RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL REVISION No.68 of 2004 (Old No.94 of 1987) Hukam Singh S/o Manphool Singh Tyagi, R/o Vill.Fazilpur, P.S. Jhabrera, Distt. Saharanpur … Revisionist Versus The State … Respondent (2) CRIMINAL REVISION No.67 of 2004 (Old No.180 of 1987) Haneef @ Muda S/o Yaseen @ Yameen @ Seena, R/o Vill.Nagla Kubra, P.S. Jhabrera, Distt. Saharanpur … Revisionist Versus The State … Respondent Dated: July 03, 2008 Sri S.P.S. Panwar, Sr. Advocate assisted by Sri H.C. Pathak, learned counsel for Revisionist in CRLR No.68 of 2004 (Hukam Singh) Sri Mohd. Safdar, Advocate, learned counsel for the Revisionist in CRLR No.67/04 (Haneef @ Muda) Sri Harish Pujari, learned Addl. G.A. for the State/Respondent HON. DHARAM VEER, J. Both these criminal revisions have been preferred by the revisionists against the common judgment and order dated 2.1.1987 passed by IVth Addl. Sessions Judge, Saharanpur and also against the judgment and order dated 28.8.1985 passed by IIIrd Assistant Sessions Judge, Roorkee and the revisionists in both the revisions are also related to the same incident, hence, both these revisions are being disposed of by this common judgment and order. 2. Both these criminal revisions, preferred by the revisionists under Section 397/401 of the Code of Criminal 2 Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the common judgment and order dated 2.1.1987 passed by IVth Additional Sessions Judge, Saharanpur in Criminal Appeal Nos.221/1985 and No.227/1985, dismissing the appeals and confirming the judgment and order dated 28.8.1985 passed by IIIrd Assistant Sessions Judge, Roorkee. The learned IIIrd Addl. Sessions Judge has convicted the revisionists u/s 363/366/376 IPC and sentenced each of them u/s 363 IPC for 3 years R.I. with fine of Rs.500/- each and in default two months imprisonment. Both the revisionists were further convicted and sentenced u/s 366 IPC for 5 years R.I. with fine of Rs.500/- each and in default, two months further imprisonment. Each of the revisionists were further convicted and sentenced u/s 376 IPC for 5 years R.I. with fine of Rs.500/- and in default, two months further imprisonment was awarded to each of the revisionists. It was also directed that except the imprisonment awarded towards fine, all the three sentences shall run concurrently. 3. I have heard Sri S.P.S. Panwar, Sr. Advocate assisted by Sri H.C. Pathak, learned counsel for Revisionist- Hukam Singh in CRLR No.68 of 2004 and Sri Mohd. Safdar, Advocate, learned counsel for the Revisionist-Haneef @ Muda in CRLR No.67/04 as well as Sri Harish Pujari, learned Addl. G.A. for the State/Respondent and perused the entire material available on record. 4. In brief, the prosecution case is that from 5.12.1981 at 10:00 P.M., Km. Akhtari, aged about 12-13 years, daughter of complainant Abdul Gani, was missing. The complainant along with his relatives tried to search his daughter but he could not succeed. On 15/16.12.1981 at 4:00 A.M., some persons of Village Balelpur informed the nephew of complainant namely Rafiq that the victim Km. Akhtari was seen along with the revisionist-accused Hanif in a sugarcane 3 field. On this information, the complainant Abdul Gani along with his nephew Rafiq and Ashiq, Irfan etc. reached at the place of occurrence where they found the revisionist-accused Hanif while sleeping with Km. Akhtari, daughter of complainant. On hearing noise, revisionist Hanif tried to ran away, however he could not succeed and he was caught hold by the complainant and his companions at 5:00 A.M. Thereafter, when the matter was enquired from the victim Km. Akhtari, then she disclosed that revisionists-accused Hanif & Hukam had taken her on gunpoint by threatening to her life and they kept her in the house of revisionist-accused Hukam Singh. She also stated that the revisionists-accused had taken her at various places and both of them also committed rape on her. With the same averments, Abdul Gani lodged the FIR of the said incident orally at P.S. Jhabrera on 16.12.1981 at 3:30 P.M., the Chik FIR is Ex.Ka.1. The entry of the case was also made in the G.D. by Head Moharrir Vishnu Dayal Tyagi, the copy of G.D. is Ex.Ka.7. The Tahmad of the revisionist-accused Hanif was also taken into custody and a Fard in this regard was also prepared, i.e. Ex.Ka-2. The victim Km. Akhtari was medically examined on 17.12.1981 at 2:00 P.M. by Medical Officer (SBD) Women’s Hospital, Saharanpur and medical report was prepared i.e. Ex.Ka-8. X-ray of victim Km. Akhtari was also conducted on 18.12.1981, X-ray report is Ex.Ka-10. After that when the Medical Officer received the X-ray report, thereafter she wrote her report i.e. Ex.Ka-9. The investigation of the case was entrusted to P.W.4 S.I. Hari Chandra Saxena. The I.O. during the course of investigation also prepared the site plans i.e. Exs.Ka-3, Ka-4 and Ka-5. The I.O. during the course of investigation recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet in the court against the revisionists-accused u/s 363/342/376 IPC, i.e. Ex.Ka-6. 