IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.499 of 2001 (Old No.1993 of 1990) Shakoor S/o Salgu, R/o Vill.Redapur, P.S. Sahaspur, Distt. Dehradun …….….…. Appellant Versus The State …………… Respondent Dated: September 02, 2008 Sri Anoop Kumar Adv. i/b Sri C.D. Bahuguna, counsel for the appellant Sri M.A. Khan, brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 09.10.1990 passed by IIIrd Additional Sessions Judge, Dehradun in S.T. No.117 of 1986 and S.T. No.43/1988, whereby the learned Sessions Judge has convicted the appellant/accused Shakur under Sections 366/376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years’ R.I. u/s 366 IPC and further seven years’ R.I. u/s 376 IPC. Both the sentences were directed to run concurrently. Co- accused Asgar @ Tota was also convicted u/s 366 IPC and was sentenced to seven years R.I. Another co- accused Shakila was acquitted of the offences punishable u/s 363/366 IPC. 2. Co-accused Asgar @ Tota also preferred a criminal appeal No.496/2001 (Old No.1928/1990) against the aforesaid judgment and order dated 09.10.1990. During the pendency of the said appeal, 2 co-accused Asgar @ Tota had died, therefore, the said appeal stood abated vide order dated 25.07.2005 passed by this Court. 3. I have heard Sri Anoop Kumar, Adv. holding brief of Sri C.D. Bahuguna, learned counsel for the appellant/accused and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 4. In brief, the prosecution case is that complainant Fateh Din (P.W.3) lodged the FIR with the averments that in the village Dhaki adjacent to his house, co-accused Asgar was living and present appellant/accused Shakur used to come in the house of co-accused Asgar. It was also averted that in the complainant’s absence, appellant/ accused Shakur used to entice his daughter Ruksana who was aged about 15-16 years. On 12.11.1985 at about 7:00 P.M., when the complainant had gone to Sahaspur, then the appellant/accused took his daughter towards Herbertpur. When the complainant came back house at about 8:00 P.M., then he was informed by his wife Smt. Muna Khatoon (P.W.5) that Ruksana (P.W.1) was not at home. After that when the complainant started searching for his daughter, then Shakila, Shabira and Suleman informed him that they had seen his daughter Ruksana while going on foot along with appellant/ accused Shakur towards Herbertpur. Thereafter, the complainant along with his family members searched his daughter but when he could not be successful in doing so, then with the same averments, P.W.3 Fateh Din lodged the report at P.S. Sahaspur, Distt. Dehradun on 13.11.1985 at 9:30 A.M., i.e. Ex.Ka-2. On the basis 3 of this report (Ex.Ka.2), Chik FIR was prepared by Constable Clerk Krishan Gopal, i.e. Ex.Ka-8. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-9. The investigation of this case was initially entrusted to S.I. B.S. Sharma and after that it was transferred to S.I. Bhullan Singh (P.W.6). Later on the investigation was entrusted to S.I. Charan Singh (P.W.4) on 19.7.1986, who during the course of investigation recovered the victim Ruksana (P.W.1) on 2.8.1986 at Inter-State Bus Stand, Shimla (Himachal Pradesh). The recovery memo was also prepared by the I.O., i.e. Ex.Ka-3. The victim Ruksana was also sent for medical examination and her medical examination was conducted by P.W.2 Dr. D.P. Goel on 4.8.1986 at 12:20 P.M. and medical report was also prepared, i.e. Ex.Ka-1. After that the prosecutrix was given in the Supurdgi of her father and a Supurdginama was also prepared, i.e. Ex.Ka.4. During the course of investigation, the I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-10. The statement of the victim Ruksana was also u/s 164 Cr.P.C., i.e. Ex.Ka.15. The I.O. during the course of investigation recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused Shakur and co- accused Tota @ Asgar u/s 363/366/376 IPC, i.e. Ex.Ka.13. Against co-accused Shakila (acquitted by trial court) charge sheet was also filed by the I.O. u/s 363/366/376 IPC, i.e. Ex.Ka-14. 5. Learned Additional Chief Judicial Magistrate, Dehradun appears to have committed the case to the court of Sessions after giving necessary copies to the 4 appellant/accused and other co-accused persons as provided under section 207 Cr.P.C. 6. The Assistant Sessions Judge, Dehradun framed the charge against the appellant/accused Shakur u/s 366 r/w Section 34 IPC and one punishable u/s 376 IPC. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. The charge against the co-accused Asgar @ Total was also framed by learned Assistant Sessions Judge, Dehradun on 23.1.1987 u/s 366 IPC. The charge was also read over and explained to him who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Km. Ruksana, victim; P.W.2 Dr. D.P. Goel, who has medically examined the victim; P.W.3 Fateh Mohamad, complainant and father of victim; P.W.4 S.I. Charan Singh, who recovered the victim Ruksana and arrested the appellant/accused, P.W.5 Munna Khatoon, mother of victim, P.W.6 S.I. Bhullan Singh, I.O. of the case and P.W.7 Krishan Kumar Aggarwal, Peshkar, who has identified the signatures of Judicial Magistrate P.K. Jain. 8. Thereafter, the statement of the appellant/ accused Shakur as well as the statements of co- accused Asgar @ Tota and Shakila (acquitted by trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who 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. 5 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned IIIrd Addl. Sessions Judge, Dehradun vide his judgment and order dated 09.10.1990 convicted and sentenced the appellant/accused as discussed above. Against the aforesaid judgment and order, the appellant/accused Shakur has preferred the present appeal. 10. Before further discussion, it is pertinent to mention that injured Km. Ruksana (P.W.1) was medically examined on 04.08.1986 at 12:20 P.M. by P.W.2 Dr. D.P. Goel and her medical report was also prepared i.e. Ex.Ka-1. On the person of Km. Ruksana, the medical officer found as under: - “No mark of injury on any part of body. No mark of injury on private parts. Per Vaginal Examination- Hymen torn old. Vagina Admit two fingers easily. No bleeding. Per Abdominal Examination- Uterus of 24 weeks. Vaginal smear was taken and sent for Histopathology Girl sent for x-ray of knee, elbow and wrist joint. After receiving of the report, the medical officer also prepared the Vaginal Smear Report & X-ray report which is also reproduced as under: - Vaginal Smear Report- Vaginal Smear negative. 6 X-ray Report- (1) Epiphysis around the elbow joint are fused with their respective shafts. (2) Epiphysis lower end radius ulna show partial fusion. (3) Epiphysis around knee joint also show partial fusion. Conclusion- Patient is used to sexual intercourse. She is 24 weeks pregnant. Her age is above 16 years and below 17½ years.” 11. To prove the aforesaid medical report (Ex.Ka.1), the prosecution has examined P.W.2 Dr. D.P. Goel, who has stated that on 4.8.1986, she was posted at Women Hospital Dehradun as G.D.M. On that day at 12:20 P.M., she had medically examined Km. Ruksana who was brought to her by Constable Dayawati Raghav. She has found the injuries on the person of Km. Ruksana, which have been recorded in para 10 of this judgment. She also proved the medical report prepared by her, i.e. Ex.Ka-1. She also opined that victim Km. Ruksana is used to sexual intercourse. She is twenty-four weeks’ pregnant. Her age is about 16 and below 17 and half years. 12. To further prove its case, the prosecution has examined P.W.1 Km. Ruksana, victim of the case, who has stated that at the time of the incident, she was residing at Village Dhaki along with her father and mother. On 12.11.1985, the time was about 7:00 P.M. and at that time, her father and mother were not at home. Co-accused Shakila (acquitted by trial court) came to her house and asked her to accompany her to answer the call of nature. After that she started moving 7 with Shakila and after some distance, co-accused Asgar @ Tota met her and both of them took her to the present appellant/accused Shakur. They also threatened her with knife to her life. Thereafter she went along with the present appellant/accused Shakur and reached at Chohadpur near Vikasnagar through forest route. At Chohadpur, she stayed with the appellant/accused in a house and in the next day morning at about 4:00 A.M., she along with appellant/accused Shakur gone to Himachal Pradesh. In the hilly area, she had stayed at number of places along with appellant/ accused Shakur and during the aforesaid period, appellant/accused Shakur also committed sexual intercourse with her due to which she became pregnant. After 8-9 months of the said incident, she was recovered by the police at Bus Stand at Shimla (Himachal Pradesh). From there, she was taken to Sahaspur police station and later on she was also medically been examined. In cross-examination she has stated that she has been married and at the time of her marriage, she was about 18-18½ years old and now she is 19 years of age. 13. The evidence of P.W.1 Ruksana also gets corroborated with the evidence of P.W.3 Fateh Mohammad, father of victim and P.W.5 Smt. Munna Khatoon, mother of victim. 