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Himachal Pradesh High Court · body

2010 DIGILAW 771 (HP)

State of H. P. v. Yusuf

2010-04-30

SURJIT SINGH, V.K.SHARMA

body2010
Surjit Singh, J (Oral) 1. State has appealed against the judgment dated 26th December, 1997 of learned Additional Sessions Judge, Mandi, whereby respondents Yusuf, Yakub Ali, Fagar Din, Guljar and Meer have been acquitted of charge, under Sections 147, 363, 366-A, 376 (charge, under Section 376 of the Indian Penal Code, was against respondent Yusuf only), 452 and 506 of the Indian Penal Code. 2. Case was instituted against the respondents by the police. Allegations, which were made against the respondents, may be summed up thus. Bashir (PW-1) and his wife Ain Bibi (PW-3), alongwith their son Mam Hussain (PW-2) and daughter (the prosecutrix, examined as PW-9 – name withheld), lived in village Rayagri, Tehsil Sadar, District Mandi, in the year 1993. On 17th April, 1993, around 9 or 10 p.m., all the respondents went to the house of PW-1 Bashir. Respondent Yakub Ali knocked at the door and asked the occupants to unbolt it. He was recognized by his voice by PW-1 Bashir and his wife PW-3 Ain Bibi. When the door was being opened by PW-3 Ain Bibi, respondent Yakub Ali pushed it and entered the house. He asked PW-1 Bashir and PW-3 Ain Bibi to agree for the marriage of the prosecutrix (PW-9) with respondent Yusuf, a brother of respondent Yakub Ali. When parents of the prosecutrix turned down the proposal, they were assaulted by all the five respondents and the prosecutrix was forcibly taken away. For about 1 km, i.e. upto road head, she was carried by being pulled and from there onward she was taken in a Van, which was already parked there. She was taken to a village near Chamkor Sahib in Punjab State. There she was forced to marry respondent Yusuf. A feast was arranged. Thereafter, the prosecutrix was forced to sleep with respondent Yusuf, who committed sexual intercourse with her, for about 20 days. 3. Matter was reported to the police by PW-1 Bashir, the father of the prosecutrix, on the next following day, by lodging report Ex. PA. Police recovered the prosecutrix from Dera of respondent Yakub Ali in village Kafile Kalan in Fatehgarh Sahib District. Respondents were also arrested. Prosecutrix was got medically examined at Zonal Hospital, Mandi. She was not having any injury on her person, but was opined to have been subjected to sexual intercourse. PA. Police recovered the prosecutrix from Dera of respondent Yakub Ali in village Kafile Kalan in Fatehgarh Sahib District. Respondents were also arrested. Prosecutrix was got medically examined at Zonal Hospital, Mandi. She was not having any injury on her person, but was opined to have been subjected to sexual intercourse. Medical examination of respondent Yusuf was also got conducted and it was found that there was nothing suggesting that he was incapable of performing sexual intercourse. 4. Prosecution examined the father, the mother and a brother of the prosecutrix, as also the prosecutrix, to prove the charge. It also examined the doctors, who conducted the medico legal examination of the prosecutrix and respondent Yusuf. Skeletal age of the prosecutrix was got determined. PW-11 Dr. Jaya Vaidya was examined to prove the skeletal age of the prosecutrix. 5. Respondents denied that they had kidnapped the prosecutrix or she had been forced to marry respondent Yusuf or respondent Yusuf has had sexual intercourse with her. 6. Learned trial Court acquitted the respondents, holding that the evidence did not inspire confidence. 7. We have heard the learned Additional Advocate General as also the learned defence counsel and gone through the evidence. 8. Prosecutrix in her own testimony as PW-9 stated that on the relevant date, when she was present at the Dera of her father PW-1 Bashir, in Mandi District, all the respondents, except Guljar, came there and respondent Yakub Ali proposed to her father and mother to give her in marriage to respondent Yusuf, a younger brother of respondent Yakub Ali, and when her parents did not agree, she was forcibly taken away to a village near Chamkor Sahib in Punjab. 9. Parents of the prosecutrix, namely Bashir (PW-1) and Ain Bibi (PW-3), stated that all the five respondents came to their Dera and respondent Yakub Ali, whom they recognized by his voice, as it was dark, asked them to give the prosecutrix in marriage to his brother respondent Yusuf and when they did not agree, all the five respondents took away the prosecutrix, forcibly. 10. Brother of the prosecutrix, namely Mam Hussain (PW-2), though did not support the prosecution version fully, yet he did state, in no uncertain terms, that the prosecutrix had been taken away by some persons, who entered their house on the fateful night. 11. 