Reserved Judgment HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.297 OF 2001 (OLD NO.1413/1993) Noor Mohammad & another .……….. Appellants Versus State of Uttarakhand ..…….. Respondent Dated: October 12 , 2009 Mr. Vinay Kumar, Advocate for the appellants Mr. Nandan Arya, AGA for the State Hon’ble Dharam Veer, J. This appeal, preferred by the appellants 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 13/16.8.1993 passed by IInd Additional Sessions Judge, Dehradun in S.T. No.156/1987, State Vs. Abdul Aziz & others, whereby the learned IInd Addl. Sessions Judge convicted the accused/appellant Noor Mohammad u/s 366 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to undergo R.I. for a period of four years. Accused/appellant Meenu alias Moinuddin was convicted u/s 376 IPC and was sentenced to five years’ R.I. However, the co-accused Abdul Aziz was acquitted of the charge levelled against him by the trial court. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 14.7.1985 Aziz Ahmed lodged the FIR at P.S. Rishikesh stating therein that he had gone to Sangrur, Punjab for the work of contract 2 from last 2½-3 months and his wife and children were living at Bankhandigram, Rishikesh. It was alleged that on 3.5.1985, in his absence, accused/appellant Noor Mohammad along with two other persons forcibly took his wife Smt. Zarina and daughter Km. Shanno from his house. When he returned from Sangrur he found no one in the house. After enquiring from the neighbours he came to know that his house is locked from long time. On 13.7.1985 his wife came to his house and told him the above-said incident to him. She also told him that the accused/appellants and co-accused has forcibly detained Km. Shanno in their house and they are trying to sell her. She was also detained by the accused/appellants but somehow she could manage to get out of the clutches of accused/appellants. With the same averments, Aziz Ahmed lodged the First Information Report at Police Station Rishikesh on 14.7.1985 at 10:30 AM, that FIR is Ext.Ka-1. On the basis of this FIR, Constable Clerk Rajendra Singh prepared the Chik FIR i.e. Ext.Ka-7. On 16.7.1985, Victim Km. Shanno along with the co-accused Abdul Aziz was recovered by the Police and the recovery memo thereof was prepared, which is Ext.Ka-3. Initially the investigation of the case was entrusted to S.I. Babu Ram Yadav (PW3), which then transferred to S.I. R.B. Gaud and lastly it was entrusted to S.I. Geeta Ram Sharma (PW5). On 17.7.1985 at 9:00 AM, victim Km. Shanno got medically examined by Dr. Lili Rastogi, who prepared her medical report i.e. Ext.Ka-8. Supplementary report of the victim was also prepared i.e. Ext.Ka-9. During the course of investigation, the Investigating Officer recorded the statements of the witnesses, inspected the place of incident and place of recovery and prepared the site-plans, which are Ext.Ka-4 and Ka-5, respectively. On completion of the investigation, the I.O. submitted the charge sheet against the 3 accused/appellants and the co-accused, that charge sheet is Ext.Ka-6. 4. On receipt of the charge sheet, learned Munsif Magistrate, Rishikesh, committed the case to the court of Sessions on 2.12.1987, after giving necessary copies to the accused/appellants and co-accused, as prescribed u/s 207 Cr.P.C. 5. Learned IInd Assistant Sessions Judge, Dehradun framed the charge of offence punishable under Sections 366 and 376 IPC against the accused/appellant Meenu @ Mohinuddin and charges u/Ss 366 and 363 IPC against accused/appellant Noor Mohammad. Charge u/s 368 IPC against co-accused Abdul Aziz (acquitted by the trial court) was also framed by learned IInd Asstt. Sessions Judge. The charge was read over and explained to each of the accused/appellant and co-accused to which they pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined PW1 Smt. Zarina, mother of the prosecutrix; PW2 Km. Shanno, victim; PW3 S.I. Babu Ram Yadav, I.O. of the case; PW4 Bharat Singh; PW5 S.I. Geeta Ram Sharma, I.O. of the case and PW6 Dr. Neelam, who has proved the medical report Ext.Ka-8 and supplementary report Ext.Ka-9. 7. Thereafter the statements of the accused/appellants and co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, they have filed Nikahnama Ext.Kha-1 as documentary evidence and in oral evidence, Mohd. Khalid as DW1, Abdul Mazid as DW2, Salimuddin as DW3 and Mohd. Umar as DW4 were examined. 4 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned IInd Addl. Sessions Judge, Dehradun vide his judgment and order dated 13/16.8.1993 convicted and sentenced the accused/appellants as stated above. However, the co-accused was acquitted of the charge levelled against him by the trial court. Being aggrieved by the said judgment and order, the accused/appellants have preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention the medical report Ext.Ka-8 which was prepared by Dr. Lili Rastogi at the time of medical examination of Km. Shanno. Medical report Ext.Ka-8 reads as under:- “P/V Examination:- Vagina admits two fingers easily, old healed hymen torn present, no mark of injury present over private parts or any other part of the body, two slides of vaginal smear prepared and send to Pathologist GD Hospital for detection of spermatozoa. She is send to Radiologist, G.D. Hospital for X- ray of both elbow, wrist and knee joint for detection of her age. According to P/V findings and physical examination, no definite opinion about rape can be given. She is used to sexual intercourse.” 