Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 554 (UTT)

Saleem v. State of Uttarakhand

2017-10-24

LOK PAL SINGH

body2017
JUDGMENT : Both the aforesaid Criminal Appeals arise out of same case from separate judgment and order dated 30.08.2013 passed by the Additional Session Judge/Special Judge (E.C. Act), Nainital in Session Trial No.103 of 2010 (State vs. Waseem) and S.T. No.104 of 2011 (State vs. Saleem), whereby the Trial Court has convicted the appellants under Sections 363, 366 and 376 of IPC. 2. Brief facts of the case are that Akhter Hussain, father of the prosecutrix made a typed complaint to the Police Station, Ramnagar on 10.03.2010 stating therein that his daughter (name is not disclosed) went for tuition on 29.01.2010, but did not return back, in this regard, the Police was informed on 08.02.2010. It was further alleged in the complaint that his daughter made a call at his house from mobile no.9756680206 on 20.02.2010 and talked to his wife for about 10 minutes and informed that one accused Waseem is willing to marry with the prosecutrix and one Saleem is also accompanying them. His wife then asked Waseem to send back her daughter. It was prayed in the compliant that an action be taken against both the accused persons Waseem and Saleem. On the basis of complaint, initially a FIR under Sections 363 & 366 of IPC was lodged against the accused persons. The investigation was commenced. The prosecutrix was allegedly recovered from Sheeshgarh (Vilashpur) Bus Station, District Bareilly and she was brought to Ramnagar where she was produced before the Magistrate, her statement under Section 164 of Cr.P.C. was recorded on 25.05.2010. She made a statement that she was studying in high school, her age is about 16 years and on 19.01.2010 at about 2:30 PM when she was going for coaching class, three persons came at Santi street and tide her mouth and gave some smell to her, resulting which she became unconscious. Thereafter, she was found in a family where one Saleem and his family members were taking care of her well. After two months, Saleem could find out the contact number of the parents of prosecutrix and made a call to her mother. 3. She further stated that all three persons, who had taken her, are not known to her. She further stated that she did not marry with Saleem and further stated that Saleem did not do anything wrong with her. 3. She further stated that all three persons, who had taken her, are not known to her. She further stated that she did not marry with Saleem and further stated that Saleem did not do anything wrong with her. She further stated that she slept with Saleem for about three months with her own volition. She further stated that Saleem never insisted to have physical relationship with her. She further stated that she may marry with Saleem if her parents are agrees. She further stated that on asking of her parents she is ready to marry. She further stated that she is willing to go with her parents. She further stated that she was not abducted from Ramnagar and nothing wrong has happened with her. 4. The prosecutrix was medically examined on 24.05.2010 at Government Hospital Ramnagar, Nainital. On her medical examination, no injury was found on her body or private part. On 25.05.2010 her ossification test was conducted to ascertain her age. 5. The Investigating Officer after completion of the investigation submitted the charge-sheet and produced as many as 7 witnesses. Investigating Officer also filed a photocopy of the progress report of class 8 of the prosecutrix showing her date of birth as 31.05.1994. On submission of chargesheet, the trial court framed the charges punishable under sections 363, 366 and 376 of IPC, against the accused persons to which they pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution has adduced the evidence of seven witnesses. 7. Akhtar Hussain PW-1 father of the prosecutrix was examined in both the sessions trial, but in his examination in chief he did not made any statement that his daughter has told him that any of the accused persons have committed rape with his daughter. He was cross-examined by the accused persons. Subsequent to the cross examination, Akhtar Hussain PW-1 was recalled and re-examined by the prosecution, where he made a statement that he knows the accused persons and when they could find the accused persons with the help of mobile number and after six months his daughter was recovered from bus station Sheeshgarh Vilaspur Bareilly [U.P.]. After recovering the girl, she was sent to the women’s home and she was produced in the court and thereafter she was handed over to parents. After recovering the girl, she was sent to the women’s home and she was produced in the court and thereafter she was handed over to parents. He further submitted that his daughter has told him that the accused have committed rape with her. He admitted in his cross examination that the FIR was typed on computer and the date was not mentioned in it. He further stated that the daughter was caught by the police from the house of one Hafeez (Islamic Priest). 