IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL No. 1872 of 2001 (Old No. 1292/1999) State .…. State/Appellant Versus Ashiq Husain @ Guddu & Ors. …………… Respondents September 16, 2010 Mr. Prabhakar Joshi, Brief Holder for the State/appellant. Mr. Rajendra Singh, Advocate for the respondents. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 25.1.1999 passed by the Additional Sessions Judge, Roorkee (Haridwar) in Sessions Trial No. 31 of 1994, State v. Ashiq Husain @ Guddu & Ors., whereby learned Additional Sessions Judge has acquitted the accused respondent Ashiq Husain @ Guddu under Section 363, 366, 368 & 376 of Indian Penal Code, 1860 (for short, IPC), accused respondent Ashiya under Section 363 & 366 IPC and accused respondent Bahar Ahmad @ Giradh under Section 368 IPC. 2. Respondent no. 3 Bahar Ahmad @ Giradh has died during the pendency of appeal. Hence, appeal in respect of respondent no. 3 Bahar Ahmad @ Giradh stands abated. 3.. In brief, the prosecution case is that on 24.8.1992 at 1 pm, PW2 Shabeer Hasan lodged an FIR Ex. Ka-1 with the averments that his daughter Km. Juli (PW1) aged 14 years had gone to fill the water at the water tank in the night at 8.30 pm on 22.8.1992. When she did not return for half an hour, then the complainant went to see her. He searched her daughter but she could not be found. Then 2 he lodged a missing report on 23.8.1992. On 24.8.1992, Sageer @ Moju and Shyam Singh (PW3) of his village told the complainant that they had seen Guddu, Ashiya (wife of Guddu) and Anisha taking his daughter km. Juli outside the village by enticing her on 22.8.1992. With these averments, the FIR was lodged, on the basis of which chick FIR Ex. Ka-9 was prepared by Constable Clerk Ompal Singh. He also made the necessary entry in the GD, copy of GD is Ex. Ka-10. The investigation of this case was entrusted to PW6 SI Sardar Singh, who during the course of investigation recovered the victim Km. Juli on 26.8.1992 at 1 pm from the possession of accused respondent Ashiq Husain @ Guddu from near the Pulia of Islamiya College, Saharanpur and prepared the fard Ex. Ka-7. Thereafter the victim was medically examined on the same day i.e. on 26.8.1992 at 4.30 pm by PW4 Dr. Urmila Bohra at Govt. Hospital, Roorkee, who prepared the medical report Ex Ka-2. Thereafter the victim Juli was given in the supardgi of her uncle Jahid Husain and superdginama Ex. Ka-8 was prepared. Victim was x-rayed on 27.8.1992 by PW5 Dr. Ajay Kumar, who also prepared the x-ray report Ex. Ka-4. Thereafter supplementary report Ex. Ka-3 was prepared by PW4 Dr. Urmila Bohra. The I.O. during the course of examination recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-6 against the accused respondent Ashiq Husain @ Guddu and Ashiya. After the surrender of accused respondent Bahar Ahmad (appeal in respect of whom has been abated), the further investigation was transferred to SI Rajpal Sharma, who after completing the investigation filed the chargesheet Ex. Ka-5 against the accused respondent Bahar Ahmad. 4. Learned Additional Chief Judicial Magistrate, Roorkee after giving the necessary copies of the 3 documents to the accused respondents, as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 24.1.1994. 5. Learned Sessions Judge, Haridwar framed the charges against the accused respondents on 13.10.1995. The charges were read over and explained to each of accused respondents, who pleaded not guilty and claimed to be tried. Thereafter learned Sessions Judge transferred the case to Additional Sessions Judge for its disposal according to law. 6. To prove its case, the prosecution has examined PW1 Km. Juli, the victim; PW2 Shabeer Hasan, the complainant and the father of the victim; PW3 Shaym Singh; PW4 Dr. Urmila Bohra, who medically examined the victim; PW5 Dr. Ajay Kumar, who conducted the x-ray on the victim and PW6 SI Sardar Singh, the I.O. of the case. 7. Thereafter, statements of each of the accused respondents were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned Additional Sessions Judge, Roorkee vide his judgment and order dated 25.1.1999 acquitted the accused respondents as discussed above. Against the aforesaid judgment and order dated 25.1.1999, the State has preferred the present appeal. 4 9. I have heard learned Counsel for the parties and have carefully perused the materials available on the record. 10. Before any further discussion, it would be pertinent to mention the medical report Ex. Ka-2 prepared by PW4 Dr. Urmila Bohra, who had medically examined the victim Juli (PW1) on 26.8.1992 at 4.30 pm and the same is reproduced below: “Height 5 feet. Wt. 40 kg. Teeth 7/7 & 7/7 Thin built, fully conscious. Breast well developed, Axillary and pubic hairs well developed. No marks of injury present anywhere on the body. Local Examination : No marks of injury present on private parts. Hymen old torn healed up. Vagina admitting two fingers. Uterus normal size, OS closed. Bleeding present (Pt. in menses). LMP- 2 days back. Adv. (1) Vaginal smear examination for presence of spermatozoa. (2) Plain x-ray of elbow and wrist joint for confirmation of age. 11. Thereafter on the basis of the X-ray report and vaginal smear examination, supplementary report Ex. Ka- 3 was also prepared by PW4 Dr. Urmila Bohra on 2.9.1992, which is reproduced as under: “X-Ray wrist and elbow - centres around knee and elbow joint fused lower end of radius and ulna not completely fused. Radiological age about 17-18 years. Pathologist report—report no. 15/92 report says Vaginal smear of Km. Juli shows no spermatozoa dead or alive. 