14. P.W.4 is S.I. Charan Singh who has stated that he received a letter Ex.1 from the informant, on the basis of which he came to know the whereabouts of victim Km. Ruksana and appellant/accused Shakur. On 2.8.1986, he recovered the victim Km. Ruksana along with appellant/accused Shakur at Inter-State Bus Stand at Shimla (Himachal Pradesh) and a Fard was also 8 prepared by him in this regard, i.e. Ex.Ka-3. Then he took the appellant/ accused along with the victim at P.S. Sahaspur. 15. P.W.6 is S.I. Bhullan Singh who has stated that the case was registered in the police station on 13.11.1985 in his presence and Constable Clerk Krishan Gopal prepared the Chik FIR of the case, i.e. Ex.Ka-8. The entry was also made in the G.D. by Constable Clerk Krishan Gopal, carbon copy of G.D. is Ex.Ka-9. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of witnesses and inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-10. On 19.6.1986, he was transferred and the investigation was transferred to S.I. Charan Singh. 16. P.W.7 is Krishan Kumar Aggarwal, who has stated that he has worked with Judicial Magistrate-I P.K. Jain. On Paper No.21-K/2, the statement of Ruksana was recorded by Sri P.K. Jain on 7.8.1986, i.e. Ex.Ka-15. 17. Thereafter, the statement of the appellant/ accused Shakur as well as the statements of co- accused Asgar @ Tota and Shakila (acquitted by trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who 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. 18. Sri Anoop Kumar, Adv. holding brief of Sri C.D. Bahuguna, counsel for appellant/accused argued 9 that the victim Km. Ruksana was major at the time of the said incident. He further submitted that the age of victim as per the medical report Ex.Ka-1 is in between 16-17½ years of age and if two years age margin will be given on the higher side, then the prosecutrix is more than 18 years, hence the prosecutrix was major on the date and time of incident. I find force in the argument advanced by counsel for appellant/accused. In the medical report Ex.Ka-1 and also in the evidence of P.W.2 Dr. D.P. Goel, it has been stated that the victim Km. Ruksana was aged about 16-17½ years and as per settled law, two years age margin can be given on lower or upper side. In the present case, if two years margin on the higher side would be given, then definitely the prosecutrix Km. Ruksana was more than 18 years of age at the time of incident and as such she was major on the date and time of incident. 19. It was further argued on behalf of appellant/ accused that victim Km. Ruksana had gone with her own consent with the appellant/accused Shakur on 12.11.1985 as it is clear from the conduct of victim and the facts and circumstances of the case and she is the consented party. I again find substance in this argument advanced by counsel for appellant/accused. As per the evidence discussed above, the victim Km. Ruksana had gone from her house at village Dhaki on 12.11.1985 at about 7:00 P.M. on foot to Chohadpur near Vikasnagar through Herbertpur on foot, and thereafter from Chohadpur to Shimla (Himachal Pradesh) by bus. At number of places in between the way going from village Dhaki to Chohadpur and also on the bus stations, Km. Ruksana had met number of people but she had not complained anybody about the 10 said incident. In this way, she had traveled for about 250 kilometers, but in this whole journey, she had not complained to anybody. Even the victim has also stated in her evidence that she stayed with the appellant/ accused initially at a house at Chohadpur and also at various places in the hilly area, meaning thereby she had gone and stayed along with the appellant-accused on her own will and she made physical relations with the appellant/accused with her own consent due to which she became pregnant for 24 weeks when she was recovered by the police. The victim Km. Ruksana remained with the appellant/accused Shakur for about 8 