4 5. After receiving the charge sheet, the learned Additional Munsif Magistrate, Roorkee has committed the case to the court of Sessions on 27.02.1984 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 6. On 21.1.1985, the IIIrd Assistant Sessions Judge, Roorkee framed the charge against the revisionists-accused Hanif @ Muda and Hukam Singh u/s 363/366/376 IPC. The charge was read over and explained to the revisionists- accused who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Km. Akhtari, the prosecutrix, P.W.2 Abdul Gani, complainant and father of the prosecutrix, P.W.3 Ashik Ali, in whose presence the victim was recovered, P.W.4 S.I. Hari Chandra Saxena, I.O. of the case, P.W.5 Dr. Savitri Singh, who has medically examined the prosecutrix and P.W.6. Dr. J.C. Garg, who conducted the x-ray of the victim. 8. Thereafter, the statements of the revisionists- accused Hanif & Hukam Singh were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form. They have denied the allegations made against them and stated that they have been falsely implicated due to enmity. However, they did not produce any oral or documentary evidence in their defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned IIIrd Assistant Sessions Judge, Roorkee vide his judgment and order dated 28.8.1985 has convicted the revisionists Hukam Singh & Hanif u/s 363/366/376 IPC and sentenced each of them u/s 363 IPC for 3 years R.I. with fine of Rs.500/- each and in default two months imprisonment. Both the revisionists were further convicted and sentenced u/s 366 IPC for 5 years R.I. with fine of Rs.500/- each and in default, 5 two months further imprisonment. Each of the revisionists were further convicted and sentenced u/s 376 IPC for 5 years R.I. with fine of Rs.500/- and in default, two months further imprisonment was awarded to each of the revisionists. It was also directed that except the imprisonment awarded towards fine, all the three sentences shall run concurrently. Against the said judgment and order-dated 28.8.1985, the revisionists-accused preferred the appeals. The appeals preferred by the revisionists-accused were dismissed by the judgment and order passed by IVth Addl. Sessions Judge, Saharanpur vide judgment and order dated 2.1.1987. Feeling aggrieved by the aforesaid judgments and orders dated 28.8.1985 and 2.1.1987, the present revisions have been preferred. 10. Before further discussion, it is pertinent to mention the injuries found in the injury report (Ex.Ka-8) on the person of victim Km. Akhtari who was examined on 17.12.1981 at 2:00 P.M. by Medical Officer, (SBD) Women’s Hospital, Saharanpur. The Medical Officer on medical examination found as follows: - 1. Breasts developed. Axillary hairs scanty, no mark of injury seen on whole body. 2. Scanty pubic hairs (black) present, not matted 3. Vagina admits two fingers easily, old healed tags of torn hymen present. Uterus M.S.L.M.P. 7 days back. No bleeding injury. Vaginal smear slid taken and sent to Pathology Department, SBD Hospital, Saharanpur for microscopic examination for evidence of any sperm or gonococci. The prosecutrix was referred to X-ray Department SBD Hospital, Saharanpur for X-ray of wrist and joint. Elbow joint of knee joint for determination of her age. The Medical Officer came to the conclusion that the age of the prosecutrix is about 16 years, however no opinion about the rape could be given. It was also opined that she was subject to sexual intercourse. No mark of injury was seen on any part of 6 body. Further, no definite opinion about the stains, which were on the clothes, could be given. Thereafter, on 18.12.1981, her X-ray was also conducted by P.W.6 Dr. J.G. Garg, Radiologist, SBD Hospital, Saharanpur. The doctor found as follows: - X-ray Right Wrist Joint: - The Epiphysis at the lower end of right radius and ulna bones are separate. X-ray Right Elbow Joint: - The Epiphysis around right elbow joint have fused completely with their respective