COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING Description of the Case. CRIMINAL APPEAL No. 146 of 2007 (Old No. 614 of 1983) Shaukin Shah ……………Appellant Versus State. ..…Opposite Party Ms. Krishi Shukla, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State A.F.R. (Approved for Reporting) Not approved for Reporting Dated: January 4, 2008 (Dharam Veer, J.) Reserved Court No.7 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 146 of 2007 (Old Case No. 146 of 2007) Shaukin Shah, S/o Tasheer resident of Kaliyapur, P.S. Chajlet, Moradabad. …………Appellant Versus State ………Opposite Party Ms. Krishi Shukla, learned counsel for the appellant. Sri M.A. Khan, learned brief holder for the State Dated: 04.01.2008 Hon’ble Dharam Veer, J. This criminal appeal preferred under Section 374 (2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) is directed against the judgment and order dated 13.01.1983 passed by Special Judge (Additional Sessions Judge), Nainital in Sessions Trial No. 152 of 1982, State v. Shaukin Shah, whereby the learned Special Judge has convicted the appellant under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as I.P.C.) read with Section 511 I.P.C. and awarded sentence for four years’ R.I. under Section 363 I.P.C., four years’ R.I. under Section 366 I.P.C. and four years’ R.I. under Section 376 I.P.C. read with Section 511 I.P.C. and has directed that all the sentences shall run concurrently. 2. In brief, the prosecution case is that victim Km. Noor Jahan, aged about 10 years, daughter of complainant Shamsher Sah was living with her father, mother, brother and maternal grand father in village Gorakhpur, Post Office Karanpur, P.S. Ram Nagar, District Nainital. Her father Shamsher Sah was a poor person having a son Phool Sah (brother of victim Km. Noor Jahan) who was aged about 19 years. Through the medium of one Banee Sah, the accused-appellant Shaukin Sah came to the house of Shamsher Sah on 06.07.1982 in daytime. At that time, Shamser Sah was not present at his house and had gone but to procure labourers for certain work. Accused-appellant Shaukin told that he wanted to marry his sister with Phool Sah and on this pretext he took Phool Sah, victim Km. Noor Jahan and their maternal grand father alongwith him to see his sister at Amroha. They reached at Amroha bus station, where accused-appellant Shaukin duped Phool Sah and Itwari Sah and took away victim Km. Noor Jahan saying that his sister was standing at another place and he would return after leaving Km. Noor Jahan with his sister but he did not return. Phool Sah and Itwari Sah waited at the bus station for a long time but it was in vain and ultimately they returned to their house where they informed about the said incident to Shamsher Sah. Shamsher Sah searched his daughter for a few days and when he failed to trace out her whereabouts, he lodged the F.I.R. at the Police Station Ramnagar on 12.07.1982 at 12.25 hours. The F.I.R. is Ex.Ka-3 and on the basis of that F.I.R., a Chik report was prepared, the Chik report is Ex.Ka-4. The entry was made in the G.D., the carbon copy of G.D. is Ex.Ka-5. The investigation of the case was entrusted to P.W.6 S.I. Mohd. Tausif Ali Siddiqui. On 21.07.1982, victim Km. Noor Jahan was recovered from the possession of appellant/accused Shaukin Shah and recovery memo was prepared, that recovery memo is Ex.Ka-9. Victim Km. Noor Jahan was medically examined by the Incharge Medical Officer, Women Hospital, Ramnagar on 24.07.1982 at 10.30 A.M., the medical report is Ex.Ka-1. A certificate was issued by Superintendent, L.D.B. Hospital, Kashipur (Nainital) regarding her age in which her age has been mentioned below 10 years. The age certificate is Ex.Ka-2. During the course of investigation, the I.O. prepared the site plan of the place from where the victim Km. Noor Jahan was kidnapped, that site plan is Ex.Ka-6. The I.O. also prepared the site plan of the place from where the victim Km. Noor Jahan was recovered, that site plan is Ex.Ka-7. During the course of the investigation, the Investigating Officer recorded the statements of the witnesses and after completing the investigation, he filed the charge sheet against the accused appellant on 10.08.1982, the charge sheet is Ex.Ka-8. 3. Learned Addl. Munsif Magistrate, Kashipur committed the case to the Court of Session under Section 209 Cr.P.C. after complying the provisions of Section 207 Cr.P.C. on 7.10.1982. 