months and 20 days with her own consent. This behaviour of the victim and also after considering the facts and circumstances of the case show that the victim and the appellant/accused were the consented parties and the victim has gone with the appellant/ accused with her own consent and they remained together for about 8 months and 20 days. During this period, physical relations were also developed between both of them due to which the prosecutrix Km. Ruksana became pregnant for 24 weeks. Thus, in view of the aforesaid facts and circumstances of the case, the prosecution has not proved its case against the appellant/ accused beyond reasonable doubt u/s 366/376 IPC. The above-said view also finds support from a judgment rendered by the Hon’ble Supreme Court in the case of Narayan alias Naran v. State of Rajasthan reported in (2007) 6 SCC 465. The Hon’ble Supreme Court in paras 11, 12, 13 & 15 has held as under: - “11. In the cross-examination the prosecutrix (PW3) stated that she boarded the trolley at about 11 5 o’clock in the evening and by 7 o’clock they reached Singpur Village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ext.P-5) she stated that the accused committed rape on her thrice but in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not state that she offered any resistance though she was physically very strong. Medical report (Ext.P-1) says that there were no injuries on the body of the prosecutrix (PW 3). There were no injuries on her private part. It is ultimately opined that “no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse”. In the circumstances, is it possible to believe that the prosecutrix (PW 3) has been subjected to rape twice by the accused as alleged? In the first information report (Ext.P-5) it is stated that the prosecutrix (PW 3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW 3) was driving the tractor from Singhpur to Bharkiya crossing through a number of villages. It is not stated by the prosecutrix (PW 3) that she made any attempt to get down from the tractor at any 12 point of time. On the other hand, it is stated by her that she sat in the tractor happily. 12. Yet another important aspect of the matter, in the first information report and as well as in her evidence the prosecutrix (PW 3) stated that she revealed the entire episode of committing rape on her by the accused to Smt Tejkanwar (PW 6) in whose house in Akodiya Village she slept on the fateful night. She also state about the accused’s snatching of Rs.1000 from her and also some jewellery. Smt Tejkanwar (PW 6) in her evidence did not state that the prosecutrix (PW 3) narrated the incident of rape committed on her by the accused to her. The evidence of the prosecutrix (PW 3) if full of material contradictions. There is no corroboration whatsoever from any of the witnesses, more particularly in the evidence of Smt Tejkanwar (PW 6) who is a material witness. It is true, the evidence of the prosecutrix (PW 3) itself, if acceptable, is sufficient to establish the charge against the accused but her evidence is so artificial with cannot be accepted. 13. In the circumstances, we are of the considered opinion that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 376 IPC. 15. For all the aforesaid reasons, we hold that the prosecution failed to establish the charges framed against the appellant for the offences punishable under Sections 376 and 392 IPC. The conviction as well as sentences imposed upon the appellant for the offences punishable under 13 Sections 376 and 392 IPC are accordingly set aside.” 20. Thus, from the above-said facts and circumstances of the case and in view of the aforesaid quoted judgment of Hon’ble Supreme Court in the case of Narayan (Supra), the case against the appellant/ accused is not proved beyond reasonable doubt u/s 366/376 IPC and I do not concur with the view taken by the trial court in convicting and sentencing the appellant/accused Shakur as discussed above. 21. For the reasons recorded above, the appeal preferred by appellant/accused Shakur is allowed. The judgment and order dated 09.10.1990 passed by IIIrd Additional Sessions Judge, Dehradun, is hereby set aside. The appellant/accused Shakur is hereby acquitted of the offences punishable u/s 366 and 376 IPC. The appellant-Shakur is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) September 02, 2008 Rajeev Dang