LAWS(J&K)-2017-12-16

STATE OF J&K Vs. SANJAY KUMAR

Decided On December 30, 2017
STATE OF JANDK Appellant
V/S
SANJAY KUMAR Respondents

JUDGEMENT

(1.) This acquittal appeal is directed against the judgment dated 28.09.2012 passed by learned Additional Sessions Judge, Udhampur (hereinafter referred to as "The trial Court") in file No. 66/Sessions titled State Vs. Sanjay Kumar.

(2.) The prosecution story as projected by the police in the charge-sheet is that the prosecutrix accompanied by her parents lodged a written complaint on 28.04.2006 in the police station Udhampur, stating therein that on the intervening night of 17/18th August, 2016, at about 1 a.m, the respondent entered into their house. The prosecutrix was sleeping in the open verandah. She was kidnapped by the respondent and taken to his shop situated nearby, where the respondent committed rape upon her. In the complaint, it was further stated that another person namely Kaka, the brother of respondent and one Yash Pal Singh S/O Hukma Singh were also present in the shop at night. All these three persons including the respondent took the prosecutrix to the nearby jungle in the wee hours of next morning, where the respondent once again committed rape upon her. The further prosecution version is that on 19.04.2006, the prosecutrix was taken to the house of respondent by all the three from where she managed to flee and reached her home. The matter was not immediately reported to the police for the reason that the father of the prosecutrix was away. Pursuant to the aforesaid written report, F.I.R No. 96/2006 was registered in the police station Udhampur against the respondent and two other persons namely Kaka and Hukam for commission of offences under Section 376 RPC. Consequent upon registration of the F.I.R, investigation was set in motion and the investigating officer after completing all requisite formalities, effecting seizures and recording the statement of witnesses under Section 161 Cr.PC as also after getting the reports from the Forensic Science Laboratory, Jammu with regard to the seized clothes and mattress allegedly containing semen stains, presented the challan in the trial Court only against the respondent exonerating the two other accused named in the written complaint i.e., Kaka and Yash Pal Singh. On 16.09.2006, the trial Court framed charge against the respondent for commission of offences under Sections 457/376/363/342 RPC. The respondent pleaded not guilty to the charge and claimed to be tried. The prosecution was, therefore, directed by the trial Court to lead evidence in the case. The prosecution examined as many as 18 witnesses out of total 25 witnesses cited in the charge-sheet. Prosecutrix is the only witness of occurrence whereas, the other evidence led by the prosecution is more or less circumstantial.

(3.) Before we consider the submissions made by the State in support of its appeal, it would be appropriate to take brief note of the statements of the relevant witnesses examined by the prosecution. The prosecutrix in her statement before the trial Court has stated that she knows the respondent who is her neighbour. On 8.04.2006, when she was sleeping alone in the verandah of her house at about 3 a.m, the respondent accompanied by three persons entered her house. They gagged her mouth and took her to the shop of the respondent. She was taken to a room situated at the back of the shop where the respondent committed rape upon her. She has further stated that on the same night, the respondent and his companions took her into a forest situated half a kilometre away. The companions of the respondent however, came back from the jungle and Yash Pal and Kaka Ram, two brothers of the respondent along with some other people came in the forest and took her to the house of the village Numberdar. She was taken along with the respondent to the police station. She claims that she made a statement to the police who after recording her statement got her signatures also. She, however, denied her signatures on the application lodged by her on 20.04.2006. She has also claimed that she had studied up to 9 th standard and had failed twice in the 10th class. Regarding her age, the prosecutrix submitted that her younger sister is 15/16 years old and that she was elder to her by one year. PW Noor Bano is the mother of the prosecutrix. In her deposition, she stated that she along with her children was sleeping inside the house whereas, the prosecutrix was sleeping in the verandah. She has further stated that in the morning, she did not find prosecutrix on her cot and thought her daughter might have gone out to attend the call of nature but when she did not come back, she enquired about her daughter in the locality. Next morning, her daughter came back home and told her that the respondent had kidnapped her. She, however, further stated that she did not know whether the respondent had committed rape upon the prosecutrix. She has also stated that prosecutrix was a student of 10th class and had failed in the said class once. PW Ghulam Ali is the father of the prosecutrix. He is a hearsay witness and has deposed whatever was allegedly told to him by his wife PW Noor Bano. He has, however, stated that the age of his daughter was 15/16 years. He, however, could not state the year and month of the birth of the prosecutrix. He, however, proved his signatures on the seizure memos with respect to the seized clothes of his daughter. PW Abdul Karim, however, denied that his statement was ever recorded by the police. He is also a hearsay witness having heard that the daughter of PW Noor Bano had gone missing. He has not stated anything incriminating against the respondent. Similarly, PW Shah Mohd. is only a witness to the disclosure memo though he identified his signatures on the disclosure memo but stated that the police got his signatures forcibly. He even denied having made the statement as recorded by the police under Section 161 Cr.PC. PW Mohd. Sharif is a person with whom the prosecutrix had been later on married. He has denied that any such occurrence with regard to the kidnapping of the prosecutrix and commission of rape upon her by the respondent had ever happened. PW Sakeena, PW Hukma Singh and PW Zunaid Ali and PW Swami Raj are the witnesses to different seizure memos with respect to the seized articles. PW Zunaid Ali has specifically stated that nothing was recovered in his presence at the instance of respondent and that the contents of recovery memo were incorrect. PW Dr. Sushma Dhar was one of the members of the board of doctors constituted for examination of the prosecutrix. In her deposition, she stated that she did not find any marks of violence on the person of the prosecutrix though on local examination, the Hymen was found torn and old tears present. She further stated that there was no fresh laceration present and vaginal smear showed no Spermatozoa dead or alive. She finally opined that prosecutrix was found habitual to intercourse. PW Dr. Ashwani Kumar and PW Dr. Arvind who were other members of the medical board have echoed the statement made by PW Dr. Sushma Dhar. The medical witnesses aforesaid thus, could not come to a definite opinion with regard to occurrence of rape in the recent past. PW Dr. Mainsha Langer is a radiologist who had examined the prosecutrix. She, in her deposition, has stuck to her opinion that the prosecutrix was more than 14 years and less than 16 years. Interestingly, in her deposition, PW Dr. Manisha Langer stated that she was not aware of the term "Ossification Test". She further stated that the age varies from place to place according to the climatic conditions. She, however, stated that the certificate was given by her after examining the skiagram. She, therefore, has not been able to give any definite basis for arriving her opinion viz-a-viz the age of the prosecutrix. The other witnesses are not relevant insofar as the prosecution case is concerned. PW Aftab Hussain has narrated the manner in which he conducted the investigation in the matter. He further stated that he recorded the statement of prosecutrix on 21.04.2006 though the prosecutrix had lodged the F.I.R on 20.04.2006. He has further stated that though the prosecutrix had read up to 9 th in the school but he did not get a certificate from school authorities with respect to her date of birth rather he got the age of the prosecutrix determined from doctor. This in a nutshell is the evidence adduced by the prosecution.