8. At the time of recovery of girl, none of the accused was arrested and it was stated that at that point of time, accused Waseem was languishing in jail in connection of another crime, while accused Saleem fled away from the bus station from where the victim was allegedly recovered. 9. The prosecutrix was examined as PW-2. In her examination-in-chief, she stated that on 29.01.2010 Friday about 2:30 PM when she was going for tuition, then two persons Saleem and Washeem meet her and they put a handkerchief on her mouth then she became unconscious, at about 8:00PM when she open her eyes she found herself at Rudrapur and remained there for a week, then she found a mobile and made a call to her mother and informed, that her life in danger. Thereafter Saleem snatched the mobile from her. Thereafter, she was taken to Sheeshgarh, Vilashpur, Barielly, where both the accused did bad work with her. She further stated that she remained there and thereafter she was taken to Lucknow and again came back to Sheeshgarh, Vilashpur, Barielly. She further stated that when she was residing in Sheeshgarh she was taking care by the brother and sister of Saleem. She further stated that she was not married with Saleem. She further stated that she was medically examined and gave a statement before the Magistrate concerned. But, she further stated that the statement made before the Magistrate was under duress of accused persons. In her cross-examination, she has admitted the fact that she stayed with Saleem at Rudrapur for one and a half month. Thereafter, they went to Lucknow and came back to Ramnagar and she also stated that she requested Saleem to talk with her father for marriage. In her cross-examination, she has admitted the fact that she stayed with Saleem at Rudrapur for one and a half month. Thereafter, they went to Lucknow and came back to Ramnagar and she also stated that she requested Saleem to talk with her father for marriage. She also stated that when she travelled from Ramnagar to Lucknow, the police personnel were available at Lucknow railway station, but she did not make any complaint to the police. She further stated that she made a statement before the Magistrate with her own will. The questions were asked by the Magistrate and she replied the same. 10. Smt. Tahira PW-3, mother of the prosecutrix, was also examined. Dr. Archana Kaushik PW-4 was produced by the prosecution to prove the radiological report, which has been marked as Ex. Ka-4 Dr. Archana Kaushik PW-4 has proved that the age of prosecutrix was between 18 years to 20 years on the basis of the X-ray plate report prepared by Dr. J. K. Jha. The Investigating Officers, namely, M.P. Tyagi and SI Kamlesh, were examined as PW5 and PW6 respectively, who conducted investigation of the case. 11. After recording the evidence of prosecution witnesses, an application under Section 311 of Cr.P.C. was filed by the public prosecutor on 05.03.2013 stating therein that the photo copy of progress report of class 8 of the prosecutrix (paper No. 3-A/24) is on record, which needs to be proved, therefore, the principal/concerned employee of the Government Inter College Ramnagar be summoned to prove the progress report of class 8 of prosecutrix to ascertain her date of birth. The application was opposed, but the same was allowed by the trial Court. 12. The principal was summoned but instead of principal, Girish Chandra Daftari (Peon) Government Girls Inter College, Ramnagar was examined as PW-7. However, the Investigating Officer neither recorded any statement of school authorities nor collected any evidence from the school and produced photocopy of progress report of class 8 of prosecutrix. In his examination-in-chief PW-7 has made a statement that the date of birth of prosecutrix is 31.05.1994. He further stated that the prosecutrix got admission in class 6 and earlier she was studying somewhere else. In his cross examination, he admitted that there is an overwriting in the register at the place of date of birth of prosecutrix is mentioned. In his examination-in-chief PW-7 has made a statement that the date of birth of prosecutrix is 31.05.1994. He further stated that the prosecutrix got admission in class 6 and earlier she was studying somewhere else. In his cross examination, he admitted that there is an overwriting in the register at the place of date of birth of prosecutrix is mentioned. It is not proved by the PW-7 that, who has prepared the school register, even otherwise no competent person came from the school to prove the date of birth of prosecutrix, who maintained the school admission register. Neither, the school leaving certificate nor copy of the school admission register was taken on record nor the date of birth was proved. It is pertinent to mention here that the complainant father of prosecutrix has admitted itself that he is educated person and prosecutrix also educated person, but none of them have deposed date of birth of the prosecutrix. 