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2016 DIGILAW 889 (ALL)

Ayyub v. State of U. P.

2016-03-09

RANJANA PANDYA

body2016
JUDGMENT Ranjana Pandya, J. 1. Challenge in this appeal is to the judgment and order dated 26.09.2015 passed by the learned Additional District & Sessions Judge (Fast Track Court), Pilibhit in Sessions Trial No. 319 of 2013 (State vs Ayyub) arising out of Case Crime No. 739 of 2012, under Sections 363, 366, 376 I.P.C., Police Station Kotwali Pilibhit, District Pilibhit, whereby the accused-appellant has been convicted and sentenced to five years' rigorous imprisonment and a fine of Rs. 10,000/- under section 363 IPC; seven years' rigorous imprisonment and a fine of Rs. 10,000/- under section 366 IPC and ten years' rigorous imprisonment and a fine of Rs. 15,000/- under section 376 IPC with default stipulation. Out of fine so deposited by the appellant, half of the same was directed to be paid to the victim. 2. Filtering out the unnecessary details, the prosecution case is that a written report was given by Maqsood Ahmad, son of Mansoor Ahmad, resident of Bujkasawan, Police Station Kotwali Pilibhit, District Pilibhit on 05.11.2012 at 4.30 P.M. mentioning therein that his daughter (victim), aged about 13 years is missing since 03.11.2012. She has taken away Rs. 50,000/- (rupees fifty thousand) and two tolas gold with her. The informant made a search of his daughter in the neighbourhood and in relations but when she could not be traced, he lodged the report against Ayyub, Guddu, Sharafat, Babu sons of Liyakat and Yunus on the basis of suspicion on 05.11.2012. On the basis of which a case was registered at case crime No. 739 of 2012, under sections 363, 366 IPC, which was mentioned in the GD vide report No. 42. After the registration of the case, the case was entrusted to SI Rakesh Singh. He copied the chik report and GD report in the case diary and recorded the statement of the chik writer. On 07.11.2012, he recorded the statement of the first informant Maqsood. Thereafter, he inspected the spot and prepared the site plan, Exhibit Ka-5. On 03.01.2013, he recovered the victim from near the roadways bus stand and prepared its memo, which he proved as Exhibit Ka-6. Thereafter, he recorded the statement of the victim, on the basis of which Section 376 IPC was added. On 07.01.2013, he copied the medical report in the case diary. The age of the victim was found to be 16 to 17 years. Thereafter, he recorded the statement of the victim, on the basis of which Section 376 IPC was added. On 07.01.2013, he copied the medical report in the case diary. The age of the victim was found to be 16 to 17 years. On 04.04.2013, after taking permission of the court, he recorded the statement of accused. After completion of the investigation, he submitted the charge sheet, which he proved as Exhibit Ka-7. 3. The prosecution has examined as many as six witnesses. PW-1 is the informant Maqsood, the father of the victim. PW-2 is the victim of the case. PW-3 is Dr. Mahavir Singh. PW-4 is Dr. Anita Chaurasia. PW-5 is S.I., Rakesh Singh, Investigating Officer. PW-6 is Constable Sukhvir Singh. 4. PW-1 is Maqsood Ahmad, the informant and father of the victim. He deposed that on the date of occurrence, the age of the victim was about 13 years. On that day when the accused came to his house and asked his daughter to accompany him as his father is ill. At that time he was at his shop. When he came back home at 06: 30 - 07: 00 P.M., his daughter-in-law told him that the victim has gone away with Ayyub and did not come back yet. The victim has taken away Rs. 50,000/- and two tolas gold as the accused has told the victim that his father is ill. When this witness met the mother and brother of the accused, the victim was not present there. When the victim could not be traced out in spite of hectic search, he lodged the report, which he proved as Exhibit Ka-1. His daughter was traced out after one and a half months. 5. PW-2 is the victim of the case. She deposed that she knows the accused Ayyub. He used to come to her house before the occurrence. He considers the mother of the victim as his sister. On the date of occurrence, accused came to her house and asked as to where is her mother. She replied that she has gone to attend a religious function (Milad). Then he asked that her father had suffered a heart attack, accompany him after taking some money. Thereafter she took money and ornaments from her sister-in-law and left with the accused. When they reached near saw mill, the accused administered some sweet to her. She replied that she has gone to attend a religious function (Milad). Then he asked that her father had suffered a heart attack, accompany him after taking some money. Thereafter she took money and ornaments from her sister-in-law and left with the accused. When they reached near saw mill, the accused administered some sweet to her. After taking that sweet, she got unconscious. When she regained consciousness, she was in Delhi, where 3-4 persons were also present. She was kept there for about two months and was raped against her wishes. She tried to escape, but accused did not leave her alone. When money has finished, she was brought to Pilibhit from where police recovered her. 6. PW-3 is Dr. Mahavir Singh, who examined the slide of vaginal smear of the victim. He deposed that during examination, no dead or alive spermatozoa was found, which he proved as Exhibit Ka-2. 7. PW-4 is Dr. Anita Chaurasia. She deposed that on 03.01.2013, she was posted as Senior Consultant, District Women Hospital, Pilibhit. On that day, the victim was brought by a lady constable 544 Babita Saxena. On her internal examination, no injury was found on her private part, which she proved as Exhibit Ka-3. Slide of her vaginal smear was made and was sent to the Pathologist. For determination of the age of the victim, her x-ray was advised. After the receipt of the reports from the Pathologist and Radiologist, supplementary report was prepared, which she proved as Exhibit Ka-4. According to the supplementary report, the age of the victim was about 16-17 years. This witness has further stated that no definite opinion about rape can be given. 