CRIMINAL APPEAL No.194 OF 2006 With CRIMINAL APPEAL NO.152 of 2006 --------- Against the order dated 16.2.2006 passed by Sri Dilip Kumar Sinha, Addl.Sessions Judge, F.T.C.IV, Bettiah, West Champaran in Sessions Trial No.44/2003. -------- MERAJ ALAM @ TUDDU .. Appellant(in Cr.A.194/2006) Sk.AMANULLAH @ AMANULLAH & ANR. .. Appellants (in Cr.Appeal No.152/2006 Versus STATE OF BIHAR .. Respondents(in both the cases) For the appellants ……M/S. Ram Adaya Singh, Arjun Prasad No.1 Advocates, Mrs. Rina Sinha, Amicus Curiae For the State …………………Sri Satya Narayan Prasad, Addl. PP. P R E S E N T THE HON'BLE MR. JUSTICE SUBASH CHANDRA JHA ………………………… S.C.Jha,J. Both the appeals arise out of the same Police Station case number and same Sessions Trial number. Hence, they are being heard and disposed of by this common order. Appellant Miraz Alam @Tuddu has filed Cr.Appeal No.194/2006 for setting aside the order of conviction and thereby imposition of sentence in Sessions Trial No.44/2003 arising out of Sathi P.S.Case No.22/2002, G.R.No.793/2002 dated 16.2.2006 passed by Sri Dilip Kumar Sinha, 2 Additional Sessions Judge-FTC-IV, Bettiah,West Champaran. Appellant Meeraj Alam @ Tuddu has been held guilty, convicted and awarded sentence to undergo RI for ten years for offence under Section 376 IPC and also imposed fine of Rs.5000/- in default of payment of which to undergo RI for six months. In the same Judgment, the learned Additional Sessions Judge has also held guilty other accused persons, Gausul Azam and Sk.Amanullah for commission of offence under Section 201/34 IPC and they have been sentenced to undergo RI for three years each besides imposition of fine of Rs.1000/- each in default of payment of which to undergo RI for one month for commission of offence under Section 201/34 IPC. Co-accused Gausul Azam and Sk.Amanullah have also filed separate criminal Appeal bearing Cr.Appeal No.152/2006. Mrs. Rina Sinha has been appointed Amicus curiae for convicted-appellant Meeraj Alam @ Tuddu. Learned Additional Public Prosecutor for the state has also been heard in both the appeals. 3 On 1.4.2002 at about 6 P.M. Afsana Khatoon @ Begari , who is a deaf, dumb and dull girl, was coming from the house of her Mama(Maternal uncle) Mansoor Alam. But in the way, Gausul Azam called her by hint and sign and took her inside his house. After some time, nearby people heard weeping and sound of falter speaking of Afsana Khatoon and saw the room closed from inside from which sound of falter speaking of Afsana Khatoon was coming out. The people got the room opened and found the appellant (convict Miraj @ Tuddu, son of convict Gausul Azam) inside the room. Daughter of the informant was weeping and her cloth was not in order and was wet. They also saw sticky substance on her cloth and bed. The victim girl pointed towards Meeraj @ Tuddu and expressed her gesture and posture that Meeraj had committed rape on her. Gausul Azam told him that a mistake had been committed and the matter would be pacified by negotiation and on the version of Gausul Azam and other appellants, the informant did not give information to the Police Station and that in order to save his prestige, he accepted the marriage proposal given by the accused persons but later on, accused persons backed out and as such life of his daughter was ruined. The 4 informant, who got full knowledge from his daughter and the nearby people, lodged the case. On the written information of the informant, a formal FIR was drawn. After completion of investigation, the Police submitted charge-sheet. Cognizance was accordingly taken and the case was committed to the court of Sessions and ultimately the trial concluded resulting in conviction of the aforesaid accused persons. In course of trial altogether eleven witnesses for the prosecution and one witness namely, the victim Afsana Khatoon as C.W.1 have been examined. The witnesses examined on behalf of the prosecution are P.W.1 Ashraf Ali, P.W.2 Abdul Kalam, P.W.3 Md.Shamim, P.W.4 Elamuddin, P.W.5 Shakil Ahmad, P.W.6 Dr. Usha Das, P.W.7 Abdul Mannan, P.W.8 Sk.Mustaque Ahmad, P.W.9 Sarwar Alam, P.W.10 Mirza Alam Mohammad Beg(I.O), P.W.11 Sister Moly Chako(Expert) and C.W.1 Afsana Khatoon @ Bagari(victim girl). P.W. 7 Abdul Mannan, P.W. 8 Sk. Mustaque Ahmad, and P.W. 9 Sarwar Alam have turned hostile. P.W. 11 is Sister Moly Chako, who is principal in Holly Cross Convent School, for Hearing Impair. She appears to be an expert for the purpose 5 of deciphering the evidence of deaf and dumb person. She gives such details of obtaining her qualification and degree. She has stated what she could understand from gesture and posture of the victim and as per such disclosure, knowledge on disclosure from the victim, she has stated that the victim Afsana Khatoon @ Bagari the daughter of the informant was confined in a room where she was laid upon a bed and her clothes were removed. Such evidence of this witness has been recorded in Para 3 of her deposition with objection. From her cross- examination, it appears that the victim girl was not in the court before her, when her deposition was being recorded. She also admits that the victim was not shown to her in the court room nor she had any medical proof in respect of suffering of the victim girl i.e. being handicapped, from any disability. She also says in her cross-examination that there was no recording of any conversation by means of tape-recorder or video