RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL NO.1444 OF 2001 (OLD NO.33/1996) Babu S/o Shri Abdul Majid ……Appellant Versus The State …..Respondent (2) CRIMINAL APPEAL NO. 1447 OF 2001 (OLD NO.79/1996) Mohd. Arif S/o Mohd. Hashim @ Phoora .…..Appellant Versus The State …..Respondent Dated: May 22, 2009 Mr. Arvind Vashistha, Advocate for the appellant Babu (CRLA No.1444/01) Mr. Rajendra Singh, Advocate for the appellant Mohd. Arif (CRLA No.1447/01) Mr. M.A. Khan, learned Brief Holder for the State HON. DHARAM VEER, J. Both these criminal appeals have been preferred against the same judgment and order dated 4.1.1996 passed by Additional Sessions Judge, Rookee hence, both the appeals are being disposed of by this common judgment and order. 2. These criminal appeals, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the judgment and order dated 4.1.1996 passed by Additional Sessions Judge, Roorkee in S.T. No.178/1992, State Vs. Mohd. Arif & others, whereby the learned Additional Sessions Judge convicted the accused/appellant Mohd. Arif under Section 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo seven years’ R.I. with a fine of Rs.500/-. Another accused/appellant Babu was convicted u/s 368 IPC and was sentenced to five 2 years’ R.I. with a fine of Rs.500/-. In default of payment of fine, further six months imprisonment to each of the accused/appellants was awarded. However, the co- accused Yusuf was acquitted of the charges levelled against him by the trial court. 3. I have heard Sri Arvind Vashistha, Advocate appearing on behalf of the appellant-Babu, Sri Rajendra Singh, Advocate appearing on behalf of the appellant- Mohd. Arif as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 4. In brief, the prosecution case is that on 31.10.1989 Ramnath (P.W.1) lodged the F.I.R. at Police Station Manglore stating therein that at about 05:00 A:M the accused/appellant Mohd. Arif has taken his daughter Baby by enticing her. It was also stated that Dr. Gopal, Ashok Kumar and some other persons saw his daughter while going with the accused/appellant Arif. He tried to search his daughter but all in vain. With the same averments, F.I.R. was lodged by the father of the victim- Ramnath (P.W.1) at Police Station Manglore on 31.10.1989 at 07:00 P:M. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. (Ext.Ka-10) was prepared by Head Mohirror Rameshwar Prasad (P.W.6). The necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-11. The investigation of this case was entrusted to Sub Inspector R.S. Tiwari (P.W.5). On 31.10.1989/1.11.1989 in the night, the victim was recovered from the house of the accused/appellant Babu and a FARD thereof was prepared, which is Ext.Ka-2. The victim Km. Anshu was given in the supardagi of her father Ramnath Sharma (P.W.1) and the supardaginama was prepared which is Ext.Ka-3. On 1.11.1989 at 01:30 3 P:M, the victim was medically examined by Dr. K.K. Mehta. Thereafter the medical report was prepared which is Ext.Ka-6. The X-ray of the victim was also conducted and the X-ray report is Ext.Ka-5. On the basis of X-ray report (Ext.Ka-5), supplementary report (Ext.Ka-7) was prepared by Dr. K.K. Mehta on 8.11.1989. During the course of investigation, the I.O. recorded the statement of the witnesses and prepared the site-plan of the place of recovery. That site-plan is Ext.Ka-8. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellants Mohd. Arif, Babu and the co- accused Yusuf (acquitted by the trial court). That charge sheet is Ext.Ka-9. 5. Learned Judicial Magistrate, Roorkee committed the case to the court of Sessions on 24.6.1992, after giving necessary copies to the accused/appellants and the co-accused as provided u/s 207 Cr.P.C. 6. On 15.9.1992, IInd Assistant Sessions Judge, Rookee framed the charge against the accused/appellant Mohd. Arif u/s 376 I.P.C., against the co-accused Yusuf (acquitted by the trial court) u/s 366 I.P.C. and against the accused/appellant Babu u/s 368 I.P.C. The charge was read over and explained to the accused/appellants and the co-accused, who pleaded not guilty and claimed to be tried. On 2.9.1994, additional charge was framed against the accused/appellant Mohd. Arif and the co- accused Yusuf u/s 363 I.P.C. by the Additional Sessions Judge, Roorkee. The charge was read over and explained to the accused/appellant and the co-accused, who pleaded not guilty and claimed to be tried. 