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2014 DIGILAW 1121 (ALL)

Nisar v. State of U. P.

2014-04-07

VINOD PRASAD

body2014
JUDGMENT Vinod Prasad, J.: - Challenge in this appeal by the sole appellant Nisar is to the judgment of his conviction and order of sentence dated 14.4.82 recorded by 3rd Additional Sessions Judge, Bijnor in S.T.No. 275 of 80, State versus Nisar, by which appellant herein has been convicted u/s 366 I.P.C. P.S. Dhampur, District Bijnor and has been sentenced to 3 years R.I. and to pay a fine of Rs.500/= and in default in payment of fine to under go 3 months further R.I. 2. According to the prosecution case, as was dictated at the police station by the victim/PW6, which was recorded as FIR Ext. Ka-7, victim was a resident of village Hathai, P.S. Dhampur, District Bijnor. Her father wanted to contract her marriage with Waigan @ Sharif resident of village Dhampur, who was a ruffian and, therefore, the victim never wanted to contract marriage with him. She eloped and concealed herself in the house of Munni where, it is alleged, that the appellant came there and took her to Dhampur. At Dhampur, appellant was joined by one another person Kalwa. According to the FIR, it was Kalwa, who outraged the modesty of the victim in a sugarcane field. All the three of them then came to Nahdaur and from there, they boarded a bus to village Chandpur and from there, they came to village Patiyapada at the house of a relative of Kalwa where the preparation was made for contracting the marriage of the victim with Nisar. However the marriage could not be contracted and at 8 P.M., two police constables arrived and arrested both, the informant victim as well as appellant Nisar. Kalwa, however, managed his escape from the spot. FIR was lodged and crime was investigated and ultimately charge sheet was submitted. 3. In the trial, prosecution examined doctor as PW1. Testimony of the doctor unerringly revealed that victim/PW6 was major, according to Mohammadan law as according to her x-ray plate, Ext. Ka-2, and supplementary medical examination report, Ext Ka-3, she could be 16 years of age. Her primary medical examination report, Ext. Ka-1 indicate that she was habitual to sexual inter course but in the present incident "no sexual inter course ascertained" . Doctor has further stated that secondary sexual characters and body had developed and therefore he has not thought it appropriate to mention it. 4. Victim/PW6 is the star prosecution witness. Her primary medical examination report, Ext. Ka-1 indicate that she was habitual to sexual inter course but in the present incident "no sexual inter course ascertained" . Doctor has further stated that secondary sexual characters and body had developed and therefore he has not thought it appropriate to mention it. 4. Victim/PW6 is the star prosecution witness. According to her FIR her father Jahirruddin wanted to contract her marriage with one Waigan who was a ruffian and therefore she had left her parental house and concealed herself in the house of Munni, a co-villager. Further she has narrated the same story which has been slated herein above. 164 Cr.P.C. Statement of this victim was also penned down by 1st Addl. Munsif Magistrate D.P. Singh, on 13.11.79, wherein she had disclosed her age to be 16 years and had stated that it was festival ID day when she had come out of her parental house at 8 a.m. A lady Munni, who lived at some distance, had called her on the pretext that her father was calling her and Munni had concealed P.W. 6 in her house. After some time appellant came and told her that he will get her married at some good place and took her alongwith him. (Rest of the narration since not relevant to the decision of the present appeal and hence is being eschewed). In the trial also victim/P.W. 6 had repeated her 164 Cr.P.C. version. She has proved her FIR version Ext Ka-5. She further deposed that after the incident she was married to Illias. In her cross examination she stated that she was major and she under stood every thing. Her father desired to contract her marriage with Waigan for which she was not ready. 5. Primary on such evidences I have heard Sri Rahul Misra, learned amicus curiae, for the appellant and Sri Chandrajit Yadav, learned AGA for the State and have vetted through the entire trial court record and oral and documentary evidences. 6. From the examination of evidences it is apparent that the victim was major and on her own volition she had left her parental house on ID day because her father wanted to marry her with Waigan, who was a ruffian. No body had abducted her or compelled her to leave her parental house. 6. From the examination of evidences it is apparent that the victim was major and on her own volition she had left her parental house on ID day because her father wanted to marry her with Waigan, who was a ruffian. No body had abducted her or compelled her to leave her parental house. Therefore this is not an incident of kidnapping from lawful guardianship or legal custody of parents as, according to victim her self she was major and has come out of parental house on her own volition which fact was clearly and categorically stated by her in her FIR and before the Magistrate. At the time of the incident she was major, which fact is clear from paragraphs 4/5 of her depositions wherein she has stated that: - "we are three brothers and two sisters. I am eldest of them. I am not aware when my father contracted marriage and in the days of the incident, I was in menstrual cycle. I was major and I had better understanding." 7. Coming to offence u/s 366 I.P.C., it does not seems to be a case of abduction at all or at least prosecution and victim has not been able to establish that charge. When she had left her parental house then the appellant was not in the picture at all. She had left the house on her accord and hence she was not abducted from her parental home. From the house of Munni, she accompanied the appellant on her own volition to contract marriage at a better place. In fact her evidence is that preparation for her marriage with appellant was made but marriage could not be contracted. It was she who refused to contract marriage with the appellant and there was commotion in the locality and Mullah refused to perform Nikhah. It seems that PW6 had left the house of Munni to perform Nikha with the appellant but for the reasons best known to her she resiled from it and therefore it cannot be said that she was abducted against her wishes by the appellant. She has completely taken a somersault from her FIR version and consequently she is an unreliable witness. Her statements regarding out raging her modesty was contradicted by the doctor PW1. She has completely taken a somersault from her FIR version and consequently she is an unreliable witness. Her statements regarding out raging her modesty was contradicted by the doctor PW1. Victim has also stated that while her modesty was outraged, she had sustained physical injuries but her said statement is specifically contradicted by Dr. Adarsh Pathania, who in no uncertain terms clearly stated that the victim had no injury and no mark of violence on her body or on the breast. The medical report as is mentioned in paragraph 2, where physical notings have been made by the doctor leaves no manner of doubt that the victim was never subjected to any sexual intercourse. So much so doctor has opined that no effusion of blood or seamen found, vaginal canal intact, no abrasion or contusion, vaginal discharge normal. In such a view, the statement of the victim that she was subjected to molestation does not seems to be a credible version. She categorically stated that it was dark because of which, she could not identify her rapist including the appellant and She could not state as to whether it was the appellant who had raped her. In view of the aforesaid, I am of the view that so far as offence under section 366 I.P.C. is concerned, it cannot be said with any amount of certainty that victim was abducted by the appellant. Under the Mohamdan Law, 16 years is the age, in which a girl can contract her marriage. Prosecution has not been able to establish that the victim was below 16 years of age. 8. In view of above, learned trial Judge has committed grave error in convicting the appellant for the charge under section 366 I.P.C. by taking a hyper technical approach. The trial Judge completely ignored the evidences, which were favourable to the appellant and recorded the impugned judgment of conviction and sentence which, in my humble opinion deserves to be interfered with. 9. In the net result, the appeal is allowed. Conviction of the appellant is hereby set aside. Appellant is on bail, he need not surrender. His personal and surety bonds are hereby discharged. Let a copy of this order be sent to the learned trial Judge for its intimation and further action.