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2011 DIGILAW 539 (UTT)

RUSTAM ANSARI v. STATE OF UTTARAKHAND

2011-08-26

PRAFULLA C.PANT

body2011
JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal is received through Superintendent, District Jail, Dehradun, in which appellant Rustam Ansari, has challenged the order dated 29.01.2010, passed by Sessions Judge, Dehradun in Sessions Trial No. 42 of 2009, whereby said court convicted him under Section 363, 366, 376 I.P.C. He has been sentenced to rigorous imprisonment for a period of two years and directed to pay a fine of Rs. 2,000/- under Section 363 I.P.C., rigorous imprisonment for a period of five years and directed to pay a fine of Rs. 10,000/- under Section 366 I.P.C., and rigorous imprisonment for a period of eight years and directed to pay a fine of Rs. 10,000/- under Section 376 I.P.C. 2. Heard learned amicus curiae for the appellant and learned counsel for the State. 3. Prosecution story in brief is that an F.I.R. (Ex. A-1) was lodged by PW-1 Meghraj Singh, at Police Station – Dalanwala on 17.07.2008, that his daughter Soni, aged 18 years, was missing since, 4:00 PM on July, 16th 2008. Later said complainant came to know that his daughter has been abducted and eloped by accused Rustam Ansari who has taken her to Bihar. Consequently, he gave another report (Ex. A2) at Police Station on 13.08.2008, on the basis of which crime no. 159 of 2008, was registered at Police Station Dalanwala, relating to offences punishable under Section 363, 366 I.P.C. against accused Rustam Ansari. During investigation, the Investigating Officer, recovered the girl from accused Rustam Ansari, on 31.10.2008, from ISBT, Dehradun. The girl was medically examined and found that she was carrying pregnancy of 21 weeks. Her statement was recorded by Investigating Officer and the Magistrate, in which she disclosed that she was a minor and raped by the accused Rustam Ansari, after abducting her. The Investigating Officer, after collecting evidence, submitted charge sheet (Ex. A-19) against accused Rustam Ansari (present appellant) for his trial in respect of offences punishable under Section 363, 366, 376 I.P.C. 4. Magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C. committed the case to the court of Sessions for trial. Learned Sessions Judge, Dehradun, on 28.03.2009, after hearing the parties framed charge of offences punishable under Section 363, 366, 376 I.P.C., against the accused Rustam Ansari, who pleaded not guilty and claimed to be tried. Learned Sessions Judge, Dehradun, on 28.03.2009, after hearing the parties framed charge of offences punishable under Section 363, 366, 376 I.P.C., against the accused Rustam Ansari, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW-1 Meghraj Singh (informant), PW-2 Soni (victim), PW-3 Anil Singh Panwar (Junior Assistant, Government Girls College), and PW-4 Sub-Inspector, Santosh Singh Panwar (who investigated the crime). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which, he alleged that he was in love with the girl. He further stated that the girl had gone with him on her own volition. The accused admitted genuineness of the medical evidence on record. However, he pleaded that he was not arrested at ISBT, Dehradun, but he along with the girl was taken into the custody from Vijay Vihar, Delhi, where he was living in a rented accommodation. However, no evidence in defence was adduced. The trial court after hearing the parties found that accused Rustam Ansari, guilty of charge of offences punishable under Section 363, 366 and 376 I.P.C. After hearing on sentence the convict was sentenced to rigorous imprisonment for a period of two years and directed to pay a fine of Rs. 2,000/- under Section 363 I.P.C., rigorous imprisonment for a period of five years and directed to pay a fine of Rs. 10,000/- under Section 366 I.P.C., and rigorous imprisonment for a period of eight years and directed to pay a fine of Rs. 10,000/- under Section 376 I.P.C. Aggrieved by the said judgment and order passed on 28.01.2010/29.01.2010, by learned Sessions Judge, Dehradun in Sessions Trial No. 42 of 2009, this appeal is preferred by convict. 5. Though, PW-1 Meghraj Singh, has stated that date of birth of his daughter is 01.07.1992, recorded in the college record, but in the First Information Report (Ex. A1), he has clearly stated that his daughter was 18 years old on 16.07.2008. The supplementary medical report, prepared by Dr. Mamta Pangti, (formal proof of which was dispensed with by defence counsel) discloses that the girl (Soni) was aged more than 18 years, and she was pregnant for about 21 weeks. The report of the radiologist, also confirms the same age. In the circumstances, it can be said that it is not proved on the record that girl was minor on the date of incident. The report of the radiologist, also confirms the same age. In the circumstances, it can be said that it is not proved on the record that girl was minor on the date of incident. Rather, she appears to be major on the date when she was said to have been abducted by accused/appellant Rustam Ansari. 6. Now, the question before this Court is whether the accused abducted the girl and raped her, as alleged by the prosecution, or not. PW-2 Km. Soni is the star witness on these points. She has admitted in her statement that she was eloped by Rustam Ansari by promising that he would get a job for her in Bihar (It does not appear natural that a carpenter would get a job provided to a literate girl). She further states that she lived for about two months in Bihar, in the house of accused Rustam Ansari. She has further stated that she was subjected to sexual intercourse against her wishes there. She has further disclosed that she lived in Delhi for about two months in a rented accommodation with Rustam Ansari, who used to go for his work during the day. She has admitted that when she left Dehradun with Rustam Ansari, she went in Bus and there were other passengers also. She has further disclosed that in Delhi also there were people who used to live in her neighbourhood. It is strange that the girl did not make any hue and cry either in the bus, for about two months in Bihar or during her about two months stay in Delhi. This gives support to the plea of the accused, who has stated in the examination under Section 313 of Cr.P.C., that he was in love with the girl and the girl had left on her home on her own volition with him. Not only this medical report, relied by prosecution, itself shows that after the arrest of the accused on 31.10.2008, when the girl Km. Soni, was examined medically on 01.11.2008, it was found that she was carrying pregnancy of 21 weeks. In other words, she had pregnancy of 5 months. This clearly indicates that the girl was already having sexual relations with the boy even prior she was said to have been abducted from Dehradun. 7. Soni, was examined medically on 01.11.2008, it was found that she was carrying pregnancy of 21 weeks. In other words, she had pregnancy of 5 months. This clearly indicates that the girl was already having sexual relations with the boy even prior she was said to have been abducted from Dehradun. 7. In the above circumstances, having reappreciated entire evidence on record, this Court comes to the conclusion that the girl PW-2 Km. Soni was in love with the accused/appellant and had gone with him on her own volition. This Court has already discussed that age of the girl as mentioned by PW-1 Meghraj Singh, in his report (Ex. A1) was 18 years. Medical report also confirms that she was above 18 years of age. In the above circumstances, in the opinion of this Court, it cannot be said that charge of offences punishable under Section 363, 366 or 376 I.P.C., is proved against the accused Rustam Ansari. That being so, he is entitled to acquittal. 8. Therefore, the appeal is allowed. Impugned judgment and order dated 28.01.2010, passed by Sessions Judge, Dehradun, in Sessions trial No. 42 of 2009, regarding conviction and sentence against the accused/appellant Rustam Ansari, under Section 363, 366, 376 I.P.C., is hereby set aside. He is acquitted of the charge. He is in Jail. He shall be set at liberty, if he is not wanted in connection with any other crime. Let a copy of this judgment be sent to the Superintendent of Jail concerned.