1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 255 of 1992 Reserved on: 4.1.2008 Date of Decision: 27.02.2008 ____________________________________________________________ State of H.P … Appellant Versus Aminudin alias Minu & others …. Respondents. Coram Hon’ble Mr. Justice Surjit Singh, J Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?. Yes. For the appellant: Mr. Som Dutt Vasudeva, Additional Advocate General with Mr D.S.Nainta, Deputy Advocate General. For the respondents: Mr. M. S. Guleria, Advocate. ____________________________________________________________ Surinder Singh,J . The respondents were tried and acquitted for offences, punishable under sections 363,366,376, 506,342 and 384 read with section 109 of the Indian Penal Code by the learned Sessions Judge, Mandi, in Sessions Trial No.11/90. Their acquittal has been assailed in the instant appeal by the appellant- State. The prosecution case in brief may be summed up thus: Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 On 8.8.1989, Manjit Singh, the father of the prosecutrix had filed a complaint (Ex.PL) to the Superintendent of Police, alleging that on 18.7.1989 the prosecutrix, his daughter, aged about 17 years was kidnapped by accused Aminudin alias Minu with the assistance of 8-10 Mohammedan boys. He came to know about this fact in the evening on 19.7.1989 from one Shri Bal Krishan Sharma, who was on water-guard duty. He had recovered the prosecutrix from the room of Aminudin respondent. The complainant was threatened by the respondents Mohida Begum and Wazid Khan, who had obtained writing from him under duress to the effect that the prosecutrix would be married to the respondent Aminudin. It was also alleged in the complaint that his daughter was brutally beaten up and during the night around 10 p.m. she was taken to the bus- stand, when they could not get the bus, she was handed over to a taxi driver who kept her till 3 a.m. The Prosecutrix was denuded of her wrist watch and a ring. The complainant had been receiving threats from the accused persons. He had also contacted respectable persons of the locality but nobody could render any help to him. The aforesaid complaint was sent to the S.H.O Police station, Sadar, for registration of 3 the case, on the basis of which FIR Ex.PQ was registered. Police investigated the matter and it came to light, that the complainant had resided in the rented premises of the respondent Mohida Begum with his family till 17.7.1989, thereafter they vacated the said premises and hired accommodation in the building nearby owned by one Shri Sher Singh, driver of HRTC in the same Mohalla. It is alleged that on 18.7.1989, the prosecutrix was sitting with her sister on the slab of the house. Monika (DW2) d/o Surjit Singh informed her that respondent Mohida Begum had called her for doing some embroidery work. On this,the prosecutrix went to the house of Mohida Begum. She took her inside the room of respondent Aminudin and offered sweets. Respondent Aminudin came there, when the prosecutrix tried to come out of the room, it is alleged that respondent Mohida Begum gave a slap on her face and pushed her inside the room of Aminudin. The prosecutrix and Aminudin were locked inside the room. When she raised hue and cry, respondent Aminudin threatened her and committed rape on her. At about 9 p.m., respondent Aminudin on the pretext that his father was likely to come, took the prosecutrix to Mangwain-road and from there she was taken to the bus stand in Taxi No.HPY 4 40, which was driven by respondent Hitesh Kumar. Respondent Neel Gagan was also sitting besides him. They did not get any bus. The prosecutrix was made to stand in one corner near the booking-office. In the meantime one Sikh Boy named Gurmit Singh saw her and told the respondent Aminudin that she was the sister of his friend. The exchange of some hot- words resulted in scuffle between them. Thereafter Gurmit Singh went away. Aminudin told the prosecutrix to sit in the taxi. Thereafter, she was taken away by respondents Hitesh Kumar and Gagan towards Tarna Hills. Aminudin remained behind at the bus stand. It is alleged that respondent Neel Gagan had raped her there and around 3.30 a.m. both the respondents took the prosecutrix to the room of respondent Aminudin, from Tarna-Hills. Mohida Begum again locked the prosecutrix and Aminudin in the room where she was alleged to have been raped by him. On 19.7.1989, Parma Nand, Water Guard, who also used to sell milk to Mohida Begum, informed the father of the prosecutrix (PW5) that he suspected that his daughter might be in the house of Mohida Begum. Thereafter Complainant along with his wife went there. The lights of the room of Aminudin were on, but the door was locked from outside which aroused their suspicion. They asked 5 Mohida Begum to open the door. Firstly, she resisted but when the complainant threatened her that he would report the matter to the police then she unlocked the door and found their daughter and Aminudin inside the room. On seeing her parents, the prosecutrix got scared and started weeping. The complainant and his wife asked her to accompany them but Wazid Khan, husband of Mohida Begum warned them not to take her unless they give in writing that the prosecutrix would be married to accused Aminudin. The complainant is alleged to have given in writing as desired by the said respondent under the fear and took the prosecutrix to his house. The prosecutrix was medically examined on the request of police on 9.8.89. Her M.L.C. is Ex.PB. No injury was found on the person of the prosecutrix. Her hymen was found torn. In the opinion of the Doctor, she was exposed to coitus. She was also referred for ossification test. The Skeletal age was assessed between 16½-17 years. Her date of