IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1633 of 2001 (Old No. 1991/1996) Saleem & Ors. .…. Appellants/Accused Versus State …………… Respondent March 10, 2010 Mr. Dharmesh Kumar, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 24.10.1996 passed by the Additional Sessions Judge, Roorkee (Haridwar) in Sessions Trial No. 358 of 1992, State of U.P. v. Saleem & Ors., whereby learned Additional Sessions Judge has convicted the accused appellants Saleem & Mangta under Section 363 of Indian Penal Code, 1860 (for short, IPC) and sentenced each of them to undergo R.I. for three years along with a fine of Rs. 1000/- each. Appellant accused Muntazir has been convicted under Section 368 IPC and sentenced to undergo three years’ R.I. along with fine of Rs. 1000/-. It was further directed that in case of default in payment of fine, each of the appellants accused would undergo six months’ additional R.I. However, appellants accused Saleem and Mangta were acquitted of the charges levelled against them under Section 366, 368 & 376 (2) IPC. Appellant accused Muntazir was also acquitted of the charges levelled against him under Section 376(2) IPC. Co- accused Anees was acquitted of the charges levelled against him under Section 363/366/368 IPC. 2. In brief, the prosecution case is that PW1 Zarif lodged a report Ex. Ka-1 on 4.7.1991 at 10 am with PS Manglore with the averments that on 29.6.1991, he had gone along with Fakiro for ‘Bhat’ (a treat held before the marriage of sister’s son at her house). Her daughters Km. Husano (PW3) and Bali were at home. At about 1 am in that night, appellants accused Saleem and Mangta forcibly took her daughter Km. Husano from his house. When his elder daughter Bali raised an alarm, Inamul Haq (PW2) and his uncle Husani etc. came at his house and saw the incident. When the complainant came back to his house, his elder daughter Bali narrated the incident to him. On the basis of this report, chick FIR Ex. Ka-2 was prepared by Head Moharrir Rameshwar Prasad. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-3. 3. Investigation of this case was entrusted to SI Surendra Singh (PW4), who during the course of investigation inspected the place of occurrence and prepared the site plan Ex. Ka-4. The victim Km. Husano was recovered on 5.7.1991 from Roorkee Bus Stand and the recovery memo Ex. Ka-5 was prepared. Site plan of the place of recovery Ex. Ka-6 was also prepared. Thereafter the victim was given in the supardgi of her father and the supardgninama is Ex. Ka-7. The I.O. also prepared the detailed site plan of the place where the victim was kept and rape was committed upon her, that site plan is Ex. Ka-8. Victim Km. Husano was medically examined on 6.7.1991 at 10.30 am by PW4 Dr. KK Mehta, who prepared the medical report Ex. Ka-10. Supplementary medical report Ex. Ka-11 was also prepared. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-9 against the appellants accused under Section 363/366/368/376 IPC. 2 4. Learned Judicial Magistrate, Roorkee after giving the necessary copies of the documents to the accused appellants, as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 2.12.1992. Learned Sessions Judge transferred the case to Additional Sessions Judge for its disposal according to law. 5. Learned Additional Sessions Judge, Roorkee framed the charges against the accused appellants Saleem & Mangta under Sections 363 & 366 IPC on 27.1.1993. Charges against the accused appellants Saleem, Mangta & Muntazir were also framed under Sections 376(2), 368 read with Section 363/366 IPC on 27.1.1993. The charges were read over and explained to each of accused appellants, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Zarif, the complainant and father of the victim; PW2 Inamul Haq, an eyewitness of the alleged incident; PW3 Km. Husano, the victim; PW4 SI Surendra Singh, the I.O. of the case and PW5 Dr. KK Mehta, who medically examined the victim and prepared the medical report and supplementary report Ex. Ka-10 and Ka-11 respectively. 7. Thereafter, statements of each of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned Additional Sessions Judge, Roorkee vide his 3 judgment and order dated 24.10.1996 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 24.10.1996, the convict appellants have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the materials available on the record. 10. Before any further discussion, it would be pertinent to mention the medical report Ex. Ka-10 prepared by PW5 Dr. KK Mehta, who had medically examined the victim Km. Husano (PW3) on 6.7.1991 at 10.30 am and the same is reproduced below: “G./E. – Height – 4 feet 10 inches. Teeth - 7+7/6+6. Weight – 35 kg. Fully conscious, thin built, talking coherently. Axilliary hair present, shaved. Breast fully formed and well developed. No mark of injury on any part of body. Public hair present shaved lalia fully developed. Hymen torned old and healed stained with blood. Vagina admitted two fingers easily, uterus Av, normal size. Slide prepared from the discharge and sent for exam. No mark of injury on private parts. MP – IInd day (having menses for last one year). Under garments stained with blood, handed to constable concerned and to be sealed and to be sent for exam. Adv. (1) Plain XRay elbow + wrist joint for confirmation of age. (2) Vaginal smear exam. for present of sperms. 4 No opinion can be given regarding the rape.” 11. Thereafter on the basis of the X-ray report and vaginal smear examination, supplementary report Ex. Ka- 11 was also prepared by PW5 Dr. KK Mehta on 12.7.1991, which is reproduced as under: “XRay wrist, elbow + knee joints— Centres around elbow fused. Knee – Lower end of femur, upper end of tibia & upper end of fibula not completely fused. Lower end of radius and ulna fused. Radiological age about 16 years. Vaginal smear Exm.