4. Learned Special Judge, Nainital framed charges on 06.12.1982 against the present accused- appellant under Sections 363, 366 & 376 I.P.C. read with Section 511 I.P.C. and the charges were read over and explained to the appellant who pleaded not guilty and claimed to be tried. 5. To prove its case the prosecution examined P.W.1 Dr. Pralhadi, who has medically examined victim Km. Noor Jahan, P.W.2 victim Km. Noor Jahan, P.W.3 Dr. R.P. Rastogi, P.W.4 Phool Sah (btother of the victim Km. Noor Jahan) and P.W.5 Shamsher Sah (father of the victim), P.W.6 S.I. Mohd. Tausif Ali Siqqiqui (Investigating Officer), P.W.7 Constable Maipal Singh and P.W.-8 Constable Bhupal Singh. After that the statement of the appellant was recorded under Section 313 Cr.P.C., who denied the allegations made against him and in defence he did not produce any oral or documentary evidence. 6. After appreciating the evidence on record and hearing learned counsel for both the parties, learned Special Judge (Additional Sessions Judge), Nainital has convicted the appellant under Sections 363, 366 and 376 I.P.C. read with Section 511 I.P.C. and awarded sentence for four years’ R.I. under Section 363 I.P.C., four years’ R.I. under Section 366 I.P.C. and four years’ R.I. under Section 376 I.P.C. read with Section 511 I.P.C. and has directed that all the sentences shall run concurrently. 7. Against the said judgment and order, the appellant has preferred the instant appeal. 8. I have heard Ms. Krishi Shukla, learned counsel for the appellant as well as Sri M.A. Khan, learned brief holder for the State and perused the entire record of the trial court. 9. To prove its case the prosecution has examined P.W.1 Dr. Prahladi, who has stated that on 24.07.1982 she was posted as Medical Officer at Women Hospital, Ram Nagar. On that date, at 10.30 A.M. she medically examined victim Km. Noor Jahan, who was brought to the hospital and identified by Constable Bhupal Singh, Police Station Ram Nagar. She has further stated that on medical examination she found the following facts: The breasts, auxiliary hairs and pubic hairs were not well developed. There was no external mark of injury on face, breasts, thighs, labia majora and labia minora. No discharge was present on pubic region and thighs. P/V – There was no swelling, no discharge and no redness present on external part of vulva. The hymen was intact and the margins of hymen were well defined. Margins of hymen were not red. 10. She has further stated that no definite opinion could be given about rape and she proved the medical report as Ex.Ka-1. X-ray was advised for determining the age of the victim. She also stated that the age of the victim from her external appearance seems to be 11 years. She further stated that the definite opinion about the age could be given only after the x-ray report. 11. P.W.2 is victim Km. Noor Jahan, who has stated in her statement that she knows the accused- appellant whose name is Shaukin. The occurrence had happened before six months. Her maternal grand father, mother, brother Phoo Shah and she herself were there in her house situated at Gorakhpur. Her father had gone to arrange some labourers and accused-appellant came to her house in the daytime and told that he wanted her sister to be got married with Phool Shah and also told that he liked Phool Shah and insisted to see his sister. She has further stated that when her maternal grandfather and brother Phool Shah were ready to go with the accused-appellant to see his sister, the accused- appellant Shaukin insisted that she (Noor Jahan) be also taken so that she could also see his sister. Ultimately, she also went along with them to Tanda and from where they want to Moradabad by bus. From Moradabad, the accused-appellant Shaukin took them to Amroha. Her maternal grand father and brother were made to sit at the Bus Station, Amroha by the accused appellant Shaukin and from there, he took her along with him on the pretext that he would leave her with his sister who was getting rice husked at Chakki. Her brother and maternal grand father believed him and let her go with him. She was taken far away from the bus station outside the city by accused-appellant Shaukin and on her asking, he threatened to kill her on making noise and he stayed in the night along with her in a garden. In the garden accused-appellant Shaukin tried to remove her Salvar but he failed because of her having resisted. She has further stated that on being fallen down, Shaukin came upon her, kissed and pressed her breast and tried to commit rape with her. The accused-appellant discharged semen over her Salvar. Next