10. Brother of the prosecutrix, namely Mam Hussain (PW-2), though did not support the prosecution version fully, yet he did state, in no uncertain terms, that the prosecutrix had been taken away by some persons, who entered their house on the fateful night. 11. Testimony of the prosecutrix as also her parents that the prosecutrix was taken away forcibly is contrary to the earliest version given to the police, vide FIR Ex. PA. As per the earliest version, prosecutrix had been enticed away by the respondents. Suggestions, which were thrown to the prosecutrix and her brother PW-2 Mam Hussain, that the prosecutrix had been engaged to respondent Yusuf or her brief marriage with respondent Yusuf had taken place, as per the custom, prevailing in Mohammedan Gujjars, were denied. No such suggestion was thrown to the parents of the prosecutrix. 12. Testimony of the prosecutrix, her parents and brother that the prosecutrix had been taken away from her parents’ house by some persons, who came to their house in the night, remained unshaken in the cross-examination. However, the father and the mother of the prosecutrix could not identify all the persons, who came to their Dera. They identified only respondent Yakub Ali by his voice. Prosecutrix herself, however, stated that four of the respondents, namely Yusuf, Yakub Ali, Meer and Fagar Din, were the persons, who took her away from her father’s house and ultimately carried her in a Van to Chakmor Sahib. There should be no reason to disbelieve this testimony of the prosecutrix, especially when suggestions were thrown to her by the defence itself that on reaching Punjab, she had been married to respondent Yusuf and proper marriage was performed, in which a Moulvi was also present. 13. Age of the prosecutrix is proved to be below 18 years, per testimony of her mother PW-3 Ain Bibi, who testified that she was 14 years old at the relevant time and her own statement as PW-9, in which she stated that she was 15 years old, at the time of the incident. Their testimony is corroborated by PW-11 Dr. Jaya Vaidya, who determined her age by conducting epiphysis test. According to her, the age of the prosecutrix was between 14½ and 16½ years. 14. Their testimony is corroborated by PW-11 Dr. Jaya Vaidya, who determined her age by conducting epiphysis test. According to her, the age of the prosecutrix was between 14½ and 16½ years. 14. In view of the above discussed evidence, we are of the considered view that the prosecutrix was below 18 years of age and that she had been removed from the custody of her parents, without their consent, by respondents Yusuf, Yakub Ali, Meer and Fagar Din and thus they committed offence of kidnapping, under Section 363 of the Indian Penal Code. 15. As regards other offences, a mention in the FIR that the prosecutrix had been enticed away, gives the impression that she herself wanted to go with the respondents to marry respondent Yusuf. Also, her testimony in Court that she remained for 20 days with respondent Yusuf, after her marriage with him, and during that period she did not complain to anybody that she had been forcibly married or was being subjected to sexual intercourse, against her will, also suggests that she was a willing party to the acts of sexual intercourse. Evidence of the prosecution shows that she had crossed the consenting age of 16 years, at the relevant time. Therefore, charge, under Sections 376 and 366-A, cannot be said to have been proved. 16. There is no evidence that any force was used against the parents of the prosecutrix or the prosecutrix herself. Further, the testimony of the prosecutrix suggests that there were only four persons involved in the offence of kidnapping. Hence, charge, under Section 147 of the Indian Penal Code, can also not be said to have been established. 17. Offence of house trespass stands proved. However, this does not appear to be a house trespass, punishable under Section 452 of the Indian Penal Code, for which offence respondents have been charged, but a house trespass, punishable under Section 451 of the Indian Penal Code, which is a lesser offence. 18. In view of the abovestated position, appeal of the State is partly accepted and acquittal of respondents Yusuf, Yakub Ali, Meer and Fagar Din is set aside and they are convicted of offences, under Sections 363 and 451 of the Indian Penal Code. Appeal against the fifth respondent, namely Guljar, is dismissed. 18. In view of the abovestated position, appeal of the State is partly accepted and acquittal of respondents Yusuf, Yakub Ali, Meer and Fagar Din is set aside and they are convicted of offences, under Sections 363 and 451 of the Indian Penal Code. Appeal against the fifth respondent, namely Guljar, is dismissed. Convicted respondents Yusuf, Yakub Ali, Meer and Fagar Din, be produced in person, on 26th May, 2010, for being heard on the question of quantum of sentence. Non-bailable warrants of arrest be also issued against them, immediately.