4 7. In order to prove its case, the prosecution has examined P.W.1 Ramnath Sharma-complainant and father of the victim, P.W.2-Km. Anshu-victim, P.W.3- Ashok Kumar, P.W.4 Dr. Jai Gopal, Radiologist-who conducted the X-ray of the victim, P.W.5 R.S. Tiwari- Investigating Officer of the case, P.W.6 Head Mohirror Rameshwar Prasad and P.W.7 Rampal. 8. After that the statement of the accused/appellants Mohd. Arif and Babu and the co- accused Yusuf (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. They did not produce any documentary evidence in their defence, however, in oral evidence, D.W.1 Hamid was examined. 9. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Roorkee vide his judgment and order dated 4.1.1996, convicted and sentenced the accused/appellants as stated above. However, the co-accused Yusuf was acquitted of the charges levelled against him by the trial court. Feeling aggrieved by the aforesaid judgment and order, the accused/appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention that the victim Km. Anshu @ Baby was medically examined by Dr. K.K. Mehta on 1.11.1989 at 01:30 P:M and the medical report thereof was prepared, which is Ext.Ka-6. The genuineness of this report was admitted by the defence counsel by endorsing “Formal proof dispense with”. Medical report (Ext.Ka-6) of the victim is reproduced as under:- 5 General Examination:- Average built Height – 5 feet 2 inches Weight – 45 Kg Teeth – 7 x 7 No mark of injury present on any part of body. Breast well developed. Axillary hair present. Local Examination:- No mark of injury present on private parts. Private parts fully developed. Hymen torned, old and healed. Vagina admitted two fingers with difficulty. Cervix posterior, uterus appears to be of normal size, fornix clear. Smear prepared from the vaginal discharge and sent for microscopic examination. Note – According to her statement L.M.P. is 6 days back. Advised – (i) Plain X-ray elbow and wrist joint for confirmation of age. (ii) Vaginal smear examination for presence of spermatozoa. 11. On 8.11.1989 supplementary report (Ext.Ka-7) of the victim was prepared by Dr. K.K. Mehta. The genuineness of this report was admitted by the defence counsel by endorsing “Formal proof dispense with”. Supplementary report (Ext.Ka-7) of the victim is reproduced as under:- X-ray report as per Radiologist – In skiagram the epiphysis around right elbow joint and at distal ends of right radius and ulna bones have fused with their respective bones. A faint fusion line is visible only at distal end of radius bone, but complete fusion seen in other bones. 6 Pathological report as per pathologist – Vaginal smear shows no spermatozoa dead or alive. Conclusion – As per radiological report her age is above eighteen years and no opinion is possible regarding the rape. 12. Further to prove its case, the prosecution has examined, P.W.1 Ramnath Sharma, who has stated that on the date of incident at about 4:30-5:00 A:M accused/appellant Mohd. Arif took his daughter Km. Anshu with him by enticing her. It was also deposed that the accused/appellant Mohd. Arif has taken his daughter with intention to do bad work with her. Ashok Kumar (P.W.3) informed him that the accused/appellant Mohd. Arif and one another person has taken his daughter in a truck. Thereafter he tried to search his daughter but when all efforts became futile then in the evening he lodged the report at police station. That report is Ext.Ka- 1. Then he came to know that the accused/appellant Mohd. Arif has taken his daughter towards Deoband. On this, he along with his brother Chaman Lal and the police went to Deoband. At 01:00 A:M in the night they reached in the house of the accused/appellant Babu where his daughter was recovered. The accused/appellants Babu and Mohd. Arif were caught by the police. Thereafter a FARD was prepared which is Ext.Ka-2. Then the accused/appellants and his daughter were taken to the police station. Her daughter was medically been examined and thereafter she was given in his supardagi. A supardaginama thereof was also prepared which is Ext.Ka-3. At the time of recovery, the victim has worn a veil (BURKA). That veil is Ext.1. 7 13. P.W.2 is Km. Anshu, who has stated that on the date of incident she was studying in Class X. She has deposed that she used to woke up early in the morning for study. After studying for about one hour she used to do cleaning. On the date of incident at about 05:00 A:M when she came out of the house to throw garbage then the accused/appellant Mohd. Arif forcibly took her from her house. The accused/appellant sat her on his bicycle and put a veil (BURKA) upon her. Thereafter the accused/appellant Mohd. Arif took her to Manglore bus station where he called another accused/appellant Yusuf. Then the accused/appellant Yusuf came there with a truck and both the accused/appellants forcibly boarded her on the truck. Then they proceeded 2 Km towards Rookee. It was also deposed that the accused/appellant Mohd. Arif gave her some medicine due to which she became little unconscious. Thereafter the accused/appellants stopped truck in a forest and the accused/appellant Yusuf came out of the truck. Then after closing the window of the truck the accused/appellant Mohd. Arif committed sexual intercourse with her. Then she was taken in the house of the accused/appellant Babu at Deoband. There she stayed with the accused/appellant Arif in a room. In the night the accused/appellant Arif once again committed sexual intercourse with her against her wishes. The accused/appellant Babu arrived at 08:00-08:30 P:M. On the same night at about 03:00 A:M her father and her uncle along with the police reached there. These people caught the accused/appellants. The police took the Burka into their possession. Thereafter she and the accused/appellants were taken to the Manglore Police Station. Next day in Roorkee her medical examination was done. Salwar which she had worn at the time of 8 incident were taken into possession by the police. That salwar is Ext.3. In the cross-examination, she has stated that before 3-4 years of the said incident the accused/appellant Arif was their tenant. She has admitted the photograph to be of her own. Four letters were also filed from the defence’ side which are numbered 1 to 4. She has also stated that it takes 10-15 minutes to reach Manglore bus stand from her house. 14. P.W.3 is Ashok Kumar, who has stated that on the date of incident at about 5-5:15 A:M he was going for morning walk towards Roadways bus stand. There he saw a truck which was stopped at bus stand. The accused/appellant Arif and the co-accused Yusuf forcibly boarded Ramnath’s daughter into the truck. After that they proceeded towards Roorkee. He immediately informed about this incident to Ramnath (P.W.1). 15. P.W.4 is Dr. Jai Gopal, who conducted the X- ray of the victim Km. Anshu on 1.11.1989 and the X-ray report was prepared by him which is Ext.Ka-5. 16. P.W.5 is R.S. Tiwari, who has stated that on 31.10.1989 he was posted as Sub Inspector at Police Station Manglore. The investigation of this case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses, prepared the FARD (Ext.Ka-2) of recovery and also prepared the site- plan of the place from where the girl was recovered. That site-plan is Ext.Ka-8. After completing the investigation, he submitted the charge sheet (Ext.Ka-9) against the accused/appellants and the co-accused (acquitted by the trial court). 9 17. P.W.6 is Head Mohirror Rameshwar Prasad, who has stated that on 31.10.1989 he was posted at Police Station Manglore. On the basis of report lodged by Ramnath (P.W.1), he prepared the Chik F.I.R., which is Ext.Ka-10. The necessary entries were also made in the G.D. by him, carbon copy of which is Ext.Ka-11. He also prepared the FARD Ext.Ka-12. 18. P.W.7 is Constable Rampal, who has stated that on 1.11.1989 he was posted at Police Station Manglore. He has proved the documents Ext.Ka-13 and Ka-14. 19. Thereafter, the statement of the accused/appellants Mohd. Arif and Babu and the co- accused Yusuf (acquitted by the trial court) were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. They did not produce any documentary evidence in their defence, however, D.W.1 Hamid was produced as oral evidence. 