morning, they went on foot for some distance and thereafter in a village she was kept for 2-4 days. She was not told the name of the village. Thereafter she was kept in 2-3 different houses for 3-3 and 4-4 days. After that, one day accused –appellant Shaukin came to take her to Haldwani by bus or foot and in the night at 9.00 P.M., they were arrested by the police on Choi Road and she was medically examined. X-ray was also done and her Salvar was taken into custody by the police and after that she was handed over to her mother. This witness was cross-examined by the defence counsel but nothing has come out from her statement which may create any doubt in her evidence. The evidence of this witness is reliable, believable, natural and trustworthy. 12. P.W.3 is Dr. R.P. Rastogi, who has stated in his statement that on 04.08.1982 he was posted as Superintendent, L.D.Bhatt, Hospital, Kashipur. On that date, he X-rayed the right wrist and right elbow of victim Km. Noor Jahan. He has proved the X-ray plate as Ex.1. On the basis of X-ray plate, he found the age of the victim below 10 years and on the basis of physical appearance her age was found to be about 9 years. He has proved the X-ray report as Ex.Ka-2. 13. P.W.4 is Phool Sah, who is brother of victim Km. Noor Jahan. He has stated in his statement that the accused-appellant Shaukin is known to him. When the accused-appellant had come to his house situated at Gorakhpur six months before in the daytime, he, his mother, his sister Noor Jahan and his maternal grand father were present and his father had gone to arrange some labourers. The accused-appellant had come in relation to marriage of his sister with him (Phool Sah). The accused-appellant told that he liked him (Phool Shah) and insisted to see his sister. He has further stated that when his maternal grand father and he (Phool Shah) were ready to go with the accused-appellant to see his sister, accused-appellant Shaukin insisted that Noor Jahan be also taken so that she could also see his sister. Thereafter, all the three went along with the accused- appellant Shaukin to Tanda and from where they went to Moradabad by bus. The accused-appellant told that his sister was in Amroha, as such, the accused-appellant Shaukin took them to Amroha. He and his maternal grand father were made to sit at the Bus Station, Amroha by the accused appellant and from there, he took Km. Noor Jahan along with him on the pretext that he would leave Km. Noor Jahan with his sister and thereafter he would take them. The accused-appellant took Km. Noor Jahan but did not return till evening. He has further stated that he was searching the accused-appellant and Km. Noor Jahan in the city but he could not succeed and as such, he spent the whole night in Amroha. Next day, he reached at his house and narrated the incident to his father. His father was also searching Km. Noor Jahan for 2-4 days and then his father lodged the F.I.R. at the police station. This witness was also cross-examined by the defence counsel but nothing has come out from his evidence which may create any doubt. The evidence of this witness is reliable and believable. 14. P.W.5 is Shamsher Sah, who is the father of victim Km. Noor Jahan and complainant of the case. He has stated that Noor Jahan is his daughter and her age is about 10 years. The occurrence had happened about six months before and at that time he had gone to arrange some labourers. When he returned home, his father-in-law Itwari, son Phool Sah and daughter Noor Jahan were not present there. After two days, his son and father-in-law came back to his house and Noor Jahan was not along with them. They told him that accused-appellant Shaukin after making them to sit at the bus station, went away along with Noor Jahan. Thereafter he searched Km. Noor Jahan and appellant Shaukin for some days and thereafter he lodged the F.I.R. at the police station on 12.07.1982. He has proved the report as Ex.Ka-3. He has further stated that after 16 days of the occurrence, Km. Noor Jahan was handed over after the recovery. The evidence of this witness is also reliable and believable. 