HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 792 of 2001 (Old no. 1268 of 1991) Noor Ahmad S/o Sri Abdul Rasheed, R/o Mohalla Ansarian, Kasba Sahanpur, P.O. Sahanpur, P.S. Gaziabad, District Bijnor. ------- Accused/appellant. Versus The State. ------- Respondent Sri Sandeep Tandon, learned counsel for the appellant. Sri M.A. Khan, learned Brief Holder for the State. Dated: June 17, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 01.06.1991 passed by learned Sessions Judge, Tehri Garhwal in Sessions Trial no. 33 of 1989 State vs. Noor Ahmad whereby the learned Sessions Judge has convicted the accused/appellant for the offence punishable u/s 376, 366 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced him to undergo 7 years’ R.I. and 4 years’ R.I. under Section 376, 366 I.P.C. respectively. It was further directed that both the sentences shall run concurrently. 2. I have heard Sri Sandeep Tandon, learned counsel for the appellant and Sri M.A. Khan, learned Brief Holder for the State and perused the record of the Trial Court and entire material available on record. 3. The prosecution case, in brief, is that PW-1 Km. Babli alias Reeta had gone out of her home on 27.06.1989 at about 2:00-2:30 p.m. alongwith the accused/appellant Noor Ahmad. It is averted in the First Information Report Ext. Ka-2 that the accused/appellant Noor Ahmad had enticed Km. Babli and has 2 taken her away with him. It is further averted in the report that at the time of said incident Km. Babli was aged about 15 years’. It is further averted in the report that the accused Noor Ahmad might sell her to anyone and might misuse her company. With the same averments, the First Information Report was lodged by PW-2 Smt. Geeta Devi-mother of the victim on 27.06.1989 at 5:20 p.m. at Police Station Tehri, District Tehri Garhwal, that F.I.R. is Ext. Ka-2. On the basis of the written F.I.R. the Chik First Information Report Ext. Ka-10 was prepared by Head Moharir Surendra Kumar and a case crime no. 114/1989 u/s 363, 366 I.P.C. was registered against the accused/ appellant Noor Ahmad. Entry of the crime was made in the General Diary, copy of the G.D. is Ext. Ka-11. Investigation of the case was entrusted to Sub Inspector A.K. Singh. The victim was recovered on 01.07.1989 in the road heading to J.P. Company, Police Station-Tehri alongwith the appellant/ accused Noor Ahmad and recovery memo Ext. Ka-1 was prepared by PW-9 Sub Inspector Ashok Kumar. Site plan of the recovery of the victim is Ext. Ka-7. The victim was medically examined on 01.07.1989 by Dr. Smt. Bina Rana, Medical Officer in the Combined Hospital, Tehri who prepared the medical report Ext. Ka-3. About the age of the victim, the Chief Medical Officer PW-7 Dr. S.B. Gupta has also issued a certificate Ext. Ka-6 on the basis of the X-Ray report Ext. Ka-5. Thereafter the victim was handed over in the custody of her father PW-4 Baljeet Singh, the custody memo (SUPURDAGINAMA) is Ext. Ka-4. After the recovery of the victim, the offence punishable u/s 376 I.P.C. was also added and an entry was made in the G.D. at RAPAT no. 37 at 12:30 p.m. on 01.07.1989 copy of the G.D. is Ext. Ka-12. During the course of investigation, the Investigating Officer recorded statements of the witnesses and prepared the site-plan (of the place from where the victim was taken away) Ext. Ka-9. After completing investigation, the Investigating Officer has 3 submitted charge sheet Ext. Ka-8 on 03.08.1989 against the accused/appellant Noor Ahmad u/s 363, 366, 376 I.P.C. 4. Learned Chief Judicial Magistrate, Tehri on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 21.09.1989 u/s 209 Cr.P.C. 5. Learned Sessions Judge, Tehri after hearing the parties on 02.01.1990 framed the charge of offence punishable u/s 366, 376 I.P.C. against the accused/appellant Noor Ahmad. The charge was read over and explained to the accused who pleaded not guilty and claimed to be tried. 6. The prosecution, to prove its case, has examined PW-1 Babli alias Reeta, the victim/prosecutrix, PW-2 Smt. Geeta Devi, mother of the victim, PW-3 Dr. Smt. Bina Rana, who conducted medical examination of the victim, PW-4 Baljeet Prasad, father of the victim, PW-5 Maqsood Ahmad, who has informed address of the accused/appellant, PW-6 Dr. Arvind Kumar, who has conducted X-Ray of the victim, PW-7 Dr. S.B. Gupta-C.M.O., who has issued certificate about the age of the victim, PW-8 S.I. Gaida Singh Verma, one of the I.Os. and PW- 9 S.I. Ashok Kumar, another Investigating Officer who has also recovered the victim from the possession of the accused/ appellant. 7. The oral and documentary evidence was put to the accused/appellant in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and has stated that he has been falsely implicated in the case. The accused/appellant did not produce any oral or documentary evidence in his defence. 