Jammu & Kashmir High Court – Srinagar Bench
Through: Mr. S. R. Hussain vs State Of J&K Through Public Prosecutor on 3 January, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 21.12.2024
Pronounced on: 03.01.2025
CRA No. 10/2003
CrlM No. 385/2024
c/w CRA No. 11/2003
(i) Abdul Gani Akhoon
S/O Gh. Mohd. Akhoon
R/O Breen Nishat, Srinagar.
.....Appellant(s)
Through: Mr. S. R. Hussain, Advocate.
V/s
State of J&K through Public Prosecutor
.....Respondent(s)
Through: Mr. Jahingeer Ahmad Dar, GA.
(ii) Noor Mohammad Bhat
S/O Abdul Ahad Bhat
R/O Pahloo Brain, Nishat, Sgr.
.....Appellant(s)
Through: Mr. Z. A. Qureshi, Senior Advocate with
Ms. Moneesa, Advocate.
V/s
State of J&K & Ors.
.....Respondent(s)
Through: Mr. Jahingeer Ahmad Dar, GA.
CORAM:
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
JUDGMENT
1. Both these appeals arise out of the judgment of conviction and
sentence dated 26.08.2003 passed by the court of learned 4th Additional
Sessions Judge, Srinagar, (for short ‘the Trial Court’), whereby appellant in
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c/w CRA No. 11/2003
CRA No. 10/2003 has been convicted and sentenced to rigorous
imprisonment for seven years for commission of offence under Sections 376,
two years for offence under 366 of RPC and one year for commission of
offence under section 344 RPC, whereas the appellant in Appeal No. 11/2003
has been convicted and sentenced to two years of imprisonment for
commission of offence under Section 366 of RPC and one year for
commission of offence under Section 344 of RPC. Besides, both the
appellants have been directed to pay fine of Rs. 2,000/- each.
2. The appellant-Abdul Gani Akhoon has impugned the judgment
and order of conviction dated 26.08.2003 on the ground that the learned Trial
Court has passed the impugned judgment on the sole testimony of the
prosecutrix, and her statement was to be necessarily corroborated by other
witnesses, in respect of the place where the prosecutrix was allegedly
confined, who was the driver of auto rickshaw etc. Precisely it is urged by the
appellant that other material witnesses were not associated with the
investigation to corroborate the statement of the prosecutrix.
3. The appellant-Noor Mohammad has impugned the judgment on
the ground that judgment is contrary to weight of evidence and the learned
trial court has not appreciated the evidence in its right perspective.
4. In nutshell, both the appellants have assailed the judgment on the
ground that the learned Trial Court has not appreciated the evidence.
5. Mr. Z. A. Qureshi, learned senior counsel for the appellant in CRA
No. 11/2003 has vehemently argued that there are different stories with regard
to the prosecutrix going missing and the prosecution has not proved the
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abduction by the appellant by leading cogent evidence. He has further
submitted that the prosecutrix has made contradictory statements and in view
of the infirmities in her statement, the appellant could not have been
convicted.
6. Mr. S. R. Hussain, learned counsel for the appellant in CRA No.
10/2003 has argued that the learned Trial Court has convicted the appellant
on the sole testimony of the prosecutrix and her evidence was not of such a
nature that the appellant could have been convicted, particularly in view of
the fact that the house wherein the prosecutrix was allegedly confined and
raped, was neither identified by the prosecutrix nor any attempt was made by
the Investigating Officer to identify the said place. He has further argued that
as per the prosecution evidence, both the appellants were already arrested
when the clothes of the prosecutrix were seized by the police on 02.03.1997,
whereas the arrest of the appellants has been shown as 05.03.1997.
7. Mr. Jehangir Dar, GA has argued that the prosecutrix had clearly
deposed about the commission of offence of abduction, wrongful
confinement and rape by the appellants and her sole testimony was sufficient
enough for conviction of the appellants.
