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2013 DIGILAW 364 (UTT)

GULFAM v. STATE OF UTTARAKHAND

2013-06-21

Prafulla C.Pant, Servesh Kumar Gupta

body2013
JUDGMENT Oral: Hon’ble Prafulla C. Pant, J. Both these appeals are directed against the judgment and order dated 30.09.2011 passed by learned Additional Sessions Judge/ III Fast Track Court, Haridwar, in Sessions Trial No. 374 of 2001, Sessions Trial No. 408 of 2001 and Sessions Trial No. 329 of 2003, whereby said court has convicted accused/appellant Gulfam under section 363 IPC and sentenced him to rigorous imprisonment for a period of two years and directed to pay fine of Rs. 5,000/-. By the same judgment the trial court has acquitted said accused from the other charge i.e. from the charge of offences punishable under section 366, 376(2)(g) IPC. The trial court has acquitted rest of all the accused namely Israr, Imran @ Munshi, Mohabbat Ali, Suleman, Furkan, Kaku @ Ishtiyak, Ilu @ Irfan, Salim and Akil from the charge of offences punishable under section 363, 366 and 376(2)(g) of IPC. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that in the intervening night of 16 and 17.03.2001, P.W.1 Firdaus, minor daughter of P.W.2 Shamshad, went missing from her house in village Ekkar Khurd. P.W.2 Shamshad made search for the missing girl, and after six days, on 23.03.2001, gave First Information Report (Ex. A1) at Police Station Pathri, alleging that his daughter Firdaus (P.W.1) has been kidnapped by accused/appellant Gulfam to compel her to marry, or to have sexual relations with him. On the basis of said First Information Report Crime No. 36 of 2001 was registered at Police Station Pathri, and investigation was taken up by P.W.6 S.I. Ram Bahadur Singh. On 22.06.2001, during investigation the girl (P.W.1 Firdaus) was recovered from the custody of accused/ appellant Gulfam near railway station Ekkar, and a memorandum (Ex. A2) was prepared by the police. On 23.06.2001, the girl was medically examined by P.W.5 Dr. Asha Sharma. After completion of investigation P.W.6 Ram Bahadur Singh submitted charge sheet (Ex.A7) against accused Gulfam (S/o Haneef) for his trial in respect of offences punishable under section 363, 366 and 376 IPC. It appears that supplementary charge sheet (Ex. A8) was filed by the Investigating Officer (P.W.6) for trial of accused Israr (S/o Haneef) in respect of aforesaid offences i.e. punishable under section 363, 366, 376 IPC. It appears that supplementary charge sheet (Ex. A8) was filed by the Investigating Officer (P.W.6) for trial of accused Israr (S/o Haneef) in respect of aforesaid offences i.e. punishable under section 363, 366, 376 IPC. Thereafter the Investigating Officer (P.W.6) appears to have filed yet another supplementary charge sheet against accused Furkan, Kaku @ Ishtiyak, Ilu @ Irfan, Salim (S/o Haneef) and Aakil for their trial in respect of offences punishable under section 363, 366 and 376 IPC. Finally P.W.10 S.I. Ram Ashrey Kureel further investigated the crime and filed fourth charge sheet (Ex. A13) against accused Imran, Mohabbat Ali and Suleman (S/o Haneef) for their trial in respect of offences punishable under section 363, 366 and 376 IPC. 4. It appears that after giving necessary copies to the accused as required under section 207 Cr.P.C., the Magistrate committed the cases to the court of Sessions for trial. Learned trial court on 24.11.2001 after hearing parties framed charge of offences punishable under section 363, 366 and 376 IPC against accused Gulfam who pleaded not guilty and claimed to be tried. An amended charge was framed on 16.01.2007 by the trial court in respect of charge of offence punishable under section 376(2)(g) IPC to which also accused Gulfam pleaded not guilty and claimed to be tried. Learned trial court on 28.11.2001 framed charge of offence punishable under section 366 IPC against accused Israr to which also he pleaded not guilty and claimed to be tried. On 25.02.2004 learned trial court framed charge of offences punishable under section 363/149 and 366/149 IPC against accused namely Imran @ Munshi, Mohabbat Ali, Suleman, Furkan, Kaku @ Ishtiyak , Ilu @ Irfan, Salim and Akeel to which they also pleaded not guilty and claimed to be tried. An amended charge was framed on 16.01.2007 by the trial court in respect offence punishable under section 376(g) against accused Imran @ Munshi, Mohabbat Ali, Sulemant, Furkan, Kaku @ Ishtiyak, Ilu @ Irfan, Salim and Aakil to which also they pleaded not guilty and claimed to be tried. 