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2013 DIGILAW 138 (UTT)

ABDULLA v. STATE OF UTTARAKHAND

2013-03-14

V.K.Bist

body2013
JUDGMENT V.K. Bist, J. (Oral) This appeal preferred u/s 374 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 13.10.2003 passed by the Addl. Sessions Judge/5th F.T.C., Dehradun in Sessions Trial no. 69 of 2002 State vs. Abdulla, whereby the learned Sessions Judge has convicted the appellant accused Abdulla under Section 363,366 and 376 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo four years’ rigorous imprisonment with a fine of Rs.1,000/- for the offence punishable u/s 363 I.P.C. and in default of payment of fine, further rigorous imprisonment for two months, seven years rigorous imprisonment with fine of Rs.1,000/- under Section 366 I.P.C. and in default of payment of fine, further rigorous imprisonment for two months and eight years rigorous imprisonment with a fine of Rs. 1,000/- under Section 376 I.P.C. and in default of payment of fine, further rigorous imprisonment for a terms of two months. It was directed that all the sentences shall run concurrently and the period already undergone shall be adjusted. 2. The prosecution case, in brief, is this that on 19.09.2001 at 12:15 p.m., complainant Beer Singh (PW-2) lodged a report at Kotwali Rishikesh that on 18.09.2001 at about 5:30 a.m. his daughter Km. Kamla, aged 15 years, height 5 feet, who was wearing red colour polka-dots suit, had gone out to ease herself. After waiting a great deal of her return, when he could not find her whereabouts, he came to know that one Abdulla, who is employed in Nickel Factory, has taken away her daughter by enticing her. It was urged that a case against Abdulla may be lodged for kidnapping the minor girl from the lawful guardianship of her father. The F.I.R. is Ext. Ka-2 on record. On the basis of the written report, Chik First Information Report Ext. A-10 was prepared by Head Constable Chandri Lal in the Police Station on 19.09.2001 at 12:15 p.m. and a case crime no. 410/2001 under Section 363, 366 I.P.C. was registered. The distance of the place of occurrence is shown about 10 kms. away from the Police Station. An entry was made in the General Diary, a copy of the G.D. is Ext. A-11 on the record. Investigation was entrusted to SI Sundar Lal (PW-6). 410/2001 under Section 363, 366 I.P.C. was registered. The distance of the place of occurrence is shown about 10 kms. away from the Police Station. An entry was made in the General Diary, a copy of the G.D. is Ext. A-11 on the record. Investigation was entrusted to SI Sundar Lal (PW-6). During the investigation, the Investigating Officer recorded the statement of witnesses under Section 161 Cr.P.C. On 10.11.2001, on receiving information that the accused Abdulla alongwith the abducted girl Km. Kamla are waiting for a bus proceeding towards Dehradun, the I.O. alongwith the complainant, reached at Tip-Top Hotel and on being identified by the complainant, the accused was apprehended. An entry was made in the General Diary, carbon copy of which is Ext. A-9. The girl was produced before the Magistrate for recording her statement under Section 164 Cr.P.C. Km. Kamla was medically examined by PW-5 Dr. Sushmita Verma, Medical Officer, SPS Govt. Hospital, Rishikesh, who conducted medical examination of the girl and prepared Medical Report Ext.A-4. The girl Km. Kamla was handed over into the possession of her parents. Supurdaginama is Ext. A-1. PW- 5 Dr. Sushmita Verma also prepared supplementary report Ext. A-5, based on the X-ray report (Ext. A-12), Elisa, Radiologist and Pathology reports. Km. Kamla was produced before the Chief Medical Officer in order to ascertain her age, who determined age of the victim as 17 years, based on the report of Radiologist Dr. D.S. Rawat (PW-7). On the basis of the statement of the abducted girl, the crime was converted and a crime under Section 376 I.P.C. was also added. The Investigating Officer, after completing the investigation, filed charge sheet on 19.11.2001 against the accused Abdulla for the offence punishable u/s 363,366 and 376 I.P.C. The charge sheet is Ext. A-8 on the record. 3. Learned Magistrate, Rishikesh on receipt of the charge sheet, after giving necessary copies to the accused, as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 18.06.2002 under Section 209 Cr.P.C. 4. Learned Sessions Judge, Dehradun after hearing the parties on 20.07.2002 framed the charge of offence punishable under Section 363, 366 and 376 I.P.C. against the appellant/accused Abdulla. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. Lateron, the Sessions Trial was transferred to the Court of Addl. Learned Sessions Judge, Dehradun after hearing the parties on 20.07.2002 framed the charge of offence punishable under Section 363, 366 and 376 I.P.C. against the appellant/accused Abdulla. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. Lateron, the Sessions Trial was transferred to the Court of Addl. Sessions Judge/5th F.T.C., Dehradun for hearing and disposal. 