IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 104/2010 Date of decision: 6. 9. 2010 Iqbal Mohammad …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. J.L. Bhardwaj, Advocate. For the respondents : Mr. J.S. Rana, Assistant Advocate General. Surinder Singh, J. (Oral) Appellant was acquitted for the offence under Section 376 Indian Panal Code however, convicted for offences punishable under Section 363, 366 Indian Penal Code and sentenced as under:- Sr. No. Offence under Section Conviction 1. 366 Indian Penal Code Simple imprisonment for three years and a fine of Rs.50,000/- and in default of payment of fine, to further undergo 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - imprisonment for one year. 2. 363 Indian Penal Code Simple imprisonment for two yeas and fine of Rs.20,000/- and in default of payment of fine, to further undergo imprisonment for six months. Both the sentences were ordered to run concurrently. 2. Appellant and the Prosecutrix both profess Islam. Appellant was married and was having four children (two male and two female). The Prosecutrix had left the School in the year 2008 when she failed in the 8th standard. It is alleged that on 2nd July, 2009, she was around 17 years of age living with her parents in village Ladwar falling within the jurisdiction of Police Station Tissa District Chamba, H.P. Around 3 p.m. she had gone to the water spring to fetch water and from the way she was forcible dragged by the appellant and took her to the forest, where she was kept in a cave. During the intervening night of 2/3rd July, 2009 she was taken to his house. Wife of the appellant was not at home and the appellant is alleged to have committed rape on her. - 3 - 3. The father of the Prosecutrix Noor Mohammad was a helper in the IPH Department, he lodged the report Ext. PW10/A on 4.7.2009. Wife of the appellant allegedly informed him telephonically that Prosecutrix was likely to flee with her husband as she was in possession of her letter addressed to her husband. On this he told her to come to his village along with the letter. He kept on waiting till 9.30 a.m. but she did not come. Thus he revealed this fact to his wife when he returned to his house in the evening around 5.35 p.m. He did not find the Prosecutrix there. His wife informed him that she had gone somewhere without informing her but Noor Mohammad told her about the above development. Thereafter both of them went to the Hotel being run by the appellant, where they met his elder brother but did not find Prosecutrix as well as the appellant there. Father-in- law of the appellant informed them that the Prosecutrix had gone along with the appellant somewhere. Then they left to make any search for her. In order to verify the facts of the above complaint, - 4 - PW10 ASI Mulakh Raj visited village Ladwar. He recorded the statement Ext. PW1/A of Noor Mohannad, under Section 154 of the Code of Criminal Procedure. Ruka was sent through HHC Dinesh Kumar for registration of the case, on the basis of which FIR Ext. PW10/C was registered. He also recorded the statement of mother of the Prosecutrix under Section 161 of the Code of Criminal procedure. On the same day he received the massage from MHC that Prosecutrix and the appellant had appeared in Police Station Tissa. On getting this information he returned to police Station and moved application Ext. PW10/A for medical examination of the Prosecutrix but she refused to get herself medically examined. Appellant was arrested and medically checked-up, on the basis of which his MLC Ext. PW2/B was issued. He took into possession wearing apparels of the Prosecutrix vide memo Ext. PW4/A and also took into possession copies of School admission form Ext. PW9/A, the Pariwar Register Ext. PW10/A. 4. Custody of the Prosecutrix was handed over to PW6 Abdul Mohammad vide - 5 - memo Ext. PW6/A, when she refused to go with her parents on 5.7.2009, but on 6.7.2009 her custody was handed over to her parents Ext. PW1/E. 5. On 7.7.2009 the said Investigating Officer also took into possession bed- sheet Ext. P2 and Mattresses Ext. P3 vide memo Ext. PW3/C. 6. Wearing apparels of the Prosecutrix as well as bed sheet and mattresses were sent for forensic science examination. After completing the investigation, challan was presented in the court for the trial of the appellant. Later on receipt of the report of the F.S.L. Ext.PW10/L, a supplementary challan was also prepared and presented in the Court. 7. Appellant was charge sheeted for the aforesaid offences and at the end of the trial, he was acquitted for the offence of rape but convicted under Section 363 and 366 Indian Penal Code, as aforesaid, hence this appeal. 8. Shri J.L. Bhardwaj, learned counsel for the appellant vehemently argued that the prosecution has failed to - 6 - prove that the Prosecutrix was a minor at the relevant time and further that there has been material contradictions in the statement of the Prosecutrix and other witnesses making the whole of the story a suspect. He further argued that the investigation in this case was totally tainted and the case was fabricated against the appellant. In nutshell he contended that the learned trial Court did not appreciate the evidence on record in its right perspective as such conviction and sentence passed on the appellant is wrong and illegal. 