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2016 DIGILAW 854 (HP)

State of H. P. v. Badar Deen

2016-05-19

CHANDER BHUSAN BAROWALIA, RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This appeal is instituted at the instance of the State against the judgment dated 29.5.2012, rendered by the learned Addl. Sessions Judge (FTC), Chamba, H.P, in Sessions trial No. 19/12/2011-T, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 120B, 363, 366, 376 and 506 IPC have been acquitted. 2. The case of the prosecution, in a nut shell, is that accused Badar Deen used to reside in village Chilon. He was engaged in the work of timber sawing. On 10.4.2011, at about 6:00 PM, the prosecutrix had gone to attend the call of nature at Nalla. The accused was standing on the way. He proposed to marry the prosecutrix. She refused to marry him. She was taken to Rupaina through jungle. The accused called his brother-in-law co-accused Manjoor Ahmed at Dalhousie. At 2:00 AM, on the night intervening 10.4.2011/11.4.2011, the brother-in-law co-accused Manjoor Ahmed came to Rupaina in a vehicle. The prosecutrix was kept in the quarter of co-accused Manjoor Ahmed. Thereafter, she was taken to Kathuwa in J & K on 11.4.2011. She remained with the accused from 11.4.2011 till 27.4.2011. The accused was intercepted by the police on 27.4.2011. The accused committed rape upon the prosecutrix at Dalhousie and Kathuwa in J & K against her consent. Mahinder Singh, PW-3 came to know about the incident on 10.4.2011. He came to his native place on 11.4.2011 and searched for his sister. The accused was medically examined on 29.4.2011 vide MLC Ext. PW-11/B. The prosecutrix was also examined by Dr. Richa Gupta, PW-18. The MLC to this effect is Ext. PW-18/B. It was obtained by the police. The case was investigated and challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as eighteen witnesses. The accused were also examined under Section 313 Cr.P.C. They pleaded innocence. The learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. M.A. Khan, Addl. Advocate General has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Surinder Saklani and Mr. Nimish Gupta, Advocates for the respective accused have supported the judgment of the learned trial Court dated 29.5.2012. 5. Hence, this appeal. 4. Mr. M.A. Khan, Addl. Advocate General has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Surinder Saklani and Mr. Nimish Gupta, Advocates for the respective accused have supported the judgment of the learned trial Court dated 29.5.2012. 5. We have heard learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 is the prosecutrix. She testified that she was residing in her village at Chilon. Accused Badar Deen used to fetch milk from their house. She got acquainted with him. He proposed to marry her. On 10.4.2011, at about 6:00 PM, the prosecutrix had gone to attend the call of nature in the Nalla. The accused was standing on the way. He proposed to marry her. She refused to marry him. Accused caught hold of her from her arm and took her to Rupaina through jungle. The accused made telephonic call to his brother-in-law co-accused Manjoor Ahmed at Dalhousie. At 2:00 AM, on the night intervening 10.4.2011/11.4.2011, the brother-in-law co-accused Manjoor Ahmed came to Rupaina in a vehicle. She was kept in the quarter of co-accused Manjoor Ahmed. Thereafter, she was taken to Kathuwa in J & K on 11.4.2011 in a bus. She was kept there by accused Badar Deen in his quarter till 27.4.2011. When she was being taken by accused Badar Deen to his village Tanta in Doda District, on the way, police intercepted them and brought to Chowari. At Kathuwa, accused committed rape on her without her will and consent. She resisted the same but accused Badar Deen threatened her that he would cut her into pieces and throw the dead body in the Nalla. FIR Ext. PW-1/A was recorded. She was kidnapped on 10.4.2011. She was medically examined at Regional Hospital, Chamba. Her matriculation certificate is Ext. PW-1/E. She was born on 9.1.1990. In her cross-examination, she deposed that she did not disclose to her parents, brothers and sister that accused Badar Deen used to propose her for marriage. The nalla where she had gone to answer the call of