4 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge Tehri Garhwal vide his judgment and order dated 01.06.1991 has convicted the accused/appellant for the offence punishable u/s 376, 366 I.P.C. and sentenced him to undergo 7 years’ rigorous imprisonment for the offence punishable u/s 376 I.P.C. and 4 years’ rigorous imprisonment for the offence punishable u/s 366 I.P.C. It was further directed that both the sentences shall run concurrently. Aggrieved with the impugned judgment and order dated 01.06.1991, the present accused/appellant has come up in the instant Criminal Appeal. 9. Dr. Bina Rana PW-3 conducted medical examination of the victim Babli alias Reeta on 01.07.1989 at 1:50 a.m. and prepared medical report Ext. Ka-3. Who on medical examination found as follows:- A black mole present over the right side of neck. Built average, breast well developed, pubic auxiliary hair developed, last molar absent. Regarding rape, no mark of injury seen over face genitalia or any part of the body, no blood or semen stained cloths present, vagina is lax and admits easily two fingers, vaginal smear sent for presence of spermatozoa. It is opined that the girl is habitual of sexual intercourse. For age confirmation the girl was referred to Supdt. Combined Hospital, Tehri/CMO, Narendra Nagar/New Tehri. It was opined that apparently she was about 15 yrs. 10. On 04.07.1989, Dr. Arvind Kumar PW-6 took X-Rays Ext.-1 & 2 of the victim Babli alias Reeta who gave report Ext. Ka-5 as follows:- Both epicondyles of humerus fused, Head of radius fused, distal end of radius not fused. 5 11. To prove its case, the prosecution has first of all has examined PW-1 Babli alias Reeta, who has stated in her statement that the accused/appellant Noor Ahmad was known to her before one month of the incident who was working on someone’s vegetable cart. The accused/appellant used to come in her house and her parents were well acquainted with the accused that’s why the accused used to visit to her home. Her father has a shop at Chinyalisaur and on the date of occurrence he was not present at home. On 27.06.1989 at 2:00-2:30 p.m. she was present at her home alongwith her sister Bindu. At that moment the accused/appellant entered in her house and on being asked by the accused she told that her step mother did not give food to her from 2-3 days’. She also requested the accused that she wants to go to the house of her maternal uncle. Thereafter she had gone alongwith the accused/ appellant at the bus stand at Tehri and boarding in a bus the accused/appellant took her to Rishikesh and thereafter to Haridwar. In that night, they stayed at Haridwar. On the next day i.e. on 28.06.1989, the accused/appellant took her to his residential house at Sahanpur and they stayed there. At Sahanpur, the accused/appellant had committed sexual intercourse with her. On 29.06.1989 both of them remained at Sahanpur. On 30.06.1989 both of them had come Haridwar by boarding in a Truck. On 01.07.1989 by boarding on a Truck they came to Rishikesh from Haridwar and from Rishikesh they came to Dobata and from there they have started to go CHHAM on foot and in the way they were apprehended by the Police. The recovery memo Ext. Ka-1 was written by the Police. 12. PW-2 is Smt. Geeta Devi, who has stated that the accused/appellant is known to her before the incident. Km. Babli is her step daughter. Her husband has a shop at Chinyalisaur. On 27.06.1989 when she was out from her home; Km. Babli and Bindu were present at home and when she returned to her house, she did not find Babli at her home. 6 Bindu has told her that Babli had gone with the accused/ appellant Noor Ahmad, then she made search of her in the market. When she did not find her, then she lodged report Ext. Ka-2 at the Police Station. 13. PW-3 is Dr. Bina Rana, who has stated that on 01.07.1989 she was posted as Medical Officer at Combined Hospital, Tehri. On that day at 1:50 a.m. she examined the victim Km. Babli and prepared medical report Ext. Ka-3 in this regard, the details of the medical report is narrated in para-9 of the above. She proved medical report Ext. Ka-3. 14. PW-4 is Baljeet Prasad, father of the victim, who has stated that the accused/appellant Noor Ahmad was known to him before this incident. On 28.06.1989 his wife came to his shop at Chinyalisaur and informed that the accused Noor Ahmad had taken Km. Babli after enticing her and for that she has already lodged a report at the Police Station therefore, she had come to inform him. On 28.06.1989 he came at Tehri at that time the Police personnel were with him. On 29.06.1989 also inquiry was made about the missing girl. On 30.06.1989 address of the accused Noor Ahmad was exposed, then he came to Nazibabad alongwith the Police personnel. House of the accused Noor Ahmad was found locked. People of the locality have informed that the accused Noor Ahmad had gone to CHHAM. It was also informed by the local people that one girl was with the accused Noor Ahmad. On the same day he came to Rishikesh. On 01.07.1989 they went Dobata from Rishikesh and when they were going towards CHHAM, near the Gate of J.P. Company they saw the accused Noor Ahmad alongwith Km. Babli. In this way Km. Babli was recovered and recovery memo Ext. Ka-1 was prepared. A knife was also recovered from the possession of the accused/appellant. Km. Babli was given in his custody at the Police Station, SUPURDAGINAME is Ext. Ka-4. 