5. The prosecution got examined P.W.1 Firdaus (victim), P.W.2 Shamshad (informant), P.W.3 Akram, P.W.4 Mohd. Anees, P.W.5 Dr. Asha Sharma (who medically examined the girl), P.W.6 S.I. Ram Bahadur Singh (Investigating Officer), P.W.7 Constable Laxmi Chand, P.W.8 Dr. R.K. Pandey (Radiologist), P.W.9 S.I. Yogendra Pal Singh (who recovered the girl) and P.W.10 S.I. Ram Ashrey Kureel. 5. The prosecution got examined P.W.1 Firdaus (victim), P.W.2 Shamshad (informant), P.W.3 Akram, P.W.4 Mohd. Anees, P.W.5 Dr. Asha Sharma (who medically examined the girl), P.W.6 S.I. Ram Bahadur Singh (Investigating Officer), P.W.7 Constable Laxmi Chand, P.W.8 Dr. R.K. Pandey (Radiologist), P.W.9 S.I. Yogendra Pal Singh (who recovered the girl) and P.W.10 S.I. Ram Ashrey Kureel. Oral and documentary evidence was put to the accused under section 313 Cr.P.C. in reply to which they pleaded that evidence adduced against them was false. In defence D.W.1 Mohd. Zabbar was got examined. The trial court after hearing the parties found that no charge was found proved against accused/ respondents Israr, Imran @ Munshi, Mohabbat Ali, Suleman, Furkan, Kaku @ Ishtiyak, Ilu @ Irfan, Salim and Aakil and all of them were acquitted of the charge of offences punishable under section 363, 366, 376 IPC. Accused Gulfam was also found not guilty in respect of charge of offences punishable under section 366 and 376 IPC but he was convicted under section 363 IPC. After hearing on sentence convict Gulfam was sentenced to rigorous imprisonment for a period of two years and directed to pay fine of Rs. 5,000/ by the trial court. Aggrieved by said judgment and order dated 30.09.2011 passed by Additional Sessions Judge/ III Fast Track Court, Haridwar, in Sessions Trial No. 374 of 2001, criminal appeal no. 251 of 2011 was preferred by the convict Gulfam. On the other hand informant Shamshad preferred criminal appeal no. 344 of 2011, against order of acquittal recorded by the trial court. 6. Before further discussion we think it just and proper to mention about the evidence brought on record relating to the fact of age of the girl (victim). P.W.5 Dr. Asha Sharma who medically examined the girl (Ms. Firdaus) has stated that the girl was aged 16 years. In her cross examination she clarified that the age of the girl was above 16 years and less than 18 years. P.W.8 Dr. R.K. Pandey (Radiologist) who took x ray films of the joints of left wrists and left elbow of the girl has also stated in cross examination that fusion in the bones of the elbow takes place at the age of around 16 years and that of the knee takes at the age of around 17 years. P.W.8 Dr. R.K. Pandey (Radiologist) who took x ray films of the joints of left wrists and left elbow of the girl has also stated in cross examination that fusion in the bones of the elbow takes place at the age of around 16 years and that of the knee takes at the age of around 17 years. He has also stated that he also took x ray of right knee and left knee of the girl (victim). His report (Ex. A13) discloses that the process of fusion had started in the knee joints. As such from the medical evidence on record it can safely be said that the girl was actually aged 17 years on the day of the incident. As such though she was minor but she was competent to give consent for sexual intercourse as the law existed in the year 2001. 