of her conversion with the victim. Several questions have been put to her in respect of her ability and possession of requisite qualification, but taking her evidence as a whole it would be revealed that she claim to have deposed in the court on the basis of her earlier encounter with the victim girl sometime before somewhere else. Her 6 evidence has not been recorded in presence of the victim girl in the court from which it could have been inferred that she has stated on the basis of gesture and posture of the victim girl in the court. So, her evidence even to that extent as stated above, cannot be taken into account. In the aforesaid background, the victim girl namely Afsana Khatoon @ Bagari has been examined as a court witness no.1. This witness Afsana Khatoon @ Bagari is a deaf and dumb girl and firstly she was administered oath by the expert Sister Moly Chako (p.W.11). The witness did not reply about her age. The court has recorded the evidence of Afsana Khatoon @ Bagari from which it could be gathered that she was kept confined in a room and all the three accused persons did so, who untied her clothes. In spite of repeated efforts this witness did not say a single word as to what happened thereafter. She did not reply to any question on being asked by the expert Sister Moly Chako (P.W.11). So her evidence as a whole would only go to suggest that all the three accused persons confined her in a room and untied her clothes and that is all. 7 In the aforesaid circumstances, it will have to be examined as to whether the victim who is a deaf and dumb girl could be kept confined by the son Meeraj Alam, a 21 years old boy in the month of November, 2005, who could be around or 17 years age in the month of April, 2002, joined by his father Gausul Azam and his uncle Sk.Amanullah so as to untie her clothes. The case of the prosecution is that it was Meeraj Alam @ Tuddu who confined her and committed rape inside the room. No role is alleged to have been played by this appellant Meeraj Alam @ Tuddu, so far commission of rape or even attempt to commit rape on the victim girl Afsana Khatoon @ Bagari is concerned. From the aforesaid evidence of the expert as also the victim girl it is manifest that the victim was not subjected to any rape by this appellant Meeraj Alam @ Tuddu. It has also been argued and rightly placed that all the witnesses examined in course of trial are either family members or close relations of the informant. It has also come in the evidence that the victim girl was a grown up lady who was unmarried because of such infirmity and that her younger 8 sister was already married, having children, from before. P.W. 1 Asraf Ali has stated that he saw the victim girl standing on the Darwaza of Mansoor Alam and thereafter when he returned from shop he saw an assembly of several persons who were asking for opening of the door. From his deposition it is disclosed that it was the victim girl who was found standing at the Darwaza of Mansoor Alam and he did not see anyone present there for doing any effort so as to confine her inside the room. From his cross-examination it appears that he is cousin of the wife of the informant Shakil Ahmad. He also says that P.W. 9 Sarwar Alam is the son of Mansoor Alam and Mansoor Alam is her Mama (maternal uncle of the victim). Abdul Mannan (P.W.7) is Fufera brother of informant, Sk. Mustaque Ahmad (P.W.8) is Chachera brother-in-law of the informant. Even then, these P.Ws. 7,8,9 have not supported the occurrence. From his cross-examination (Para 15) it appears that Afsana Khatoon @ Bagari is the eldest child of her parents and younger sister Sabana was already married having children. Sabana was married prior to the incident of this case. In that circumstance, it could be presumed that the victim girl was unmarried on the date of 9 occurrence although she was a grown up lady and whose younger sister was already married having children and he did not find any sign of injury on the person of the victim. P.W.2 Abdul Kalam has found presence of five to seven persons on the Darwaza of Gausul Azam, which was opened by Meeraj Alam and Bagari, the victim, through her gesture had stated that she has been raped by this appellant Meeraj Alam. This fact has nowhere been stated by the victim girl herself. From his cross-examination (Paragraphs 7, 8 and 9) it appears that all the witnesses are inter- connected through their relationship. It also appears that P.O. village is big one having five thousand population. But no independent witness seems to have been examined. The evidence of this witness (Para 19, 20, 22) goes to show that he has admitted that the victim girl is younger than her married sister, which is false, just to support the prosecution case because of his interestedness. So his evidence cannot be said to be free from interestedness. He has admitted that he did not see Meeraj committing rape on Bagari. P.W.3 Md.Shamim claims to have seen the occurrence from his Darwaza and he has been declared hostile by the prosecution, who has been subjected to cross-examination but 10 nothing could be said to have been revealed from his mouth to support the prosecution case. P.W. 4 Elamuddin has stated that he saw Bagari (victim) coming from her maternal uncle’s house and on the way Gausul Azam was found calling her and thereafter he went there to see that Gausul Azam opened the door and Bagari with signal and gesture revealed