HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR Cr. Acq. Appeal No.05/2007 Date of Decision:11-07-2014 State of J&K Vs. Mohammad Shafi Rather & ors. Coram: Hon’ble Mr. Justice Mohammad Yaqoob Mir, Judge Hon’ble Mr. Justice Dhiraj Singh Thakur, Judge Appearing counsel: For the Applicant(s): Mr. Shuja-ul- Haq, GA. For the Respondent(s): Mr. N. A. Ronga. i) Whether to be reported in Digest/Journal YES/NO ii ) Whether to be reported in Press/Media YES/OPTIONAL PER YAQOOB, J: 1. Instant Appeal is directed against the judgment passed by the Court of 2nd Additional Sessions Judge, Srinagar, on 29.12.2006, by virtue of which respondents (accused) have been acquitted. 2. According to GA, learned trial court has not appreciated the evidence properly, judgment acquitting the accused is bad in the eye of law. While reading the prosecution evidence as has been led during the trial, was not able to substantiate his grounds of attack. 3. The prosecution case as unfolded is that on 3rd July, 1996 at about 9. 30 PM, when prosecutrix had come out of her residential house for easing in a washroom located outside her house, allegedly she was obstructed on her way by two persons who gagged her mouth, took her away forcibly where-after she was tied and subjected to rape. The assailants while hearing noise of opening of the door fled away along with her trouser. The blood was oozing from her private part, she was taken to hospital. The matter is stated to have been reported to the police on 8th July, 1996, as a result thereof case has been registered as FIR No.143/1998 P/S Safa Kadal for commission of offence punishable under Section 376 RPC. 4. Investigation of the case culminated in filing charge sheet(challan) against the respondents- accused for having committed the offence punishable under Section 376 RPC. The trial court has put the accused on trial. Out of listed 14 number of witnesses, 10 prosecution witnesses were produced. Prosecutrix is the only actual witness to the occurrence. Rest of the witnesses as produced have neither seen the accused nor the actual occurrence. It shall be quite relevant to precisely notice the relevant portion of the depositions of the prosecution witnesses as produced: PW Prosecutrix is categoric in her statement to the effect that after coming out of latrine situated outside her residence, someone intercepted her, after covering, her face told her that her husband is connected with BJP party, some of them caught her legs, she was taken, then two accused persons raped her one by one. She was tied with a willow tree. The accused persons were not masked, therefore, she identified them. In the cross-examination she has qualified that she was tied with the tree by the accused. First, she was subjected to rape then was tied with the tree. In fact, there were three accused persons who subjected her to sexual intercourse. She has stated that before the doctor who examined her she had divulged that she had a fall. Then has further qualified that the accused persons are known to her by face, she does not know their names. It is only when the accused persons were apprehended, she identified them and was apprised of their names. When the police brought accused persons before her, she identified them and came to know that the accused persons had committed rape upon her. Names of the accused persons were not told by her parents but when she gave the physical position of the accused persons, then they thought they might be the accused persons. PW Abdul Rahim(father-in-law of the Prosecutrix) has stated that the Prosecutrix was not available in the house as she had not come back after attending the call of the nature. He went towards door of his compound and heard a whisper. On opening the door, he saw the Prosecutrix at a distance of four yards in a bad condition. He gathered impression that militants have done the illegal act, therefore, he advised his wife that if any person meets at hospital, she must say that the Prosecutrix had slipped. The Prosecutrix after gaining conscience narrated it to her mother-in-law that the militants have not done this act but two persons have committed the act, whose names and address are not known to her but she can identify them. He has further qualified that the Prosecutrix had divulged it to her mother- in-law that there were six persons on spot. He has further qualified that he (witness) has not identified the accused persons on spot as is incorrectly made mention of in his statement under Section 161. It is also incorrectly recorded in his statement under Section 161 that four persons were fleeing. PW Fayaz Ahmad Bhat has stated that on 3rd October, 1998, when he came out of his home, he found Prosecutrix tied with a tree, her arms were tied, her clothes were torn. Some Mst. Afroza spotted two to four persons fleeing but she could not identify them in view of darkness. PW Nazir Ahmad Bhat has stated that on 3rd July, he heard some noise and came out and saw father of the Prosecutrix and other persons weeping. While going to the house of the Prosecutrix, he found her in a bad condition, she was unconscious. He saw mud on her face. He was told by the father-in-law and mother-in-law of the Prosecutrix that the Prosecutrix has been subjected to rape but did not reveal as to who actually committed the act PW Sonaullah Bhat has stated that on 3rd July at about 10 PM he went to washroom, heard noise from the house of Abdul Rahim Bhat. He enquired from Abdul Rahim Bhat the reason for noise, was told that the Prosecutrix had gone to attend the call of nature where some persons had tied her with tree. PW Ghulam Qadir Bakshi has stated that he heard some noise, came out from his house and found Rahim Bhat weeping. The Prosecutrix was lying unconscious. He was told that the Prosecutrix was tied with a rope. When Prosecutrix regained senses, she said that she can identify the persons who had committed the wrong with her PW Abdul Rashid Bhat has stated that on3.7.98 he heard noise, went to the house of Abdul Rahim where he found Abdul Rahim and his family members weeping. He was told that the Prosecutrix had disappeared and while coming out Prosecutrix was found tied with a tree. Further has qualified that the police did crackdown the Mohalla and the Prosecutrix told them that she can identify the accused persons who have committed rape upon here but