8. Heard and perused the record.
Prosecution Case:
9. Briefly stated, the prosecution story is that on 01.03.1997, the
prosecutrix appeared in the police station-Nishat and stated that on
13.02.1997, she had gone to the house of her neighbour-Mohammad Shaban
for getting a frying pan. After few minutes, Aziz Jan came on spot, shouting
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that she was having illicit relationship with the son of the owner of house. No
one listened to her. Her husband was out of the home. She in order to get
shelter in the house of her maternal aunt at Dalgate, reached near Lam, where
Noor Mohammad met her and insisted her to go back to her home. Thereafter,
she boarded the auto along with him and found Gani Akhoon already sitting
in the said auto. She sat in between the two. She was blindfolded with her
dupatta and taken to an unknown place and kept in a dark room, that was
having ventilation at height but without window. Thereafter, they locked her
from outside. At around 11:00 PM in the night, both the accused opened the
door and Abdul Gani Akhoon entered the room and forcibly removed her
clothes, causing injuries to her. Injuries were still present on her body and
thereafter, he made her lie on the ground and committed rape upon her. At
that time, Noor Mohammad was guarding at the door. She was forcibly made
to consume Kashmiri bun and one cup of tea. She remained there till
01.03.1997, when in the morning on 01.03.1997, she was blindfolded and was
taken out of room and left at unknown location. After removing scarf from
her eyes, she was threatened that if she disclosed the incident to anyone, her
family members would be killed. After walking for a while, she reached
shrine of Syed Yaqoob Sahib at Sonwar, where one lady gave her dupatta. On
receipt of this information, FIR No. 22/1997 was registered on 01.03.1997 at
16:10 hrs for commission of offences under Sections 366, 376, 344 and 354
of RPC. The prosecutrix was examined by the doctor. The statement of the
prosecutrix was recorded under Section 164 of CrPC and after recording the
statement of other witnesses, charge sheet was filed against the three accused
before the court of learned Judicial Magistrate (Judge Small Causes),
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Srinagar, and the same was committed to the court of learned Sessions Judge,
vide order dated 26.05.1997, which was later assigned to the learned Trial
Court vide order 24.06.1997.
10. Vide order dated 18.02.1998, the appellant No.1 was charged for
commission of offences under sections 376,366,354,344 R.P.C, appellant
No.2 was charged for commission of offences under section 366,344 R.P.C
and the third accused namely- Aziz Jan was discharged.
11. The prosecution had cited as many as seven witnesses, out of
which, six witnesses were examined by the prosecution. Defence examined
two witnesses. After hearing the parties, the learned trial court convicted the
appellants as mentioned above.
12. For appreciating the contentions raised by the appellants, it is
necessary to have a brief resume of the relevant part of the evidence led by
the parties.
Prosecution Evidence:
13. Prosecutrix: She has stated that she knows the accused. She had
gone to the house of her neighbour for getting a frying pan. The accused
Abdul Aziz came after her with shovel and asked her to marry him. She told
him that she was already married, having two children. He used to threaten
her that he would defame her in such a manner that she won’t be able to come
outside. Then accused Abdul Aziz called the residents of the Mohalla, and
she proceeded to the house of her maternal aunt and when reached at Lam
Nishat, in the evening, the accused No. 2-Noor Mohammad called her and
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enquired as to where she was going. She replied that she was going to her
maternal aunt. He further asked as to why she was running, as she was having
children and further told her that he would take her back to her house. He
further told her that he would go via Brein and made her to sit in the Auto.
The accused No. 1-Abdul Gani Akhoon sat on her right side and the accused
No. 2-Noor Mohammad sat on her left side. When auto travelled some
distance, both the accused persons covered her mouth and eyes with scarf.
She could not say as to where she was taken by the accused, but was locked
in a small room. For three days, her hands and legs were tied. The accused
No. 1-Abdul Aziz did wrong with her and the accused No. 2-Noor
Mohammad guarded at the door. She was kept in the room for sixteen days
and after sixteen days, she was taken out of the room and was threatened not
to disclose the incident to anyone about the occurrence, otherwise, she would
be killed. She was again blindfolded and at early dawn, she was left at one
lane. When she proceeded towards the lane, she reached the shrine of Syed
Sahib at Sonawar. The accused took away her pheran and scarf. Thereafter,
she went to the police and made oral report with the Kothibagh Police Station.
The police arrested the accused and thereafter police of Nishat Police Station
took the accused with them. She had put thumb impression on paper before
the police. During cross-examination, she stated that she does not remember
the date of occurrence, but it was fourth day of Eid. The accused-Azeem Jan
is the son of cousin of her father. Azeem Jan is having three kids. Her
marriage has been solemnized in her Mohalla and the accused Azeem Jan
resides near her house. It is true that Noor Mohammad resides in Pahloo,
Brien. Pahloo, Brein, is at a distance of 2 to 4 kilometres away from her house.