that she was subjected to rape. He also found the Paijama of the victim and bed-sheet of the bed wet. From his evidence it appears that Shakil Ahmad, is his son-in-law, who is informant of this case. He also admits that a group rivalry emerged because of the recently held Gram panchayat election between the two sides. Certain questions were asked drawing his earlier statement made before the I.O. and on account of examination of I.O., there appears contraction so far weeping and trembling of the victim is concerned. The attention drawn in respect of non-mentioning of such facts which have been deposed in the court would not help the prosecution case. He has shown his ignorance (Para 13) where paijama of the victim and bed-sheet were kept. So, it casts a serious doubt so far role played by father and uncle of Meeraz Alam in destroying the evidence is concerned. Admitted position is that Bagari, the victim girl went her 11 house, who was wearing wet Paijama, and said Paizama could have been preserved by the informant so as to establish that it was semen stained Paijama. But so is not the case here. In Para 14 he says that the room that is the place of occurrence has three small windows from three sides, the fact which has been denied by P.W. 2 in Para 25 of his deposition. He also says (Para-15 that because of her suffering from deaf and dumbness, her marriage could not be performed. He also says (Para-16) that appellant Amanullah and Gaushul Azam had not misbehaved with anyone. According to him, as was stated by other witnesses, a panchayati was convened but no paper by way of Panchnama was ever created. P.W.5 Shakil Ahmad is the informant who has more or less stated regarding confinement of his daughter in the room of Meeraj and revealation of the fact in respect of commission of rape on Bagari by Meeraj. He has proved the written information given to the Police, which is Ext.1. From his deposition specially cross-examination it is revealed that almost all the witnesses are his close relatives. He has admitted (Para-23) that the Police was not given any cloth of the victim girl. He did not find any sign of injuries on the person of his daughter. The victim Bagari is his eldest daughter, 12 younger to her is his another daughter whose marriage was performed in the year 2001. P.W. 6 is Doctor Usha Das, who seems to have examined the victim on 5.4.2002 while she was posted at Sathi as Civil Assistant Surgeon. She concludes that no definite information regarding rape could be given and the age of the victim appeared to be 18-19 years. The victim was a deaf and dumb and mentally dull. P.W. 10 Mirza Alam Mohammad Beg, who is I.O. of the case, an A.S.I. of police has stated that on 5.4.2002 while he was posted at Sathi Police Station, the informant and his daughter appeared and furnished a written informantion, on the basis of which an F.I.R.as Sathi P.S.Case No. 22/2002 was drawn and he took up investigation, recorded statement of the witnesses. He also made query from the victim, who by her gesture sign stated that she was subjected to rape. He visited the place of occurrence, which is a room and he found a pumping set and cement scattered in this room, besides two chowkis. He did not find any bed on the wooden cot. He got the victim medically examined and also statements of some witnesses were recorded under Section 164 Cr.P.C. on the basis of his application filed in the court, the application has been marked 13 as Ext. 3. The statement of the victim could not be recorded under Section 164 Cr.P.C. as she was not in a position to state anything. He did not find any objective evidence from the place of occurrence. He has not enquired about any Panchayati convened between the parties from any local authority (Para 33). He has stated that witness Asraf Ali (P.W. 1) has not stated before him that the door was opened, when such instruction was given by accused Gausul and Amanullah. He has also denied to have recorded any statement of this witness Asraf Ali to this effect that accused persons confessed their guilt and assured for marriage of the victim with Meeraj. Similarly, in Para 40 he has also contradicted the statement of Abdul Kalam (P.W.2) to this effect that accused Gausul and Amanullah did not want to open the door. He has also contradicted the statement of P.W. 4 Elamuddin and Shakil Ahmad (P.W. 5) so far trembling of Bagari (victim) and weeping is concerned. He also denied that they have denied regarding closure of the room. From the aforesaid evidence and consideration of circumstances and probabilities, it is manifest that appellants Amanullah and Gausul Azam were not instrumental in obstructing the 14 opening of the door so as to shield the act of Meeraj Alam. The I.O. has contradicted any revelations of fact to that effect as also the confession of these two appellants Sheikh Amanullah and Gausul Azam for letting off Meeraj Alam for convening of any Panchayati and thereby an agreement for marrying the victim with Meeraj Alam. There is lack of evidence so as to infer that any attempt was made by these two appellants of Criminal Appeal No. 152 of 2006 to destroy the evidence of rape. No role as such could be said to have been played by these two appellants for shielding the misdeeds of Meeraj Alam for which they have been convicted and awarded sentence for offence punishable under Section 201/34 IPC and to undergo RI for three years and