Criminal Acquittal Appeal No. S-2/2015 and M.P. Nos. 61/2015, 59/2015, 01/2016. Case: State of J&K Vs Gulzar Ahmed Bhat and Ors.. Jammu and Kashmir High Court

Case Number:Criminal Acquittal Appeal No. S-2/2015 and M.P. Nos. 61/2015, 59/2015, 01/2016
Party Name:State of J&K Vs Gulzar Ahmed Bhat and Ors.
Counsel:For Appellant: M.A. Rathore, A.A.G. and For Respondents: P.N. Raina, Sr. Advocate, J.A. Hamal and Y.E. Tak, Advocates
Judges:Janak Raj Kotwal and B.S. Walia, JJ.
Issue:Criminal Law
Judgement Date:February 23, 2017
Court:Jammu and Kashmir High Court
 
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Judgment:

Janak Raj Kotwal, J.

  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. P.Ws. 1 to 5 (names not to be disclosed herein) had secured admission in this institution. On 18.05.2013 P.Ws. 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 19.05.2013 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. P.Ws. 1 to 4 were got medically examined. R-1 was also got medically examined for his potency check up. Statements of P.Ws. 1 to 5, were recorded in terms of section 164-A of the Code of Criminal Procedure (Cr.P.C.). On investigation it was found that R-1 committed rape on P.Ws. 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 P.Ws. 1 to 5, produced twelve other witnesses, namely, P.Ws. 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.P.C. 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), Irshad Rashid Wani (DW-4), Gulzar Ahmed Bhat (DW-5) and Mohammad Altaf Parray (DW-6). Learned trial court vide the impugned judgment dated 12.02.2015 acquitted respondent Nos. 1, 2, 5 and 6 holding that prosecution has failed to prove guilt against them beyond any shadow of doubt.

  7. The judgment rendered by the learned trial court is assailed in this appeal inter alia and primarily on the grounds that the same suffers from non application of mind by the learned trial judge, undue weightage has been given to the factum of delay in lodging the FIR and the consistent, coherent and overwhelming depositions of the victims have been brushed aside on flimsy grounds.

  8. The submissions advanced on behalf of the respondents mainly revolved around the scope of interference by this Court in appeal against a judgment of acquittal recorded by the trial court. It was contended by the learned Senior Advocate, Mr. P.N. Raina, appearing on behalf of the respondents that in an appeal against an order of acquittal, it is not open for the appellate court to interfere with the finding recorded by the trial court unless it is shown that such finding could not have been arrived at and the reasoning recorded by the trial court is perverse. Learned counsel cited various authorities of the Supreme Court to emphasize that the presumption of innocence, which every person carries as a fundamental principle of criminal jurisprudence, is reinforced by the acquittal secured by him from the trial court and ordinarily appellate court should interfere only if there are compelling reasons. Mr. Raina argued that appellate court has not only to see whether conclusion other than that recorded by the trial court could have been arrived at but must also closely and carefully examine the reasons that impelled the trial court to acquit the accused and should interfere only if satisfied after examination of record on trial court file that judgment of the trial court is patently wrong and perverse. Mr. Raina sought to point out by reading the impugned judgment that learned trial court has recorded well founded and cogent reasons for not relying upon the evidence of P.Ws. 1 to 5 in backdrop of the inordinate delay of about six months in lodging the FIR, enmity of witnesses towards R-1 and absence of any other corroborating evidence. Mr. Raina, thus, supported the impugned judgment and submitted that no case for showing indulgence by this court is made out and the appeal deserves dismissal on this score only.

  9. Per contra, learned Additional Advocate General, Mr. M.A. Rather, argued that judgment rendered by the trial court is perverse inasmuch as learned trial Judge has rejected prosecution version for peripheral reasons, like delay in lodging FIR, which has been sufficiently explained, and assumed enmity of the victims of offence towards R-1, without even discussing the evidence of the victims of ghastly acts of repeated rape committed on them by the head of a religious institution in whom parents of these young girls had reposed confidence by entrusting their care and protection to him for undergoing religious education. Mr. Rathore submitted that the judgment rendered by the learned trial court is perverse and there are no limits to the jurisdiction of this court in interfering with such a judgment so that ends of justice are not defeated.

  10. Before taking up the rival contentions on their merits, we would be reminding ourselves about the legal position in regard to the power of the appellate court in hearing appeals against acquittal.

  11. In Chandrappa and others v. State of Karnataka, (2007) 4 SCC 415, cited on behalf of the respondents, Supreme Court after surveying leading decisions on the point starting from the decision rendered by the Judicial Committee of the Privy Council in Sheo Swaroop v. R. Emperor, AIR 1934 PC 227 has formulated following 'general principles regarding the powers of the appellate court, while dealing with an appeal against an order of acquittal' in para 42 of the reporting:

    "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

    (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.

    (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

    (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

    (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

    (underlining by us)

  12. In Ganesh Bhavan Patel and another v. State of Maharashtra, (1978) 4 SCC 371, cited on behalf of the respondents, which is not referred to in Chandrappa's case, a learned three Judge Bench of the Supreme Court has held that 'High Court should, as a matter of judicial caution, refrain from interfering with the...

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