bones. X-ray Right Knee Joint: - The Epiphysis around right knee joints are separate. Pathology Report 1. No spermatozoa seen dead or alive 2. No gonococci seen. 11. To prove its case, the prosecution has examined P.W.1 Km. Akhtari, victim of the case, who has stated that the incident was happened about 3 years and 4-5 months back. On that day, she had gone to field to ease herself where the revisionists-accused Hanif and Hukam were hidden. Revisionist-accused Hanif who was armed with a gun caught hold her and revisionist-accused Hanif @ Muda threatened her that if she would make noise, then he would kill her. Thereafter, both the revisionists-accused lifted her from there and took her at the residence of revisionist-accused Hukam Singh. After that revisionist-accused Hukam lit the lantern and again threatened her to her life if she would make noise. Thereafter, both the revisionists-accused committed sexual 7 intercourse twice with her forcibly. She also stated that the revisionists-accused kept her in that place for three days and they continued to commit the sexual intercourse with her for all the three days forcibly. She was boarded in train from Iqbalpur in the morning and both the revisionists-accused took her at the maternal uncle’s house of revisionist-accused Hukam Singh at village Ruhalki. She was kept at village Ruhalki in the night and on the next day, she was taken to the Saharanpur court. Thereafter, she was taken to village Kotchki where wife’s sister of Hanif resides and there she was kept for one night. There also, both the revisionists-accused committed rape on her. From village Kotchki, she was taken to Dhalla where the revisionists-accused also committed rape on her. Thereafter, she was taken from Dhalla to a sugarcane field near Ballalpur village, where the revisionists-accused kept her for two days and on those days also, the revisionists- accused committed rape on her. After that in the field of Ballalpur, her father Abdul Gani along with Rafiq and Irfan captured her along with the revisionist-accused Hanif. In the process of catching hold revisionist-accused Hanif, he also received injuries in the Marpit. Thereafter, she along with Hanif was taken to the village from where they were taken to police station. She also narrated the entire incident to her father. A report was lodged by her father in the police station from where she was sent for medical examination. The clothes which she wore at the time of incident, were taken by the lady doctor. She also stated that she also knew the revisionists-accused before the incident. She identified her clothes i.e. Kurta Ex.1 and Salwar Ex.2, which were taken into possession by the doctor. This witness was cross- examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her evidence. The evidence of this witness is reliable and believable. 8 12. P.W.2 is Abdul Gani, father of prosecutrix, who has stated that the incident was occurred about 3 years and 4-5 months back. At about 8-9 P.M., his daughter had gone to ease herself, but she did not come back. After that he tried to search his daughter. After some days, his daughter Km. Akhtari was recovered in a sugarcane field near village Ballalpur. The time was about 4:00 A.M. and at that time, revisionist-accused Hanif was found while sleeping with his daughter. This information was given to him by the villagers of village Ballalpur and on this information, he being accompanied with Rafiq, Irfan, Kurban, Ahsan and Aashiq, reached at the place of occurrence. There, Hanif was caught hold by them after committing Marpit. Thereafter, he along with his companions came back to village after taking his daughter and revisionist-accused Hanif. From the village, he had gone to Police Station by taking his daughter. His daughter disclosed the entire matter to him. He also got lodged the report of this incident at Police Station and he also put his thumb impression on it and after hearing the said report, he also proved the same, i.e. Ex.Ka-1. He also stated that the age of his daughter at the time of incident was between 12-13 years. He also stated that medical examination of his daughter was also conducted. This witness was also cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 13. P.W.3 is Asif Ali who has stated that 2-3 years back, he along with Rafiq and Abdul Gani had gone to village Ballalpur. There, in the sugarcane field, they reached at about 3:00 A.M. where they found revisionist-accused Hanif along with the daughter of Abdul Gani. There