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2022 DIGILAW 100 (UTT)

Altaf alias Mehtab v. State of Uttarakhand

2022-05-09

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. Present appeal is preferred against the judgment and order dated 17.03.2021/19.03.2021 passed in Special Sessions Trial No. 93 of 2016, State vs. Altaf alias Mehtab, by the court of Additional District Judge, F.T.C. Roorkee, District Haridwar. By the impugned judgment and order, the appellant has been convicted under Sections 376 (2)(f), 506 IPC and Section 5(n)/6 of the Protection of Children from Sexual Offences Act, 2012 (“the Act”) and has been sentenced as hereunder: (i) Section 376 (2)(f) IPC - rigorous imprisonment for a period of ten years and a fine of Rs. 20,000/-. In default of payment of fine, further imprisonment for a period of one month. (ii) Section 506 IPC - rigorous imprisonment for a period of two years and a fine of Rs. 1,000/-. In default of payment of fine, further imprisonment for a period of fifteen days. (iii) Section 5(n)/6 of the Act - rigorous imprisonment for a period of ten years and a fine of Rs. 30,000/-. In default of payment of fine, further rigorous imprisonment for a period of one month. 2. The prosecution case, briefly stated, is as follows. The victim, a girl aged thirteen years, was in her house, where, according to the prosecution, on 06.05.2016 at 03:30 p.m., she was raped by her father. One person, namely, Imran was at the gate, when the occurrence took place. According to the FIR, the appellant also threatened the victim to life. Somehow, on 18.06.2016 at 11:30 p.m. the victim along with her mother reached the house of the informant (sister of the victim’s mother). An FIR was lodged on 19.06.2016 by the informant and a case under Sections 376, 506 IPC and 3/4 of the Act was lodged. The victim was medically examined on 20.06.2016. In the history portion, the doctor recorded that, according to the victim, her father was intoxicated with some drug. After that he sent both his wives to fetch some medicine and asked one of his friends to stand outside there. Thereafter father of the victim did unwanted things with the victim and discharged outside. After that, the mother of the victim came back. The victim revealed the incident to her. But, the victim was asked to take bath and wash the clothes. The doctor found no injury on the person of the victim. Even her hymen was intact. Thereafter father of the victim did unwanted things with the victim and discharged outside. After that, the mother of the victim came back. The victim revealed the incident to her. But, the victim was asked to take bath and wash the clothes. The doctor found no injury on the person of the victim. Even her hymen was intact. The victim was examined under Section 164 of the Code of Criminal Procedure, 1973 (“the Code”) on 21.06.2016. The Investigating Officer (“IO”) also collected the record pertaining to the date of birth of the victim; prepared site plan and thereafter submitted charge-sheet against the appellant and the co-accused. On 27.01.2017, charges under Sections 376 (2)(f), 506 IPC and 5(n)/6 of the Act were framed against the appellant. The appellant denied the charges and claimed trial. 3. In order to prove its case, the prosecution examined as many as eight witnesses i.e. PW-1, the informant; PW-2, the victim; PW-3, the doctor, who medically examined the victim; PW-4 Deshraj; PW-5 SI Khasti Bisht, IO; PW-6 constable Chetan Singh, scriber of the chik FIR; PW-7 SI Rekha Danu, the second IO and PW-8 SI Radhika Nabiyal, the third IO. 4. The appellant was examined under Section 313 of the Code. According to him, he has been falsely implicated because the informant had a dispute with the appellant with regard to the property. 5. By the impugned judgment and order, the co-accused Imran, who was also charged for offences punishable under Section 376-D IPC and 5(g)/6 of the Act, was acquitted and the appellant has been convicted and sentenced, as stated hereinbefore. 6. Heard the learned counsel for the parties and perused the record. 7. Learned Amicus Curiae would submit that the prosecution has utterly failed to prove the case beyond reasonable doubt against the appellant. The appellant ought to have been acquitted, but the court below committed an error in convicting and sentencing the appellant. Learned Amicus Curiae would raise the following points in her submission: (i) The place of incident is adjoining a public path way, hence the incident is not possible in the broad day light. (ii) The whereabouts of the grandmother of the victim has not been narrated or disclosed by the prosecution. She has not been examined. Learned Amicus Curiae would raise the following points in her submission: (i) The place of incident is adjoining a public path way, hence the incident is not possible in the broad day light. (ii) The whereabouts of the grandmother of the victim has not been narrated or disclosed by the prosecution. She has not been examined. (iii) It has not been shown and established by the prosecution as to where the other siblings of the victim were at the relevant time. (iv) Statement of the victim is not reliable. The victim’s mother and the informant, though are sisters, they are in dispute with regard to the property. The victim was taken by the informant under some pretext and thereafter false report was lodged long after the incident. Even the mother of the victim has not supported the prosecution case. (v) Medical examination does not support the prosecution case. 8. On the other hand, learned State Counsel would submit that the victim is daughter of the appellant. It cannot be believed that a daughter would falsely implicate her father. The victim was terrorized in the house of the appellant. When she was taken by the informant, she got confidence and the FIR was lodged. Dispute of property may not be a ground to implicate falsely in such a heinous offence. Learned State Counsel would argue that medical examination is not conclusive to determine the offence of rape because partial penetration is also sufficient to prove offence of rape. It is argued that no interference is warranted in this appeal. 