15. P.W.6 is S.I. Mohd. Tausif Ali Siddiqui (Investigating Officer), who has stated that in the year 1982 he was posted as S.I. at Police Station Ram Nagar and at that time Jagdish Chhandra, Clerk was also posted at P.S. Ram Nagar on the post of Constable. He is well acquainted with the signature and hand writing of Jagdish Chandra. On 12.07.1982, Shamsher Sah had given a report, Ex.Ka-3, at P.S. Ram Nagar and on the basis of that report the clerk-constable Jagdish Chandra prepared a Chik report. He proved the Chik report as Ex.Ka-4. The entry was also made in the G.D. on report no.25 dated 12.07.1982 at 12.25 P.M. He proved the G.D. as Ex.Ka-5. The investigation of the case was done by him. During the course of the investigation, he recorded the statements of the witnesses. On 18.07.1982, he inspected the place where Phool Sah and his maternal grand father were made to sit and from where the victim was taken away by the accused- appellant and also prepared the site plan and proved it as Ex.Ka-6. During the course of investigation, he also prepared the site plan of the place of recovery of victim Km. Noor Jahan and proved it as Ex.Ka-7. After completion of the investigation, he submitted the charge sheet against accused-appellant Shaukin Sah on 10.08.1982 and proved the charge sheet as Ex.Ka-8. 16. P.W.7 is Constable Maipal Singh, who has stated that on 21.07.1982 he was posted at Police Station Ram Nagar as Constable. On that date he and Constable Babu Ram were on petrol duty along with S.O. Virendra Singh. At about 8.50 P.M. on 21.07.1982 they arrested the accused-appellant with victim Km. Noor Jahan on the road near Choi village within police station Ram Nagar. On being arrested, he told his name as Shaukin Shah. He has further stated that no public witness was present at that time. He proved the Fard of recovery as Ex.Ka.9 which contains his signature as well as the signature of S.O. Virendra Singh and Constable Babu Ram. 17. P.W.8 is Constable Bhupal Singh, who has stated that in the year 1982 he was posted at Police Station Ram Nagar as Constable. On 24 July 1982 he took Km. Noor Jahan to Women Hospital, Ram Nagar for medical examination and he identified Km. Noor Jahan. On 04.08.1982, he also took Km. Noor Jahan to L.D.Bhatt, Hospital, Kashipur for X-ray. 18. After that the statement of appellant was recorded under Section 313 Cr.P.C, who denied the allegations made against him and in defence he did not produce any oral or documentary evidence. 19. Ms. Krishi Shukla, learned counsel for the appellant has submitted that there is solitary evidence of Km. Noor Jahan against the appellant and that evidence of Km. Noor Jahan does not inspire confidence, hence the appellant cannot be convicted on the solitary evidence, which does not inspire confidence. 20. This argument of the learned counsel for the appellant is not sustainable in the eye of law and as per the evidence discussed above. From the evidence of P.W.2 victim Km. Noor Jahan, who has stated in her statement that when her maternal grand father, mother, brother Phool Shah and she herself were in her house situated at Gorakhpur and her father had gone to procure some labourers, accused-appellant came to her house in the daytime and told that he wanted her sister to be got married with Phool Shah and also told that he liked Phool Shah and insisted to see his sister. She has further stated that when her maternal grand father and brother Phool Shah were ready to go with the accused- appellant to see his sister, the accused-appellant Shaukin insisted that she (Noor Jahan) be also taken so that she could also see his sister. Ultimately, she also went along with them to Tanda and from where they went to Moradabad by bus. From Moradabad, the accused- appellant Shaukin took them to Amroha. Her maternal grand father and brother were made to sit at the Bus Station, Amroha by the accused appellant Shaukin and from there, he took her along with him on the pretext that he would leave her with his sister who was getting rice husked at Chakki. Her brother and maternal grandfather believed him and let her go with him. She was taken far away from the bus station outside the city by accused-appellant Shaukin and on her asking, he threatened to kill her on making noise and he stayed in the night along with her in a garden. In the garden accused-appellant Shaukin tried to remove her Salvar but he failed because of her having resisted. She has further stated that on being fallen down, Shaukin came upon her, kissed and pressed her breast and tried to commit rape with her. The accused-appellant discharged semen over her Salvar. Next morning, they went on foot for some distance and thereafter in a village she was kept for 2-4 days. She was not told the name of the village. Thereafter she was kept in 2-3 different houses for 3-3 and 4-4 days. After that, one day accused –appellant Shaukin came to take her to Haldwani