10. Supplementary report Ext.Ka-9 of the victim Km. Shanno was also prepared by the same medical officer, which reads as under:- “Vaginal smear report – received on 19.7.1985 at 1:30 PM Path No.6/85. Both the smears negative for presence of spermatozoa. 5 X-ray report – Received on 19.7.1985 at 10 AM, R.No.624 to 626. Epiphysis of bones forming right wrist joint are not united, epiphysis of bones forming, right elbow joint are united. Epiphysis of bones forming right knee joint are partially united. Final opinion:- According to physical findings of vaginal smear report, no definite opinion about rape can be given. She is used to sexual intercourse. According to X-ray report her age is about 15 years.” 11. To prove the above-noted reports, the prosecution examined PW6 Dr. Neelam who stated that she is posted as Medical Officer at Rishikesh since 1986 and Dr. Lili Rastogi was also posted with her in Female Hospital, Rishikesh. She is well acquainted with her handwriting and signatures. She stated that the medical report Ext.Ka-8 and supplementary report Ext.Ka-9 was in the handwriting of Dr. Lili Rastogi. 12. To prove its case further, the prosecution examined PW1 Smt. Zarina who stated that the victim Shanno is her daughter. Her husband’s name is Aziz Ahmed who died after the said incident. At the time of incident they were residing at Bankhandi. The said incident had taken place on 3.5.1985. On the date of incident, her husband had gone to Sangrur for work and she and her daughter Shanno were at home. On that day, accused/appellant Noor Mohammad came to her house, who was known to her before the said incident. At 12:00 PM accused Noor Mohammad told her that he has come to take her and her daughter and they will have to go Meerut with him. After that she and her daughter Shanno went with the accused Noor Mohammad. She and her 6 daughter had worn veil (BURKA). She further stated that the accused/appellant Noor Mohammad took them to Rishikesh bus stand. While coming there she met Ram Chandra and Rajendra but she did not disclose anything to them. Accused/appellant Noor Mohd. took both of them to his house where he detained them in a room. Accused/appellant Noor Mohd. used to ask for Nikah of Shanno but she and her daughter both of them refused. After some days she was separated from Shanno. She further stated that she was detained in the room for about two months and ten days and after that she came to Rishikesh. She told the entire incident to her husband who then lodged the report Ext.Ka-1 in the police station. She further stated that now she has married her daughter. In the cross-examination, she stated the accused/appellant Noor Mohammad is the nephew of her first husband Salimuddin. She has been divorced from Salimuddin and now she has married to Abdul Aziz. She further stated that when she got married with Salimuddin she was 18 years’ old. After 4-5 years of the marriage, Salimuddin gave divorce to her and after 8-9 months of divorce, she gave birth to Shanno. After two months of birth of Shanno, she married to Abdul Aziz. She further stated that she is sister-in-law (BABHI) of the accused Noor Mohammad. On the date of incident, he came to her house and remained there for about 2-2½ hours. After that he asked her to go with him and she along with her daughter went with him. All of them went to bus stand by foot. After 2-4 minutes they got the bus which was full of passengers. It has taken about more than three hours to reach Meerut from Rishikesh. They reached Meerut at about 5-6 PM and after that they went to the house of accused/appellant Noor Mohammad by Riksha. Accused/appellant Noor Mohd. had three rooms including one verandah where he was living along with his family. He 7 kept her in the room where his mother and children were living. In front of that room, there was verandah which was used as kitchen. She further stated that upto when she remained in the house of Noor Mohammad, she saw the neighboring ladies coming there. She and her daughter also used to walk in the house. She further stated that now she has married her daughter with Irshad. 13. PW2 Shanno Rani stated that on the date of incident she along with her mother was residing at Bandkhandi, Rishikesh and her father had gone to Sangrur. On that day, accused/appellant Noor Mohammad came to her house and asked her and her mother to come with him. As her father was not at home so her mother refused to go with him. On this, he threatened them for life. Then she and her mother went with Noor Mohammad. On the way, Rajendra and Ram Chandra met them. They reached in the bus stand and then by bus they went to Meerut. When they reached Meerut, accused/appellant Noor Mohd. detained her and her mother in a room. After one month, he separated her from her mother and married her to accused/appellant Meenuddin against her wish. During the marriage, accused/appellant Noor Mohd. came