7 15. PW-5 is Maqsood Ahmad, who has not supported the prosecution case and was declared hostile. 16. PW-6 is Dr. Arvind Kumar, Anesthetist, Suman Hospital, Narendra Nagar, who has stated that on 04.07.1989 he was posted as such and was also in-charge of Radiologist. On that day he conducted X-Ray of Km. Babli alias Reeta. The X-Ray plates are Ext. 1 & 2. He also brought the X-Ray report register before the Court below alongwith him. He filed copy of the register, which is Ext. Ka-5. He stated that X-Ray is only done under the orders of the Chief Medical Officer for the age certification. 17. PW-7 is Dr. S.B. Gupta, Joint Director, Hill Development (Medical), who has stated that in the month of August 1989 he was posted as Chief Medical Officer, Tehri. He has stated that after examining the X-Ray Plates Ext. 1 & 2 and the X-Ray report, he came to the conclusion that the age of the victim Km. Babli alias Reeta was between 14-16½ years’ and on the basis of which he has given the certificate of age of the girl which is Ext. Ka-6 on the record. 18. PW-8 is Station Officer Gainda Singh Verma, who has stated that on 05.07.1989 he was posted at Police Station Tehri. He has stated that up to that date the investigation was conducted by Sub Inspector A.K. Singh, who has recovered the victim Km. Babli. Thereafter the investigation was transferred to him. During the course of investigation, he recorded the statements of the witnesses. He also prepared site-plan of the place of occurrence of the recovery of girl i.e. Ext. Ka-7. After completing investigation, he submitted charge sheet Ext. Ka-8 against the accused. 19. PW-9 is S.I. Ashok Kumar, Investigating Officer, who has stated that on 27.06.1989 he was posted as Sub Inspector 8 at Police Station Tehri. Investigation of this case was entrusted to him on the same day. During investigation, he prepared site-plan of the place of occurrence i.e. Ext. Ka-9 and also recorded the statement of the witnesses. On 01.07.1989, the victim was recovered by him and recovery memo Ext. Ka-1 was prepared by him on his own handwriting. The accused/ appellant was arrested on the same day. One knife was also recovered from the possession of the accused/appellant. It is stated that the Head Moharir Surendra Pal Singh had prepared the Chik First Information Report Ext. Ka-10, on the basis of the written report Ext. Ka-2. Entry was made in the G.D. by him, a copy of the G.D. is Ext. Ka-11. After the girl was recovered the case was converted u/s 376 I.P.C. an entry in this regard was made in the G.D. on 01.07.1989 at 12:30 p.m., copy of the G.D. is Ext. Ka-12. 20. The oral and documentary evidence was put to the accused/appellant in the form of questions u/s 313 Cr.P.C. who, in reply, has denied the allegations made against him and has stated that he has been falsely implicated in the case. The accused/appellant did not produce any oral or documentary evidence in his defence. 21. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge Tehri Garhwal passed the impugned judgment and order dated 01.06.1991 as above. 22. Sri Sandeep Tandon, learned counsel for the accused/ appellant has contended that as per the medical report/ certificate Ext. Ka-6 prepared by PW-7 Dr. S.B. Gupta-the than Chief Medical Officer, the age of the victim Km. Babli was between 14-16½ years’. This witness has certified the age of the victim on the basis of the X-Ray report Ext. 1 & 2. It is contended that as the age of the victim, on the basis of the X- 9 Ray report is 16½ years’, at the time of the incident and the accused/appellant & the victim were the consented party. The victim had gone with the appellant on her own wishes as it clearly reveals from the conduct of Km. Babli that she had gone with the accused/appellant from Tehri to Haridwar, Haridwar to Rishikesh, Rishikesh to Sahanpur boarding either on Bus or Truck and in this way she had travelled a distance of more than 250 kms. on various days. In the way of their destination a number of thickly populated towns and cities had fallen and in the mode of travel i.e. in the bus or truck also a number of persons would be met with her, but the victim Km. Babli did not make complaint to any body. Even she had not made screams that the accused/appellant Noor Ahmad is forcibly taking her without her consent. Km. Babli remained with the accused/appellant for about 5 days’. She stayed in the house of the accused/appellant at Sahanpur where the other members of his family were present. All the circumstances above and the conduct of the victim Km. Babli show that she was a consented party. Therefore, no offence, as alleged by the prosecution, is made out against the accused/appellant. 