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2018 Supreme(J&K) 730
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
State of J&K - Petitioner
Versus
Ravi Kumar - Respondent
CRAA No. 13 of 2005 and IA No. 1 of 017
Decided On : 16-11-2018
Advocate Appeared:
For the Appellant(s): Mr. Suneel Malhotra, GA
For the Respondent(s):Mr. C. B. Slathia, Advocate
Important Point – If there comes slightest doubt regarding involvement of accused then court should not go on convicting accused.
Headnote:Ranbir Penal Code, 1989 – Sections 363/376 – Kidnapping and rape – Acquittal appeal by State – In criminal trial, burden always lies on prosecution to establish case against accused – Prosecution has to discharge its onus of proving case against accused beyond all reasonable doubts which is cardinal principle of criminal jurisprudence – Court can base its conviction in rape case only on sole testimony of Prosecutrix if her testimony inspires confidence of court – There is contradiction with regard to recovery of victim – There is also contradiction with regard to seizure memo of clothes of victim – Story of rape projected by victim does not inspire confidence of court – Appeal dismissed. (Paras 8, 10, 13, 14, 18 and 19)
Result – Appeal dismissed.
Sanjay Kumar Gupta, J.
The State has preferred this Criminal Acquittal Appeal against judgment dated 31.08.2004 passed by learned Principal Sessions Judge, Jammu in case FIR No.160/1996, registered at Police Station, Kahna Chak, under Sections 363/376 RPC, whereby respondent herein stands acquitted of the charges.
2. The case of the prosecution is based on occurrence dated 14.12.1996 when complainant, namely, Garu Ram lodged a verbal report with the Police Post Gharota stating therein that on 13.12.1996 at evening he came back from his duty when his wife informed him that his daughter had not come back to home while she left for school at 8.45 in the morning. She was studying in 8th class at Government Middle School Seeri Panditan and her age is 15/16 years. He searched his daughter at the houses of his relations but she could not be traced. He suspected that Ravi Kumar accused had kidnapped his minor daughter. On this, report No.10 dated 14.12.1996 was entered at Police Station Gharota and a copy of the same was sent to Police Station Kahna Chak for registration of the case under Section 363 RPC. FIR No.160/1996 was registered with the Police Station, Kahna Chak and after investigation a challan under Section 363/376 RPC was presented in the court below.
3. After perusing the documents produced by the prosecution under Section 173 Cr.P.C., the court below came to the conclusion that a prima facie case under Section 363/376 RPC was made out against the accused Ravi Kumar and accordingly charge was framed against the accused by the court below on 25.02.1997. The contents of the charge were read over and explained to the accused, who pleaded not guilty and claimed to be tried. The prosecution in order to prove its case had examined the witnesses, namely, Neel Kumar PW-1, Garu Ram PW-2, Rano Devi PW-3, Devi Dayal PW-4, Victim (name of the victim is not disclosed) PW-5 and Gurdev Singh ASI PW-6. Witness Pappu was given up as he has been turned hostile by the prosecution, whereas Dr. Romesh Chander was also given up as he was not necessary witness in the case. The accused has not led any evidence in defence. Court below after trial has acquitted the accused.
4. Before proceeding ahead the brief resume of the statements made by the prosecution witnesses is as under:-
Neel Kumar PW-1 has stated that he knows the accused and the victim is his niece (brother’s daughter). On 13.12.1996 victim was missing and they started her search till 14.12.1996 and she could not be traced. During her search they came to know that accused Ravi Kumar had kidnapped the victim for marrying her. At that time the victim was studying in 6th class. He and his brother Garu Ram lodged the report with the Police Station Kahna Chak in respect of the kidnapping of victim by accused Ravi Kumar for marrying. The report was lodged by his brother verbally but he was accompanying his brother. He went along with police to the house of the accused. On enquiry by police, father of the accused told that the accused along with victim was sleeping in the adjoining room. Police went inside the room and found both the accused and victim sleeping there. Thereafter police called him and his brother inside the room for identification and they identified the accused and the victim. When police called them inside the room the Shalwar of victim was found near the pillow. He came out and police prepared the recovery memo and obtained his signatures. Police also seized Shalwar vide seizure memo EXPW-NK/1 and he identified his signatures on it. The victim was handed over on sapurdnama to her father vide sapurdnama EXPW-NK/2.
In cross examination he has stated that they came to know from the mother of accused Ravi that the accused had kidnapped the victim. They came to know this fact on 13th at 8.00 in the evening. The mother of accused met them outside his house at Raipur and gave this information. He knew the mother of accused earlier. His brother Naseebu Ram and his sister