5 Conclusion – (1) Age of Km. Juli is about seventeen to eighteen years. (2) No opinion about rape can be given.” 12. To prove the aforesaid medical report Ex. Ka-2 and supplementary medical report Ex. Ka-3, the prosecution has examined PW4 Dr. Urmila Bohra, who has proved the contents of the same. 13. X-ray of the victim was done by PW5 Dr. Ajay Kumar on 27.8.1992, who prepared the x-ray report Ex. Ka-4. To prove this report prosecution has examined Dr. Ajay Kumar as PW5, who has proved the contents of the same and has also proved the x-ray plate as Ex.1. 14. To further prove its case, the prosecution has examined PW1 Km. Juli, the victim who in her statement recorded on 6.2.1995 has stated that the incident is of about four and half years ago. Accused respondent Ashiya was her friend. She used to visit her house. One day she came to her house at noon and told the victim that you are very sad and she will take her at such a place where she will be happy. This witness has further stated that she enticed her. Then in the night she came outside of her house on the pretext of filling water. She covered her in burka and took her from there. Time was about 8 to 8.30 pm. Below the banyan tree, her husband was standing. Ashia after leaving her with her husband went from there. Her husband told the victim that he will take her at such a place where she will be happy. The name of husband of Ashia is Guddu. Thereafter accused respondent Guddu (Ashiq Hasan) took her from Roorkee to Saharanpur in a bus. He brought her in a house and told that it is her uncle’s house and they will stay there. Thereafter he raped her in the night. She cried and shouted. She told him to drop her at her house. Then he threatened to kill her. 6 After two days, Guddu and she were sitting at the pulia where he saw that her uncle and police were coming. She shouted. Guddu was arrested. They were brought to Roorkee where she was medically examined and thereafter she was sent along with her uncle. In her cross- examination, she has stated that her house is situated in abadi area and there were much abadi in the route which she had taken. There was no police personnel at the Roorkee bus stand. The police had enquired from her many times. She told the police that nobody raped her. She had not shouted at the pulia on seeing the police and her uncle. Pulia is situated at a very long distance from the house of uncle of accused respondent Guddu. She had came walking there along with Guddu. She did not raise any alarm at that time. There were many people in the way. After recovery by the police, they were immediately taken to Roorkee. She has further stated that she came in the same dress in which she had left her house and there was no presence of any blood on her dress. She remained with accused respondent Guddu (Ashiq Husain) for three- four days. He committed bad work with her on only one day. 15. PW2 Shabeer Hasan, the complainant and the father of the victim. He has reiterated the averments made in the FIR Ex. Ka-1. He is not an eyewitness of the incident. In his cross-examination, he has stated that accused respondent Ashiya was the friend of his daughter and she used to visit his house. He had not taken the name of Ashiq Husain and Ashiya in his report. He has taken the name of Anisa on the basis of doubt. 16. PW3 Shyam Singh in his statement recorded on 1.9.1998 has stated that about six years ago at about 8.30 to 9 pm, Km. Juli was going along with Ashiya and her 7 husband Guddu. At that time Sageer @ Moju was also with him. They did not enquire anything from them. When he came to know on the next day that daughter of Shabeer has left the house, then he told him that he had seen her yesterday. Thereafter he lodged the report. In the cross- examination, he has stated that when he had seen Km. Juli, at that time she was wearing burka. She had also seen him. She did not raise any alarm. She was silently going along with them. There was some dark in the night. This witness has further stated that Km. Juli was going along with the accused respondents as per her own consent. 17. PW6 SI Sardar Singh, the I.O. of the case, has stated that on 24.8.1992, he was posted at Kotwali Roorkee. The investigation of this case was entrusted to him. During the course of investigation, he recovered the victim Km. Juli on 26.8.1992 at 1 pm from the possession of accused respondent Ashiq Husain @ Guddu from near the Pulia of Islamiya College, Saharanpur and prepared the fard Ex. Ka-7. She was given in the supardgi of her uncle Jahid Husain on the same day and superdginama Ex. Ka-8 was prepared. During the course of examination he recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-6 against the accused respondent Ashiq Husain @ Guddu and Ashiya. He has further stated that after the surrender of accused respondent Bahar Ahmad (appeal in respect of whom has been abated), the further investigation was transferred to SI Rajpal Sharma, who after completing the investigation filed the chargesheet Ex. Ka-5 against the accused respondent Bahar Ahmad. This witness has also proved the chick FIR Ex. Ka-9 and copy of GD Ex. Ka-10 and stated that the same were prepared by Constable Clerk Ompal Singh and he is acquainted with his handwriting. 