23. It is contended that as the age of the victim, on the basis of the X-Ray report is 16½ years’, at the time of the incident and there is every possibility that the age of the victim may be 2 years’ above on its’ upper limit according to the jurisprudence of law. Therefore, the victim was major. As at the time of the incident the age of the victim was 16½ years’, therefore, the accused/appellant is entitled to take benefit in regard to the age, which may be 2 years’ above on the upper side. It is vehemently contended that the victim was more than 18 years’ of age and the accused/appellant & the victim were consented party. Consequently, no offence, as alleged by the prosecution, is made out against the accused/appellant. 10 24. Learned counsel for the accused/appellant has cited judgment rendered by the Hon’ble Supreme Court in the case of Narayan alias Naran vs. State of Rajasthan reported in (2007) 3 SCC (Crl.) 198. The Hon’ble Supreme Court in paras 11, 12, 13, 15 & 16 has held as under: - “11. In the cross-examination the prosecutrix (PW 3) stated that she boarded the trolley at about 5 o’clock in the evening and by 7 o’clock they reached Singpur Village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ext.P-5) she stated that the accused committed rape on her thrice but in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not state that she offered any resistance though she was physically very strong. Medical report (Ext.P-1) says that there were no injuries on the body of the prosecutrix (PW 3). There were no injuries on her private part. It is ultimately opined that “no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse”. In the circumstances, is it possible to believe that the prosecutrix (PW 3) has been subjected to rape twice by the accused as alleged? In the first information report (Ext.P-5) it is stated that the prosecutrix (PW 3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW 3) was driving the tractor from Singhpur to Bharkiya crossing through a number of villages. It is not stated by the prosecutrix (PW 3) that she made any attempt to get down from the tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily. 12. Yet another important aspect of the matter, in the first information report and as well as in her evidence the prosecutrix (PW 3) stated that she revealed the entire episode of committing rape on her by the accused to Smt Tejkanwar (PW 6) in whose house in Akodiya Village she slept on the fateful night. She also state about the accused’s snatching of Rs.1000 from her and also some jewellery. Smt Tejkanwar (PW 6) in her evidence did not state that the prosecutrix (PW 3) narrated the incident of rape committed on her by the accused to her. The evidence of the prosecutrix (PW 3) is full of material contradictions. There is no corroboration whatsoever from any of the witnesses, 11 more particularly in the evidence of Smt Tejkanwar (PW 6) who is a material witness. It is true, the evidence of the prosecutrix (PW 3) itself, if acceptable, is sufficient to establish the charge against the accused but her evidence is so artificial which cannot be accepted. 13. In the circumstances, we are of the considered opinion that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 376 IPC. 15. For all the aforesaid reasons, we hold that the prosecution failed to establish the charges framed against the appellant for the offences punishable under Sections 376 and 392 IPC. The conviction as well as sentences imposed upon the appellant for the offences punishable under Sections 376 and 392 IPC are accordingly set aside. 16. The appeal is allowed.” 25. On the basis of the discussions above and the judgment of Hon’ble the Apex Court (Spura), the arguments advanced by the learned counsel for the accused/appellant seems to be justified that the victim Km. Babla has gone with the accused/appellant with her own consent. She travelled about 250 kms. by way of bus or truck with the accused/appellant and in this way she crossed a number of towns and cities, like Tehri, Haridwar, Rishikesh. She met with a number of persons but she did not make complaint to any one for a period more than 5 days’. All her conduct clearly shows that she was a consented party. As per the medical report/certificate prepared, on the basis of the X-Ray plates and X-Ray report, by PW-7 Dr. S.B. Gupta, Km. Babli alias Reeta was major at the time of the incident. Therefore, on the above circumstances, no offence punishable u/s 366, 376 I.P.C. is proved against the accused/appellant. 26. For the reasons recorded above, the appeal preferred by the accused/appellant Noor Ahmad deserves to be allowed and the judgment and order dated 01.06.1991 passed by learned 12 Sessions Judge, Tehri Garhwal in Sessions Trial no. 33 of 1989 State vs. Noor Ahmad liable to be set-aside. 27. Accordingly, the appeal is allowed. The judgment and order dated 01.06.1991 passed by learned Sessions Judge, Tehri Garhwal is hereby set-aside. The accused/appellant Noor Ahmad is acquitted from the charge levelled against him. The accused is on bail. He needs not to surrender, his sureties are discharged. 28. Let a copy of this judgment, alongwith the record of the Court below be sent back to the Trial Court. (Dharam Veer, J.) 17.06.2008 NCM: