Research › Search › Judgment

Uttarakhand High Court · body

2024 DIGILAW 278 (UTT)

State of Uttarakhand v. Naseem Ahmed

2024-04-29

RAKESH THAPLIYAL, RITU BAHRI

body2024
JUDGMENT : RITU BAHRI, C.J. 1. The State has come up in appeal against the judgment dated 30.09.2023, passed by Additional Session Judge/FTSC, Rudrapur, District Udham Singh Nagar, whereby the respondent-Naseem Hazrat, has been acquitted in trial facing under Section 376(2) of IPC. 2. As per the prosecution story, the victim was ill and in the year 2021, she got acquainted with the accused, who was engaged in occultism and in the year 2022, he gave intoxicants to the victim in the pretext of treatment and had physical relationship with the victim, and after taking the victim to Kaliyar Sharif, he kept the victim in a hotel, and raped her. The victim lodged the compliant regarding the incident on 19.01.2023 in P.S. Jaspur. On the basis of the compliant, a First Information Report was registered. After investigation by the Investigating Officer, the charge-sheet against the accused Naseem Ahmed @Naseem Hazrat for the offence punishable under Section 376 of IPC, was sent to the Court of Judicial Magistrate, Jaspur. Thereafter, cognizance was taken and the case was handed over to the Sessions Court on 12.05.2023. On 25.05.2023, the charges under Section 376(2) IPC were framed against the accused, and he denied the allegations and sought for a trial. 3. The prosecution has examined the following witnesses: “PW-1 Victim PW-2 Dr. Mehtab Jahan PW-3 Sharif Ahmed PW-4 S.I. Bhumika Pandey” 4. The prosecution has produced tehrir (Exhibit P-1); statement of victim recorded under Section 164 Cr.P.C. (Exhibit P-2); medical report (Exhibit P-3); recovery memo (Exhibit P-4); site plan and map (Exhibit P-5) and charge-sheet (Exhibit P-6) as documentary evidence. 5. The statement of accused was recorded under Section 313 Cr.P.C. The accused has stated that he does not have the answers to most of the questions, and he has been falsely implicated and he is innocent. The accused has produced DW-1-mother of the witness, in his defence. 6. The victim appeared as PW-1 and in her examination-in-chief, she stated that she is an M.A. and had fallen ill in the year 2021, and her mind used to go haywire and she would suddenly become unconscious and lose her senses. The accused used to be a person in her neighbouhood, who was called Sufi, and he was engaged in occultism and in the year 2022, she talked to the accused about her illness. The accused used to be a person in her neighbouhood, who was called Sufi, and he was engaged in occultism and in the year 2022, she talked to the accused about her illness. Later, in the year 2022, accused Naseem Ahmed @ Naseem Hazrat came to her house and said that she was possessed by jinn and would have to be treated. It is stated that the accused called her to his house and she went to his house in Kheda Road, Pappu Colony. The accused took advantage of her unconsciousness and raped her. Thereafter, the accused came to her house, and there was no one at her house at that time, and he met her and started removing her clothes forcefully, but on that day, the accused did not make physical relations with her. In the year 2022, the accused had taken her to Kaliyar Sharif, and in Kaliyar Sharif, they had taken a room in Sabri Guest House where they had physical relations. She also went to Jaspur market where the accused met her and he started pressurizing the victim to take her to his house and when she refused, he told that he would make her video viral. On 13.01.2023, the victim filed a First Information Report at P.S. Jaspur (Exhibit P-1), and her medical examination was done in Jaspur Government Hospital, and she had given statements to the Magistrate which is (Exhibit P-2). She further stated that she had been living away from her family for three years and even since the Tantrik had come, she had been quarreling with her family members. It is further stated that she had gone alone to the house of the accused on his call. The accused had two wives and one of his wives did not live with him and the other wife went to the forest to collect fodder for goats. She also stated that both the daughters of the accused were elder to her and the son of the accused lived outside. The witness also stated that she was running a shop selling Ayurvedic medicines in Thakurdwara and during lockdown, she used to live in the same shop. 7. PW-2 Dr. Mehtab Jahan stated that on 20.01.2023, he had gone to CHC, and the medical examination of the victim was conducted on 20.01.2023 (Exhibit P-3). The witness also stated that she was running a shop selling Ayurvedic medicines in Thakurdwara and during lockdown, she used to live in the same shop. 7. PW-2 Dr. Mehtab Jahan stated that on 20.01.2023, he had gone to CHC, and the medical examination of the victim was conducted on 20.01.2023 (Exhibit P-3). The hymen of the victim was torn and after taking the nail cuttings, pubic hair and two vaginal swabs of the victim, two vaginal smears were prepared and two slides were prepared which were sealed and handed over to the lady constable. PW-2 Dr. Mehtab Jahan, in his cross-examination, stated that no one from her house had come with her to get the victim examined and depending on the age of the victim, her hymen could have been torn on account of cycling, sports and exercise. 