- shows no spermatozoa dead or alive. Conclusion – from her external appearance and XRay report her age is about 16 (sixteen) years and no opinion can be given regarding the rape.” 12. To prove the aforesaid medical report Ex. Ka-10 and supplementary medical report Ex. Ka-11, the prosecution has examined PW5 Dr. KK Mehta, who has proved the contents of the same. 13. To further prove its case, the prosecution has examined PW1 Zarif, the complainant who has stated that on 29.6.1991, he had gone along with Fakiro for ‘Bhat’. When he returned to his house, his elder daughter Bali told him that at 1 am in the night, accused appellants Saleem and Mangta forcibly took her daughter Km. Husano from his house. When her elder daughter Bali raised an alarm, Inamul Haq (PW2) and his uncle Husani reached at the place of occurrence and witnessed the incident. This witness has further stated that since the accused appellants had assured him that his daughter would come back to his house, therefore, he did not lodge the report. In the cross-examination, he has stated that he 5 lodged the report Ex. Ka-1 on the heresy and he had not seen the said incident when his daughter Km. Husano was forcibly taken by the accused appellants from his house. 14. PW2 Inamul Haq did not support the prosecution case and was declared hostile. 15. PW3 Km. Husano, whose statement was recorded before the trial court on 14.11.1995, has stated that her age was 22 years at the time of deposition. She has further stated that four years ago she was living in the house of her father at village Kumrari, PS Manglore and now she was living with her husband. Her elder sister’s name was Bali. The accused appellants Saleem and Mangta had taken her forcibly from her father’s house and at that time she did not made any hue and cry and nobody else was present in the house. She was taken to village Meerpur by bus. She did not complain to anybody there. She has further stated that the person at whose house she was kept had informed to her father. The accused appellants committed bad work with her. Thereafter she was given in the supardgi of her family members. The accused appellants had abandoned her. She was medically examined as well as X-rayed at Roorkee Hospital. In her cross-examination, she has stated that police had brought her from Meerpur. At that time, the accused appellants were not present there. She remained at Meerpur for 2-3 days and the accused appellants were not there during that period. She has further stated that accused appellants did not met her until she returned to her house. No bad work was committed with her by the accused appellants at Meerpur. After being forcibly taken from her house, she was first brought at the house of accused appellant Mangta, where she did not made any 6 hue and cry and no bad act was done with her. She has further stated that after the said incident, she remained in her village for three days and she did not tell anything to anybody. She remained at the house of accused appellant Muntazir, where too she did not complain to anybody. Muntazir had taken her from his hosue and she did not raise any alarm in the way. She had gone to Meerpur by bus, where she reached in the evening after sunset. She has further stated that at that time she was 25 years’ old. She has further stated that her father lodged the report on the directions of Pradhan because of party-politics. 16. PW4 SI Surendra Singh, the I.O. of the case, has stated that on 29.6.1991, he was posted at PS Manglore as Station Officer. On 4.7.1991, PW1 Zarif had lodged the report of this incident, on the basis of which chick FIR Ex. Ka-2 was prepared by Head Moharrir Rameshwar Prasad, who also made the necessary entries in the GD. Copy of GD is Ex. Ka-3. On the same day, he inspected the place of occurrence and prepared the site plan Ex. Ka-4. Victim Km. Husano was recovered on 5.7.1991 and prepared the recovery memo Ex. Ka-5. He also prepared the site plan of the house of Anees (co-accused acquitted by the trial court) on the pointing out of the victim, that is Ex. Ka-6. Thereafter the victim Km. Husano was handed over to her father and supardginama Ex. Ka-7 was prepared by Head Moharrir Rameshwar Prasad. He also prepared the site plan of the place where the victim was kept and raped by the accused appellants, that site plan is Ex. Ka-8. Km. Husano was medically examined. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation he filed the chargesheet Ex. Ka-9 against the accused appellants. He has further stated that the victim Km. Husano was recovered from Roorkee Bus Stand. 7 17. Thereafter, statements of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not file any documentary or oral evidence. 18. Learned Counsel for the accused appellants argued that on the basis of the evidence adduced by the prosecution, the case against the accused appellants is not proved beyond reasonable doubt and the trial court has erred in convicting the appellants. I find substance in argument of learned Counsel for the accused appellants for the following reasons: (i) That the sole evidence against the accused appellants is the statement of PW3 Km. Husano, the victim of the case, who has stated in her examination-in-chief recorded on 14.11.1995 that her age was 22 years and four years ago the accused appellants Saleem and Mangta had taken her forcibly from her father’s house and at that time she did not made any hue and cry and nobody else was present in the house. She was taken to village Meerpur by bus. She did not complain to anybody there. She has further stated that the