9. Contra Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment and forcefully argued that the Prosecutrix has been proved to be a minor at the time of the alleged incident and she was recovered from the custody of the appellant. Her testimony is worth inspiring confidence, thus rightly acted upon. 10. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record. - 7 - 11. At the very outset I would like to say that the very story propounded by the prosecution does not inspire confidence in as much as Investigating officer PW10 S.L. Mulak Raj has stated that when he was busy in the investigation of the case he received a message from MHC of the Police Station that the Prosecutrix and the appellant had appeared in the Police station whereas the recovery of the Prosecutrix has been shown from the company of the appellant from village Nakrod by a police party accompanied by her parents. Not only this, when she is alleged to have appeared in the Police Station on 5.7.2009 then how and why site plan Ext. PW10/D regarding the recovery of the Prosecutrix from the house of Sh. Abdul Mazid (PW6) was shown by the Investigating Officer, that too, on 7.7.2009, remains a mystery; whereas she was stated to have been handed over on 6.7.2009 to her parents. 12. Further I find that the statement of the Prosecutrix herself is also not worth inspiring confidence and causes a serious dent in prosecution case. Her - 8 - statement under Section 161 of the Code of Criminal procedure Ext. PW10/G was recorded on 5.7.2009 wherein she had imputed allegations of allurement against the appellant with respect to kidnapping and rape to which she did not testify on oath in the court during the trial. Further memo Ext. PW6/A reveals that she had refused to join the company of her parents and of her own wishes she intended to live in the house of her brother (PW6 Abdul Mazid @ Shukar Deen) who was a member of Zila Parishad but later, when examined in the Court she even denied that PW6 was her brother. Rather she stated that it was he who insisted upon her not to get herself medically examined. What interest PW6 had for saying so when she lived with his family of her own volition instead of submitting herself to the guardianship of her parents. Even she refused to her medical examination. There is also absolutely no evidence with respect to putting her into fear or forcible taking her by the appellant. 13. It is worth mentioning that as PW5 Prosecutrix when examined in the Court she - 9 - considerably improved her version from one given to the police initially. She even stated that she did not know the appellant prior to the alleged incident but thereafter in cross examination, she also revealed that she had worked under ‘Rojgar Scheme’ which was being supervised by the appellant. She stated that she had gone to fetch water from the spring, from where she was allegedly forcibly taken by gagging her mouth towards the jungle which important fact was not found mentioned in her earlier statement. She was also confronted with it but could not offer a satisfactory explanation. She also admitted that water spring was at a distance of about 1 km from her house which takes about 15 minutes to reach there but simultaneously admitted that there was a water-tap in their village then it is not known why she preferred to go to the water spring to fetch water despite its availability in village-Tap, more particularly when she admitted that no other villagers go to fetch water from the said water-spring. It means that she intended to leave the house of her - 10 - parents. She further stated that the appellant had taken her to the house, she was kept in the room which was locked from out side which fact also did not find mention in the said statement when confronted with it for that also no satisfactory explanation was offered. Further, she stated that she resisted for sexual assault against her. The salwar was stated to have been torn even this fact was not found recorded in her statement nor it was torn when produced in the Court. She also stated that during the night when she was being raped, sister-in- law of the appellant had gagged her mouth. Even this material fact was not found mentioned in the said statement. Although she admitted to have given her custody to PW6 aforesaid but she also denied that he was her brother and also denied any other relations with him. She further admitted that in order to defecate, she used to go out in the Jungle while in the house of the appellant but she stated that she had tried to run from there but sister-in-law of the appellant used to accompany her, thus could not escape. - 11 - 14. She further stated that she did not change her clothes in the house of the appellant but stated the clothes which she was wearing were that of the mother of the appellant. Reasons for substituting the clothes as aforesaid by her are not spelt out might be for the reason that she noticed that salwar was not found torn. Further PW4 stated that cloths of the Prosecutrix were taken in possession at Lohari Tikkari in the rest house whereas she stated that these were taken at the house of the appellant. 