7. P.W.1 Firdaus while narrating the prosecution story has stated that in the intervening night of 16 and 17.03.2001 she had gone out of her house to ease out in the field where accused Gulfam kidnapped her and took her in a scooter. She further told that she lived for fifteen days in Roorkee, whereafter she lived for about more than two months in Dehradun. She has alleged that accused/appellant Gulfam as well as other accused committed rape on her. 8. We have carefully scrutinized the evidence of P.W.1 Firdaus in the light of the medical evidence on record, and the other facts and circumstances of the case. Medical report Ex. A5 prepared by P.W.5 Dr. Asha Sharma shows that no opinion could be given as to the commission of rape on the victim. P.W.1 Firdaus in her cross examination admits that she went with accused Gulfam in a bus from Roorkee to Dehradun. For the reasons best known to her she did not prefer to raise alarm to get herself saved from the clutches of accused Gulfam and others. Apart from this, the statement of P.W.1 Firdaus further discloses that she was taken to Magistrate for recording her statement under section 200 Cr.P.C. She was also taken for registration of her marriage to the authority concerned. Apart from this, the statement of P.W.1 Firdaus further discloses that she was taken to Magistrate for recording her statement under section 200 Cr.P.C. She was also taken for registration of her marriage to the authority concerned. Her explanation for not complaining to public authorities regarding the fact that she was raped by the accused and his relatives makes prosecution story doubtful that she was raped by the accused persons in the manner suggested by the prosecution. 9. It is pertinent to mention here that accused Israr, Suleman, Kaku @ Ishtiyak, Ilu @ Irfan and Salim are real brothers of main accused Gulfam. It is hard to believe that all the real brothers had committed gang rape with the victim as suggested by prosecution. The other accused are also closed relatives of accused Gulfam. In the above circumstances, the trial court has rightly disbelieved the testimony of P.W.1 Firdaus and held that neither she was kidnapped by accused Israr, Imran, Mohabbat Ali, Suleman, Furkan, Kaku @ Ishtiyak, Salim or Aakil nor she was raped by them. In the facts and circumstances, sexual intercourse if any taken place between accused Gulfam and P.W.1 Firdaus appears to be consensual act, and the trial court is right that neither charge of offence punishable under section 366 IPC nor that of section 376 IPC stands proved against accused Gulfam. 10. The only offence which was rightly found proved against accused Gulfam is the one offence punishable under section 363 IPC, as the girl being 17 years old was minor, and her consent to go with accused Gulfam on her volition with accused from the custody of his guardian (father) is irrelevant. 11. For the reasons as discussed above, we find no illegality on the point of conviction and acquittal in the impugned order dated 30.09.2011 passed by learned Additional Sessions Judge/ III Fast Track Court, Haridwar, in Sessions Trial No. 374 of 2001, 408 of 2001 and 329 of 2003. On the point of sentence awarded by the trial court against accused Gulfam under section 363 IPC, we are of the view that sentence awarded against him can be reduced to the period already undergone in the above circumstances of the case. He had been in jail for more than four months during investigation and trial. On the point of sentence awarded by the trial court against accused Gulfam under section 363 IPC, we are of the view that sentence awarded against him can be reduced to the period already undergone in the above circumstances of the case. He had been in jail for more than four months during investigation and trial. Again, he had been arrested during the pendency of this appeal as Non Bailable Warrants were issued against him and at present he is in jail. 12. Accordingly, Criminal Appeal No. 344 of 2011 is dismissed. Criminal Appeal No. 251 of 2011 is dismissed on the point of conviction but on the point of sentence, the sentence awarded to the appellant Gulfam under section 363 IPC is reduced to the period already undergone. It is clarified that sentence of fine awarded by the trial court is not interfered by this Court. If accused/appellant Gulfam is not required in connection with any other crime he shall be set at liberty on making of payment of fine before the court concerned. Lower court record be sent back.