Page 6 of 19 CRA No. 10/2003
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The accused-Gani also resides in Brein. The accused-Gani never came to her,
but Noor Mohammad used to come to her. On the day of occurrence, she had
left her home at 5:00 PM in the evening. The accused met her for the first
time at a distance of 8 to 9 kilometres away from her home. The accused met
her at 7:00 PM in the evening. There was strike on that day and the vehicles
were not on the road. She had to go to Dalgate. Autos and scooters were on
the road. She did not know as to who was driving the auto, but some other
person was driving the auto. She is illiterate, as such, could not see the number
of the auto. She also cannot say about the residence of the auto driver. The
windows of the auto were open. She was blindfolded, as such, she did not
know about the place of occurrence, where she was taken. The accused did
wrong to her on the very first day. The accused had tied her hands and legs.
The accused continuously did wrong with her for seven days. When the
accused did wrong with her, both the accused had tied her legs. Her feet were
tied during all those seventeen days. The accused used to remain outside in
the morning as well as in the night. When the accused-Abdul Gani used to
come to commit wrong to her, the accused-Noor Mohammad used to stand at
the door. Thereafter, both the accused used to go back. The accused never
brought the accused Azeem Jan along with them. The accused only had got
Azeem Jan in the lock up of police station. She cannot say whether she was
kept in a room or shed. No voice from outside was audible to her. After
alighting from the auto, she travelled only 2 to 3 steps to enter the room. When
she was taken out, she was dragged from three stairs. Thereafter, she was
boarded in auto. At that time, she was alright and was not tied by anything.
Thereafter, she was left at the lane. She walked and reached the shrine at
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Sonawar. When she was travelling in a vehicle and reached at lane, she could
see everything. On the way, till Shrine of Syed Sahab, no one met her and at
the Shrine, one Molvi and one girl met her. When she went to the police
station, she did not ask the SHO to see the place, where she was kept.
14. Mother of Prosecutrix: she has stated that she knows the
accused-Aziz Jan. The accused-Aziz Jan is her neighbour and used to remain
in home. The prosecutrix is her daughter, who is 20 years of age. The accused-
Aziz Jan often used to tease her daughter and used to force her to come along
with him. In the year 1997, on the third day after Eid, the prosecutrix had gone
to her neighbour to get the frying pan. The accused-Aziz went to the house of
Mohammad Shaban, where he abused her daughter. Her daughter ran away
from there. Accused-Aziz Jan ran after her with shovel and went towards the
road. Both the other accused were present on the road. There both the accused
blindfolded and covered her daughter and took her in the auto. Thereafter, she
searched for her ten days in Kashmir and then they went to Jammu also, but
she could not be found. Thereafter, the accused-Aziz Jan handed over her
daughter and surrendered himself before the police. After sixteen days, father
of Aziz Jan informed her that her daughter was with police. She cannot say
as to how her daughter was kidnapped. After sixteen days, she and members
of her family went to the police post and saw her daughter there. The accused
were also there. Perhaps the prosecutrix was taken to the doctor for
examination. The accused might have committed wrong with her daughter.
During cross-examination, she stated that accused-Aziz Jan is son of cousin
of her husband. Accused-Aziz Jan had three children. The accused-Gani
Akhoon resides in Brein at a distance of 2 to 3 kilometres from her residence.
Page 8 of 19 CRA No. 10/2003
c/w CRA No. 11/2003
The accused Noor Mohammad is the son of paternal aunt of her husband. The
accused-Noor Mohammad resides at Pahloo, Brein, at a distance of half mile
from her residence. The Accused-Noor Mohammad often comes to their
residence. She was in orchard, when there was feud between the accused-Aziz
Jan and her daughter. When she returned from the orchard, her daughter had
already run away. She was told about feud between accused-Aziz Jan and her
daughter, by the neighbours. For sixteen days, she was not aware about the
whereabouts of her daughter. The accused-Aziz Jan remained in jail during
these days. He had handed over the girl to the accused. She and other members
of her family were searching for her daughter, but they did not go the police
station.