13. After conclusion of the trial, learned trial court by the impugned judgment and order has convicted the appellants under Section 363 IPC and sentenced them to undergo rigorous imprisonment for a period of 2 years with a fine of Rs.2000/- each. The appellants were also convicted and sentenced to undergo rigorous imprisonment for 3 years with a fine of Rs.3000/- each under Section 366 IPC and rigorous imprisonment for 7 years with a fine of Rs.5000/- each under Section 376 IPC. 14. The trial court has recorded the findings that Girish Chandra Daftari PW-7 has proved the date of birth of prosecutrix as 31.05.1994 and held that at the time of incident, the prosecutrix was minor. There were two evidences before the trial court, one is the progress report of class 8 of prosecutrix, which indicates the date of birth of prosecutrix as 31.05.1994 and another is the ossification/ radiological report. According to Dr. Archana Kaushik PW-4, the age of the prosecutrix was more than 18 years but below 20 years, but the trial court did not consider the ossification/ radiological report (Ex.Ka-4) and relied upon the mark-sheet/progress report of class 8 of the prosecutrix and statement of Girish Chandra Daftari PW-7. The progress report of the prosecutrix shows the date of birth of the victim as 31.05.1994, but on what basis the date of birth of prosecutrix was recorded 31.05.1994. The progress report of the prosecutrix shows the date of birth of the victim as 31.05.1994, but on what basis the date of birth of prosecutrix was recorded 31.05.1994. As per the ossification/radiological report, the age of the prosecutrix was more than 18 years but below 20 years at the time of incident. In the instant case, the trial court did not consider the radiological report submitted by the prosecution as well as the statement of Dr. Archana Kaushik. The prosecution was duty bound to prove its case against the accused persons beyond reasonable doubt. The Court while dealing with a criminal trial is to perform the task of ascertaining the truth from the material before it and it has to punish the guilt and protect the innocent. Burden of proof is on the prosecution and the prosecution has to establish its case beyond reasonable doubt. 15. In the present case, the prosecution has come up with two kinds of evidence with regard to the age of prosecutrix at the time of incident. The progress report of class 8 indicates that the date of birth of the prosecutrix is 31.05.1994, but its basis has not been filed. 16. The photo copy of progress report of class 8 adduced by the prosecution and the evidence of PW-7 Grish Chandra Daftari clearly indicated that there is cutting/correction on the date of birth of the victim. In the school register, her name was mentioned at Sl. No.97. The trial court allowed the application of prosecution to prove the mark-sheet/progress report filed by the Investigating Officer alongwith charge-sheet and asked the school authorities to bring the register, but the peon was examined, who was neither the principal nor the office superintendent maintaining the admission register. Thus, he was not competent to prove the extract of admission register. Even otherwise copy of the extract of admission register was not taken on record by the trial court from which the date of birth mentioned in the progress report of class 8th of prosectrix was said to be proved. 17. The trial court has placed reliance on the mark-sheet/progress report of class 8, it is not established by the prosecution by leading material evidence that the actual date of birth of the victim is 31.05.1994. 17. The trial court has placed reliance on the mark-sheet/progress report of class 8, it is not established by the prosecution by leading material evidence that the actual date of birth of the victim is 31.05.1994. The two kinds of evidences, which were available before the trial court, are the progress report of class 8 and the ossification/radiological report. It is true that school transfer certificate (T.C.) is the best piece of evidence under Section 35 of Indian Evidence Act. In the present case, the progress report of class 8 of prosecutrix is not the first hand evidence and prior to it, she studied somewhere else from class 1 to 5th but no efforts were made by the prosecution to bring the date of birth certificate from the school (other than play school) first attended (i.e. class 1 to 5). There is complete failure on the part of the investigation that the prosecution has not produced the date of birth certificate of the prosecutrix to ascertain her correct date of birth i.e. 31.05.1994. It would reveal that the prosecution has withheld the best piece of evidence of school leaving certificate of prosectutrix, certificate of birth register, wherefrom she was initially admitted in class and studied up, to class 5th. In regard to the age of prosecutrix, there was a progress report of class 8 mentioning the date of birth i.e. 31.05.1994, which is not proved by reliable evidence. The another evidence was before the Court the ossification test report, which has been proved by Dr. Archana Kaushik PW-4 has proved the age of prosecutrix at the time of incident above 18 years and less than 20 years. The prosecution itself has chosen to get the age of prosecutrix ascertain by conducting the ossification test and also proved the report of ossification, which proved the age of prosecutrix more than 18 years. The report of Dr. Archana Kaushik PW-4 ascertained the age by using scientific method is also a reliable piece of evidence. But the trial court did not consider the statement and report in regard to the ascertainment the age of prosecutrix and committed illegality in relying upon a progress report of class 8th, which was neither proved nor genuine. 