does not know their names. Prosecutrix identified the accused persons from amongst 30/40 persons. He did not see the accused on the date of occurrence. PW Khatija(mother-in-law of the Prosecutrix) has stated that she had spotted Prosecutrix tied with willow tree, she was naked. She fell unconscious. She heard noise of running but did not see any one. It is the Prosecutrix who narrated that the accused committed rape upon her. Accused persons are nominated by the Prosecutrix. After 3 or 4 days police came on spot and recorded the statements. She has further stated that the police conducted the crackdown and the Prosecutrix identified the accused persons. PW Mohammad Shafi Ahangar, Naib Tehsildar, has stated that he conducted the identification parade pertaining to the accused. He went to the police station where three persons were produced before him in presence of the Prosecutrix. The Prosecutrix identified three persons who are present in the court but on cross examination has qualified that he does not know under what provision parade of the accused was conducted. He has recently been promoted to the rank of Naib Tehsildar. He does not know whether any form is to be filled before identification parade is conducted. The Prosecutrix was already present in the police Station. He has not mentioned the number of persons who were required in identification parade. The accused were straightway brought there where he was sitting. The faces of the accused persons were not covered at the time of identification parade nor he noted any identification mark of the accused. He did not make any attempt to mix the accused with 10 to 15 people. The identification was not conducted in the room of SHO. No respectable person is cited as witness to the identification parade. PW Dr. Dilshada has deposed that she examined the Prosecutrix. On examination there were no marks of violence or bruises on her body or on her private parts. On her medical examination no matting, uterus not palpable, no blood stains or semen on her clothes or on her private parts were detected. There was no evidence of recent intercourse, the Prosecutrix was in her early pregnancy. On cross-examination has qualified that for detecting commission of rape, she would conduct PV examination and the seminal examination. All the ingredients were found absent. There were no marks of violence, no spermatozoa were detected. Then has qualified that from medical point of view, the Prosecutrix had not been subjected to rape. This is the total evidence, which has been produced by the prosecution 5. Statement of the Prosecutrix is such, which by no standards inspires confidence for holding that the accused persons were the assailants. Her deposition is shaky and totally exaggerated, so is in the region of suspicion. Her stand that she was tied, subjected to rape, then coupled with the fact that she can identify the accused as she did not know the accused persons does not appear to be acceptable version. That apart, none of the witnesses other than the Prosecutrix has seen the assailants. When the Prosecutrix lodged the report, she had stated that two persons had subjected her to rape, then while examined in the Court has stated that three persons had committed rape upon her. 6. Now the most crucial point for consideration is the identity of the assailants. The accused persons appear to have been roped in. According to PW Abdul Rashid Bhat, during crackdown (cardon) of the Mohalla, from amongst 30/40 persons, Prosecutrix identified the accused persons(respondents). According to PW Mst. Khatija (mother-in-law of the Prosecutrix) police conducted the crackdown and the Prosecutrix identified the accused persons whereas according to the most important witness PW Mohammad Shafi Ahangar, Naib-Tehsildar, three accused persons were present in the police station. The Prosecutrix was also present there identified them and it is only these three persons (respondents) who were produced before him. The accused were straightway brought before him, their faces were not covered. He has admitted that he did not make any attempt to mix the accused with 10 to 15 people. 7. The Naib Tehsildar has been a novice not knowing the alphabet about the rule of identification parade. Section 9 of the Evidence Acthas been observed in breach. Thereafter he has also belied the statements of Abdul Rashid and Mst. Khatija who stated that during crackdown from amongst 30/40 people, Prosecutrix identified the accused persons, he has further qualified in clear terms that it is only three accused persons who were produced before him in the Police Station in presence of the Prosecutrix so were identified by prosecutrix. Identification parade has been a casualty and in the process three persons who were shown to the Prosecutrix were claimed to be the accused, which appears most suspicious. The position is further compounded by the medical evidence as PW Dr. Dilshada in her statement has qualified that there were no marks of violence or bruises on the body Prosecutrix or on her private parts. She has further qualified that there has been no recent marks of intercourse. Then has qualified that from medical point of view no rape had been committed upon the lady(Prosecutrix). 8. In view of the medical evidence can’t the version of the Prosecutrix be termed to be an exaggerated version as she has stated that blood was oozing from her private part, she was bruised, she had fell unconscious, her trouser was taken away, her frock was torn. Can the identity of the accused be said to have been established when there has been no proper identification parade. Why the matter has been reported to the police after a gap of three days has not been explained which also adds to the suspicions. 9. Cumulative effect of the appreciation of the evidence as led by the prosecution suggest that the whole episode has remained in the region of suspicion, guilt against the accused persons by no standard of proof has been proved. Acquittal of the accused is deducible from the evidence led, hence judgment recording acquittal of the accused by the trial court is un-interferable. Appeal being devoid of merit, as such is dismissed. 10. Trial court record along with copy of the judgment be sent back to trial court for follow up. (Dhiraj Singh Thakur) (Mohammad Yaqoob Mir) Judge Judge Srinagar 11.07.2014 “Mohammad Altaf ”