15. Statement of Husband of the prosecutrix: He has stated that he
knows the accused. Prosecutrix is his wife. She had gone to the residence of
Mohammad Shaban for getting the frying pan. The accused-Aziz Jan took the
shovel and ran after his wife. His wife jumped out from the window of the
house. She came running on the road. The accused persons present in the court
took his wife in the auto towards Buchwara. When he came in the evening,
he came to know about the incident from his family members as well as the
neighbours. Then he went to the residence of aunt of his wife. He did not find
his wife over there. He inquired from his relatives and lodged a report with
the Police Station Nishat. Police asked him to search for his wife and they
would also search. He had got the report written from his brother-in-law
Abdul Majeed, who (Abdul Majeed) submitted the same with the police
himself. The report forms part of the record. She could not be found for 15 to
16 days and thereafter she herself approached Kothi Bagh, Police Station. She
Page 9 of 19 CRA No. 10/2003
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was taken to Nishat police station. Thereafter, accused-Abdul Aziz Jan came
and told them that she had come to Police Station Nishat. Thereafter they went
to Nishat Police Station. The torn clothes of the prosecutrix were seized by
the police. The seizure memo is already marked as EXP-A. He identified his
thumb impression over the same. During cross-examination, he stated that the
accused-Abdul Gani resides at the distance of 2 kilometres from his home.
Both the accused are married and are having children as well. The accused-
Abdul Gani had solemnized the marriage of his daughter. Accused-Noor
Mohammad is his relative also. He is not aware about the incident that took
place that day. He had heard about the incident in the evening from the
members of his family. He does not remember the day when the incident took
place. He is not an eyewitness to the occurrence but was told about the same
by his wife. He is SPO in the police. He had lodged report with the police and
perhaps it was submitted on 18.02.1997. The report dated 18.02.1997 does
not bear his signatures. This report was prepared by his brother- in-law-Abdul
Majeed. This report was drafted by him at his instance. The contents of report
dated 18.02.1997 were read over to him and he stated that the contents were
not true.
16. Father of Prosecutrix: He has stated that the prosecutrix is his
daughter. It was third day after Eid, when the accused- Aziz Jan assaulted his
daughter and took her out of home. Thereafter, he went to search for his
daughter as he was not at home and came back after one hour. He had heard
that the accused-Aziz Jan after assaulting the prosecutrix, took her with him.
He started searching for his daughter on the second day and went to his
relatives also, to know about her whereabouts. After three days, he informed
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the police. He went to Jammu also, in search of prosecutrix and provided her
photographs in the police station. He kept on searching for his daughter for
15 to 16 days. Thereafter, he heard in the evening that his daughter had come
to the police station. He went to the police station Nishat. The accused-Noor
Mohammad was in the police station. Aziz Jan was also brought, and Abdul
Gani was brought thereafter. He cannot say as to why the accused took the
prosecutrix along with them. Thereafter his daughter told him that the accused
had forcibly taken her in the auto. Accused-Noor Mohammad is the son of his
sister. The prosecutrix remained with the accused for seventeen days. When
he saw his daughter, her condition was very bad. The prosecutrix told her
father she was raped by the accused. The police had seized the clothes of the
prosecutrix vide seizure memo EXP-A which bears his signature. During
cross-examination, he stated that accused-Azim Khan is his paternal cousin.
Accused-Noor Mohammad is his aunt’s son. He had told the police at Nishat
Police Station that he had lodged report with three police stations at Jammu.
His daughter had told him that two-three accused had done wrong to her.
Thereafter, again stated that only accused-Abdul Gani did wrong with her. He
had not seen the clothes seized by the Police in the court.
17. PW Abdul Rashid Thakur: He has stated that he knows and
identifies the accused in the court. In the year 1998, he was posted at Police
Station, Nishat. He is aware about the seizure memo, which was prepared in
his presence, by the Munshi. The contents of EXP-A are true. During cross-
examination, he stated that the accused were arrested when the seizure memo
was prepared.
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c/w CRA No. 11/2003
18. Statement of Jameel Ahmad Khan (IO): He has stated that on
01.03.1997, the prosecutrix lodged a verbal report with police station Nishat.