8. PW-3 Sharif Ahmed, in his examination-in-chief, has stated that the victim used to give tuition to his children two-three years ago, and the victim had told him and his wife a year ago that the victim was unwell and she used to get dizzy. He stated that the victim had also told that the accused used to do dirty acts in the name of treatment. It is stated that PW-3 Sharif Ahmed never went to the victim’s house, nor did he know the accused Naseem Ahmed. 9. PW-4 Sub-Inspector Bhumika Pandey, in her examination-in-chief, has stated that she was working on the post of Sub-Inspector in Police Station Kunda. She stated that at the instance of the victim, the map of the site where the accused had physical relations with the victim was made (Exhibit P-5), charge-sheet (Exhibit P-6) against the accused was sent to the Court. In his cross-examination, no statement of the victim’s mother and brother were taken. She also stated that the victim had told to go to Kaliyar Sharif with the accused, but she had not gone to Kaliyar Sharif for verification and she had also not gone to Sabri Guest House, where she had told to stay with the accused. The witness also stated that the victim had not given any form of mental illness. When she went to the house of the accused to draw the map, she had not gone inside the house and had made the map of the outer side of the house of the accused. 10. The witness also stated that the victim had not given any form of mental illness. When she went to the house of the accused to draw the map, she had not gone inside the house and had made the map of the outer side of the house of the accused. 10. Mother of the victim appeared as DW-1 and confirmed in her cross-examination her son’s relationship with the daughter of accused Naseem Ahmed and the victim had also gone to the house of the accused to get her a baby shower. 11. After going through the evidence, especially, the statement of victim recorded under Section 164 Cr.P.C., and while appearing as PW-1, there was a contradiction in the place of occurrence of rape. In her statement recorded under Section 164 Cr.P.C. (Exhibit P-2), place of incident was mentioned as the house of the victim, whereas, while appearing as PW-1, she described the house of the accused as the place of incident where she was raped. 12. Keeping in view that there was contradiction in the statements of the victim recorded under Section 164 Cr.P.C., and while appearing as PW-1, the credibility of the statement also reduces; the victim stated that the incident occurred in the year 2022, but no date and month has been mentioned, and; the victim studies till M.A., and being a highly educated, and yet not mentioned any date and month in her evidence, theory of rape became doubtful. The FIR was registered on 19.01.2023, and the delay in registering the proceedings was explained by stating that the accused had threatened her to make the video viral. There is no evidence given by the victim as to when and where the video of the victim was made by the accused. The Investigating Officer has not included any video of the victim recorded from the accused in his evidence, and no statement has been made on this account as well. If the accused had threatened her to make the video viral, then the Investigation Officer would have definitely obtained that video and presented it before the Court and due to this lack also, the prosecution story became doubtful. 13. With regard to the incident, which took place in the year 2022, at Sabri Guest House, there is no evidence that the victim had stayed in that Guest House in Kaliyar Sharif. 13. With regard to the incident, which took place in the year 2022, at Sabri Guest House, there is no evidence that the victim had stayed in that Guest House in Kaliyar Sharif. No information was given to the staff of the said Guest House in Kaliyar Sharif. No information was given to the nearest police station by the victim. Even in her statement as PW-1, the victim has not given any date and month when accused raped her in that Guest House. Hence, the Court came to the conclusion that the victim had not given any date or time of the incident; no explanation for delay in lodging the FIR with regard to the visit to that Guest House in Kaliyar Sharif, and; the Investigating Officer did not do any verification, the whole prosecution story became doubtful. 14. Finally, referring to the cross-examination of PW-4 Investigating Officer Bhumika Pandey, where she stated that she never entered the house of the accused, but rather made the map from the outside (Exhibit P-5) was not found to be credible. 15. Keeping in view the above said contradiction in the evidence given by the victim; delay in lodging the FIR; lack of verification of the Guest House in Kaliyar where the rape took place, the Trial Court acquitted the accused after going through the entire judgment. There is no evidence led by the prosecution, which could connect the accused with the crime. 16. The victim, being a highly educated, would have at least given the exact date, month, time of rape, and given two separate places of occurrence of rape in her statement recorded under Section 164 Cr.P.C. and while appearing as PW-1, was sufficient ground to acquit the accused. The judgment of acquittal is based on correct appreciation of evidence, and the same does not require any interference by this Court. 17. For the reasons stated hereinabove, there is no merit in this appeal, and the same is, accordingly, dismissed. 18. Pending application, if any, also stands disposed of.