to her and took her signatures on some papers. She further stated that accused/appellant Meenu has done bad work with her against her wish. She lived with accused/appellant Meenu for about one month and during that period accused/appellant Meenu did bad work with her against her wish. She further stated that one day at about 9-10 PM, accused/appellant Meenu asked her to go with his grandfather, she asked them that where they are taking her but they did not tell. At 2-2:30 in the night, Aziz Ahmed and Thakur Bharat Singh along with Police met them. Police brought her to Rishkesh where 8 she was medically examined. Thereafter she was given in the supardgi of Aziz Ahmed. In the cross-examination, she stated that the accused/appellant Noor Mohammad is her Foofa (husband of father’s sister). He came to her house at 12 PM. He used to call her mother Babhi (sister-in-law). He asked her mother to come to Meerut. Her mother had conversation with him for about two hours. She further stated that where she was living there were number of houses. It takes 5-10 minutes to reach bus stand from her house. In 5-10 minutes they got the bus which was full of passengers. At 6-6:30 PM they reached Meerut. Then from bus stand they went to the house of accused/appellant Noor Mohammad by Riksha and about 15 minutes they reached his house. She further stated that in the house where Noor Mohammad took her, there in the verandah his sister and wife used to live and she was living in room. 14. PW3 S.I. Babu Ram Yadav stated that on 16.7.1985 he was posted at P.S. Rishikesh. He had recovered the victim Shanno and had prepared the FARD Ext.Ka-3. He also prepared the site-plans Ext.Ka-4 and Ka-5 of the place of incident and place of recovery. After that the investigation of the case was transferred from him. 15. PW4 Bharat Singh is the witness of the recovery of the victim. He has proved the FARD Ext.Ka-3. 16. PW5 Geeta Ram Sharma stated that on 19.8.1985, he was posted as S.S.I. at Police Station Rishikesh. On that day, investigation of the case was entrusted to him that earlier was being conducted by Sub Inspector R.B. Gaud. He perused the case diary of the prior investigation. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation he submitted 9 the charge sheet against the co-accused Abdul Aziz and the accused/appellant Meenu @ Mohinuddin. In the charge sheet accused/appellant Noor Mohammad was shown as absconder. That charge sheet is Ext.Ka-6. He further stated the chik FIR of the case was prepared by Constable Rajendra Singh, which is Ext.Ka-7. 17. Thereafter the statements of the accused/appellants and co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. In defence, they have filed Nikahnama Ext.Kha-1 as documentary evidence and in oral evidence, Mohd. Khalid as DW1, Abdul Mazid as DW2, Salimuddin as DW3 and Mohd. Umar as DW4 were examined. 18. DW1 Mohammad Khalid has stated that his father Nazir Hussain was Imam in Baddiyuwali mosque who used to maintain register of marriage. His father has died on 11.7.1992. He further stated that he has brought Nikah register of the year 1985. According to this register on 14.5.1985 at 6:00 PM his father has solemnized marriage of Meenu @ Mohinuddin S/o Yusuf Ali aged 22 years with Shanno D/o Salimuddin aged 20 years. Abdul Mazid was the lawyer and Immamuddin and Ameer Hasan were the witnesses in the marriage. Nikahnama was written and signed by his father. He has proved the copy of Nikahnama i.e. Ext.Kha-1. 19. DW2 Abdul Mazid has stated that the prosecutrix Shanno and the accused/appellant Meenu are known to him. He further stated that Meenu was married to Shanno. Their marriage was conducted at Mohalla Ahmed Nagar, Meerut. He was the lawyer in the marriage and Ameer Hasan and Immumuddin were the witnesses. He along with the 10 witnesses had gone to Shanno who had given her consent for the marriage. Nikahnama was prepared by Nazir Hussain on which Shanno has made her signatures. He has also signed on the same. He further stated that at the time of marriage, mother and father of Shanno were present who had given their consent. Salimmudin is the father of Shanno who has signed on the Nikahnama. This witness identified the signatures of Salimuddin in the court below. 20. DW3 Salimmudin has stated that he had solemnized two marriages. His second marriage was done with Smt. Zarina and two children were born from their wedlock. Zarina had run away with Aziz and at that time Shanno was one year old. He has solemnized the marriage of Shanno with the accused/appellant Mohinuddin. At the time of marriage, Shanno was 20 years’ old and the marriage had taken place with her consent. Nikah was read by Nazir Hussain and he has signed on the Nikahnama. Shanno, Majid, Immamuddin and Ameer Hussain have also made their signatures on the same. 21. DW4 Mohammad Umar has stated that Shanno is daughter of his uncle Salimuddin. Smt. Zarina is mother of Shanno and wife of Salimuddin. Two months before the marriage, Shanno and Smt. Zarina had come to his house and Zarina had told her that she wants to do marriage of her daughter in her caste and asked him to search a boy. Noor Mohammad and father and brother of Shanno had searched boy for her. Zarina and Shanno both had seen that boy. Marriage was solemnized in his house. At the time of marriage, Salimuddin was also present and he has given his consent for the marriage. 22. Learned counsel for the accused/appellants submitted that the prosecution has not proved the case 11 beyond reasonable doubt against the accused/appellants. I find substance in the submission of learned counsel for the accused/appellants due to following reasons:- (i) As per the evidence of PW1 Zarina and PW2 Shanno on 3.5.1985 they went with the accused/appellant Noor Mohammad from their house to Rishikesh bus stand by foot. After 2-4 minutes they got the bus which was full of passengers. They reached Meerut at about 5-6:00 PM and in 15 minutes they reached in the house of accused/appellant Noor Mohammad by Riksha. It has also come in the evidence that while going towards bus stand, two persons named Rajendra and Ram Chandra met them but they did not disclose anything to them. Thus, during the aforesaid period Smt. Zarina and Shanno travelled with the accused/appellant Noor Mohammad from Rishikesh to Meerut i.e. about 160 Kilometers and in this way passed through densely populated areas. Even on the bus by which both of them travelled, so many passengers were present but they did not made any hue or cry neither did they complaint to anybody. This conduct of Smt. Zarina and Shanno shows that they were the consenting party and they had gone with the accused/appellant Noor Mohammad on their consent. (ii) Accused/appellant Noor Mohammad even according to Smt. Zarina and Shanno kept them in his house where his other family members were living and neighbouring ladies also used to visit there. It is required to appreciate here that Smt. Zarina had stated in her statement that she and her daughter Shanno used to walk freely in the house of the accused/appellant Noor Mohammad even after that they did not made any 12 attempt to run away from his house at any point of time. (iii) As per the statement of Shanno accused/appellant Noor Mohammad married her to accused/appellant Meenu @ Mohinuddin. After the marriage accused/appellant Meenu committed sexual intercourse with her against her wish. Later on she was married to Irshad. But according to medical report Ext.Ka-8, “no definite opinion about rape can be given”. Hence, the oral evidence of Shanno does not get any corroboration from the medical report. Thus, it is clear that she lived with the accused/appellant Meenu with her own consent and when the differences cropped up between her and accused/appellant Meenu she married to some another person named Irshad. (iv) PW1 Smt. Zarina has admitted her age 45 years at the time of recording her statement in the trial court i.e. on 27.9.1988 she was 45 years old. It was further stated that at the age of 18 she was married to Salimuddin and after 4-5 years she was divorced from him and after 8-9 months of the divorce, Shanno was born. The said incident took place in May 1985. Thus, it reveals that on the date of incident, Smt. Zarina was about 42 years old and her daughter Shanno was about 19 years old, which means she was major on the date of incident. 23. Considering the entire evidence on record and hearing learned counsel for the parties, I am of the considered opinion that the prosecution miserably failed to establish the charge u/s 366 IPC against the accused/appellant Noor Mohammad and charge u/s 376 IPC against the accused/appellant Meenu alias Mohinuddin. It 13 has been proved that the prosecutrix Shanno was major on the date of incident and Smt. Zarina and Shanno were the consenting party and they went with the accused/appellant Noor Mohammad on their consent. Shanno was not compelled to marry with the accused/appellant Mohinuddin and was not forced or seduced to illicit intercourse against her will. As such, the learned trial court erred in holding the appellants/accused guilty and convicting them under the aforesaid sections and the impugned judgment and order of the trial court, in view of the above narrated evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 24. As regards the Nikah of the prosecutrix with the appellant Mohinuddin, the defence had examined four witnesses viz. DW1 Mohd. Khalid, DW2 Abdul Mazid, DW3 Salimuddin and DW4 Mohd. Umar in support of this fact. But the Nikah of the prosecutrix with the appellant Mohinuddin is not valid according to law as the prosecutrix as well as Smt. Zarina both have stated that the Nikah of Shanno with the appellant Mohinuddin was done against their wish. Hence, the evidence produced by the defence in support of Nikah cannot be accepted as true evidence and the Nikahnama which was prepared against the wish of the prosecurtix is illegal as per law. 25. For the reasons recorded above, the appeal is allowed. The judgment and order dated 13/16.8.1993 passed by IInd Additional Sessions Judge, Dehradun in S.T. No.156/1987, State Vs. Abdul Aziz & others, is hereby set aside. Consequently, the conviction and sentence imposed against the accused/appellant by the trial court, which has been discussed above, is also set aside. 14 26. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 12.10.2009 RG