She had stated that on 18.02.1997, the prosecutrix had gone to the house of
Mohammad Shaban for getting the frying pan and was sitting in his home,
suddenly her husband Gulzar Jan came there shouting that she had maintained
illicit relationship with the owner of the house- Mohammad Shaban and she
makes excuses for going to their house. The prosecutrix tried her best to
convince him but to no effect. She proceeded to the house of her aunt at
Dalgate and reached at the main road Nishat in the evening on foot. When she
reached at Lam, accused-Noor Mohammad insisted her to sit in the auto, to
take her to her house and she boarded the auto at his instance. Accused-Abdul
Gani Akhoon was already sitting in the auto. She got frightened. Accused-
Abdul Gani Akhoon and Noor Mohammad tied her mouth with the scarf and
took her to an unknown place. The accused-Abdul Gani Akhoon out of lust
committed wrong with her. The accused No. 2 and 3 guarded them. On receipt
of this report, FIR was registered and investigation was started. During
investigation, the prosecutrix was examined by the doctor at hospital.
Statements were also recorded. The torn clothes of the prosecutrix were also
seized as evidence. During investigation, offences under section 366, 376,
342 and 109 were proved against the accused persons. He proved the site plan
which was marked as EXP-2. The seizure memo was marked as EXPA.
During cross-examination, he stated that the prosecutrix had come for lodging
FIR in the evening of 01.03.1997. Perhaps, she was accompanied by her
brother and on neighbour, namely, Master Ghulam Mohammad. The name of
Master Ghulam Mohammad has not been mentioned anywhere in the case.
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The accused were arrested on 05.03.1997. The accused were arrested in Brein,
Bazar. He had not received any information earlier regarding this case and
also no report was registered with regard to that effect. He had not gone to the
place of occurrence. He had gone to the place from where the accused was
abducted. There were houses around the place wherefrom prosecutrix was
abducted. The prosecutrix was abducted from the main road, where there were
no houses. The residential houses were situated at least 400 yards away from
the place of occurrence. The people used to move during the day, however,
there used to be no movement in the evening as the situation was not good.
He has no knowledge about the place where the prosecutrix was kept because
she was taken to that place blindfolded.
Defence Evidence:
19. DW1 has stated that the second accused is not having a bad
character, and he deals in sale and purchase of land.
20. DW2 has stated that he had heard that the girl was kidnapped, but
the accused were present in their home.
Appreciation of Evidence:
21. Except the Investigating Officer and the witness to the seizure
memo of the clothes of the prosecutrix i.e. PW Abdul Rashid Thakur, all the
other witnesses examined by the prosecution are the relatives of the
prosecutrix. None of the witnesses except the prosecutrix, has witnessed the
abduction of the prosecutrix and all these witnesses i.e. the mother, father and
the husband of the prosecutrix have made statements on the basis of
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c/w CRA No. 11/2003
information provided to them by the prosecutrix. In such view of the matter,this court is left with the statement of the prosecutrix only, with regard to the
alleged abduction and wrongful confinement by the appellants and
commission of rape by the appellant Abdul Gani Akhoon. It is settled law that
the accused can be convicted on the basis of solitary statement made by the
prosecutrix/victim but for that purpose, the statement of the prosecutrix must
be clear, unambiguous and not improbable in nature. If the statement of the
prosecutrix is not of sterling quality, then the accused cannot be convicted on
the solitary statement of the prosecutrix, and the attending circumstances are
also required to be looked into. In Nirmal Premkumar v. State, 2024 SCC
OnLine SC 260, the Hon’ble Supreme Court of India, after taking note of its
various earlier pronouncements, has held/observed as under:
“11. Law is well settled that generally speaking, oral
testimony may be classified into three categories, viz. : (i)
wholly reliable; (ii) wholly unreliable; (iii) neither wholly
reliable nor wholly unreliable. The first two category of cases
may not pose serious difficulty for the Court in arriving at its
conclusion(s). However, in the third category of cases, the
Court has to be circumspect and look for corroboration of
any material particulars by reliable testimony, direct or
circumstantial, as a requirement of the rule of prudence.
12. In Ganesan v. State, this Court held that the sole testimony
of the victim, if found reliable and trustworthy, requires no
corroboration and may be sufficient to invite conviction of the
accused.
