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2014 DIGILAW 606 (UTT)

BABU HASAN @ SIRAJUDDIN v. STATE OF UTTARAKHAND

2014-12-24

V.K.BIST

body2014
JUDGMENT Hon’ble V.K. Bist.J. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 06.10.2012 passed by Addl. District & Sessions Judge, Roorkee in Sessions Trial No. 181 of 2010 ‘State vs. Babu Hasan and others’, whereby accused/appellant has been convicted under Section 363, 366 and 376 of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment under Section 363 I.P.C. for a period of three years with fine of Rs. 1,000/- and in default of payment of fine, further imprisonment for one month, rigorous imprisonment under Section 366 I.P.C. for a period of four years with fine of Rs. 1,000/- and in default of payment of fine, further imprisonment for one month and rigorous imprisonment under Section 376 I.P.C. for a period of seven years with fine of Rs. 2,000/-and in default of payment of fine, further imprisonment for two months has been awarded. By the very judgment, the accused Furkan and Smt. Varisa have been acquitted by the trial Court for the offence punishable under Section 363, 366, 376 I.P.C. and 363, 366 I.P.C. respectively. 2. Heard learned counsel for the parties and perused the Lower Court Record. 3. Brief facts, leading to filing of the appeal, are that on 09.06.2009, complainant (PW-1) Salim submitted an application under Section 156 (3) Cr.P.C. (Ext. A-1) before Judicial Magistrate, Roorkee with the assertion that on 18.05.2009 at about 7:00 p.m., accused Babu Hasan and the co-accused, namely Furkan and Varisa W/o Furkan, by enticing his minor daughter, namely, Km. Afsana-aged 14 years, took her away with them from his house situate at Shahpur. Being enticed by the accused, his daughter also took away with her jewelry, mobile phone and Rs. 20,000/- in cash. It was reported that earlier the accused was his tenant and the co-accused were frequent enough to the house of accused. On 24.05.2009, his daughter returned back to her house in very bad condition and she disclosed that, by enticing her, the accused persons took her and kept her in confinement in a room at the house of accused Furkan at Mohammadpur, where Babu Hasan and Furkan, by threatening her with knife and pistol, forcefully and repeatedly committed rape on her. On getting chance anyhow, she fled away from there. On getting chance anyhow, she fled away from there. The complainant took his daughter at police station Bhagwanpur and prayed for conduction of her medical, but they refused to do so. It is further reported that Chotu (PW-4) and some others saw the accused, when the accused persons were taking his daughter away from her legal guardianship. It was alleged that the wherewithal that his daughter took with her, at the time she was enticed away, was in possession of the accused persons. Thereafter, under the orders of the Judicial Magistrate, Roorkee, an F.I.R. (Ext.A4) was lodged on 25.06.2009 at 12:35 p.m. at police Chowki Bhagwanpur, P.S. Roorkee against the accused persons under Section 363, 366 and 376 I.P.C. On 26.06.2009 at 12:50 p.m., medical examination of Km. Afsana was conducted by PW5 Dr. Kamal, Medical Officer, L.M.O., Civil Hospital, Roorkee. In the medical examination report (Ext. A-2), the doctor reported that the girl was average built, general condition was normal, growth of axillary and pubic hair was normal, her breast was well developed, there was no mark of injury seen in her private part, two fingers could be inserted, hymen ruptured, no bleeding was seen. Vaginal smear was taken and sent for histopathological examination of any spermatozoa-dead or alive. She was advised for plain X-ray of right elbow, knee and wrist joints for confirmation of age and USG lower abdomen to rule out pregnancy. In the supplementary medical examination (Ext.A-3), the doctor reported that no spermatozoa, dead or alive visible in the vaginal smear. No pregnancy found. Her age was reported above than 18 years. No definite opinion about rape could be given. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded before Judicial Magistrate, Roorkee. After the accused were apprehended and after the matter was investigated upon, it culminated into filing of the charge sheet against the accused/appellant and co-accused Furkan and Smt. Varisa. Learned Addl. District and Sessions Judge, Roorkee, after hearing the parties on 11.02.2011, framed the charge of offence punishable under Section 363, 366 and 376 I.P.C. against the accused/appellant and against co-accused Furkan and separate charge was framed against the accused/appellant and co-accused Furkan and Smt. Varisa under Section 363 and 366 I.P.C. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried. 4. 4. The prosecution, in order to prove its case, got examined PW-1 Salim Ahmad-(complainant), PW-2 Afsana-prosecutrix, PW-3 Smt. Farmana- mother of the victim, PW-4 Chhotu- eyewitness, PW-5 Dr. Kamal- Medical Officer, PW-6 Constable Kuldeep Singh-scriber of Chik report, PW-7 Sanjeen Saini, Village Development Officer-village Shahpur and PW-8 Sub-Inspector Umesh Kumar, Investigating Officer. 5. Oral and documentary evidence was put to the accused/appellant 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 falsely been implicated in the case. The accused/appellant, in his defence, produced Hafiz Mohammad as DW-1. 6. Learned Addl. District and Session Judge, Roorkee, after examining the statements of the prosecution witnesses, the statements of the accused/appellant under Section 313 Cr.P.C., defence witness, the medical report of the victim, statement of the doctor, convicted the accused/appellant and awarded punishment as above. 