9. According to the prosecution, it is a case of rape of a girl, aged thirteen years, by her father. The law on this aspect is well settled. Conviction can be based solely on the basis of statement of the victim, provided it transpires confidence. Corroboration of the statement of the victim is not a rule. 10. PW-1 is the informant, who is sister of the mother of the victim. According to her, on 18.06.2016, the victim along with her mother came to her house. The victim revealed that on 06.05.2016, her father did Galat Kaam with her with the help of Imran. Thereafter, this witness lodged the FIR, Ex.A-1. According to this witness, the victim was thirteen years of age at the time of incident. 11. PW-2 is the victim herself. She has stated that her date of birth is 27.01.2003. The victim revealed that on 06.05.2016, her father did Galat Kaam with her with the help of Imran. Thereafter, this witness lodged the FIR, Ex.A-1. According to this witness, the victim was thirteen years of age at the time of incident. 11. PW-2 is the victim herself. She has stated that her date of birth is 27.01.2003. According to her, on 06.05.2016, at about 03:30 p.m. in the afternoon, her father sent her mother, step mother and aunt outside the house to get medicine. She was all alone in the house. Her father asked Imran to guard the house and told that first he will do and thereafter Imran can do. The appellant thereafter bolted the door from inside; made the victim lay on the cot; took out her salwar; tied her legs on the cot; applied oil on her vagina and did Galat Kaam with her. Thereafter, the appellant went out. Later on, the mother, step mother and aunt of the victim came back to house. She revealed the incident to them, but they asked her to maintain silence. According to PW-2, the victim, the appellant confined her in the room and did not permit her to go outside. Since, Imran could not do anything, he told the incident to other people. Thereafter, the information reached to the maternal uncle of this witness. He telephoned and asked that the victim be sent to his house. Thereafter, according to this witness, somehow she and her mother could leave the house on 18.06.2016. They went to the house of the informant and thereafter the report was lodged. This witness has also proved her statement recorded under Section 164 of the Code. According to her, she was medically examined also. 12. PW-3 is Dr. Nisha, who had medically examined the victim. According to her, she examined the victim on 20.06.2016 at 12:15 p.m. She has recorded the history as told to her by the victim. It has already been referred to hereinbefore in this judgment. She did not find any injury on the victim. She proved her report, Ex.A-3. In her cross-examination, PW-3 has stated that based on medical examination report, it cannot be said that rape was committed. 13. PW-4 Deshraj is the Principal of the school, where the victim was studying. According to him, the date of birth of the victim, as per the school record, is 27.01.2003. She proved her report, Ex.A-3. In her cross-examination, PW-3 has stated that based on medical examination report, it cannot be said that rape was committed. 13. PW-4 Deshraj is the Principal of the school, where the victim was studying. According to him, the date of birth of the victim, as per the school record, is 27.01.2003. He has proved the records, Ex.A-6 and A-7. This witness has also proved the birth certificate issued by this witness, Ex.A-8. 14. PW-5 SI Khasti Bisht is the first IO. She conducted the investigation. Subsequently, the investigation was transferred to PW-7 Constable Rekha Danu. She prepared the site plan, Ex.A-11. The investigation was still transferred to PW-8 SI Radhika Nabiyal. She submitted the charge-sheet. 15. PW-6 constable Chetan Singh has proved the chik FIR and other documents. 16. On behalf of the appellant, his wife was examined in the defence as DW-1. DW-1 is the mother of the victim. According to her, false case has been lodged against the appellant because the informant wanted to grab her property. She had taken the victim under some pretext and thereafter she did not allow the victim to meet them. She had also asked this witness to leave her husband with the assurance that she would get the victim married with her son. 17. It is a case where a daughter has levelled allegation of rape against her father. In the case of State of Punjab vs. Gurmeet Singh, 1996 (2) SCC 384 , the Hon’ble Supreme Court observed “The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.” 