8 18. Thereafter, statements of the accused respondents were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not file any documentary or oral evidence. 19. Learned Brief Holder for the State argued that on the basis of the evidence adduced by the prosecution, the case against the accused respondents is proved beyond reasonable doubt and the trial court has erred in acquitting them. I do not find any substance in argument of learned Brief Holder for the State for the following reasons: (i) That the sole evidence against the accused respondents is the statement of PW1 Km. Juli, the victim of the case, who in her statement has stated that Ashiya was her friend. She used to visit her house. One day she came at noon and told the victim that you are very sad and she will take her at such a place where she will be happy. Then in the night she on her own came outside of her house on the pretext of filling water. She covered her in burka. Thereafter she met the accused respondent below the banyan tree. Thereafter Ashia left the place leaving her along with Guddu. Thereafter Guddu (Ashiq Hasan) took her from Roorkee to Saharanpur in a bus. They stayed there in the house of his uncle. Thereafter he raped her in the night. She cried and shouted. She told him to drop her at her house. After two days, Guddu and she were sitting at the pulia where he saw that her uncle 9 and police were coming. She shouted. Guddu was arrested. In her cross-examination, she has stated that her house is situated in abadi area and there were much abadi in the route which she had taken. There was no police personnel at the Roorkee bus stand. The police had enquired from her many times. She told the police that nobody raped her. She had not shouted at the pulia on seeing the police and her uncle. Pulia is situated at a very long distance from the house of uncle of accused respondent Guddu. She had came walking there along with Guddu. She did not raise any alarm at that time. There were many people in the way. After recovery by the police, they were immediately taken to Roorkee. She has further stated that she came in the same dress in which she had left her house and there was no presence of any blood on her dress. She remained with accused respondent Guddu (Ashiq Husain) for three four days. He committed bad work with her on only one day. Thus, the statement of this witness does not at all support the prosecution story. (ii) That the victim Km. Juli has herself told that she had told the police that nobody raped her. She never shouted. She herself came outside her house in the night on 22.8.1992 and thereafter she went along with the accused respondent Guddu at Roorkee bus stand. Many people were in the way. From the bus stand she went to Saharanpur by a bus. Bus crossed through the densely populated areas. She stayed at the house of uncle of Guddu. She 10 remained with her for four days. On 26.8.1992, she walked down to the pulia. Many people were present in the way. She did not raise any alarm. Thereafter police recovered her on the same day. Thus, the conduct of the witness shows that she was a consented party and she went along with the accused respondent Ashiq Hasan @ Guddu as per her own free will and consent. (iii) That PW3 Shyam Singh has stated that Km. Juli was going along with the accused respondent as per her own consent. (iv) That in the supplementary medical report prepared after the x-ray of the victim, it has been stated that she was 17-18 years old at the time incident. It is settled law that two years margin either on the upper side or lower side can be given. If two years margin on upper side is applied in this case, then her age is worked out as more than 18 years and thus she was major at the time of incident. (v) Medical report also reveals that there was no sign of injury on her body or on her private parts. Her axillary and pubic hairs and breast were well-developed. In the supplementary medical report it has been stated that no opinion about rape can be given and no spermatozoa, dead or alive, was found in the vaginal smear. (vi) Thus the medical evidence also do not at all support the prosecution story. 20. Thus, in view of the evidence discussed above and for the reasons recorded above and in view of the facts and circumstances of the case, the prosecution has miserably failed to prove its case against the accused respondents 11 beyond reasonable doubt and, therefore, learned trial court has rightly acquitted the respondents of the charges levelled against them. 21. In the result, the appeal being devoid of merit is hereby dismissed. The judgment and order dated 25.1.1999 passed by the Additional Sessions Judge, Roorkee (Haridwar) in Sessions Trial No. 31 of 1994, State v. Ashiq Husain @ Guddu & Ors. is hereby affirmed. 22. A copy of this judgment be sent to the trial court. Let the lower court record be also sent back. (Dharam Veer, J.) 16.9.2010 PRABODH