7. PW-1 Salim Ahmad, proved the complaint (Ext. A-1) submitted before Judicial Magistrate, Roorkee and reiterated the version made in the complaint. This witness has not seen the accused persons, at the time when they took away his daughter by enticing her. PW-2 Afsana is the victim. She, in her examination-in-chief, has stated that on the day of incident, when she was all alone in her house, the accused persons came there and by enticing her told her to bring jewelry, cash sum and mobile phone, thereafter, they took her with them. She was taken to Mohammadpur, where the accused/appellant and Furkan forcefully committed rape on her. This witness proved her statement recorded under Section 164 Cr.P.C., with the assertions that, after having had enticed her, the accused persons took her to Mohammadpur, where Furkan and Babu forcefully committed rape on her and at the time of committing rape, the accused were in intoxicated position. PW-3 Smt. Farmana is the mother of the victim, who has stated that on the day of incident, she was outside and when she returned at 6:30 p.m., she did not find her daughter. This witness detailed the particulars of jewelry, what the accused persons took with them alongwith the victim. PW-4 Chhotu is said to have been the witness of the incident, who, in his examination-in-chief, has stated that on the day of incident, the accused persons had taken away the victim, forcefully in a car from the house of Salim. This witness detailed the particulars of jewelry, what the accused persons took with them alongwith the victim. PW-4 Chhotu is said to have been the witness of the incident, who, in his examination-in-chief, has stated that on the day of incident, the accused persons had taken away the victim, forcefully in a car from the house of Salim. This witness informed Salim about the incident of kidnapping. 8. Learned counsel for the appellant argued that as per the evidence, the guilt of the accused is not proved and the trial Court has wrongly convicted the appellant. Submission of the learned counsel for the appellant is that the prosecution has utterly failed to prove its case beyond reasonable doubt against the accused. Learned counsel for the accused/appellant submitted that the F.I.R. is belated and after thought. Counsel for the appellant contended that all the witnesses produced by the prosecution are relatives of the prosecutrix and are highly interested one. It is contended that in order to prove the guilt of the accused, evidence of Medical Officer is vital. He submitted that PW-5 Dr. Kamal, while examining the victim, reported that no definite opinion could be given about commission of rape, and no internal injury was found on the person of the victim. Counsel for the appellant submits that evidence of PW-5 is very important, particularly regarding the age of the prosecutrix, wherein the doctor has stated that at the time of medical examination, the age of prosecutrix was above than 18 years, and once the age of the prosecutrix is proved beyond 16 years, her consent becomes very-very material and the same could be culled out from the evidence available on record. He submits that statement of DW-1 Hafiz Mohammad has been ignored by the trial Court, as DW-1 has been produced as the defence witness, who has proved the NIKAHNAMA solemnized in the year 2008 in between Sirajuddin @ Babu and Afsana, in which age of the victim has been shown to be 22 years. Thus, at the time of alleged incident, the victim was not minor. Learned counsel 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. Thus, at the time of alleged incident, the victim was not minor. Learned counsel 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. It is then submitted that the prosecutrix and the appellant were in love and well known to each other, hence, it was a case of elopement by her own wish. Learned counsel for the appellant contended that the victim was exclusively consenting party and she went with the accused by her own volition, therefore, offence under Section 366 I.P.C. against the accused/appellant is not made out. Learned counsel for the accused/appellant then contended that the allegations of kidnapping are baseless and not credible, as according to the prosecution story, the victim herself took jewelry, cash sum and mobile phone from her parental house. Learned counsel for the accused/appellant contended that the Apex Court, in a catena of judgments, has observed that two opinions cannot be formed from one set of evidence i.e. one that resulted into acquittal of co-accused and other that resulted into conviction of the accused for the same offence. He submitted that on the same set of evidence, two accused had been acquitted by the trial Court therefore, on the same set of evidence, the accused/appellant cannot be convicted and he is also entitled for the same benefit. Learned counsel for the accused/appellant submitted that contradictions in prosecution evidence, embellishments, inconsistencies, exaggerations or several lacuna in evidence of the prosecutix, which are not supported by corroboration of any other evidence, makes the accused liable to be acquitted. 9. Learned Brief Holder for the State, on the other hand, contended that medical report is merely supplementary evidence and it cannot gloss over the testimony of the victim. He contended that in absence of definite opinion about rape, the oral testimony of the victim couldn’t be disbelieved and cogent and solitary testimony of a rape victim is sufficient for conviction. According to learned Brief Holder, the statement of the victim is sufficient for conviction. He contended that at the time of said incident, the victim was less than 18 years and consent of the victim is not vitally important. He submitted that the delay in lodging the F.I.R. has been explained. 10. According to learned Brief Holder, the statement of the victim is sufficient for conviction. He contended that at the time of said incident, the victim was less than 18 years and consent of the victim is not vitally important. He submitted that the delay in lodging the F.I.R. has been explained. 10. In the backdrop of what has been stated above, this Court has to deal with as to whether, in the facts and circumstances of the case, any offence is made out against the appellant. In the present case, the age of prosecutrix, as per medical report, is found more than 18 years. Thus, at the time of incident, she was major. She left her home on 18.05.2009 and returned back on 24.05.2009. Complaint was lodged on 09.06.2009. No justification is found in lodging the complaint so late. She, in her statement recorded under Section 164 Cr.P.C. stated that appellant took her by telling her that he would marry her. In her statements recorded before the Court also, she stated that appellant and other two accused, by enticing her, took her away with them. Nowhere, she stated that she was forcefully taken away by the appellant and other co-accused. Thus, it is clear that she, by her own wish, went with the appellant. She went with them with cash and jewelry. As per her statement, she was taken to a village at Saharanpur, but at no point of time, she raised any alarm. There also, for about a week, she did not resist or raise any alarm. In medical report also no injury, on her private part, was found. All these state of affairs are sufficient to prove that she, by her own volition, went with the appellant and had sexual intercourse. It is pertinent to mention here that on same set of evidence, other co-accused were acquitted by the trial Court. 11. If the minor, of her own abandons the guardianship of her parents and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc. and without any offer or promise from the accused, no offence punishable under Section 363 IPC will be made out, when the girl is aged more than 16 years and is mature enough to understand what she is doing. and without any offer or promise from the accused, no offence punishable under Section 363 IPC will be made out, when the girl is aged more than 16 years and is mature enough to understand what she is doing. Here, we find the age of the girl is more than 18 years. In ‘Shyam & another vs. State of Maharashtra’, 1995 Crl. Law General-3914, the prosecutrix was grown-up girl, though she had not touched 18 years of age. The evidence produced during trial showed that she had gone on the bicycle on the accused, the Hon’ble Apex Court held out that it was not unknown to her, with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and, in any case, raise an alarm to protect herself. As no such steps were taken by her, the Hon’ble Supreme Court held that she was a willing party to go with the appellant of her own and, therefore, there was no taking out of the guardianship and the appellant were acquitted of the charge under Section 366 I.P.C. 12. Similarly, in ‘State of Karnataka vs. Sureshbabu’, 1994 Crl.L.J.1216 (1), it was found that the girl went with the accused voluntarily. It was held by the Hon’ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to hold that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement. In ‘Mahabir Vs. State’, 55 (1994) DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under section 366 and 376 IPC. It was noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had traveled with him in a compartment shared by other persons. The appellant was convicted under section 366 and 376 IPC. It was noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had traveled with him in a compartment shared by other persons. She had then gone to a house in a Tanga, and yet she did not lodge any protest and made no attempt to flee despite having ample time and opportunity. It was noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge of offence under Section 376 but also of the charge under section 366 IPC. In ‘Piara Singh vs. State of Punjab’, 1998 (3) Crimes 570, the High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though, the case of the prosecution was that she was fourteen years of old at that time. Since, the High Court came into conclusion that no force was used in having sexual intercourse with her, the appellant was acquitted not only of charge under Section 376 but also of charge under section 366 and 366-A of Indian Penal Code. 13. 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 IPC against the accused/appellant, is proved beyond reasonable doubt. The trial Court committed grave error in recording the conviction and sentence in question and on the same set of evidence, acquitted two accused. Therefore, the appeal deserves to be allowed. 14. Accordingly, the appeal is allowed. Impugned judgment and order dated 06.10.2012 passed by Addl. District & Sessions Judge, Roorkee in Sessions Trial No. 181 of 2010 ‘State vs. Babu Hasan and others’, so far as it relates to the conviction and sentence awarded against the accused/appellant, is hereby set-aside. The appellant is on bail. He needs not to surrender. His sureties are discharged. Let the Lower Court’s Record be sent back.