IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL No.1833 of 2001 Irshad …….….…. Appellant Versus The State …………… Respondent (2) CRIMINAL APPEAL No.1266 of 2001 Irshad …….….…. Appellant Versus The State …………… Respondent Dated: September 11, 2009 Sri S.S. Chaudhary, learned amicus curiae for the appellant Sri M.A. Khan, learned brief holder for the State/respondent HON. DHARAM VEER, J. Both these appeals have been preferred by the appellant from Jail against the common judgment and order dated 16.5.2001 passed by Addl. Sessions Judge/II FTC, Dehradun and the matter in both these appeals is also the same, hence both of them are being disposed of by this common judgment and order. 2. Both these appeals, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed against the common judgment and order dated 16.05.2001 passed by Addl. Sessions Judge, Second FTC, Dehradun in S.T. No.54 of 2000, State Vs. Irshad, 2 whereby the learned Addl. Sessions Judge/Second FTC has convicted the appellant/accused under Sections 376(2)(f) of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to ten years’ R.I. with fine of Rs.10,000/- and in default of payment of fine, one year’s further R.I. was awarded. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In brief, the prosecution case is that P.W.1 Shamshad Ali lodged an FIR stating therein that on 14.12.1999 in the morning, his daughter Km. Shahrana, aged about six years, had gone to play in the house of her neighbourer Smt. Zarina. At about 6:30 A.M., the complainant heard cries of his daughter on which he along with his neighbourer Kameshudin had gone in the house of Smt. Zarina. On seeing the complainant coming, appellant –accused Irshad ran away from the house. On going inside the house, complainant’s daughter were found lying unconscious and her Salwar was opened. When the complainant’s daughter came into senses then she disclosed that appellant-accused Irshad committed bad work with her. It was further averted in the FIR by the complainant that the appellant-accused Irshad committed rape with his daughter Km. Shahrana, who was aged about six years and her condition was serious. With these averments, the FIR Ex.Ka-1 was lodged by P.W.1 Shamshad Ali on 15.12.1999 at 12:40 P.M. at P.S. Doiwala, District Dehradun. On the basis of this FIR, Chik FIR Ex.Ka-9 was prepared by Constable Clerk Bhanwar Singh. Entry was also made by him in the G.D., copy of which is Ex.Ka-10. The investigation of this case was entrusted to S.I. D.K. Sharma (P.W.5), who during investigation sent the victim for medical examination. The 3 medical examination on the person of victim was conducted on 15.12.1999 at 1:00 P.M. and her medical report Ex.Ka-3 was prepared by P.W.2 Dr. Padma Rawat. After receipt of the x-ray and the pathological report of the victim, the same medical officer also prepared the supplementary report, i.e. Ex.Ka-5. The I.O. during investigation also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. The I.O. also took in his possession the blood-spotted Salwar worn by the victim at the time of incident and in this regard, Fard Ex.Ka-2 was also prepared. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheet, i.e. Ex.Ka-11. 5. Learned Fifth ACJM, Dehradun committed the case to the court of Sessions on 23.3.2000 after giving necessary copies to the appellant-accused as required u/s 207 Cr.P.C. The case was transferred to II Addl. Sessions Judge by Sessions Judge for disposal according to law. 6. Learned II Addl. Sessions Judge, Dehradun framed the charge against the appellant/accused u/s 376(2)(f) IPC on 31.3.2000. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Shamshad, complainant, P.W.2 Dr. Padma Rawat, who medically examined the victim, P.W.3 Km. Sahrana, victim, P.W.4 Nafeesa, mother of victim and P.W.5 S.I. D.K. Sharma, I.O. of the case. 8. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, 4 who denied the allegations made against him. In oral evidence he got examined Mohd. Hanif as D.W.1. However, he did not produce any documentary evidence in defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Addl. Sessions Judge/Second FTC, Dehradun vide judgment and order dated 16.05.2001 convicted and sentenced the appellant/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 10. Before further discussion, it is pertinent to mention that victim Km. Sahrana was medically examined on 15.12.1999 at 1:00 P.M. by P.W.2 Dr. Padma Rawat and her medical report was also prepared i.e. Ex.Ka-3. The medical officer on the person of victim found as under: - “On Examination-Average built, general condition fair, 20 teeth present. Right lower permanent incisor present. No external injuries present over body. Blood stains present over Payjama. External Examination-Blood stained discharge present on vulva. Vulva (labia majora) swollen. P/V- Hymen torn. Labia minora abraded and congested and tender. Vagina doesn’t admit little finger due to pain and spasm completely. Slide of vaginal discharge handed over to LCP 1520 Mrs. Nirmal Jain. For age confirmation patient is being referred to Radiologist. 5 For presence of semen and sperm, 2 slides of vaginal discharge given to LCP 1520. Clothes sealed and handed to LCP 1520.” 11. Thereafter, P.W.2 Dr. Padma Rawat also prepared the supplementary report of victim after receipt of x-ray and pathology report and found as under: - “X-ray report (1) scar index finger and old scar 4 x 3 cm on fronto-lateral aspect of right leg shows ossific center for head of radius but not fused. Ossific center for medial epicondyle present and not yet fused. Ossific center for head of radius appears on 5th year and medial epicondyle of humerus appears on 6th to 7th year. According to x-ray, ossific center for lateral epicondyle Trochlea, olecarnon, ulna not yet appeared. Ossific center for olecranon appears on 9th year & ossific center of Trochlea appears on 9th to 11th year. Ossific center for lower end of ulna appears on 6th year. Ossific center for pisciform not yet appeared. Ossific center for pisciform appears on 10th-11th year.” So in my opinion, Miss Sahrana is more than six years and below nine years.” 12. To prove the aforesaid medical reports, the prosecution has examined P.W.2 Dr. Padma Rawat who has proved the medical report Ex.Ka-3 and supplementary report Ex.Ka-5 prepared by her. She has stated that in her opinion, the victim is more than six years but below nine years. 6 13. Further to prove its case the prosecution has examined P.W.1 Shamshad who stated that victim Km. Shahrana is his daughter. On the date of incident at about 6:30 A.M., he heard the cries of his daughter Km. Shahrana who had gone at the house of Smt. Zarina. He was awakened by his wife and Kameshudin also came on hearing the noise. When all of them went at the house of Smt. Zarina, then the appellant-accused Irshad went running away from there. While going inside, Km. Shahrana was found serious and her Salwar was also found opened and the blood also found oozing out from her private parts. After that the victim Shahrana was taken by them at the house being unconscious. On the next day at 4-4:30 A.M., Shehrana came to her senses and then she disclosed that appellant-accused Irshad committed rape with her. Thereafter, he got the report of the case scribed, i.e. Ex.Ka-1. Later on he took his daughter along with the report Ex.Ka-1 at the police station and lodged the same. His daughter Shahrana was sent by the police persons at Doiwala Hospital for medical examination. The salwar of his daughter became bloodstained which was taken by the police into possession and Fard Ex.Ka-2 was prepared. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may create any doubt in his statement. The statement of this witness is reliable and believable. 14. P.W.3 Km. Sahrana, victim of the case, who stated that on the date of incident, weather was cold and Ramzan were going on. On the date of incident, she had gone in the house of appellant-accused Irshad whose residence is at Teliwala. Appellant-accused opened the string of her Salwar and put his penis at her vagina due to 7 which she felt pain and blood also oozed out and she also raised cries. At the time of incident, she was wearing a Payjami (Salwar) which also became blood stained. This witness was also cross-examined at length by the defence counsel but nothing has come out in her statement which may create any doubt in her statement. The statement of this witness is reliable, natural and believable. 15. P.W.4 is Nafisa whose statement also gets corroboration from the evidence of P.W.1 Shamshad as well as from the statement of P.W.2 Km. Shehrana. 