birth is recorded as 16.10.1972 in her birth-certificate Ext.PN. Respondents Aminudin and Neel Gagan were also got medically examined and in the opinion of the Doctor, both of them were able to perform the sexual intercourse. Their MLCs are Ex.PE and Ex.PG 6 respectively. Lock and key were also taken into possession from Mohida Begum vide Memo Ex.PM. After completing the investigation, challan was presented in the court for trial Respondents were charge-sheeted for the aforesaid offences, to which they pleaded not guilty and claimed trial. The prosecution had examined its witnesses to prove the charges. Respondents were also examined under section 313 of the Code of Criminal Procedure. They also led the defence and examined DWs Parma Nand and Kumari Monica d/o Surjit Singh. The learned trial court, after appreciating the evidence, acquitted the respondents on the ground that statements of the prosecutrix and her father were discrepant and contradictory; the star witness of the prosecution named Parma Nand did not support the prosecution case rather he had supported the defence version and the delay of about 20 days in lodging the report further cast a serious doubt on the case of the prosecution. Mr.Som Dut Vasudeva, learned Additional Advocate General, has vehemently argued that the findings of the trial court are incorrect. The testimony of the prosecutrix inspires confidence and is corroborated by the statement of her parents 7 on material particulars; therefore, there are grounds to convert the acquittal into conviction. Contra, Sh.M.S.Guleria, learned counsel for the respondents, while supporting the grounds of acquittal recorded by the learned trial court, has forcefully argued that the testimony of the prosecutrix does not inspire confidence at all. The case is shrouded by suspicion. He has led us through the evidence on record and pointed out the discrepancies in the statements of the witnesses to show that the offences charged are not made out. According to him, it is made out from the record that the prosecutrix was a consenting party and left the house of her parents out of her own volition and joined the company of the respondent Aminudin. The allegation of rape, committed by him and Neel Gagan, is proved to be false from the record. We have given our thoughtful consideration to the rival contentions of the learned counsel for the parties and have reappraised and meticulously examined the evidence on record. In fact there are certain circumstances existing on record, which render the prosecution case highly doubtful, which are as under: 8 i) The father of the prosecutrix (Pw5) has lodged the FIR after about 20 days of the alleged occurrence and had only mentioned the name of Aminudin alias Minu and also alleged the complicity of about 10 other Muslim boys, whose names have not been mentioned therein. This fact assumes importance in the light of his statement made as PW5 in the court wherein he has stated that he came to know about the incident and also about the accused persons on 19.7.1989. If this version is true then it is very astonishing as to why he did not mention the names of the respondents in the complaint itself. ii) It is further worth noting that in para 3 of his complaint it is mentioned that in the evening of 19th July 1989 he had come to know from Bal Krishan Sharma, who was on water-guard duty, that the prosecutrix was in the house of the accused Aminudin from where he had recovered her but in his examination 9 in the court he named Parmanand in lieu of Balkrishan. Manjit Singh (PW5) has admitted in his cross- examination that Parmanand (DW1) was with him when he had visited the house of Mohida Begum. Neither Balkrishan nor Parmanand were examined by the prosecution. However, Parmanand was produced by the defence as DW1, he has stated that in fact respondents Mohida Begum and her husband Wazid Khan had come to the house of the parents of the prosecutrix and had informed them in his presence that the prosecutrix was in their house and she be brought back. Thereafter he along with the parents of the prosecutrix and their elder son Tara Singh went to the house of Hamida Begum and asked the prosecutrix to accompany her parents but she had refused and told her father (PW5) that she wanted to marry Aminudin. She was also given beatings by Tara Singh, but her father assured her to marry her as per her wishes but she 10 had insisted upon him to give in writing. Thereafter he gave it in writing thus she accompanied them to her parental house. iii) PW 6 Manjit Kaur, the sister of the prosecutrix, has stated that the prosecutrix was traced from the house of Mohida Begum. In her cross- examination, she has stated about an important fact that when the prosecutrix was brought back from the house of Mohida Begum, she had again run away but she was brought back after sometime, give strength to the version of the accused that she had left the house of her parents out of her volition and had an affair with Aminudin and she wished to marry him. iv) PW5 the father of the prosecutrix Manjit Singh has stated in the court that when he had gone to the house of Mohida Begum, there was some scuffle with her and Wajid Khan, her husband. He further stated that he had suspected to have done some witch-craft (Jadoo) on the 11 prosecutrix by the said respondents, which he could gather from her physical condition. It is also stated by him that she narrated about the incident next day but did not name Hitesh Kumar and Neel Gagan, when he went to the taxi stand along with her, it was then when she had shown him the faces of the taxi driver and his accomplice and also the taxi in question that too, after three days of the alleged occurrence. When he was confronted with his earlier complaint Ext PL where the