20. D.W.1 is Hamid, who has stated that the accused/appellant Arif is his son who runs a shop of cassettes. Ramnath (P.W.1) is the owner of that shop. Ramnath wanted to vacate the shop from the accused/appellant Arif. On the date of incident, the police arrested him and his son Arif. When he was released from the police custody then he saw that there was no article in the shop. Ramnath had taken possession over the shop as well as on the articles worth Rs.50,000/-. He further stated that his son Arif has been falsely implicated in the said case. 10 21. Sri Rajendra Singh, learned counsel for the accused/appellant Mohd. Arif has submitted that the prosecution has not proved the case beyond reasonable doubt against the accused/appellants as the victim Km. Anshu was the consented party and even she was major at the time of incident. I find substance in the argument advanced by learned counsel for the accused/appellant Mohd. Arif due to following reasons:- (i) The prosecutrix has stated that on the date of incident the accused/appellant Mohd. Arif forcibly took her to Manglore bus station from her house at 05:00 A:M on a bicycle, which was driven by the accused himself. As per her statement it takes only 10-15 minutes to reach Manglore bus station from her house. It is required to appreciate here that when the accused/appellant Arif took her from her house which definitely comes in the residential area to the bus station she did not made any attempt to get down from the bicycle at any point of time and even she did not call for any assistance. In her deposition, she has also stated that in the bus station the accused/appellant Mohd. Arif called Yusuf (co- accused) and both of them forcibly boarded her on the truck. From there they went 2 Kms towards Roorkee and stopped the truck in a forest. There the accused/appellant Arif committed rape on her. Thereafter both the accused/appellants took her to Deoband in the house of the accused/appellant Babu. From the statement of the prosecutrix it seems that she was consented party as she did not raised any hue and cry while covering a distance of about 30 kms from Manglore to Deoband. Even 11 when she was taken in the house of the other accused/appellant Babu in Deoband which is also a thickly populated area she neither made any noise nor she complained about it to anybody. (ii) Medical report (Ext.Ka-6) says that there were no injuries on the body of the prosecutrix Km. Anshu (P.W.2). There were no injuries on her private part. It is ultimately opined that “her age is above eighteen years and no opinion is possible regarding the rape”. In these circumstances, it is not possible to believe that the victim was subjected to rape by the accused as it was alleged. (iii) A perusal of the four letters filed by the defence shows that the prosecutrix and the accused/appellant Mohd. Arif were having love affairs before the said incident and Km. Anshu (P.W.2) had gone with the accused/appellant Arif with her own consent and at that time she was major. 22. In the circumstances, I am of the considered opinion that the prosecution miserably failed to establish the charge against the accused/appellant Mohd. Arif for the offence punishable u/s 376 I.P.C. 23. So far as the charge against the accused/appellant Babu is concerned, Sri Arvind Vashitha, learned counsel for the accused/appellant Babu has submitted that the prosecution has failed to prove the case beyond reasonable doubt against the accused/appellant Babu u/s 368 I.P.C. I find force in the argument advanced by learned counsel for the accused/appellant Babu as the prosecutrix in her 12 deposition has stated that the accused/appellant Babu was not at home when she was taken into his house by the accused/appellant Mohd. Arif. The accused/appellant came to his house in between 8-8:30 P:M. Even from the evidence discussed above it is proved that the prosecutrix was the consented party and she went with the accused/appellant Arif with her own wish. As such, in view of the aforesaid discussion, no question of wrongfully concealing or keeping Km. Anshu in his house by the accused/appellant Babu arises and the accused/appellant Babu is liable to be acquitted for the charge u/s 368 I.P.C. 24. For the reasons recorded above, both the appeals are allowed. The judgment and order dated 4.1.1996 passed by Additional Sessions Judge, Roorkee in S.T. No.178/1992, State Vs. Mohd. Arif & others, is hereby set aside. The conviction and sentence imposed upon the accused/appellants Mohd. Arif and Babu by the trial court are accordingly set aside. The accused/appellants are on bail. They need not surrender unless wanted in any other case. 25. A copy of this order shall be sent forthwith to the trial court concerned for compliance of the order. (Dharam Veer, J.) May 22, 2009 RG