person at whose house she was kept had informed to her father. But in her cross-examination, she has very categorically stated that the accused appellants did not commit any bad work with her. She has further stated in her cross-examination that the police had brought her from Meerpur. At that time, the accused appellants were not present 8 there. She remained at Meerpur for 2-3 days and the accused appellants were not there during that period. She has further stated that accused appellants did not met her until she returned to her house. No bad work was committed with her by the accused appellants at Meerpur. After being forcibly taken from her house, she was first brought at the house of accused appellant Mangta, where she did not made any hue and cry and no bad act was done with her. She has further stated that after the said incident, she remained in her village for three days and she did not tell anything to anybody. She remained at the house of accused appellant Muntazir, where too she did not complain to anybody. Muntazir had taken her from his house and she did not raise any alarm in the way. She had gone to Meerpur by bus, where she reached in the evening. She has further stated that at that time she was 25 years’ old. She has further stated that her father lodged the report on the directions of Pradhan because of party-politics. (ii) That the victim Km. Husano has stated that police had recovered her from village Meerpur, but as per the prosecution case, she was recovered from Roorkee Bus Stand and the difference between these two place is nearly 80 kms, which creates reasonable doubt on the prosecution version. (iii) That the victim Km. Husano herself has stated that she remained in her village for three days after being forcibly taken by the accused appellants from her house but she did not complain to anybody. She remained at the 9 house of accused appellant Muntazir and thereafter she was brought to village Meerpur and thus travelled 80 kms by bus in which a number of people were present and the bus crossed through densely populated places but neither she made any complain in the house of Muntazir nor she raised any alarm in the way to Meerpur. This conduct of the victim indicates that she was a consented party. (iv) That in her examination-in-chief recorded on 14.11.1995 she has stated that her age was 22 years and incident took place four years ago, but in her cross-examination she has stated that she was 25 years’ old at the time of incident. As per the medical report, her age was about 16 years at the time of incident and it is settled law that two years’ margin can be given on either side and if the two years’ margin is given to the higher side, her age comes about 18 years at the time of incident. Thus, in all possible probabilities, she was major at the time of alleged incident. (v) That the PW1 Zarif, the complainant and father of the victim has stated that he lodged the report Ex. Ka-1 on the heresy and he had not seen the said incident when his daughter Km. Husano was forcibly taken by the accused appellants from his house. He has also stated that he had lodged the report on the information of her elder daughter Bali, who was not examined before the trial court, which also creates doubt on the prosecution story. (vi) That the complainant Zarif has stated that her elder daughter Bali was present at the house at the time of incident but the victim Km. Husano 10 (PW3) has stated that nobody else except she herself was present in the house at the time of incident, which also creates doubt on the prosecution story. (vii) That PW2 Inamul Haq, an alleged eyewitness of the incident did not support the prosecution case and was declared hostile and another eyewitness Husani, uncle of the complainant was not produced before the trial court who was named as an eyewitness in the FIR as well as in the chargesheet. (viii) That PW5 Dr. KK Mehta, who medically examined the victim and prepared the medical report Ex. Ka-10 and also prepared the supplementary report Ex. Ka-11 on the basis of XRay report and vaginal smear examination, has expressed his inability to give any opinion about the rape. (ix) That the incident allegedly took place at 1 am in the night of 29.6.1991 and the report of this incident could be lodged on 4.7.1991 at 10 am and this delay in lodging the FIR could not be explained by the prosecution by showing the sufficient cause. This delay in lodging the FIR is also fatal to the case of prosecution. 19. Thus, in view of the evidence discussed above and for the reasons recorded above and in view of the facts and circumstances of the case, the prosecution has miserably failed to prove its case against the appellants accused beyond reasonable doubt and, therefore, the conviction and sentence awarded to the appellants by the trial court is not correct and justified and the same is liable to be set aside. 11 20. In the result, the appeal is allowed. The judgment and order dated 24.10.1996 passed by the Additional Sessions Judge, Roorkee (Haridwar) in Sessions Trial No. 358 of 1992, State of U.P. v. Saleem & Ors., is hereby set aside. Consequently, the conviction of the appellants Saleem & Mangta under Section 363 IPC and sentence awarded to each of them to undergo R.I. for three years along with a fine of Rs. 1000/- each is hereby quashed. Conviction of the appellant Muntazir under Section 368 IPC and sentence to undergo three years’ R.I. along with fine of Rs. 1000/- is hereby also quashed. Appellants are on bail. They need not surrender unless required in any other case. 21. Let a copy of this judgment be sent to the trial court. Let the lower court record be also sent back. (Dharam Veer, J.) 10.3.2010 PRABODH 12