8. PW-6, constable Sukhvir Singh is the Parokar of the Police Station Kotwali, District Pilibhit. As chik writer Akram Khan has gone on training, this witness has proved the writing and signature of Akram Khan, who prepared the chik report Exhibit Ka-8. 9. The evidence of PW-5, S.I., Rakesh Singh, the investigating officer of the case has already been discussed above. 10. After closure of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which he denied the occurrence and claimed to be tried. He has stated that he has falsely been implicated in the case. He has produced the copy of voter ID of the victim, (Exhibit Kha-1) in support of his defence. 11. 10. After closure of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which he denied the occurrence and claimed to be tried. He has stated that he has falsely been implicated in the case. He has produced the copy of voter ID of the victim, (Exhibit Kha-1) in support of his defence. 11. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment. 12. Feeling aggrieved, the accused has come up in appeal. 13. Heard Shri Sangam Lal Kesharwani, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record. 14. It has been contended on behalf of the appellant that there is delay in lodging the first information report, inasmuch as, the occurrence is said to have taken place on 03.11.2012 at 04: 00 P.M., whereas the report was lodged on 05.11.2012 at 04: 30 P.M. The distance of the Police Station from the place of occurrence being 2 Kms. As far as the delay is concerned, nothing has been mentioned in the first information report. Although, PW-1 Maqsood has stated that Ayyub came to the house and took away his daughter on the pretext of the illness of the informant. Although, he has stated that he was present at the house when the accused took his daughter but in the next breath, he has stated that he was at his shop. However, he has stated that in the evening when he returned from his shop at 06: 30 to 07: 30 P.M., he came to know that his daughter (the victim) has gone away with the accused. The informant has not said anything why he took such a long time i.e. about 48 hours in lodging the first information report. A person whose daughter is missing would make every attempt to lodge the first information report at once. 15. Normally, in cases of rape, delay in lodging the first information report is not fatal, in cases where delay has been explained but if the delay remains un-explained, then it would strike at the root of the case and would be fatal for the prosecution case. Delay in lodging the first information report more often then not result in embellishment and exaggeration which is a creature of an after thought. Delay in lodging the first information report more often then not result in embellishment and exaggeration which is a creature of an after thought. No doubt, mere delay in lodging the first information report is really of no consequence, if the reason is explained because in cases of rape, generally the family remains reluctant to report the matter to the police to save shame and prestige of the family, but in this case it is not so because, the informant has neither stated so in the first information report nor in his statement recorded before the court. Thus, this delay of about 48 hours in lodging the first information report proves fatal in the prosecution case. 16. As far as the occurrence is concerned, in the first information report the informant has mentioned that since he suspects Guddu, Sharafat, Babu and Yunus, nothing has been said against them, either by the informant or by the victim due to which all the aforesaid four accused were not charge sheeted. As far as the accused Ayyub is concerned, he is said to have taken away the girl aged about 13 years. As far as the age of the victim is concerned, since, there is no academic record, as per Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2007, the medical report has to be relied upon. As per the medical report, the age of the victim was about 16 to 17 years. Thus, definitely, the victim was above the age of consent. Since the elbow epiphysis were completely fused. 17. As far as the occurrence is concerned, as per the first information report, the victim while leaving her house took away Rs. 50,000/- as cash and two tolas gold. The first information report has been corroborated by the statement of Maqsood Ahmad PW-1 who has stated that when he came to home, he came to know that his daughter has taken away Rs. 50,000/- as cash and two tolas gold. Even the victim PW-2 has admitted this fact and has stated that she took the money on the instigation of the accused. Although, the father of the victim and as per the first information report, the victim carried Rs. 50,000/- as cash besides gold but the victim has stated that she did not know how much money was took away. Even the victim PW-2 has admitted this fact and has stated that she took the money on the instigation of the accused. Although, the father of the victim and as per the first information report, the victim carried Rs. 50,000/- as cash besides gold but the victim has stated that she did not know how much money was took away. She has denied of having taken any gold from her house. Thus, it is clear that either the victim has stated incorrect fact before the court or her father is not speaking truth before the court. 