imposition of fine of Rs. 1,000/- in default of which to undergo RI for one month. The informant, who happens to be father of the victim, is also equally responsible to the same extent in destroying the evidence when it has been stated on behalf of the prosecution that Paizama of the victim having something like wet (chipchipa) i.e. stained semen was noticed at that time. The informant in such situation could very well have preserved the paijama of the victim for chemical examination, had it been a real case of rape. 15 In the facts and circumstances, the conviction and thereby imposition of sentence in respect of the appellants Sheikh Amanullah and Gausul Azam is not sustainable in the eye of law as also on facts and so Cr.Appeal No.152/2006 is hereby allowed after setting aside the order of conviction and imposition of sentence. So far the conviction in respect of appellant Meeraj Alam of Criminal Appeal No. 194 of 2006 is concerned, from the aforesaid discussion of facts and circumstances and probabilities it is revealed that the victim has not stated so as to infer commission of rape. At best it has come from her mouth that she was confined in a room and was stripped off her clothes and was made to lie on a bed, of course, she seems to have exaggerated the facts by implicating all the three accused namely father and uncle of Meeraj Alam along with Meeraj in the commission of such act, but such act cannot be conceived to have been performed by son, as well as his father and his uncle and this fact is also not supported from F.I.R or evidence of any P.Ws. To me it appears that it was mis-recording of her gesture and posture by the trial court, which should have also taken care so as to understand the correct gesture and posture of the victim girl. The 16 victim girl in spite of repeated persuasion did not go beyond of such expression as stated above on 24.10.2005 as also on 10.11.2005 as her cross- examination was deferred on 24.10.2005. In that context of the situation and circumstance she could have composed herself, on persuation of by her father and well-wisher to reveal the truth in the court. But she did not say anything regarding commission of rape on her. So in that situation it can very well be visualized that for reasons best known to her she did not support the commission of rape on her. It is just possible, in the given situation and circumstances, as the learned Amicus Curiae, has submitted, that appellant Meeraj Alam might have been found in the company of the victim girl inside a room bolted from inner side, but without any sexual intercourse and for that at best it could be a case under Sections 341, 342 IPC or 354 IPC and not either under Section 376 IPC or 376/511 of the IPC when there is absence of corroboration of rape from medical evidence as also from the evidence of the victim or the expert P.W. 11. In the situation, nobody except those who were highly interested and closely related persons 17 of the informant has come forward to say about the actual commission of rape. Rather all of them claimed to have gathered such fact of commission of rape from the gesture and posture of the victim Afsana Khatoon @ Bagari. But here the victim Afsan Khatoon @ Bagari herself has not stated about commission of rape in presence of the expert P.W. 11. Of course, the victim Afsana Khatoon @ Bagari says about her confinement and untieing of her cloth, lying in a bed and no more for which it could be a case under Section 354 IPC. None of the P.Ws. including the I.O. could be said to be expert as that of P.W.11. And in presence of P.W. 11, the victim did not say anything about rape. In the facts and circumstances, confinement of the victim in the room of the appellant Meeraz Alazm @ Tuddu which was bolted from inside and their presence being noticed by the witnesses after the said room was opened, is established taking evidence of the victim Afsana Khatoon @ Bagari at its face value to this effect that she was lied down on a bed and was made naked, would not have fulfilled necessary ingredients to constitute the offence of committing to rape. 18 There is complete absence of any evidence on the record to infer that neither any witness examined on behalf of the prosecution has seen the actual sexual intercourse nor there is any circumstance or probability with which such act could have been seen by the outsiders. In this background, when the victim or her expert through which her gesture and signal have been deciphered could not say about commission of rape or even attempt to commission of rape, the appellant Meeraz Alam @ Tuddu could, at best be said to have been guilty for offence punishable under Section 354 IPC. So, his conviction u/S 354IPC is modified. In the facts and circumstances, the appellant Meeraz Alam @ Tuddu who is still in custody, has already remained in custody than the maximum prescribed period of sentence which could have been awarded for offence punishable under Section 354 IPC. So, this Cr.Appeal No.194/2006 is disposed of with the partial modification in respect of his conviction under Section 354 IPC and thereby imposition of sentence. 19 Appellant Meeraz Alam @ Tuddu of Cr.Appeal No.194/2006 is, thus, directed to be set at liberty forthwith just after communication of this order to the Jail authority, if not othwerwise detained in any other case. PATNA HIGH COURT, (Subash Chandra Jha) The…21st..day of May,2008 SKBOSE/NAFR