13. This Court was tasked to adjudicate a matter involving
gang rape allegations under section 376(2)(g), I.P.C in Rai
Sandeep v. State (NCT of Delhi). The Court found totally
conflicting versions of the prosecutrix, from what was stated
in the complaint and what was deposed before Court, resulting
in material inconsistencies. Reversing the conviction and
holding that the prosecutrix cannot be held to be a ‘sterling
witness’, the Court opined as under:
“22. In our considered opinion, the ‘sterling witness’
should be of a very high quality and calibre whose version
should, therefore, be unassailable. The court considering
the version of such witness should be in a position to accept it
for its face value without any hesitation. To test the quality of
such a witness, the status of the witness would be immaterial
and what would be relevant is the truthfulness of the statementPage 14 of 19 CRA No. 10/2003
c/w CRA No. 11/2003
made by such a witness. What would be more relevant
would be the consistency of the statement right from the
starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before
the court. It should be natural and consistent with the case of
the prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness
should be in a position to withstand the cross-examination of
any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the factum
of the occurrence, the persons involved, as well as the
sequence of it. Such a version should have co-relation with
each and every one of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of
every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the
chain of circumstances to hold the accused guilty of the
offence alleged against him. Only if the version of such a
witness qualifies the above test as well as all other such
similar tests to be applied, can it be held that such a
witness can be called as a ‘sterling witness’ whose version
can be accepted by the court without any corroboration
and based on which the guilty can be punished. To be more
precise, the version of the said witness on the core spectrum
of the crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects
should match the said version in material particulars in order
to enable the court trying the offence to rely on the core
version to sieve the other supporting materials for holding the
offender guilty of the charge alleged.”
14. In Krishan Kumar Malik v. State of Haryana, this Court
laid down that although the victim’s solitary evidence in
matters related to sexual offences is generally deemed
sufficient to hold an accused guilty, the conviction cannot be
sustained if the prosecutrix’s testimony is found unreliable and
insufficient due to identified flaws and lacunae. It was held
thus:
“31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the case
in hand, the evidence of the prosecutrix, showing several
lacunae, which have already been projected hereinabove,
would go to show that her evidence does not fall in that
category and cannot be relied upon to hold the appellant guilty
of the said offences.
32. Indeed there are several significant variations in material
facts in her Section 164 statement, Section 161 statement
(CrPC), FIR and deposition in court. Thus, it was necessaryPage 15 of 19 CRA No. 10/2003
c/w CRA No. 11/2003
to get her evidence corroborated independently, which
they could have done either by examination of Ritu, her
sister or Bimla Devi, who were present in the house at the
time of her alleged abduction. The record shows that Bimla
Devi though cited as a witness was not examined and later
given up by the public prosecutor on the ground that she has
been won over by the appellant.”
15. What flows from the aforesaid decisions is that in cases
where witnesses are neither wholly reliable nor wholly
unreliable, the Court should strive to find out the true genesis
of the incident. The Court can rely on the victim as a “sterling
witness” without further corroboration, but the quality and
credibility must be exceptionally high. The statement of the
prosecutrix ought to be consistent from the beginning to
the end (minor inconsistences excepted), from the initial
statement to the oral testimony, without creating any
doubt qua the prosecution’s case. While a victim’s
testimony is usually enough for sexual offence cases, an
unreliable or insufficient account from the prosecutrix,
marked by identified flaws and gaps, could make it
difficult for a conviction to be recorded.
(emphasis added)
22. Now it is to be examined as to whether the statement of the
prosecutrix is of ‘sterling quality’, which can be relied upon for convicting
the appellants. The prosecutrix has stated that she had gone to the house of
her neighbour for getting the frying pan, where she was harassed by accused
Abdul Aziz (subsequently discharged by the learned trial court). She has also
stated that Abdul Aziz gathered residents of Mohalla on spot. She has stated
that she was blindfolded and was taken to one house at unknown location by
the appellants, where she was confined for 16 days and raped by the appellant-
Abdul Gani Akhoon, whereas the other appellant guarded at the door. In her
examination-in-chief, she stated that in the morning of 01.03.1997, she was
again blindfolded, boarded in Auto and left at one Lane. However, during
cross-examination, she stated that she was taken out, she was dragged from
three stairs. Thereafter, she was boarded in auto. At that time, she was alright
and was not tied by anything. Thereafter, she was left at the lane. She walked
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c/w CRA No. 11/2003
and reached the shrine at Sonawar. When she was travelling in auto/vehicle
and reached at lane, she could see everything. This material contradiction,
assumes significance because the place where she was confined was never
identified by her during investigation. In the chief-examination, the
prosecutrix had given an impression that she was blindfolded both at the time,
she was abducted and when she was left near lane on 01.03.1997, but during
cross-examination, she has demolished that impression. It becomes evident
that she was aware about the place where she was allegedly confined, but did
not disclose the same to the Investigating Officer. Had she disclosed the place,
of which she was definitely aware of, IO would have confirmed from the
owner of the house or the residents of the locality in respect of her
confinement in the said house. IO has stated that he has no knowledge about
the place where the prosecutrix was kept because she was taken to that place
blindfolded. Even if it is assumed that she was taken blindfolded, but she was
not taken out of the house blindfolded and she was seeing everything, while
travelling in the Auto. This is one circumstance which makes the evidence of
the prosecutrix doubtful.