16. P.W.5 is S.I. D.K. Sharma who stated that investigation of this case was entrusted to him. He inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-6. Chik FIR of this case was prepared by Constable Clerk Bhanwar Singh, i.e. Ex.Ka-9. He also made entry in the G.D., the copy of which is Ex.Ka-10. During investigation he recorded the statements of witnesses and on completing the investigation, filed the charge sheet, i.e. Ex.Ka-11. 17. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. In oral evidence he got examined Mohd. Hanif as D.W.1. However, he did not produce any documentary evidence in defence. 18. Sri S.S. Chaudhary, learned amicus curiae for the appellant/accused argued that the prosecution has not proved its case against the appellant-accused beyond reasonable doubt. I do not find any force in the argument advanced by amicus curiae for the appellant for the reason 8 that P.W.1 Shamshad, father of victim and complainant, stated that victim Km. Shahrana is his daughter. On the date of incident at about 6:30 A.M., he heard the cries of his daughter Km. Shahrana who had gone at the house of Smt. Zarina. He was awakened by his wife and Kameshudin also came on hearing the noise. When all of them went at the house of Smt. Zarina, then the appellant-accused Irshad went running away from there. While going inside, Km. Shahrana was found serious and her Salwar was also found opened and further blood also found oozing out from her private part. After that the victim Shahrana was taken by them at the house being unconscious. On the next day at 4-4:30 A.M., Shehrana came to her senses and then she disclosed that appellant-accused Irshad committed rape with her. Thereafter, he got the report of the case scribed, i.e. Ex.Ka-1. Later on he took his daughter along with the report Ex.Ka-1 at the police station and lodged the same. His daughter Shahrana was sent by the police persons at Doiwala Hospital for medical examination. The statement of this witness is reliable, believable and natural. The same also gets full corroboration from the evidence of P.W.3 Km. Shehrana, victim of the case, who stated that on the date of incident, she had gone in the house of appellant-accused Irshad whose residence is at Teliwala. Appellant-accused opened the string of her Salwar and put his penis at her vagina due to which she felt pain and blood also oozed out and she also raised cries. At the time of incident, she was wearing a Payjami (Salwar) which also became blood stained. The statement of P.W.1 Shamshad and P.W.3 Km. Shehrana gets corroborated from the evidence of P.W.4 Nafeesa, who is the mother of the victim. P.W.2 Dr. Padma Rawat has specifically stated in her examination in chief that the victim was more 9 than six years of age and below nine years. Besides this the medical report Ex.Ka-3 and supplementary report Ex.Ka-5 also fully corroborates the evidence of victim as well as about the age of the victim that she was aged more than six years and below nine years on the date of incident. As such, the offence punishable u/s 376(2)(f) of the IPC is clearly proved against the appellant-accused beyond reasonable doubt. 19. For the above-said reasons, the judgment and order passed by the trial court dated 16.5.2001 convicting and sentencing the appellant-accused as discussed above is correct and justified and there is no need to interfere with the aforesaid judgment and order. 20. Learned brief holder for the State has produced a copy of fax sent by Superintendent, District Jail, Dehradun dated 13.8.2009 today in the Court in which it is stated that the appellant-accused has been released from jail after serving out the sentence as awarded against him, therefore, the appeals have now been rendered infructuous. 21. For the reasons as recorded above, both the appeals are dismissed. The judgment and order dated 16.5.2001 passed by Addl. Sessions Judge/Second FTC, Dehradun in S.T. No.54 of 2000, State Vs. Irshad, convicting and sentencing the appellant-accused as discussed above, is hereby affirmed. However, at the cost of repetition, it is stated that the appellant-accused has been released from jail after completing his sentence in the present case. (Dharam Veer, J.) September 11, 2009 Rajeev Dang