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2016 DIGILAW 2238 (ALL)

Zeeshan Ahmed v. State of U. P.

2016-06-24

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava,J. 1. This appeal has been preferred against the judgment dated 29.2.2016 passed by Additional Sessions Judge/ F.T.C., Lucknow in S.T. no. 298 of 2015 (State Vs. Zeeshan Ahmed) arising out of case crime no. 363 of 2011 under sections 363, 366 and 376 IPC, P.S. Wazirganj, Lucknow, by which appellant was convicted for the charges under sections 363, 366 and 376 IPC and was convicted for three years' rigorous imprisonment for charge under section 363 IPC, for three years' rigorous imprisonment for charge under section 366 IPC and for 10 years' rigorous imprisonment with fine of Rs.5,000/- for charge under section 376 IPC. 2. The prosecution case in brief was that on 23.12.2011, the minor daughter of complainant Mohd. Qurban Ali, namely, Sania Ali @ Saba had eloped from her house, then on suspicion, the complainant had lodged report in police against accused Zeeshan Ahmed. During investigation the victim Sania was recovered and had stated in her statement under Section 164 Cr.P.C about her kidnapping by accused. After competition of investigation, charge-sheet was submitted against accused for offence under Sections 363, 366 and 376 IPC. In trial the accused was charged for these offences to which he pleaded not guilty and claimed to be tried. Then in support of charges, prosecution side had examined PW-1 Mohd Qurban Ali (complainant), PW-2 Rashida Bano (mother of the victim), PW-3 Dr. Nutan Sonkar, PW-4 Sania (victim), P.W-5 Dr. A.P. Verma, P.W.6 S.I. Rajesh Singh (I.O.) and PW-7 C.P. Rajesh Singh. These witnesses had proved prosecution documents as Exhibits- Ka- 1 to Ka-10. 3. In his statement under Section 313 Cr.P.C. accused Zeeshan Ahmed had denied the allegations against him and the facts of the charge and pleaded that he is innocent . Defence side had not adduced any defence evidence. 4. After affording opportunity of hearing to the prosecution and defence side, the trial court had convicted the accused for all the charges. Then after hearing on the point of sentence, the trial court had sentenced the accused as above. Aggrieved by the said judgment of conviction, present appeal has been preferred by sole accused of the case. 5. Learned counsel for the appellant contended that neither victim was minor at the time of incident nor any overt act was committed by appellant. Then after hearing on the point of sentence, the trial court had sentenced the accused as above. Aggrieved by the said judgment of conviction, present appeal has been preferred by sole accused of the case. 5. Learned counsel for the appellant contended that neither victim was minor at the time of incident nor any overt act was committed by appellant. He submitted that victim was major who had willingly gone with the appellant, and from evidences it is proved that she had married with the appellant and no criminal force was ever used against the victim. But these points were not considered by the trial court who had erroneously found the victim minor on basis of her own evidence and convicted the appellant, therefore appeal should be allowed. 6. The contentions of learned counsel for the appellant were refuted by Sri Sardar Alok Singh, learned AGA who had submitted that although there appears evidence of consent and non use of criminal offence but victim was minor at the time of incident, so her consent has no value in this matter. There is no error or illegality in the judgment of trial court, therefore, appeal should be dismissed. 7. First and most pertinent point relates to the alleged age of minority of the victim. In FIR, the complainant had stated the age of his daughter as 14 years. In medico-legal examination, her age was found about 17 years. PW-5 Dr. A.P. Verma had proved his report as Ex- Ka 4 which appears to have been prepared on the basis of physical, pathological and radiological tests. From the evidence of PW-5 Dr. A. P. Verma, it is found that at the time of medico-legal examination and X-ray report the epiphysis of right wrist was in process of fusion, whereas epiphysis of knee and right elbow were fused. Dr. had submitted his opinion on the basis of these X-ray reports. From scrutiny of this report and medical jurisprudence the age of girl, when epiphysis of elbow and knee and one wrist is fused and another wrist is in process of fusion, may be about 18 years subject to some flexibility of time. Such medical reports are opinion which may always has flexibility of time on either side between 1 to 2 years. Such medical reports are opinion which may always has flexibility of time on either side between 1 to 2 years. In these circumstances, in absence of any specific proof of date of birth, this contention of defence/ appellant side cannot said to be unacceptable that victims may be 18 years of age or more and she would have attained the age of majority. PW-3 Dr. Nutan Sonkar had prepared medical report of victim on the basis of pathological report and X-ray report and opined the age of victim about 17 years but had also stated that there may be variation of 2 years in her age on either side. 8. So far as finding of trial court in this regard is concerned, learned Sessions Judge had mentioned in the impugned judgment that conclusive finding cannot be given by a doctor on the basis of occification test because on the basis of those tests there is always possibility of variation. With these finding, trial court had not accepted medico-legal report regarding age of the victim, but a noteworthy error in the finding of trial court is found when learned Sessions Judge had believed the age of victim on the basis of her own oral statement, and held that from statement of victim, it is proved that she was minor. In contradiction with medical opinion, such finding on the basis of statement of victim herself is infirm, erroneous and perverse. Apart from it parents of victim were the person who could have given finding regarding her age in FIR. The complainant, father of victim had stated her age is 14 years which is not believable in present set of circumstances and medico legal as well as radiological