18. In the case of Ranjit Hazarika vs. State of Assam, (1998) 8 SCC 635 , the Hon’ble Supreme Court observed “The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient.” 19. In Modi’s Medical Jurisprudence and Toxicology, 22nd Edition, at page 503, discussion is made with regard to the position of genitals when hymen is intact and it is noted as hereunder: “In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called caruculae hymenealis or myrtiformes. In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called caruculae hymenealis or myrtiformes. In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal orifice is capacious enough to admit easily the passage of two fingers. The circumference of the hymen can also be measured by a measuring cone. A circumference of 9 to 10 cm is considered the least necessary for coitus [Practitioner, Sept 1972, 291]. In girls under fourteen years of age, the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen. It is often difficult to distinguish between an indentation in a fimbriated hymen and a tear, unless the hymen is stretched by a finger tip, glass rod or Brittan’s hymenscope, which also give excellent transillumination of hymen when a tear is found to extend upto the vaginal wall [MSL. Aug 1963, 118-120].” 20. As per the prosecution case, the incident took place on 06.05.2016. The report was lodged on 19.06.2016. It is a belated FIR. 21. Delay in such cases is not always fatal for prosecution. After all, the reasons need to be examined. In the instant case, according to the prosecution and as told by PW-1, aunt of the victim and PW-2 the victim, after the incident when the victim reached in the house of PW-1, the informant, the FIR was lodged. According to PW-2, the victim, after the incident, she was not allowed to go outside and somehow she could reach the house of the informant along with her mother and thereafter the FIR was lodged. 22. It is true that in all cases of rape, it is not necessary that hymen be ruptured or there may be any injury on the genital of the victim. But, in the instant case, allegation is of rape committed on a girl aged thirteen years by a man of forty-two years of age. The victim has not stated that it was partial penetration. She has been categorical in her deposition. But, in the instant case, allegation is of rape committed on a girl aged thirteen years by a man of forty-two years of age. The victim has not stated that it was partial penetration. She has been categorical in her deposition. She submits that the appellant made her lay on the cot; took her salwar out and tied her legs on the cot. Thereafter, the appellant applied oil on the vagina of the victim and did Galat Kaam with her and then went outside. Reference may be made to the medical examination report, Ex.A-3 proved by PW-3 Dr. Nisha. In this medical examination report, history is recorded, which is as hereunder: “The father was intoxicated with some drug, after that he has sent both his wives to fetch some medicine and asked one of his friend to stand outside. Then he did unwanted things with the child and discharged outside. After that his mother came and she told the incident, then she was asked to take bath and wash the clothes. This incident happened on 6th May, 2016 at around 3 p.m.” 23. A perusal of it, reveals as if at the time of examination, the victim told it to the doctor that her father committed unwanted things with the victim. The appellant discharged outside. It reveals that the victim knew the nature of the act, which she complained of against the appellant. The victim has not stated that the appellant could not commit sexual intercourse with her. The victim has not stated that it was partial penetration. The hymen of the victim was intact. It may remain intact, as observed by Modi in his medical jurisprudence. But, according to Modi’s jurisprudence, in cases “where the hymen is intact and not lacerated, it is absolutely necessary to know the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty.” But, it has not been done by the doctor, who medically examined the victim. It is nowhere stated in Ex.A-3. In fact, according to PW-3, the doctor, the medical examination of the victim does not suggest of any rape. 24. In the facts and circumstances of this case, this Court is of a view that non-existence of any injury on the genitals of the victim raises doubts on the credibility of the statement of the victim. In fact, according to PW-3, the doctor, the medical examination of the victim does not suggest of any rape. 24. In the facts and circumstances of this case, this Court is of a view that non-existence of any injury on the genitals of the victim raises doubts on the credibility of the statement of the victim. It reflects that the statement of the victim is not wholly reliable statement. 25. Admittedly, there is a dispute between PW-1, the informant and DW-1, the mother of the victim. PW-1, the informant, in page 3 of her examination, admitted that her father had a house, which was in her possession. She was taking rent of the house, but after the death of her father, the rent has been divided between her and DW-1. It was done after the interference of various other persons and partition was done. PW-2, the victim, in her statement recorded at page 3, has also stated about the partition due to intervention of other peoples. DW1, the mother of the victim has also stated that false case has been lodged, because PW-1, the informant wanted to grab the property. 26. In the instant case, what is interesting is that the mother has not supported the prosecution case. The mother of the victim says that it is a false case. The victim was with her mother in the house of the appellant, when allegedly the incident took place. This situation compels this Court to be little careful in accepting the testimony of the victim. 