he and his companions caught hold revisionist-accused Hanif and he also stated that the girl was missing from last so many days. 9 He also stated that at the place of occurrence, no enquiry was made from revisionist-accused Hanif. He also stated that the girl had not disclosed that where she was kept for last so many days. The revisionist-accused Hanif and the girl were taken to the village and thereafter he went towards his house. He also did not know that thereafter where the girl and the revisionist-accused were taken. He also stated that the sugarcane field where the girl and the revisionist-accused was caught hold, the said field is in village Ballalpur. This witness was also cross-examined by the defence counsel but nothing has come out in his statement which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 14. P.W.4 is S.I. Hari Chandra Saxena, I.O. of the case, who has stated that on 16.12.1981, he was posted at P.S. Jhabrera as S.I. The investigation of this case was done by him. The Tehmad Ex.3 of the revisionist-accused Hanif was taken into possession by him and a Fard was also prepared by him, i.e. Ex.Ka-2. During the course of investigation, he inspected the place from where the prosecutrix was recovered and prepared the site plan, i.e. Ex.Ka-3. He recorded the statements of revisionist-accused Hanif and prosecutrix and on the pointing out of victim Km. Akhtari, he inspected the place where she told herself to be detained and prepared the site plan, i.e. Ex.Ka-4. Thereafter, on the pointing out of victim Km. Akhtari, he inspected the place from where the prosecutrix was lifted and prepared the site plan, i.e. Ex.Ka- 5. On 16.12.1981, the victim Km. Akhtari was sent for medical examination. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet in the court against the revisionists-accused, i.e. Ex.Ka-6. The FIR of this case was written by Head Moharrir 10 Vishnu Dayal, i.e. Ex.Ka-1. The entry of the case was also made in the G.D., the copy of G.D. is Ex.Ka-7. 15. P.W.5 is Dr. Savitri Singh, who has stated that she had medically examined the prosecutrix Km. Akhtari on 17.12.1981, who was brought to her by Constable Om Prakash. In the medical examination, she found the injuries on her person which have been referred in para-10 of this judgment. Thereafter, the slide of Vaginal Smear was sent to Pathology Department, SBD Hospital, Saharanpur for examination. X-ray of victim Km. Akhtari of wrist joint, elbow joint and knee joint was conducted at SBD Hospital, Saharanpur for determination of her age. In the examination of clothes of victim Km. Akhtari, white spots at various places on the clothes were found. She also came to the conclusion that the age of the victim Km. Akhtari was about 16 years, however, she could not give any specific opinion about the rape, as she was habitual of sexual intercourse. On 17.12.1981, she prepared the medical report i.e. Ex.Ka-8. After that when she received the X-ray report, thereafter she wrote her report i.e. Ex.Ka-9. 16. P.W.6 is Dr. J.G. Garg, who has conducted the X- ray of victim Km. Akhtari. He has stated that on 18.12.1981, he was posted as Radiologist at SBD Hospital, Saharanpur. On that day, he conducted the x-ray of right wrist joint, wrist elbow and knee joint on the person of Km. Akhtari, who was sent by Medical Officer, SBD Women’s Hospital, Saharanpur. He has proved the x-ray plate prepared by him i.e. Ex.4 and also proved his X-ray report, i.e. Ex.Ka-10. 17. After that the statements of the revisionists- accused Hanif & Hukam Singh were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form. They have denied the allegations made against them and stated that they have been falsely 11 implicated due to enmity. However, they did not produce any oral or documentary evidence in their defence. 18. Sri S.P.S. Panwar, learned senior counsel for the revisionist-accused (Hukam Singh) and Sri Mohd. Safdar, learned counsel for the revisionists-accused (Hanif), argued that in view of the evidence discussed above, the case against the revisionists-accused is not proved beyond reasonable doubt. The argument advanced by learned senior counsel is not as per the evidence discussed above. From the evidence of P.W.1 Km. Akhtari, it is well proved that on 5.12.1981 at about 10:00 P.M., she had gone to the field to ease herself. There the revisionists-accused Hanif and Hukam were hidden. Revisionist-accused Hanif who was armed with a gun caught hold her and revisionist-accused Hanif @ Muda threatened her