number of the taxi and the names of the accused persons were not mentioned, then he stated that at that time he did not know about the occurrence but he had come to know about these facts during the investigation of the case, whereas in her cross-examination the prosecutrix has stated that the taxi number was told to her by the police. These material discrepancies and contradictions go to the root of 12 the prosecution and dub it with grave suspicion. v) The prosecutrix has admitted that when she was brought to the bus- stand by the accused Aminudin in the taxi, she did not raise hue and cry or any alarm. She also admitted that from the house of the said accused, which is thickly populated area, to the bus stand there were many shops open at that time and the people were also seen roaming in the bazaar. She was made to stand at the corner near the booking office at Bus stand and she had seen many persons present there but she did not raise any alarm. These circumstances reflect her own conduct, which has to be weighed in favour of the respondents. vi) Further when a Sikh Boy named Gurmit Singh spotted her on the bus-stand and asked Aminudin that she was the sister of his friend and a scuffle took place and she had chance to run away, even at that time she did not raise any alarm and complain to him 13 to inform her parents if she was kidnapped, as alleged. vii) Further to lend strength to the prosecution case said Manjit Singh was not examined by the prosecution. viii) When the prosecutrix was alleged to have been taken in the taxi by Neel Gagan and Hitesh Kumar through a thick populated area even at that time she did not raise any alarm. Her story of being raped by Neel Gagan at Tarana Hill also appears to be false nor this aspect of the case was investigated by the police; at least some evidence in the nature of movement of the taxi through a busy market could have been obtained. As far as committing the rape by Aminudin is concerned even that story also does not appear to be true for the reason that at the relevant time, as it has come in the evidence, he was residing in his room along with 8-10 other persons. Therefore, possibility of his committing the rape, as alleged does not arise. 14 ix) According to the statement of Manjit Kaur (PW6) Hamida Begum used to treat her and the prosecutrix as her daughters and they had no complaint. Further it is not the case of the prosecution that Mohida Begum had even earlier used to engage the prosecutrix in the embroidery work but it was only when they shifted to the premises of Sher Singh, the prosecutrix is alleged to have been called by Mohida Begum to do the said work through Monica, the prosecution witness, who was also not examined but she was produced in defence as (DW2). According to her, she was never sent by Mohida Begum to call for the prosecutrix as alleged, which goes to show that the story as propounded by the prosecutrix is not correct. She might have manipulated her own escape from the house of her parents to join the company of Aminudin. x) The alleged writing given by the father of the prosecutrix was not recovered, which could have thrown 15 some light in order to arrive at the truth. xi) PW7 Narinder Singh is a witness to the recovery. He has stated in his cross-examination that the prosecutrix had handed over her clothes taken from the houses of Aminudin and his brother Aslam. It is not understood how the clothes of the prosecutrix, came in the room of the accused Aminudin. It only gives an indication that the prosecutrix had joined the company of the said accused and took along with her own wearing apparels and wanted to elope with Aminudin. xii) As far as the recovery of the wrist watch and the ring from Aminudin is concerned, PW7 Narinder Singh has further stated that it was got recovered by Aminudin accused, pursuant to his disclosure statement but in his cross-examination he has stated that the police did not record any statement in his presence nor he knew whether the recovery had preceded the disclosure statement. 16 Thus the evidentiary value of his statement has totally shattered. xiii) The Medical evidence do not support the prosecution to conclude the offence of rape. At the relevant time the prosecutrix was more than the age of discretion as is evident from her birth certificate Ext.PN. Thus, in the totality of the circumstances, which have emerged from the evidence on record, it appears that the prosecutrix had planned her departure from the house of her parents and willingly joined the company of the respondent Aminudin without any threat or inducement from any of the respondents and there is no material to show it to the contrary. The conduct of the prosecutrix is not above board, as such her testimony; regarding committing the rape by Aminudin and Neel Gagan does not inspire confidence. The evidence is self- contradictory and self destroying. The delay in lodging the FIR and material contradictions crumble down the prosecution case. Therefore, in our considered opinion and on the basis of the evidence aforesaid, conviction of the respondents would not be justified. 17 Having carefully scrutinized the above evidence on record, we are not satisfied that the prosecution has proved its case beyond reasonable doubt against the respondents, as we are left with strong impression of suspicion, lurking in our mind, that the case put forward by the prosecution may not be true. Therefore, the respondents are entitled to the benefit of doubt. Since we find no error in the judgment of acquittal, passed by the learned trial court below, the appeal is accordingly dismissed. The respondents are discharged of their bail bonds entered upon by them during the proceedings of the case. (Surjit Singh),J February 27,2008 (Surinder Singh),J. (D)