27. PW-1, the informant would submit that she had come to know about the incident much before the FIR was lodged. Her maternal brother had informed her telephonically about it (statement at page 4, bottom line). But, PW-1, the informant would submit that she did not take any action because her maternal brother was not confirmed about the incident. This witness did not make a telephone call to her sister, DW-1, to know about the incident. Although in page 5 of her statement, in paragraph 2, she would submit that she had the telephone number of the mother of the victim. Why did she not contact her sister when she came to know about the incident? Delay in lodging FIR under such circumstances has significance. It raises doubt on the credibility of the FIR. 28. Although in page 5 of her statement, in paragraph 2, she would submit that she had the telephone number of the mother of the victim. Why did she not contact her sister when she came to know about the incident? Delay in lodging FIR under such circumstances has significance. It raises doubt on the credibility of the FIR. 28. PW-2, the victim has stated that she was not allowed to leave the house after the incident. But, in her cross-examination, she would submit that she used to visit Landhora town quite often and on the date when she visited the house of PW-1, the informant, she went to Landhora town, where there is a police station also. The victim is staying with PW-1. DW-1 would submit that her sister PW-1 had taken the victim with her under false pretext and lodged false report. 29. The victim did not reveal it to the police during investigation that her legs were tied and she was raped after applying oil on her genitals. 30. There were many other persons in the family. PW-2, the victim has stated that her younger brother remains in the house. He does not do anything. Although in page 2, last line, she would submit that on the date of incident her younger brother was not at home, but this witness has proved her statement recorded under Section 164 of the Code where she would state that on the date of incident, her younger brother was at home when the incident took place. But, he has not been examined. 31. The site plan has been proved by the prosecution. PW-2, the victim, in her cross-examination has stated about the position of her house. She would submit that her uncle, who is married also stays in one of the rooms. It has been shown in the site plan, Ex.A-11. It is just in front of the house of the appellant. But, none of the family members of the victim was examined by the IO. PW-7 SI Rekha Danu has stated that she did not examine the aunt of the victim. According to this witness, even she did not inquire from the grandmother, aunt or mother of the victim, as to where were they when the incident took place. The IO did not examine any person from the Madarsa, where allegedly the victim was studying. 32. According to this witness, even she did not inquire from the grandmother, aunt or mother of the victim, as to where were they when the incident took place. The IO did not examine any person from the Madarsa, where allegedly the victim was studying. 32. In the instant case, the statement of PW-2, the victim is not wholly reliable. The statement of PW-2, the victim cannot be made sole basis for conviction. The statement of PW-2, the victim is not corroborated by other statements. 33. PW-1, the informant would submit that she was told by her maternal brother about the incident. But, that brother has also not been examined. The uncle of the victim, who was residing in a room, just in front of the place of incident has also not been examined. How many members of the family were in the house at the relevant time? It is also not established. In her statement recorded under 164 of the Code, the victim would submit that her younger brother was with her in the house when the incident took place, but in court, she would submit that her younger brother was not at home. There has been no injury on the person of the victim. She was a young girl of thirteen years, who was allegedly raped by a person of forty-two years. PW-2, the victim has been meticulous about the incident, when she told it to the doctor that after raping her the appellant discharged out. But, she has not stated that it was a partial penetration. 34. In view of the above, this Court is of the view that the prosecution has not been able prove to its case against the appellant beyond reasonable doubt. Consequently, the appeal deserves to be allowed. 35. The appeal is allowed. The judgment and order dated 17.03.2021/19.03.2021 passed in Special Sessions Trial No. 93 of 2016, State v. Altaf alias Mehtab, by the court of Additional District Judge, F.T.C. Roorkee, District Haridwar is set aside. 36. The appellant is acquitted of the charge under Sections 376 (2)(f), 506 IPC and Section 5(n)/6 of the Act. 37. The appellant is in jail. The judgment and order dated 17.03.2021/19.03.2021 passed in Special Sessions Trial No. 93 of 2016, State v. Altaf alias Mehtab, by the court of Additional District Judge, F.T.C. Roorkee, District Haridwar is set aside. 36. The appellant is acquitted of the charge under Sections 376 (2)(f), 506 IPC and Section 5(n)/6 of the Act. 37. The appellant is in jail. Let he be set free forthwith, unless he is not wanted in any other case, subject to the appellant furnishing personal bond and two reliable sureties, each of the like amount to the satisfaction of the court concerned, under Section 437A of the Code. 38. Let a copy of this judgment along with the lower court record be sent to the court concerned for onward compliance.