Important Point – Mere delay in lodging FIR cannot be regarded by itself as fatal to case of prosecution.

1. State is in appeal against the judgment of acquittal dated 12.02.2015 rendered by the court of learned Sessions Judge, Budgam in Session Case No. 142/S, whereby respondents-1, 3, 5 and 6 have been acquitted after their trial for offences under sections 376, 109 RPC arising in FIR No. 40/2013 of Police Station, Khansahib. When this appeal came up before a Division Bench of this Court at Srinagar on 03.03.2015, the learned Bench stayed the impugned judgment to the extent of respondent No. 1, Gulzar Ahmad Bhat (hereinafter, for short, R-1) and issued direction for taking him in judicial custody.

2. We have heard learned counsel for the parties and perused the record.

3. Facts of the prosecution case as set out before the trial court are that R-1 was running a religious institution, namely, Noorni Fatima Zuhra (Radia-allah tallah Anhuma) at Shamsabad, Chadoora. PWs 1 to 5 (names not to be disclosed herein) had secured admission in this institution. On 18.05.2013 PWs 1 to 4 lodged a written information (for short the FIR) to the Dy. S. P. Budgam alleging that R-1 has repeatedly raped them. They alleged in the FIR that R-1 had been calling them individually in his room, he used to play his tape recorder at such high volume that their voice and screams were not heard outside the room and to make them unconscious by administrating magic or reciting mantras. All this continued up to 06.12.2012 they alleged. On this information, offence under section 376 RPC came to be registered at Police Station, Khansahib on 19.05.213 as FIR No. 40/2013 and investigation by the police commenced.

4. The Investigating Officer (I.O.) prepared sketch map of the place of occurrence, he seized articles like mattresses, tape recorder etc. from the bedroom of R-1 and sent some of the seized items for chemical analysis to the Forensic Science Laboratory, Srinagar. PWs 1 to 4 were got medically examined. R-1 was also got medically examined for his potency check up. Statements of PWs 1 to 5, were recorded in terms of section 164-A of the Code of Criminal Procedure (Cr.PC). On investigation it was found that R-1 committed rape on PWs 1 to 4, whereas respondents 2 to 13 facilitated and assisted in commission of the offence by R-1. Commission of offence under section 376 RPC was thus, established against R-1 and offence under section 376/109 RPC was established against the other respondents. Respondents 1 to 6 were arrested whereas others could not be arrested as they had absconded.

5. On completion of investigation the SHO, Police Station, Khansahib preferred charge-sheet for commission of offence under section 376 against R-1 and section 376/109 RPC against the others in the committal court. Learned committal court initiated proceedings under section 512 Cr. PC against respondents 7 to 13 and committed the case to the court of learned Sessions Judge, Budgam for trial. The trial court vide its order dated 16.09.2013 framed charge under section 376 RPC against R-1 and 376/109 RPC against respondents 2 to 6. They denied the charge and claimed to be tried. Prosecution thus, entered its evidence and, besides PWs 1 to 5, produced twelve other witnesses, namely, PWs 1-5, Gh. Rasool Bhat (PW-6), Shabir Ahmad Bhat (PW-7), Gh. Mohammad Bhat (PW-8), Nazir Ahmad Ganaie (PW-9), Bashir Ahmad Bhat (PW-10), Dr. Shaheena Mir(PW-11), Dr. Misbah Samad (PW-12), Syed Ahmad Shah, Sub Inspector (PW-14), Gh. Jeelani, Sub Inspector (PW-15), Bashir Ahmad Dar, Dy.SP, SDPO, Khan Sahib, (PW-16), Harmeet Singh, Additional SP, Budgam (PW-17) and HC Nazir Ahmad (PW-18). Mohammad Hussain Shah, cited as PW-13 in the charge sheet, however, died before his evidence in the court.

6. The trial court examined respondents 1 to 6 in terms of section 342 Cr. PC and vide order dated 27.11.2014 acquitted respondent Nos. 2 and 4 in terms of section 273 Cr.P.C. Respondents 1, 3, 5 and 6 produced six witnesses in their defence, namely, Sami Jan (DW-1), Sakeena Maqbool (DW-2), Latifa Banoo (DW-3), Irsh