State Of J&K vs Sunil Kumar And Others

Puneet Gupta, J

The application has been filed seeking leave to appeal against the judgment dated 27.08.2018, passed by the learned Additional Sessions Judge, Rajouri, whereby the respondents have earned acquittal in the challan.

The father of the prosecutrix filed a complaint on 06.10.2009 at Police Station with the averment that his daughter aged about 13 years had gone to Nowshera market on 03.10.2009 at about 4 PM but did not return back. The accused Sunil Kumar used to visit his house and is missing from his home from that day. Mst. Kajal Devi and Som Raj used to entice his daughter and have now kidnapped her. Despite search his daughter has not been traced. This complaint resulted into lodging of FIR No. 137/2009 under Sections 363/109 RPC with concerned Police Station. During the course of investigation, the prosecutrix was recovered and statements of witnesses were recorded and the medical examination of the prosecutrix was also conducted by the medical board. Offences under Sections 376/201 RPC were also added in the charge sheet against the accused Sunil Kumar. The investigation was carried out by different investigating officers. On the completion of the investigation the charge sheet was laid against seven persons. The accused Rubi Devi and Nisha Devi were separately charge sheeted as they were found to be juveniles. The case was committed by the court of learned Sub-Judge (JMIC), Nowshera to the court of learned Principal Sessions Judge, Rajouri and was further assigned to the court of Additional Sessions Judge, Rajouri for disposal under law. The accused Sunil Kumar was charged for commission of offence under Sections 363/376/109 RPC whereas the accused Som Raj and Mst. Kajal Devi were charged under Sections 363/109 RPC. The accused Manohar Lal, Rano Devi and Parshotam Lal were discharged by the court. All the three accused denied the charges and claimed trial.

The prosecution examined as many as eleven witnesses out of twelve cited in the challan.

In order to succeed in the challan the statement of the prosecutrix has to be found credible by the trial court. The prosecutrix in her statement recorded in the court during trial has stated that on 3rd October 2009, Rubi and Nisha who are her friends had told her to meet them at their residence and had brought her to their house. She was offered Kheer and after some time she felt dizziness and was brought to the market on the pretext for getting medicine for her where she met the accused, his parents and the maternal grandparents. She was told by Sunil Kumar that Nisha is sitting inside a vehicle (Video Coach Bus) but she failed to find her there. As she was about to alight from the vehicle the said Sunil Kumar slapped her and asked her not to alight from the vehicle. The witness has then deposed of being brought to Jammu by the accused Sunil Kumar and then taken to Batala, Punjab and committing sexual assault on her at Batala Railway Station. On the next day she was brought back to Jammu in a Bus and from where she was brought to Barvi Nowshera in a Sumo vehicle and there also accused committed rape with her. Her marriage was arranged by the accused persons and despite the fact that she tried to run away she could not succeed. She was rescued from the clutches of the accused by her brother Vijay Kumar from the forest area as he was informed of her whereabouts by some person. The witness has then deposed of being produced before the Dy.S.P and the court and has also deposed about her statement being recorded in the court where the Judge told her that no rape has been committed with her and asked her to put her signatures but she refused to do the same. Her statement was again recorded before the court at Rajouri. During cross-examination she has deposed that she has studied up to 2nd/3rd standard. The accused Sunil Kumar had slapped her in the Bus and threatened her and no passenger had objected to the same. Rape was committed on the road side at some open place outside Batala Railway Station and she had not disclosed this fact to anyone there. Sunil Kumar had torn her clothes and she had worn clothes which had already been given by Nisha to the accused Sunil Kumar. The witness has then deposed about the fact recorded in her statement under Section 161 Cr.P.C about the rape having committed at Railway Station, Jammu being wrongly mentioned therein and also her statement to the effect that rape was committed on her at Jammu Railway Station as mentioned in 164-A Cr.P.C. She also speaks of one S. Balwant Singh who accompanied her at Rajouri and Nowshera courts. She also approached the High Court and at that time also she was accompanied by S. Balwant Singh. She had not married the accused Sunil Kumar. She has denied that her name is Monika and that she changed her name when the certificate dated 07.11.2009 was collected. She did not tell anyone of her rape episode from Jammu to Batala and then back from Batala to Jammu as accused Sunil Kumar told her that he will drop her back home after committing rape with her. She had deposed about consuming Kheer and having dizziness thereafter to the police but the same is not mentioned in the statement under Section 161 Cr.P.C nor is it mentioned in the statement that she had met with parents and grandparents of accused Sunil Kumar in the market.