that if she would make noise, then he would kill her. Thereafter, both the revisionists-accused lifted her from there and took her to the residence of revisionist- accused Hukam Singh. Thereafter, both the revisionists- accused committed sexual intercourse twice with her forcibly. The revisionists-accused kept her at that place for three days and they committed sexual intercourse with her for the three days forcibly. Thereafter, she was boarded in train from Iqbalpur in the morning and both the revisionists-accused took her at village Ruhalki. She was kept at village Ruhalki in the night and on the next day, she was taken to the Saharanpur court. Thereafter, she was taken to village Kotchki and there she was kept for one night. There also, both the revisionists-accused committed rape on her. From village Kotchki, she was taken to Dhalla where the revisionists-accused also committed rape on her. Thereafter, she was taken from Dhalla to a sugarcane field near Ballalpur village, where the revisionists-accused kept her for two days and on those days also, both the revisionists-accused committed rape on her. After that in the field of Ballalpur, 12 her father Abdul Gani along with Rafiq and Irfan caught her with revisionist-accused Hanif. Thereafter, she along with Hanif was taken to the village from where they were taken to police station. Thereafter, the report was lodged by her father in the police station from where she was sent for medical examination. The above-said evidence of P.W.1 Km. Akhtari is also corroborated from the evidence of P.W.2 Abdul Gani and P.W.3 Aashiq Ali and also from the medical evidence of P.W.5 Dr. Savitri Singh as well as from the medical report, pathology report and x-ray report (Ex.Ka-8 to Ex.Ka-10). As such, the prosecution has been successful in proving its case against the revisionists-accused for the offences punishable under Sections 363/366/376 IPC. 19. Sri S.P.S. Panwar, learned senior counsel for the revisionist-accused Hukam Singh and Sri Mohd. Safdar, learned counsel for the revisionists-accused Hanif, submitted that the incident had occurred in the year 1981 and since that period, 27 years have been elapsed and now the revisionist-accused Hukam Singh is rendering 80 years of age and revisionist-accused Hanif is rendering 63 years of age and they jointly prayed that the sentenced awarded to both the revisionists-accused may be converted into fine. The incident had occurred on 5.10.1981 when both the revisionists-accused had lifted the victim Km. Akhtari at the time when she had gone to ease herself. The victim Km. Akhtari was aged about 12-13 years as is mentioned in the FIR and about 14½ years as per her own statement recorded in the court, which illustrates that the victim Km. Akhtari was minor on the date of incident. On the date of occurrence, the age of the revisionist-accused Hanif was 36 years and age of the revisionist-accused Hukam Singh was about 52-53 years. Thus, as per the evidence discussed above, it is proved that both the accused persons took the victim at various places on the gunpoint and thereafter for various days, both 13 of them committed sexual intercourse with her without her wishes. As such, after considering the gravity of the offences and in view of the above-said entire facts and circumstances of the case, it is not a fit case in which the sentence awarded to the revisionists-accused be reduced or be converted into fine. The sentence as awarded by the trial court is just and proper and there is no reason to interfere with the judgment and order passed by the trial court. As such, the argument advanced by learned senior counsel is not sustainable and cannot be accepted. 20. In view of the aforesaid facts and circumstances of the case, I do not find any illegality, impropriety or incorrectness in the impugned judgments and orders passed by the courts below. 21. For the reasons as recorded above, both the criminal revisions are devoid of merits and are accordingly dismissed. The conviction and sentence as awarded by IIIrd Assistant Sessions Judge, Roorkee vide order dated 28.8.1985 which was affirmed by IVth Addl. Sessions Judge, Saharanpur vide judgment and order dated 2.1.1987, is hereby confirmed. The revisionists-accused are on bail. Their bail bonds are cancelled. Let them be taken into custody in order to serve out the sentence. 22. Let a copy of this order be sent back to the trial court concerned forthwith for compliance of the order. (Dharam Veer, J.) July 03, 2008 Rajeev Dang