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2013 DIGILAW 119 (UTT)

Murtaza v. State of Uttaranchal

2013-03-08

SUDHANSHU DHULIA

body2013
Judgment Sudhanshu Dhulia, J. 1. This Criminal Appeal arises out of a judgment and order of the trial court dated 25.8.2003 passed by the learned Additional Sessions Judge/3rd FTC, Haridwar in Sessions Trial No. 249 of 1998 convicting the present appellants under Section 376(2) (g) and thereby sentencing them for 10 years rigorous imprisonment with a fine of Rs. 5,000/- each. The appellants were further convicted and sentenced for one year of rigorous imprisonment with a fine of Rs. 500/- each under Section 452 IPC and one year of rigorous imprisonment with a fine of Rs. 500/- each under Section 506(2) IPC. 2. Since in this case the appellants were not being represented by any counsel at the time of final hearing, the Court appointed Mr. B.M. Pingal a practising lawyer of this Court as Amicus Curiae in the matter, to present the case of the appellants before this Court. He was given the paper book of the case, free of cost and time to prepare the matter. It is listed today now for final hearing. 3. The State is being represented by Mr. Suhail Siddiqui, Assistant Government Advocate. 4. Matter heard at length. 5. According to the case of the prosecution, the prosecutrix was in her house on the fateful day of 15.4.1996, in village Bahadarpur Jatt, P.S. Pathri, District Haridwar along with her three year old daughter. In the night of 15.4.1996 accused Murtaza and Salim entered the room where the prosecutrix was lying. Salim placed his “tamancha” (country made pistol) on her temple and thereafter the accused Murtaza stripped her naked and raped her, against her wishes and inspite of her resistance. Thereafter, Murtaza pointed the same “tamancha” on her temple and she was then raped by Salim. Her husband Irfan on that day was not in the house as he had gone a day before to Delhi to drop his uncle Pir Mohammad, who was on his way for his “Haj”. Her husband returned in the afternoon of 16.4.1996, i.e. the next day and then she narrated the entire incident to her husband. Her husband Irfan on that day was not in the house as he had gone a day before to Delhi to drop his uncle Pir Mohammad, who was on his way for his “Haj”. Her husband returned in the afternoon of 16.4.1996, i.e. the next day and then she narrated the entire incident to her husband. In her testimony the prosecutrix narrates the sorry state of affairs of the police department wherein the prosecutrix states that although the prosecutrix along with her husband remained in the Police Station for the entire day on 16.4.1996 and the complainant repeatedly pleaded that her wife has been raped and she is injured and she is completely traumatised and, let an FIR be lodged against the accused, yet the FIR was not lodged. When they went for medical examination on Chain Rai Women Hospital, the medical authorities, not to be left behind refused to conduct the medical examination on the prosecutrix unless an FIR is registered first. 6. The next day i.e. on 17.4.1996, the husband of the petitioner moved an application before the Sub Divisional Magistrate, Haridwar who subsequently placed a note on the same application directing the Station House Officer to lodge an FIR on the report of the complainant and it was only after such an order was passed by the Sub-Divisional Magistrate on 17.4.1996, the FIR was finally registered on 17.4.1996 at P.S. Pathri at 9:05 P.M. under Sections 452/376/506 IPC. The prosecutrix was medically examined on 18.4.1996 at Government Women Hospital by the medical officer, namely, Manisha Agrawal who certifies that she examined the prosecutrix at 8:10 P.M. on 18.4.1996. The medical report says that the prosecutrix is a young woman of average built about 157 CM in height and 49 Kgs. in weight. Her breasts are developed, axillary and pubic hair present, no marks of injuries, bleeding or discharge from vulva. Vaginal smear was sent for pathological examination. The said examination report was prepared on 19.4.1996. It suggests that the vaginal smear contains no spermatozoa dead or alive, therefore “no definite opinion regarding rape can be given”. 7. The prosecutrix is a grown up woman already having a three year old child. Vaginal smear was sent for pathological examination. The said examination report was prepared on 19.4.1996. It suggests that the vaginal smear contains no spermatozoa dead or alive, therefore “no definite opinion regarding rape can be given”. 7. The prosecutrix is a grown up woman already having a three year old child. She is accustomed of sexual intercourse and it is also true that no injuries have been discovered on her body but one has to keep in mind that this is a case of rape on a gun point. Therefore, the absence of injuries on the body of the prosecutrix will make no difference. Moreover, rape is a crime not a state of medical condition. 8. The police conducted its investigation and filed a chargesheet before the court of magistrate and the matter was committed to sessions for trial and subsequently the charges were framed by the court under Section 376(2)(g)/452/506(2) IPC. 9. The prosecution in support of its case examined six witnesses. The testimony of P.W. 2 i.e. the prosecutrix is absolutely relevant. Although the matter pertains to the month of April in the year 1996, her examination in chief was done on 14.3.2002 i.e. after six years! In her examination in chief she clearly states that the incident relates to about 6 years back when on 15.4.1996 she was lying on a “charpoi” and her three year old daughter was lying on another “charpoi” the accused entered her house and committed rape on her on the point of a gun. She states that Salim placed “tamancha” on her temple and closed her mouth by the other hand and thereafter Murtaza stripped her naked and raped her. The rape was repeated when now Murtaza pointed the gun and Salim committed the rape. She further narrates that her husband came at about 2:30 P.M. next day and then she narrated the entire incident to her husband. She further states that they spent their entire day at the police station and the hospital but the police authority refused to lodge the FIR and the medical authorities also refused to conduct the medical examination of the prosecutrix. She further states that the FIR was lodged on the next day i.e. 17.4.1996 and the police subsequently came to their house and recovered the clothes she was wearing that day. She further states that the FIR was lodged on the next day i.e. 17.4.1996 and the police subsequently came to their house and recovered the clothes she was wearing that day. Her undergarment which was black in colour and her “salwar” which was red in colour was taken in possession by the police. She further states that both these clothes contained blood stains as she sustained injuries during the said rape. This prosecutrix was put to very heavy cross-examination which continued on two other dates i.e. on 29.4.2002 and was subsequently adjourned and was conducted again on 20.5.2002. There is nothing which has come out in her cross-examination which may either doubt her testimony or may help the case of the defence. She has been consistent on her story that she was raped on a gun point by two accused and the subsequent events which followed. 10. P.W. 1 Irfan is her husband who again supports the case of the prosecution and narrates the total apathy of the police inasmuch as the police had refused to lodge the FIR initially and it was only on the intervention of the Sub-Divisional Magistrate, the FIR was lodged, etc. 11. P.W. 4 is Vijendra Singh who is a witness of last scene. In his examination in chief he states that the incident is of 14/15 April, 1996. At about 11:00 PM he was returning home after doing work and he saw that Murtaza and Salim were coming down from the stairs of the first floor as the room of the prosecutrix was on first floor. This witness was again put to heavy cross-examination and efforts were made to show that he is a chance witness and was planted by the prosecution but nothing worthwhile came from his testimony as well. 12. The doctor Manisha Agarwal who conducted the medical examination on the body of prosecutrix was examined as P.W. 3. She in her examination in chief stated that she cannot give a definite opinion of rape and further admits that there were no injuries on the body of the prosecutrix. However, the absence of injuries on the body of prosecutrix can be explained, which is that the prosecutrix was raped on a gun point. She in her examination in chief stated that she cannot give a definite opinion of rape and further admits that there were no injuries on the body of the prosecutrix. However, the absence of injuries on the body of prosecutrix can be explained, which is that the prosecutrix was raped on a gun point. This clearly explains that she had no injuries on her body as both in the FIR as well as in her testimony before the court she stated that at first Murtaza placed the gun on her temple and Salim committed rape on her and thereafter the rape was repeated when Salim placed the gun on her temple and Murtaza committed the rape. Moreover, one has also to keep the fact in mind that her three year old daughter was also lying on another “charpoi” and there was apprehension for her daughter as well. Therefore, not having an injury on the body of the prosecutrix will give no benefit to the defence. 13. The appeal hence fails, as there are no grounds for interference with the conviction of the appellants. 14. Heard the amicus curiae for the appellants on the quantum of sentence. The accused/appellants have been convicted and sentenced under Section 376(2)(g). For the offence punishable under Section 376(2)(g) the minimum sentence is 10 years which is awarded to the accused. Moreover, there are no special circumstances which may justify lowering down the sentence from 10 years. 15. In view of the aforesaid, appeal is dismissed. The accused/appellants are on bail. Their bail is cancelled. They shall be immediately taken into custody by the police and shall carry out the remaining period of sentence awarded by the court below. Let a copy of this judgment be sent to the trial court to make appellants serve out the sentence awarded by the court below. Lower Court record be sent back. The period already undergone by the appellants during trial and appeal shall be deducted from the above sentence. It is made clear that all the sentences against the appellants shall run concurrently. 16. Having decided the appeal as aforesaid a judicial notice is also taken to the effect that the police had refused to lodge an FIR initially on 16.4.1996. In the present matter although it was a clear case of gang rape, yet the police authorities have failed in their duties. 16. Having decided the appeal as aforesaid a judicial notice is also taken to the effect that the police had refused to lodge an FIR initially on 16.4.1996. In the present matter although it was a clear case of gang rape, yet the police authorities have failed in their duties. The Director General of Police, Uttarakhand is hereby directed to institute an enquiry into the matter and after locating the then concerned Station House Officer take suitable action against the concerned persons, in case the concerned police official is still in service in the State of Uttarakhand, and in case he is allocated to the State of Uttar Pradesh then the Director General of Police, Uttarakhand must inform his counterpart in Uttar Pradesh to take a suitable action against the concerned police officer in accordance with law by initiating an enquiry and a disciplinary proceeding, as directed by this Court. 17. Let a copy of this order be sent to Director General of Police, Uttarakhand through the Registrar General, High Court for compliance of the order.