As the statement of the alleged victim is the backbone of the prosecution case the veracity of the statement of the prosecutrix is of utmost importance. The trial court while dissecting the statement of the prosecutrix has held that the statement of the prosecutrix does not inspire confidence. The trial court has rightly taken note of the contradictions in the statement of the prosecutrix recorded in the court vis-à-vis the statement recorded under Section 164-A Cr.P.C regarding her alleged rape initially committed by the accused and held to be unreliable because there is material variance whether the accused allegedly committed rape upon the victim at Batala Railway Station or Jammu Railway Station. Not only that the statement of the prosecutrix that she was kidnapped from Nowshera market (Bus Stand) is contrary to the site map of the place of occurrence EXT-P-10/1 proved by PW-10 which records the place of occurrence at Jangad Chowk Nowshera and the trial court has made specific mention of it in the judgment. The other discrepancies pointed out by the trial court include her stay at Batala Railway Station at the night of 03.10.2009 as mentioned in the court whereas as per her statement recorded under Section 164-A Cr.P.C she stayed at Railway Station, Jammu on that day and this discrepancy also links to being raped at Jammu or Batala Railway Station. The court has also doubted the testimony of the prosecutrix as she records different dates of being brought back by the accused to Barvi forest on 06.10.2009, 04.10.2009 or even on 05.10.2009 which contradicts the prosecution version which speaks of the prosecutrix being brought to Barvi forest by the accused on 05.10.2009.

The trial court has in detail thrashed the medical evidence which has come on record. The prosecutrix was examined by Board of Doctors at Nowshera on 06.10.2009 after her alleged recovery from the custody of accused on the same day. The trial court records that medical report EXPW-SK mentions no signs of external violence on any part of her body and no bruise or bite mark on the person of the prosecutrix. In nut-shell, no evidence suggesting any recent sexual intercourse was found nor the lab report showed any live or dead spermatozoa present on the slides prepared from the posterior fornix of vagina. The court while analyzing has held that the time gap between the alleged sexual intercourse is too small that the absence of any sign of sexual intercourse/mark of violence would surely be a material factor which court has to take note of to see if story projected is truthful or not. The time gap between the alleged occurrence of rape and medical examination is held by the trial court to be so little that the absence of any sign of rape/sexual intercourse on the person of the prosecutrix not only makes the testimony of prosecutrix improbable but cast a doubt as to the truthfulness of her testimony as well as of the prosecution case. The trial court holding that the accused No.1 had sexual intercourse with the prosecutrix in the intervening night of 05/06.10.2009 becomes doubtful and unreliable. The court has rightly held that her statement that she was made to consume Kheer having intoxicant in it by the two girls is material improvement in the initial version given by her to police as later on recorded under Section 164-A Cr.P.C. The court has also taken note of other material improvements or misses which have cropped up in the statement of the prosecutrix recorded at different points of time during investigation which prove fatal for the prosecution. The learned counsel for the State has not been able to convince this Court that the infirmities recorded by the trial court are not significant and were required to be ignored.

The trial court in the context of the statement of the prosecutrix has also recorded the contradictions in the statements of the parents of the victim. PW-1 Ved Parkash is the father of the prosecutrix and has contradicted not only the place of occurrence but also the date of occurrence as regards the statement of the prosecutrix and the case set up by the prosecution. PW-3 Krishna Devi, mother of the prosecutrix, has not deposed that her daughter had disclosed about the alleged sexual intercourse committed by the accused Sunil Kumar with prosecutrix at Batala or at Jammu Railway Station and to the same effect is the testimony of PW-4 Vijay Kumar, brother of the prosecutrix. This Court finds no reason not to agree with the finding of the trial court that the contradicted versions of the statements of above mentioned family members or failing to depose about the rape having been committed by the accused makes the prosecution case doubtful.

The trial court also validly held the prosecution case being doubtful as it has been held by the trial court that it has come in the deposition of the PW-1 and PW-3 that they had information from accused Nos. 2 and 3, Rano Devi and Manohar Lal, on the evening of 3rd October, 2009 that prosecutrix had made accused Sunil Kumar to elope with her which shows that the complainant and his family members were aware of the fact that prosecutrix was with accused Sunil Kumar and therefore there was no requirement for lodging a missing report and could have informed the police on the date of occurrence itself. The delay in lodging the FIR after four days despite in know of the above fact is again held to be fatal by the trial court. This Court also finds that the delay herein in this case is without any explanation from the prosecution. The prosecutrix was recovered from the possession of the accused is also not believed by the Court in view of the statements of PWs-Ved Parkash and Vijay Kumar.

The trial court, last but not the least, has doubted the identity of the person to whom the date of birth certificate belongs to in view of the statements of the prosecution witnesses and the documentary evidence on record. The trial court has also noticed that the statements of the material witnesses including that of the prosecutrix and her parents have been recorded after one month and that of brother after more than five months of the alleged occurrence though they were available and no explanation for delay is available on the record and makes prosecution case doubtful. The trial court has referred to case titled Ganesh Bhavan Patel v. State of Maharashtra, 1992 (3) SCC 106 wherein the Apex Court has held that where the witnesses are available or could be available for examination but the delay has occurred it would cast a doubt upon the prosecution case. Again, we see no reason to take contrary view on this aspect of the matter.

In the light of what has been held by the trial court after detailed analyzing of prosecution evidence that the case of the prosecution is full of inconsistencies and material contradictions which makes the prosecution case doubtful this Court has no reason to discard the findings and disagree with the acquittal of the respondents herein.

The application seeking leave to file the appeal is held to be without merit and is, accordingly, dismissed.

The application seeking condonation of delay in filing the appeal also stands dismissed.