nature, was at a distance of 1 km. from her house. She admitted categorically that there were 3 houses at village Rupaina. She did not raise any alarm at village Rupaina that she was being taken forcibly by accused Badar Deen. The nalla where she had gone to answer the call of nature, was at a distance of 1 km. from her house. She admitted categorically that there were 3 houses at village Rupaina. She did not raise any alarm at village Rupaina that she was being taken forcibly by accused Badar Deen. Volunteered that accused had given her something to eat and as such, she became speechless. She had disclosed to the police that accused had given her something to eat which made her speechless. (Confronted with FIR Ext. PW-1/A, wherein it is not so recorded). She also admitted that the quarter of co-accused Manjoor Ahmed was surrounded by many houses. She did not raise any alarm at Dalhousie that she was taken forcibly by the accused. When she boarded the bus at Dalhousie at 6:30 AM, the bus was packed to capacity. She admitted that she was sitting in one of the corners of the bus whereas accused Badar Deen was sitting at some distance from her in a different seat. She did not raise any alarm in the bus. The bus halted at various places and accused had alighted at 2-3 places. When the accused alighted from the bus, she did not disclose anything to any passenger. She also did not raise any alarm when she boarded the bus at Kathuwa in J & K. She also admitted that she remained with the police throughout on 27.4.2011 and 28.4.2011. Her statement was recorded only on 29.4.2011. 7. Mahinder Singh, PW-3 testified that the prosecutrix was his younger sister. He received telephonic call from his parents to the effect that the prosecutrix was kidnapped by accused Badar Deen. He came to his house from Shimla. They inquired from other Kashmiri labour about the whereabouts of accused Badar Deen and his sister. The missing report was lodged vide Ext. PW-3/A. Accused Badar Deen and the prosecutrix were intercepted in J & K by the police. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he categorically deposed that his statement was not recorded by the police. 8. Suno Devi, PW-4 deposed that on 10.4.2011 at about 6:30 PM, her daughter went to answer the call of nature but she did not come back. They made search for her. In his cross-examination by the learned Public Prosecutor, he categorically deposed that his statement was not recorded by the police. 8. Suno Devi, PW-4 deposed that on 10.4.2011 at about 6:30 PM, her daughter went to answer the call of nature but she did not come back. They made search for her. Thereafter, she told her sons, namely, Mahinder Singh and Rakesh over telephone regarding elopement of her daughter (prosecutrix). 9. Rakesh Kumar, PW-5 deposed that the prosecutrix was his younger sister. She used to reside in the village with parents. He was driver at Shimla. On 10.4.2011 at 10:00 PM, he received telephonic call from his mother that the prosecutrix had gone missing. His younger brother Mahinder Singh immediately rushed to the house. He came on 26.4.2011. He accompanied the police to Doda in J & K along with his brother Mahinder Singh. They searched for their sister at Gandoh. At Gandoh, accused Badar Deen had hired a room and he along with the prosecutrix was nabbed by the police from the said room. In his cross-examination, he admitted that Kathuwa is a District and is thickly populated. There were many houses adjacent to the room. Gandoh is also thickly populated and Police Station is also there. 10. Gautam, PW-9 deposed that he received telephonic call from Manjoor Ahmed at 9:00 PM. He requested for vehicle that some luggage is to be brought from Chowari. Accordingly, accused Manjoor met him at Dalhousie, Bus Stand and took him to Chowari and then to village. In the village, he asked for luggage but there were only 2-3 bags. A boy and girl were present with the bags. He put the bags in the vehicle and accused Manjoor Ahmed, Badar Deen and the girl boarded his vehicle. He drove the vehicle to Subhash Chowk, Dalhousie, where both the accused and girl alighted from the vehicle. In his cross-examination, he admitted that in between, the accused and girl were freely talking to each other. 