18. It is the case of prosecution that the accused persons took away the prosecutrix from the lawful guardianship of her parents. But the trial court did not consider the statement and report in regard to the ascertainment the age of prosecutrix and committed illegality in relying upon a progress report of class 8th, which was neither proved nor genuine. 18. It is the case of prosecution that the accused persons took away the prosecutrix from the lawful guardianship of her parents. The burden lies upon the prosecution to prove the ingredients of Sections 361, 363 and 366 of IPC. Sections 361, 363 and 366 IPC are important to deal the controversy involved in the case. The same are reproduced herein under: “361. Kidnapping from lawful guardianship.—Whoever takes or entices any minor under 2 [sixteen] years of age if a male, or under 3[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person. (Exception) —This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose 363. Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Punishment for kidnapping.—Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]”. 19. Learned counsel for the appellants has placed reliance upon a judgment of Hon’ble Apex Court in the case of Alamelu and Another vs. State, represented by Inspector of Police reported in AIR 2011 SC 715 wherein Hon’ble Apex Court has held as under: “38. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. We may notice here that PW1 was examined in the Court on 9th August, 1999. In his evidence, he made no reference to the transfer certificate (Ex.P16). He did not mention her age or date of birth. PW2 was also examined on 9th August, 1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 Cr.P.C. seeking permission to produce the transfer certificate and to recall PW2. This petition was allowed. She was actually recalled and her examination was continued on 26th April, 2000. The transfer certificate was marked as Ex.P16 at that stage, i.e., 26th April, 2000. The judgment was delivered on 28th April, 2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ex.P16 issued by the School and accordingly her date of birth noticed as 15th June, 1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.” 20. Mr. P.S. Bohara, A.G.A. for the State has vehemently argued that school leaving certificate is best piece of evidence in view of section 35 of Evidence Act. There is no quarrel of it that school leaving certificate mentioning the date of birth of a person is admissible in evidence. It is also true that such evidence is best piece of evidence, but in the present case, the school leaving certificate of prosecutrix has not been proved by the prosecution, rather the PW-7 has admitted in his cross examination that there is cutting in the date of birth of the prosecutrix in the school register. Thus, the same evidence is not reliable. 21. Thus, the same evidence is not reliable. 21. The learned counsel for the State has placed reliance upon para 13 of a judgment of Hon’ble Apex Court in the case of the State of Madhya Pradesh vs. Anoop Singh reported in 2015 (7) SCC 773 , which is reproduced herein under: “13. In the present case, the central question is whether the prosecutrix was below 16 years of age at the time of the incident. The prosecution in support of their case adduced two certificates, which were the birth certificate and the middle school certificate. The date of birth of the prosecutrix has been shown as 29.08.1987 in the Birth Certificate (Ext. P/5), while the date of birth is shown as 27.08.1987 in the Middle School Examination Certificate. There is a difference of just two days in the dates mentioned in the abovementioned Exhibits. The Trial Court has rightly observed that the birth certificate Ext. P/5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the prosecutrix was shown as under-aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the prosecutrix.” 22. I have carefully perused both the judgments. The facts of the present case are similar to the judgment cited by the learned counsel for the appellants (supra). Thus, the ratio of the said judgment is applied in the present case. As far as the judgment cited by the learned counsel for the State is concerned, the ratio of the judgment is not applicable on the peculiar facts and circumstances of the case. 23. According to the statement of Dr. Archana Kaushik PW-4 and the radiological report, the prosecutrix was not minor at the time of incident. Since none of the ingredients of the alleged offences against the appellants have been proved by the prosecution, thus, the offences under Sections 363 & 366 IPC are not made out against the appellants. Thus, the trial court has committed illegality to convict the appellants under Sections 363 & 366 IPC. 24. Since none of the ingredients of the alleged offences against the appellants have been proved by the prosecution, thus, the offences under