15. Prosecutrix also gave another story about her clothes that she was wearing School dress when she was kidnapped by the appellant which were got changed by PW6 to which he refused to return. But it is not known as to which dress she was made to wear and this story was newly introduced for the reasons best known to her. 16. Also I find that the Prosecutrix has contradicted on material particulars and has made her statement itself a suspect. When she was alleged to have taken by the appellant in a vehicle to the - 12 - house of his sister, they came across a police Naka at ‘Bajor’ where she did not make any complaint, but stated to them that she was going to get medicines from Chamba. She also deposed that there was 2nd Police Naka at ‘Nakrod’ where police along with her parents were found present and she was taken into custody along with appellant. This fact goes contrary to the initial version of the Investigating Officer who stated that she along with the appellant had come to the Police Station on 5.7.2009 and that her parents were with him on the spot. 17. The next material fact is that the mother of the Prosecutrix (PW3) had consented to get the Prosecutrix medically examined but the Prosecutrix refused for her medical examination and she made an endorsement on the Medico-Legal Certificate at Mark-D to this effect. Significantly, she did not impute any allegation to the Doctor having recorded this statement contrary to her consent when she deposed that she did not say ‘no’ to it. - 13 - 18. She also stated that she did not know Hindi nor she could write in Hindi whereas the above narration in Medico Legal Certificate is in her hand, that too in Hindi under her signatures. 19. Even PW10 Investigating Officer has testified that the Prosecutrix had refused to get her medically examined and refused to go with her parents. Although she stated that she refused to get her medically examined but it was at the behest of Abdul Nazid @ Shukardeen (PW6) but when confronted with her statement Ext. PW10/G this fact did not find mention at all. The aforesaid statement was testified to be correctly recorded by the Investigating Officer whatever she had stated. 20. Prosecutrix also stated that she resisted sexual attempt and she had scratched the face of the appellant with her nails and these injuries were also visible on the next day on 5.7.2009 but pertinently appellant was medically examined on 5.7.2009 but no such injuries were there. - 14 - 21. The salwar which was alleged to have worn at the time of the sexual assault was found in tact and even in the Forensic Science Examination, neither detected blood or semens stains on the wearing apparels of the Prosecutrix nor on the bed-sheet. 22. In the light of the above contradictions, and also in the statement of the Prosecutrix her version has become quite doubtful which cannot be acted upon. 23. The date of birth of the Prosecutrix by her parents is stated to be 11.8.1992 and to that effect, School admission slip Ext. PW9/A has also been placed on record. It did not contain any document on the basis of which entry, the age of the Prosecutrix was written. Although entry in the admission is a relevant evidence under Section 35 of the Indian Evidence Act but it is a different matter as what value should be attached to it, in absence of a supporting document on the basis of which date of birth was reflected therein. 24. Pariwar Register stated to have proved by PW11 Secretary of the Panchayat - 15 - although, mentions about the date of birth of the Prosecutrix and all other children of PW1 Noor Mohammad but basis on which these entries were made therein, lacks support. Even if for the argument sake, the Prosecutrix is to be taken having taken birth on 11.8.1992, even then her age comes to be around 17 years but the circumstances on record show that she had voluntarily left the guardianship of her parents. No force or any type of allurement was ever afforded by the appellant on the day of the alleged occurrence or even earlier to that. The letter alleged to have been sent by her to the wife of the appellant was also not taken into possession by the Police which could have thrown light to reach the truth. Therefore, the offences for which the appellant was convicted are not made out also for the reasons if the statutory language of Section 361 of the Indian Penal Code is gone into, the words “takes” and “entices” are required to be red together so that each takes to some extent its colour and content from the other. As held in Parkash versus State of - 16 - Haryana AIR 2004 SC 227 by the apex Court, the statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 Indian Penal Code. 25. Further Section 366 of the Indian Penal Code is an aggravated form of the offence punishable under Section 363 Indian Penal Code. The basic condition of the applicability of Section 366 is that the person charged must have committed an offence of kidnapping as defined in Section 363 which lacks in the present case. Therefore, in my considered opinion, the judgment of conviction and sentence passed by the learned trial Court is unsustainable hence deserves to be set aside as the prosecution has failed to prove the case against the appellant beyond a reasonable doubt. Accordingly the appeal is allowed and the appellant is acquitted of the charges aforesaid. - 17 - 26. Appellant is in jail serving out the sentence. He be released forthwith, if not required in any other case. The registry is directed to issue the warrant of release of the appellant. Fine amount, if any deposited be refunded to the appellant. September, 6, 2010 (Surinder Singh),J (cm)