by bus or foot and in the night at 9.00 P.M., they were arrested by the police on Choi Road. P.W.4-Phool Sah, who is brother of victim Km. Noor Jahan, has stated in his statement that when the accused-appellant had come to his house situated at Gorakhpur six months before in the daytime, he, his mother, his sister Noor Jahan and his maternal grand father were present and his father had gone to arrange some labourers. The accused-appellant had come in relation to marriage of his sister with him (Phool Sah). The accused-appellant told that he liked him (Phool Shah) and insisted to see his sister. He has further stated that when his maternal grand father and he (Phool Shah) were ready to go with the accused-appellant to see his sister, accused-appellant Shaukin insisted that Noor Jahan be also taken so that she could also see her sister. Thereafter, all the three went along with the accused- appellant Shaukin to Tanda and from where they went to Moradabad by bus. The accused-appellant told that his sister was in Amroha, as such, the accused-appellant Shaukin took them to Amroha. He and his maternal grand father were made to sit at the Bus Station, Amroha by the accused appellant and from there, he took Km. Noor Jahan along with him on the pretext that he would leave Km. Noor Jahan with his sister and thereafter he would take them. The accused-appellant took Km. Noor Jahan but did not return till evening. He has further stated that he was searching the accused-appellant and Km. Noor Jahan in the city but he could not succeed and as such, he spent the whole night in Amroha. Next day, he reached at his house and narrated the incident to his father. His father was also searching Km. Noor Jahan for 2-4 days and then his father lodged the F.I.R. at the police station. P.W.5-Shamsher Sah, who is the father of victim Km. Noor Jahan has stated that the occurrence had happened about six months before and at that time he had gone to arrange some labourers. When he returned home, his father-in-law Itwari, son Phool Sah and daughter Noor Jahan were not present there. After two day, his son and father-in-law came back to his house and told him that accused-appellant Shaukin after making them to sit at the bus station, went away along with Noor Jahan. Thereafter he searched Km. Noor Jahan and appellant Shaukin for some days and thereafter he lodged the F.I.R. at the police station on 12.07.1982. Accordingly, the evidence of victim Km. Noor Jahan inspires confidence and the evidence of Km. Noor Jahan is supported by the evidence of P.W.4 Phool Sah as well as P.W.5 Shamsher Sah. The evidence of P.W.2 Km. Noor Jahan is also corroborated by the evidence of P.W.1 Dr. Pralhadi and P.W.3 Dr. R.P. Rastogi and also from the medical reports Ex.Ka-1 and Ex.Ka-2 & X-ray Plate Ex. 1. From the above said evidence, it is well established by the prosecution beyond reasonable doubt that the victim Km. Noor Jahan, who was below 10 years of age at the time of incident i.e. on 6.7.1982, was taken by deceiving P.W.4 Phool Shah (brother of the victim Km. Noor Jahan) and later on she was kidnapped by the present appellant/accused Shaukin Shah from the guardianship of her parents and she was forced to live in different places against her will under threat of life. Thereafter, the appellant has also tried to commit rape with her and thus, the prosecution has proved its case against the appellant U/Ss 363 IPC, 366 IPC & 376 IPC r/w Section 511 IPC. 21. Sri M.A. Khan, learned brief holder for the State cited a judgment rendered by the Hon’ble Supreme Court in the Case of Chittar Lal v. State of Rajasthan reported in (2003) 6 SCC 397 in which it has been held that conviction can be based on sole evidence of a witness if it inspires confidence. Para 7 of the judgment is quoted below:- “Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan v. State of Rajasthan mere non-mention of the name of an eyewitness does not render the prosecution version fragile. The information was not lodged by an eyewitness. Mental condition of a person whose father has lost his life inevitably gets disturbed. Explanation offered by witnesses for non-mention of PW 3’s name is plausible. Additionally, it is to be noted that in the present case the statement of PW3 was recorded on the same day of incident, immediately after the investigation process was set into motion. Therefore, the plea that PW 3’s testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness, PW 3’s testimony. This plea is equally without essence. The legislative