5. The prosecution, in order to prove its case, has examined PW-1 Km. Nirmala, the victim, PW-2 Beer Singh, the complainant, PW-3 Brijpal Singh, Head Master, Indira National Child Development School, Garhi, Shyampur, PW-4 Smt. Geeta, witness of kidnapping, PW-5 Dr. Sushmita Verma, Medical Officer, PW-6 S.I. Sundar Lal, Investigating Officer and PW-7 Dr. D.S. Rawat, Radiologist. 6. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and stated that he has been falsely implicated in the case. The accused did not produce any oral or documentary evidence in his defence. 7. After appreciating all the evidence available on record and upon hearing the learned counsel for the parties, learned Addl. Sessions Judge convicted the appellant accused Abdulla under Section 363, 366 and 376 I.P.C. and sentenced him vide his judgment and order dated 13.10.2003, description of which has already been given. Aggrieved with the impugned judgment and order dated 13.10.2003, the accused/appellant has come up in the instant Criminal Appeal. 8. I have heard Mr. Rajesh Sharma, learned Amicus-curiae for the accused/appellant and Mr. Raman K. Sah, learned Addl. Govt. Advocate and Ms. Sangita Miyan, Brief Holder for the State. 9. Before further discussions, it is pertinent to mention the medical report of the victim Km. Kamla. Km. Kamla was medically examined by PW-5 Dr. Sushmita Verma on 10.11.2001 at about 4:32 p.m. at SPS Govt. Hospital, Rishikesh and the Medical Officer prepared the medical report Ext. A-4. Medical examination report is as under:- No sign of any injury seen in any part of the Body. Introduced two fingers easily in the vagina. 10. This, it was opined that there was no sign of any injury in any part on the body of the victim and two fingers were easily introduced in the vagina. Uterus size was normal. For pregnancy test, the victim was referred for Elisa test. Introduced two fingers easily in the vagina. 10. This, it was opined that there was no sign of any injury in any part on the body of the victim and two fingers were easily introduced in the vagina. Uterus size was normal. For pregnancy test, the victim was referred for Elisa test. She was further referred to Doon Hospital for pathology and radiology test. This witness proved the medical examination report Ext. A-4. Dr. Sushma Verma, also prepared the supplementary medical report Ext. A-5, based on the report of X-ray, Radiology and Elisa test. It was opined that the victim was 17 years’ of age and according to the Elisa test, pregnancy was found positive and in the pathological report, the vaginal smear was found negative. On examination, she was found habitual to intercourse. The doctor could not give any definite opinion about the rape. 11. X-ray of the victim Km. Kamla was conducted on 12.11.2001 by PW-7 Dr. D.S. Rawat, Radiologist, who prepared report Ext. A-12, according to which the girly was 17 years’ of age and based on the report of Radiologist, the Chief Medical Officer prepared the report Ext.A-13 ascertaining the age of the victim as 17 years. 12. The question before this Court as to whether at the time of incident, the victim was minor or major, whether the accused kidnapped a minor girl from the lawful guardianship of her father, whether the victim was a consenting party and whether the accused committed rape upon the prosecutrix as suggested by the prosecution. 13. The prosecution, to prove its case first of all, examined PW-1 Km. Kamla, the prosecutrix, who in her testimony has stated that the incident was of 1-1½ years back. On 18.09.2001 at 5:00 a.m., she was going out to ease herself. On the way, in a sitting position, accused Abdulla met with her, who offered viewing of cinema, on which she replied-she will seek prior permission from her parents, then accused told that he has already taken permission from her parents. Km. Kamla then told that, even then she would take permission from her parents. The accused then told that as he has already taken permission and if she did not obey, he will kill her brother and father. Frightened with the threat, she proceeded with the accused. She further stated, that the accused took her with him in a Vikram. Km. Kamla then told that, even then she would take permission from her parents. The accused then told that as he has already taken permission and if she did not obey, he will kill her brother and father. Frightened with the threat, she proceeded with the accused. She further stated, that the accused took her with him in a Vikram. On the way, Smt. Geeta (PW-4) and Sunder were seen. Firstly, they boarded in a bus heading towards Haridwar, thereafter, they picked a bus for Delhi and reached there. The accused took her in a room at Delhi, where in order to outrage her modesty and molest her, the accused started unstring her clothes and in this process, he broke the string of her trouser and after exposing her, the accused raped on her forcefully. She stated that they stayed 4 to 5 days at Delhi then the accused forcefully took her to Moradabad. She was under acute threats. They stayed at Moradabad for a period of one month with the (Bhabhi) sister-in-law of the accused. She had no money, otherwise she would have returned at her parental house. When the accused left with no money, he carried her to Rishikesh. At Natraj Hotel, at about 10:30 a.m. the Police apprehended the accused and she was warden off from the clutches of the accused. She undergone medical tests and then she was handed over to her parents. She was produced before the Magistrate, where her testimonial statements under Section 164 Cr.P.C. were recorded. 14. PW-2 is Beer Singh, father of the victim and is the complainant of the case. He, during his testimony, has reiterated the assertions made in the First Information Report. He stated that when all his attempts to tress out his daughter Km. Kamla were failed, then Geeta (PW-4) and Sunder informed him that they had seen Km. Kamla going with the accused Abdulla in a Vikram vehicle. Even then, he made searching of his missing daughter throughout the day and being failed in all his endeavours, he lodged a First Information Report at Police Station Rishikesh. He proved the F.I.R. Ext. A-2. 15. PW-3 is Brajpal Singh, Headmaster of Indira National Child Development School, Gari, Shyampur. He has proved the School Leaving Certificate of Km. Kamla procured from Indira National Child Development, School, Basti Garhi, Shyampur, Dehradun, which is Ext. He proved the F.I.R. Ext. A-2. 15. PW-3 is Brajpal Singh, Headmaster of Indira National Child Development School, Gari, Shyampur. He has proved the School Leaving Certificate of Km. Kamla procured from Indira National Child Development, School, Basti Garhi, Shyampur, Dehradun, which is Ext. A-3 on record, according to which the date of birth of the victim is 07.08.1984. 16. PW-4 Smt. Geeta stated that on that day at about 6:00 a.m., she saw the accused and the victim boarding on a Vikram. 9 17. PW-5 is Dr. Sushmita Verma, Medical Officer, who conducted medical examination of the victim and prepared the medical report Ext. A-4 and also the supplementary medical report Ext. A-5, description of which has already been mentioned in the preceding paragraphs. She proved the medical report. 18. PW-6 S.I. Sunder Lal is the Investigating Officer of the case, who proved the memo of Supurdaginama Ext. A-1, memo of information Ext. A-6 and memo of arrest Ext. A-7, Chik Report Ext. A-10 and Carbon copy of G.D. entry Ext. A-11. 19. PW-7 is Dr. D.S. Rawat, Radiologist, who proved X-ray report Ext. A-12 and the Age Certificate issued by the Chief Medical Officer Ext. A-13. 20. Learned Amicus-curiae for the accused/ appellant argued that as per the evidence discussed above, the guilt of the accused is not proved and the trial Court has wrongly convicted the accused/appellant for the offence punishable u/s 363, 366, 376 I.P.C. Submission of the learned Amicus-curiae for the appellant is that as per the evidence produced by the prosecution, the prosecution has failed to prove its case beyond reasonable doubt against the accused. He submitted that as per the School Leaving Certificate, at the time of alleged commission of crime, the victim Km. Kamla was more than 17 years of age, therefore her age should be presumed and treated as 18 years. He relied upon the judgment given by this Court in Criminal Appeal no.1188 of 2001, reported in [2010] 2 NCC 159, in which this Court has held that it is settled law that two years margin either on the upper side or lower side can be given. Learned Amicus-Curiae for the accused submitted that in the facts and circumstances of the case, the age of the victim should be treated more than 18 years. Learned Amicus-Curiae for the accused submitted that in the facts and circumstances of the case, the age of the victim should be treated more than 18 years. He contended that the victim was the consenting party and she went with the accused by her own wishes, therefore, offence under Section 363, 366 and 376 I.P.C. is not made out against the accused. He then submitted that there is contradictions in the statement of the prosecutrix recorded under Section 161 Cr.P.C. and the one recorded before the Magistrate under Section 164 Cr.P.C. He contended that in order to boost the gravity of the offence and also for fulfilling the lacunae done during investigation, the prosecution story has been developed, because as per the prosecution story, the accused/appellant kidnapped the victim at 5:30 a.m. on 18.09.2001, but till 6:00 a.m. the complainant was not aware about the incident. He contended that prosecution has intensified the prosecution story alleging that PW-4 Smt. Geeta and one Sunder Lal witnessed the incident of kidnapping around 6:00- 6:30 a.m. that Km. Kamla and the accused both boarded on a Vikram vehicle on the day of kidnapping, however the First Information Report nowhere depicts about it. Learned Amicus-curiae then contended that no medical examination of the accused/appellant was conducted for ascertaining that spermatozoa taken from the vagina of the victim and that of the accused are akin, which would lead towards direct commission of rape committed on Km. Kamla by the accused. It is contended that in order to prove the guilt of the accused evidence of Medical Officer is vital, however there is no definite opinion about the rape, rather it has come in the evidence of the Medical Officer that the victim was habitual to sex. He contended that in the medical examination, pregnancy of the victim was found positive, but what was the duration of pregnancy, either the DNA of the fetus was corresponding with the DNA of the accused, which was essential for implication of the accused under Section 376 I.P.C. He further submitted that according to Modi’s jurisprudence, the essential ingredients for commission of the crime of rape are not fulfilled, because in the medical examination, no injury was found on the private parts of the victim, inasmuch as, no sign of forceful intercourse are found, therefore commission of crime of rape is not, at all, proved. 21. Learned Addl. Govt. 21. Learned Addl. Govt. Advocate, on the other hand contended that in the incident like rape, the medical report is merely supplementary evidence and it cannot gloss over the ocular evidence. In the case of rape, the solitary and unshaken evidence of victim is sufficient to prove the guilt beyond reasonable doubt. He contended that in absence of definite opinion about the rape, the oral testimony of the victim couldn’t be disbelieved. He contended that it is sufficient that the victim was recovered from the possession of the accused and thereafter statement of the victim under Section 164 Cr.P.C. were recorded before the Magistrate in which the victim has categorically stated that the accused gave threats to kill her brother and father; she was in acute fear. Frightened with the threat, she proceeded with the accused. According to learned A.G.A., this statement of the victim is sufficient for conviction. He further contended that although the accused has taken shelter that in order to prove the guilt of rape he was not examined medically, but the accused could have offered himself for his medical examination and now he cannot take such plea. 22. I have gone through the statement of the victim, have also perused the medical examination report and the law cited by learned Amicus-Curiae for the accused/appellant. As per the medical report, the age of the victim at the time of alleged commission of rape was 17 years and as per the school leaving certificate, which was proved by the Head Master of the school, the date of birth of victim is 07.08.1984. Thus, on the date of incident, she was more than 17 years. According to the version of the victim on the date of alleged incident, the accused threatened her that if she would not proceed with the accused in that event he will kill her brother and father. It was the first moment when Km. Kamla could have raised alarm and could have run towards her house to tell this thing to her brother or father. Km. Kamla was taken by the accused in a Vikram vehicle and in the way PW-4 Smt. Geeta and one Sunder were seen. At this moment also victim could have made shrieks for her rescue. According to the version of the victim, the accused took her in a bus first to Haridwar and then Delhi. Km. Kamla was taken by the accused in a Vikram vehicle and in the way PW-4 Smt. Geeta and one Sunder were seen. At this moment also victim could have made shrieks for her rescue. According to the version of the victim, the accused took her in a bus first to Haridwar and then Delhi. In Delhi, they stayed for 4 to 5 days. Thereafter, she was taken to Moradabad where they stayed for a considerable period of one month. All the above places cannot be said to be deserted, rather these places are full of crowd, but Km. Kamla missed every opportunity. Neither she protested the kidnapper, nor she screamed, nor resisted in order to get rid of from the clutches of the accused. Suffice to say that the prosecutrix was a consenting party, otherwise she would have protested. Considering all this, it is found that victim was quite mature and by her own wish, accompanied the accused. Thus, accused is entitled for the benefit of the judgment cited by the learned Amicus-curiae. Medical evidence further discloses that her pregnancy was found positive, but the period of pregnancy is unknown. Further, on examination medically, the prosecutrix was found habitual to intercourse and the doctor could not give any definite opinion about the rape. There was no sign of any injury in any part on the body of the victim. Thus, it is suffice to say that the prosecutrix was a consenting party and it cannot be said that rape was committed upon her. 23. For the reasons as discussed above, I am of the view that it cannot be said that charge of offence punishable under Section 363, 366 and 376 I.P.C. is proved beyond reasonable doubt against the accused/ appellant Abdulla. In my opinion he is entitled to the benefit of reasonable doubt. Therefore, this appeal deserves to be allowed. 24. Accordingly, the appeal is allowed. Impugned judgment and order dated 13.10.2003, passed by Addl. Sessions Judge/5th F.T.C., Dehradun in Sessions Trial No. 69 of 2002, so far as it relates to the conviction and sentence awarded against the accused/appellant Abdulla under Section 363, 366 and 376 I.P.C., is hereby set-aside. He is on bail. He needs not to surrender. His sureties are discharged. Let the Lower Court’s Record be sent back.