18. As per the version of PW-1 Maqsood Ahmad, he has said that, he did not dictate the names of the other accused except Ayyub to the Head Constable, in the first information report. How the other names were written, remains unanswered. As far as the recovery of the girl is concerned PW-1 Maqsood has stated that after one and half months, when his daughter was recovered by the police who took her to Matiyari from where his wife Batulan and his son Danish brought her daughter at home. The victim PW-2 has stated that when she was recovered by the police, suddenly her brother Danish and father came and caught. Thus, there is a contradiction which strikes at the root of the case. 19. As far as, the custody of the cash and other valuables of the house are concerned, the father of the victim PW-1 Maqsood has stated that all the cash and jewellery always remained with the victim. He does not know that where the victim used to keep the cash and the jewellery but whatever he had earned was kept with the victim. The victim has stated that the cash taken away by her belonged to her sister-in-law because when she was leaving the house, she asked her sister-in-law for money who told her that a packet is kept in the almirah which was picked up by this witness. This packet was brought by the sister-in-law on the same day from Delhi. Thus, there is contradiction in this matter also. 20. Another contradiction which strikes at the root of the case is that the informant has stated that when the victim left her house, her sister-in-law Nasreen and her brother were at home and when he returned home his daughter-in-law Nasreen told him that the victim had gone with Ayyub. Thus, there is contradiction in this matter also. 20. Another contradiction which strikes at the root of the case is that the informant has stated that when the victim left her house, her sister-in-law Nasreen and her brother were at home and when he returned home his daughter-in-law Nasreen told him that the victim had gone with Ayyub. He has stated that he did not scolded Nasreen as to why she had permitted the victim to go with the accused. Thus, if at all the victim would have been forcibly taken the sister-in-law would definitely have resisted, but here is a case in which the sister-in-law is leaving the house in the presence of her sister-in-law (Bhabhi) taking Rs. 50,000/- as cash with golden jewellery with her. The informant, his wife and their children did not see the accused taking away the victim. 21. Coming to the statement of the victim in which she has admitted that she was known to the accused from prior to the occurrence. On the date of occurrence, the accused came to her house and said that her father had suffered with heart attack, hence, she would go with him. She took money and jewellery from her sister-in-law and went away with Ayyub by rickshaw. Near saw mill, she was given sweets and water. She stated having norsia and have fainted and when she gained consciousness, she was at Delhi, where the accused Ayyub was present along with 3 to 4 other peoples who were not identified by her. She has stated that she remained in Delhi for about one and half months. She was raped against her wishes by the appellant. When the money was exhausted, she was brought back to Pilibhit. She further tried to clarify that when she was made seated at the roadways bus, the appellant had threatened her to stab with the knife if she would raise any alarm. Suddenly, the police, her brother and mother came, when the accused fled away. This witness has undergo the test of cross-examination which she could not under go successfully. She has admitted that Ayyub is father of five children and he used to visit his house frequently. She has further stated that a rickshaw was standing at the entrance. She left her house by rickshaw. Developing and making improvements in her statements, she has stated that Ayyub always carrying a knife. She has admitted that Ayyub is father of five children and he used to visit his house frequently. She has further stated that a rickshaw was standing at the entrance. She left her house by rickshaw. Developing and making improvements in her statements, she has stated that Ayyub always carrying a knife. It appears that this witness forgot that she has stated in her examination-in-chief that she became unconscious and remains cautiousness in Delhi and stated that there was many passengers in the bus but she did not complained to any passenger in the bus that Ayyub had kidnapped her. Thus, travelling from Delhi to Pilibhit and not raising any alarm indicated towards the consent of the victim. 22. As per the medical report and the statement of PW-4 Dr. Anita Chaurasia, no injury was found on the body of the victim. There is nothing significant in the statement of the I.O. 23. Thus, in my opinion, since she was an interested, partisan, and unreliable witness, who was a privy to the whole episode, therefore, to save her skin, she had narrated a fabricated version. Without lending assurance from any independent source her testimony was insufficient to hold appellant guilty. As pointed out above, she had changed her version from time to time and, therefore, cannot be relied upon. This she seems to have done to rectify her mistake committed by a damsel under infatuation, which is not far to perceive. Her hymen was found to be old torn and healed with insertion of two fingers easily, which can be taken to be a prima facie evidence, on preponderance of probability, that the victim was used to carnal intercourse. 24. Thus, on what has been said and discussed above, I find that the evidence of the witnesses have major contradictions and the prosecution story is shaky, unreliable, not worthy of credence. Thus, the prosecution has miserably failed to prove the case against the appellant and the appeal is liable to be allowed. 25. Accordingly the appeal is allowed. 26. The impugned judgment of conviction and sentence dated 26.09.2015 passed by the learned Additional District & Sessions Judge (Fast Track Court), Pilibhit in Sessions Trial No. 319 of 2013 (State vs Ayyub) arising out of Case Crime No. 739 of 2012, under sections 363, 366, 376 I.P.C., Police Station Kotwali Pilibhit, District Pilibhit is hereby set aside. 27. 26. The impugned judgment of conviction and sentence dated 26.09.2015 passed by the learned Additional District & Sessions Judge (Fast Track Court), Pilibhit in Sessions Trial No. 319 of 2013 (State vs Ayyub) arising out of Case Crime No. 739 of 2012, under sections 363, 366, 376 I.P.C., Police Station Kotwali Pilibhit, District Pilibhit is hereby set aside. 27. The appellant Ayyub is on bail. His bail bonds are cancelled and the sureties are discharged. However, the appellant is directed to comply with the provision of Section 437-A Cr.P.C. 28. Let the copy of this judgment be sent to the trial court concerned for compliance.