23. In The FIR, she had stated that she had suffered injuries on her
body, which were still visible. Though the Doctor has not been examined in
the court but the perusal of the medical certificate reveals that no marks of
violence were found. This also makes her evidence doubtful.
24. The prosecutrix has stated that the appellants took away her
Pheran and scarf and left her near lane. But the seizure memo EXP-A reveals
that besides one frock, one Pheran was also seized. The husband of the
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c/w CRA No. 11/2003
prosecutrix has stated that torn clothes of the prosecutrix were seized.
Likewise IO has also stated that the torn clothes of the prosecutrix were seized
as evidence. There is no reference of torn clothes in the seizure memo Exp-
A, as there is reference of seizure of frock and Pheran in the same. but not
torn.
25. Further, the neighbour, where the prosecutrix had gone, has been
identified as Mohd. Shaban by other witnesses, though none of the other
witnesses has watched the feud between the prosecutrix and Abdul Aziz. It
becomes evident that due to harassment meted out to the prosecutrix, she
proceeded towards the house of her maternal aunt. The said Mohd. Shaban
has not been examined by the prosecution to corroborate the statement of the
prosecutrix, which led her to flee from there to her maternal aunt. Even no
resident of Mohalla has been examined to prove this fact. There is another
material aspect of the case that the missing report was lodged on 18.02.1997
i.e. after the prosecutrix went missing, by the husband of the prosecutrix that
she was missing since 13.02.1997, as she was not in good health. It was also
stated that she goes to a Doctor for consulting and from above date, she was
missing. Though the husband of the prosecutrix admitted that he had lodged
the missing report through his brother-in-law but has denied the contents of
the same. The whole story of abduction of the prosecutrix became doubtful
and it is difficult to believe that she was taken blindfolded from road and
travelled a considerable distance in the auto on the road.
26. From the material contradictions in the statement of the
prosecutrix noted as above by this court, it cannot be said that her evidence is
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c/w CRA No. 11/2003
of sterling quality, which can be relied upon for convicting the appellants.
The evidence led by the prosecution is not convincing, cogent that may result
in conviction of the appellants.
27. This Court has examined the judgment passed by the learned trial
court and finds that the learned trial court has not rightly appreciated the
evidence and in view the loopholes and gaps in the evidence of the
prosecution, the benefit of doubt was required to be given to the appellants.
Conclusion:
28. In view of the above discussion, this Court is of the considered
view that the judgment dated 26.08.2003 passed by the court of learned 4th
Additional Sessions Judge, Srinagar in challan titled “State vs. Abdul Gani
Akhoon & Ors” arising out of FIR No. 22/1997 registered under Sections 366,
376, 344 and 354 of RPC of P/S Nishat, is not sustainable in the eyes of law
and is accordingly set aside. The appellants are acquitted of the charges. The
challan shall stand dismissed. The appellants are on bail. Their bail and
personal bonds are discharged. The record of the trial court be sent back
forthwith.
29. Appeals are allowed.
(Rajnesh Oswal)
Judge
SRINAGAR:
03.01.2025
“Hamid”
Whether the Judgment is Speaking? Yes
Whether the Judgment is Reportable? Yes
Abdul Hamid Bhat
I attest to the accuracy and
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authenticity of this document CRA No. 10/2003
03.01.25 c/w CRA No. 11/2003