reports. The statement of PW-2, mother of the victim is also very vague in this regard. She could not tell exact age of her daughter, and during the cross-examination and stated that she could not tell her own exact age. She is illiterate lady who cannot sign and could not state her own age satisfactory at the time of birth of victim, therefore in absence of any other evidence about age of victim medico-legal examination report and statements of doctors should be believed. As stated above the PW-3 Dr. She is illiterate lady who cannot sign and could not state her own age satisfactory at the time of birth of victim, therefore in absence of any other evidence about age of victim medico-legal examination report and statements of doctors should be believed. As stated above the PW-3 Dr. Nutan Sonkar had prepared medical report of victim on the basis of pathological report and X-ray report and opined the age of victim about 17 years but had also stated that there may be variation of 2 years in her age on either side. 9. On the basis of above discussion, the finding of trial court about victim being minor at the time of incident is found erroneous and incorrect. In view of above, it is hereby held that prosecution side had failed to prove that victim was minor at the time of charged incident. From evidences, it appears that victim had attained the age of majority at or before the time of charged incident. 10. Out of three witnesses of fact, PW-1 Mohd. Qurban Ali (complainant and father of victim) and PW-2 Rashida Bano (mother of victim) had not seen the incident. They had not seen the victim at the time of elopement from their house and had not been her in contact with appellant till they were informed about her recovery. The FIR and statement of PW-1 and PW-2 are based either on suspicion and apprehension or on hearsay evidences and do not support the facts of the charge. Now remains statement of victim herself who had been examined as PW-4. She had stated in the Court that on 23.12.2011 her school was closed and she had no intention to go there, but after her talks with accused Zeeshan Ahmed, she received some money from him for going out, then she kept her clothes in school bag and went out in her school dress with such school bag and informed her mother that she is going to school. Her mother did not know that school was closed on that day, and except her mother or anyone else was not there at her house. Then she went out of her house alongwith accused Zeeshan and then they reached at a rented room, where they resided several days. It is pertinent to mention that PW-4 victim had stated that she and accused had jointly taken that rented room. Then she went out of her house alongwith accused Zeeshan and then they reached at a rented room, where they resided several days. It is pertinent to mention that PW-4 victim had stated that she and accused had jointly taken that rented room. This is the proof of the fact that victim had come out of her house with her willingness and pre-planning, and then reached to the rented house. 11. From the statement of victim, it is found that she had performed marriage (nikah) with the accused and thereafter had physical relationship with him. Although in her statement, victim had stated that she had opposed this physical relationship but from total appreciation of evidences, it is apparent without any shadow of doubt that she was consenting party to her physical relationship. The alleged injury caused by the victim at the time of alleged resistance was a scratch marks inflicted by her on the back of accused, which in present set of circumstances may be treated as scratches caused out of her own passion during intercourse rather than resistance. It is also found from the evidence of witness that during period of stay with accused Zeeshan Ahmed in that rented room appellant used to go out from bringing food, and it was never stated that appellant Zeeshan had unlawfully detained her by locking the door or otherwise. This proves that during that period also victim had opportunity to go out anywhere including her own house, but she had consented to remain with the accused appellant. From the statement of victim it is also found that appellant Zeeshan was willing to keep her as wife after marriage, but parents of victim were opposed to this marriage on the basis of caste lines. Therefore, from the available evidences neither kidnapping of minor victim is proved nor any unlawful detention or use of any criminal force is proved. It is proved from the evidences that victim Sania had earlier long friendship and intimacy with appellant who had several times made physical relationship with him before the charged incident. The appellant used to visit her house in absence of other family members and also that major victim had performed nikah (marriage) with the appellant and had consented physical relationship with free will. Use of criminal force by appellant is not proved. Therefore, charges under Section 363,366 and 376 IPC are found not proved. The appellant used to visit her house in absence of other family members and also that major victim had performed nikah (marriage) with the appellant and had consented physical relationship with free will. Use of criminal force by appellant is not proved. Therefore, charges under Section 363,366 and 376 IPC are found not proved. The conviction of accused appellant was mainly on the ground of alleged minority of victim, which was erroneously accepted by trial court on the basis of victim herself in which discussion and finding has been given. 12. In view of the above facts and from the meticulous appreciation of evidences adduced before the trial court, it is held that charges of 363, 366, 376 IPC against the appellant/accused are found not proved; therefore the impugned judgment of conviction dated 29.2.2016 is hereby set aside and appeal is accordingly allowed. The accused/appellant Zeeshan Ahmed is acquitted from all the charges, and he be released from custody of this case immediately. 13. Let original record be sent back to the lower court concerned. Let a copy of this order be communicated to the trial court as well as Jail Superintendent, Lucknow for ensuring prompt compliance.