to take victim to
Jammu then to Moga, Punjab and then back to Botote, and to keep
victim for one and half months forcibly. PW-7 Lady Dr. Rehana,
has stated that no marks of violence on body of victim were found;

CRA No.06/2006 Page 18 of 23

she was habitual of intercourse; Victim at the time of examination
was carrying the pregnancy for the last two months. This shows that
victim has enjoyed the company of accused with her consent. Victim
was major at the time of occurrence, as such consent given is very
material and goes to root of case; this circumstance belies story of
victim with regard to abduction and forcibly sexual intercourse with
her by accused. Court has based his conviction on conjectures and
surmises.

24. In Ram Das v State of Maharashtra reported in 2007 (2) SCC
170, apex court has held that conviction on the sole testimony of
prosecutrix would be sustainable only where the court is convinced
about truthfulness of prosecutrix and there exists no circumstances
which cast a shadow of doubt about her veracity.

25. In present case, story of forcible sexual intercourse has been belied
by doctor, who finds no injury on private parts of victim and found
victim pregnant at the time of examination. There should be sterling
quality of statement of victim for basing conviction on her sole
testimony.

26. Court below has relied on section 114-B of the Evidence Act, which
provides, that if the prosecutrix deposes that she did not give her
consent, then the Court shall presume that she did not, in fact, give
such consent. This presumption is always a rebuttable presumption.
The fact of rebuttable presumption can be gathered from facts of
each case and other attending circumstances of the case. Consent
may be express or implied. This consent can also be inferred from

CRA No.06/2006 Page 19 of 23
facts of the case. The facts of the instant case do not warrant that the
provisions of Section 114-B of the Evidence Act be pressed into
service. Because as already held victim has gone from Ramban to
Moga Punjab, lived there for quite some time, then came back to
Batote, lived with accused for one and half month and became
pregnant. So impliedly it can be inferred that she was consenting
party. She was having sufficient opportunity to disclose about her
abduction while going from Ranban to Moga Punjab and then back
to Batote; she has also stated that accused used to go out of house to
bring food at Batote, even then she did not run away. In cross
examination, she has deposed that she has not reported that the
accused had threatened her.

27. In AIR 1998 SC 2694 in case titled Kuldep K. Mahato v. State of
Bihar, it is held as under:-

“Then coming to the conviction of the appellant under Section 376
IPC, although both the courts below have held after accepting the
evidence of prosecutrix being truthful held that the appellant has
forcibly committed the rape, we are of the opinion that the said
finding is unsustainable. The prosecutrix had sufficient opportunity
not only to run away from the house at Ramgarh but she could have
also taken the help of neighbours from the said village. The medical
evidence of Dr. Maya shankar Thakur – P.W.2 also indicates that
there were no injuries on the person of the prosecutrix including her
private part. Her entire conduct clearly shows that she was a
consenting party to the sexual intercourse and if this be so, the
conviction of the appellant under Section 376 IPC cannot be
sustained. There is one more additional factor which we must
mention that it is not the case of the prosecutrix that she was put in
physical restraint in the house at Ramgarh, with the result her
movements were restricted. This circumstance also goes to negative

CRA No.06/2006 Page 20 of 23
the case of forcible intercourse with the prosecutrix by the
appellant.”

28. In AIR 2012 SC 2281 in case titled Narender Kumar v. State
(NCT of Delhi ) it has been held as under:-

“17. Where evidence of the prosecutrix is found suffering from
serious infirmities and inconsistencies with other material,
prosecutrix making deliberate improvements on material point
with a view to rule out consent on her part and there being no
injury on her person even though her version may be otherwise,
no reliance can be placed upon her evidence. (Vide: Suresh N.
Bhusare Ors. v. State of Maharashtra, (1999) 1 SCC 220)

18. In Jai Krishna Mandal Anr. v. State of Jharkhand, (2010)
14 SCC 534, this Court while dealing with the issue held: “The
only evidence of rape was the statement of the prosecutrix herself
and when this evidence was read in its totality, the story projected
by the prosecutrix was so improbable that it could not be
believed.”

19. In Rajoo Ors. v. State of Madhya Pradesh, AIR 2009 SC
858, this Court held that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed, more so as her
statement has to be evaluated on par with that of an injured
witness and if the evidence is reliable, no corroboration is
necessary. The court however, further observed:

“It cannot be lost sight of that rape causes the greatest distress and
humiliation to the victim but at the same time a false allegation of
rape can cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected against the
possibility of false implication there is no presumption or any basis
for assuming that the statement of such a witness is always correct
or without any embellishment or exaggeration.”

20. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15
SCC 566, this Court held has under: “It is true that in a case of
rape the evidence of the prosecutrix must be given predominant

CRA No.06/2006 Page 21 of 23
consideration, but to hold that this evidence has to be accepted
even if the story is improbable and belies logic, would be doing
violence to the very principles which govern the appreciation of
evidence in a criminal matter.”

29. Supreme Court in case titled Rajak Mohammad vs The State of
Himachal Pradesh on 23 August, 2018 in CRIMINAL APPEAL
NO(S).1395/2015, it is held as under:-

“3. Apart from the above, from the evidence of Bimla Devi
(P.W.7) it appears that the prosecutrix has remained with the
accused appellant for about two days in Kullu in the house of
P.W.7 and that there were about 60-70 houses in the village. The
materials on record also indicate that the prosecutrix remained
in the company of the accused appellant for about 12 days until
she was recovered and that she had freely moved around with
the accused appellant in the course of which movement she had
come across many people at different points of time. Yet, she did
not complain of any criminal act on the part of the accused
appellant.

4.
5.

6.————–

7. While it is correct that the age determined on the basis of a
radiological examination may not an accurate determination and
sufficient margin either way has to be allowed, yet the totality of
the facts stated above read with the report of the radiological
examination leaves room for ample doubt with regard to the
correct age of the prosecutrix. The benefit of the aforesaid doubt,
naturally, must go in favour of the accused.

8. We will, therefore, have to hold that in the present case the
prosecution has not succeeded in proving that the prosecutrix
was a minor on the date of the alleged occurrence. If that is so,
based on the evidence on record, already referred to, we will
further have to hold that the possibility of the prosecutrix being a
consenting party cannot be altogether ruled out.

9. We will, therefore, have to conclude that the accused appellant
deserves to be acquitted on the benefit of doubt. We,

CRA No.06/2006 Page 22 of 23
consequently, set aside the order of the High Court and the
conviction recorded as well as the sentence imposed and acquit
the accused appellant of the offences alleged. We further direct
that the accused appellant be released from custody forthwith
unless his custody is required in connection with any other case.”

30. In view of facts and circumstances of the case especially the
evidence of victim, as discussed above, are not found to be cogent,
reliable and trustworthy, not to speak of sterling quality inspiring
the confidence of the court and to base the conviction and sentence
on such evidence. The prosecution has, thus, failed to prove charge
against appellant beyond reasonable doubts.

31. Hence, appeal is allowed; judgement of conviction and order of
sentence passed by court below passed are set aside. Accused/
appellant is acquitted; he is discharged from bail bonds.

(Sanjay Kumar Gupta)
Judge
Jammu:

30.11.2018
Vijay

CRA No.06/2006 Page 23 of 23

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