11. Dr. Raj Kumar Sharma, PW-11 has medically examined accused Badar Deen. He issued MLC Ext. PW-11/A. 12. Insp. Prakash Chand, PW-13 deposed that on 12.4.2011, missing report qua the prosecutrix was lodged at Police Station by Mahinder Singh. On 29.4.2011, ASI Chuni Lal produced the prosecutrix, accused Badar Deen and co-accused Manjoor Ahmed before him at Police Station. 11. Dr. Raj Kumar Sharma, PW-11 has medically examined accused Badar Deen. He issued MLC Ext. PW-11/A. 12. Insp. Prakash Chand, PW-13 deposed that on 12.4.2011, missing report qua the prosecutrix was lodged at Police Station by Mahinder Singh. On 29.4.2011, ASI Chuni Lal produced the prosecutrix, accused Badar Deen and co-accused Manjoor Ahmed before him at Police Station. The prosecutrix made statement that she was kidnapped by accused Badar Deen and taken to Rupaina. From Rupaina, she was taken to Dalhousie and then to Kathuwa in J & K. He recorded the FIR Ext. PW-1/A. He also got accused Badar Deen medically examined. The accused was arrested on 29.4.2011. 13. ASI Chuni Lal, PW-14 deposed that he was sent by SHO pursuant to daily diary report No. 15 to Gandoh in District Doda, J & K in search of the prosecutrix. On 27.4.2011, at about 5:00 PM, at Kahara Nalla, the prosecutrix and the accused were seen moving. He handed over the prosecutrix to her brother vide memo Ext. PW-3/B. The statements of the witnesses were recorded. They started from Gandoh at 2:30-3:00 PM on 28.4.2011. Even on that date, the victim refused to give statement to him. 14. The prosecutrix was examined by Dr. Richa Gupta, PW-18. She issued MLC Ext. PW-18/B. Her final opinion is Ext. PW-18/C. According to her, there was nothing suggestive that sexual intercourse has not taken place. In her cross-examination, she admitted that she has not noticed any injury marks at the time of medical examination of the prosecutrix. 15. According to the prosecutrix, PW-1 she was forcibly taken by accused Badar Deen through forest to Rupaina. She was taken from Rupaina to Dalhousie and from Dalhousie to Kathuwa in J & K. She has categorically stated in her cross-examination that there were 3 houses at village Rupaina. She did not raise any alarm at village Rupaina that she was being taken forcibly by accused Badar Deen. Similarly, she has not raised any alarm when she was taken from Dalhousie to Kathuwa in J & K. PW-1, prosecutrix has deposed that she was given something by the accused to eat and thereafter she became speechless, however, it has come in the statement of Gautam, PW-9 that the accused and the girl were freely taking with each other when they were travelling in his vehicle. There were many passengers in the bus when the prosecutrix was taken from Dalhousie to Kathuwa in J & K, however, she has not raised any alarm. The quarter of co-accused Manjoor Ahmed was also near the bus stand at Dalhousie. 16. The matriculation certificate of the prosecutrix is Ext. PW-1/E. She was more than 21 years of age at the time of the incident. In Ext. PW-1/F i.e. copy of pariwar register, the date of birth is also recorded as 9.1.1990. Dr. Richa Gupta, PW-18 has not noticed any injury on the person of the prosecutrix. No blood and semen was detected on Ext. 1b (pubic hair of the prosecutrix), on Ext. 1c (vaginal swabs of the prosecutrix), Ext. 2b (pubic hair of accused Badar Deen) and Ext. 2c (glans penis swab of accused Badar Deen), as per the report of the FSL, Ext. PX. 17. What emerges from the evidence, discussed hereinabove, is that the prosecutrix had voluntarily gone away from home with the accused. She has travelled from her village to Rupaina and from Rupaina to Dalhousie and to Kathuwa in J & K. She has not raised any alarm while travelling from one place to another. Though, the prosecutrix and accused Badar Deen were nabbed on 27.4.2011 but the statement of the prosecutrix was only recorded on 29.4.2011. There is no evidence on record to suggest that accused Badar Deen has conspired with his brother-in-law co-accused Manjoor Ahmed in the commission of crime. The prosecution has failed to prove the case against the accused under Sections 120-B, 363, 366, 376 and 506 IPC. 18. Accordingly, there is no merit in this appeal and the same is dismissed.