Sections 363 & 366 IPC are not made out against the appellants. Thus, the trial court has committed illegality to convict the appellants under Sections 363 & 366 IPC. 24. Now, I would consider the commission of offence punishable under Section 376 IPC. From perusal of the statement made by the prsecutrix before the Magistrate under Section 164 Cr.P.C., it shows that any of the accused persons did not commit rape with the prosecutrix. On the other hand, it would reveal that when the prosecutrix was with the accused Saleem, she slept with him with her own volition. She travelled with the accused persons from Ramnager to Rudrapur and stayed for several days and thereafter stayed at Lucknow for sometime, but she did not raise any hue and cry when she was travelling with accused from one place to another. She did not make any efforts to show that she has been abducted by the accused persons and she was subjected to rape. Thereafter, she was taken from Lucknow to Sheeshgarh. She did not raise any hue and cry to inform the police personnel when she found the police at railway station. From the conduct, behaviour and the statement of prosecutrix from the very inception, it would reveal that she went with the accused persons with her own volition. Till her statement was recorded under Section 164 Cr.P.C., she did not raise any allegation of rape against accused persons. But, when she was recovered by the police and was examined in the Court as PW-2, she made the statement that the accused persons have committed rape with her. Thus she improved her statement before the trial court while examined in court. 25. The statement of prosecution witnesses, prosecutrix are not reliable for two reasons. Firstly, the accused persons were not present with the prosecutrix at the time when she was produced before the Magistrate to record her statement under Section 164 of Cr.P.C, thus there can not be any threat to her by accused persons. Secondly, she was produced by the Police and she had made a statement that nothing wrong was done with her by the accused. Thus, there was no occasion for the trial court to believe her contradictory statement made before the court. Secondly, she was produced by the Police and she had made a statement that nothing wrong was done with her by the accused. Thus, there was no occasion for the trial court to believe her contradictory statement made before the court. It is true that the statement under Section 164 Cr.P.C. has no much relevance. But, it is also true that when her statement was recorded under Section 164 of Cr.P.C., she was brought before the Magistrate by the Police and she was surrounded her parents and she made statement under Section 164 of Cr.P.C. without any pressure of the accused persons. The statement recorded under Section 164 of Cr.P.C. speaks truth of the incident as by that time the prosecutrix was not tortured, by her parents and Police. After the statement under Section 164 of Cr.P.C. she was given in the custody of her parents and when she appeared to depose before the court. She made a statement in regard to the commission of rape by the accused persons. It is settled proposition of law that a man can tell a lie but the circumstances cannot. Since from the conduct of prosecutrix itself, it is proved that she being major had gone with her own violation with the accused persons and she never made any complaint before the Police on the way and remain more than three months with the accused persons with her own will. Thus, her conduct itself shows that she has not made true and correct statement before the trial court. 26. It is also relevant to note that the Police have prepared a recovery memo that the girl was recovered from the bus station Sheeshgarh, Vilashpur, Bareilly, but PW-1 complainant and prosecutrix PW-2 have deposed that the prosecutrix was recovered from the house of one Hafeez (Islamic Priest), which itself create doubt on the prosecution story. 27. From the perusal of the statement of witnesses, it would reveal that the prosecution has miserably failed to prove the case punishable under Sections 363, 366 and 376 of IPC against the accused persons beyond reasonable doubt. But the trial court without considering the prosecution evidence in proper manner illegally convicted the appellants. Thus, the judgment and order passed by the learned trial court convicting the appellants under Sections 363, 366 and 376 of IPC is set aside. Both the appeals are allowed. But the trial court without considering the prosecution evidence in proper manner illegally convicted the appellants. Thus, the judgment and order passed by the learned trial court convicting the appellants under Sections 363, 366 and 376 of IPC is set aside. Both the appeals are allowed. The appellants are languishing in jail since 30.08.2013 in connection of this case. Since the accused appellants have been acquitted, therefore, they shall be released forthwith, if their custody is not required in any other criminal case. 28. LCR of the case be returned to the trial court for compliance of the judgment passed by this Court. 29. In the peculiar facts and circumstances of the case, parties shall bear their own costs.