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2003 DIGILAW 633 (PNJ)

Hukkar @ Ismile & another v. State of Haryana

2003-04-30

HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. (Oral) - This order will dispose of Criminal Appeal No. 104-SB of 1990 (Hukkar alias Ismile and another v. State of Haryana) and Criminal Appeal No. 116-SB of 1990 (Fakru and two others v. State of Haryana). 2. As per the prosecution story, Isab Khan, father of the prosecutrix, Shakila, filed a complaint with the police that his daughter Shakila has been kidnapped on 16.9.1987 by Karim Baksh alias Handa and his sons Fakru and Pappu, who were living in a Jhugi in his neighbourhood with the active help of Ismile alias Hukka son of Jain Khan and Bhulla son of Ferozekhan. Shakila was recovered from accused Fakru on 10.10.1987 from the Bus Stand, Ballabgarh. Fakru and Shakila were medically examined in the B.K. Hospital, Faridabad and the police also got the statement of prosecutrix Shakila recorded under Section 164 of the Code of Criminal Procedure on 12.10.1987 before the Additional Chief Judicial Magistrate, Faridabad. On the completion of the investigation, the accused were charged for offences punishable under Sections 363/366 and 376 of the Indian Penal Code and as they pleaded not guilty, were brought to trial. 3. The prosecution in support of its case relied primarily on the statements of ASI Roshan Lal (PW-1), who had recorded the FIR and was the Investigating Officer; Isab Khan (PW-2) and Anno (PW-3), the father and the mother, respectively, of the prosecutrix; and Shri B.L. Singhal, Additional Chief Judicial Magistrate (PW-4), who had recorded the statement of Shakila under Section 164 of the Code of Criminal Procedure. 4. The Court found that Isab Khan and Anno (the parents of the prosecutrix) having resiled from their statements, the entire prosecution story now rested on the statement made by Shakila prosecutrix herself under Section 164 of the Code of Criminal Procedure, when read alongwith the evidence pertaining to her age as that was the relevant factor to be proved on record. The court accordingly held, relied on the evidence of PW-5 Dr. Kusum Chaudhary and PW-6 Dr. Sushma Sharma, Dental Surgeon, that the age of the prosecutrix could be between 13 to 16 years. The Court also observed that it was clear from the statements of the parents of the prosecutrix that she was below 18 years of age and this version was supported by the school certificate (Exh. PN), which showed Shakilas date of birth as 5.1.1971. The Court also observed that it was clear from the statements of the parents of the prosecutrix that she was below 18 years of age and this version was supported by the school certificate (Exh. PN), which showed Shakilas date of birth as 5.1.1971. Having come to this conclusion, the trial Court convicted and sentenced the accused-appellants as under :- All accused under section 363 of the Indian Penal Code. to undergo rigorous imprisonment for three years and to pay a five of Rs. 1000/- each and in default of payment thereof to undergo further rigorous imprisonment for three months. All accused under section 366 of the Indian Penal Code. to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- each and in default thereof to undergo further rigorous imprisonment for three months. Accused Fakru under section 376 of the Indian Penal Code. to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2000/- and in default thereof to undergo further rigorous imprisonment for six months. 5. Two appeals have been filed, i.e., Criminal Appeal No. 104-SB of 1990 by Hukkar alias Ismile, and Bulla and Criminal Appeal No. 116-SB of 1990 by Fakru, Pappu alias Yunus and Handa alias Karim Baksh accused-appellants. 6. The learned counsel for the appellants has urged that Isab Khan and Anno, the parents of the prosecutrix, having resiled from their statements recorded under Section 161 of the Code of Criminal Procedure and the prosecutrix having expired, the entire evidence against the accused-appellants, if at all, was her statement recorded under Section 164 of the Code of Criminal Procedure and that by itself was not sufficient for recording a conviction against the appellants. He has also urged that it would be clear from the evidence and the circumstances on record that the prosecutrix was more than 16 years of age at the time of the alleged incident. 7. As against this, Mr. Rajesh Bhardwaj, the learned AAG, Haryana, appearing for the State has urged that the fact that the prosecutrix had voluntarily recorded her statement under Section 164 Criminal Procedure Code showed that the kidnapping and rape had been committed and that the order of the trial Court was thus correct. 8. I have heard the learned counsel for the parties and have gone through the record. 9. 8. I have heard the learned counsel for the parties and have gone through the record. 9. It is true that in such cases the parents of a prosecutrix are often won over by the accused-appellants so as to avoid the stigma that is cast by society, but the Court has to examine the evidence and not be influenced by any other consideration. It has come in the evidence that Isab Khan with his family was lying in a Jhugi, close to the place where the three accused Karim Baksh @ Handa and his sons Fakru and Pappu were living and that Ismile @ Hukka and Bhulla were their friends. The circumstances do in this case show that the prosecutrix had perhaps gone with them voluntarily. It is also significant that when the prosecutrix was recovered and the accused arrested, they were subjected to a medical examination and it has come in the evidence that there was no injury marks either on the person of the prosecutrix or on the person of Fakru appellant, the alleged rapist. The observation of Dr. Kusum Chaudhary (PW-5), therefore, that as the vagina admitted two fingers, it appeared that she had been subjected to inter-course, would not involve the accused in a case of rape. 10. As rightly noticed by the trial Court, the main offence in the case is that of rape under Section 376 of the Indian Penal Code and a relevant fact would be the age of the prosecutrix. There is no running away from the fact that the school certificate (Exh. PN) shows that her date of birth was 5.1.1971, which clearly brought her age to more than 17 years, although below 18 years as on the date of the offence. In view of these facts that as there is absolutely no evidence whatsoever to connect the accused-appellants with the offence of rape, it would be dangerous to convict them even for the lesser offences. The appeals are accordingly allowed and the judgment and order of the trial Court is set-aside and the accused/appellants are acquitted of the charges levelled against them. Appeals allowed.