Mohd.Imran Khan vs State(Govt.Of National Cap.Ter.Of ...

3. On the basis of his statement, a case under Section 363 IPC was registered and investigation ensued. It was during the investigation Monika, prosecutrix was recovered. The appellants-

4. Monika, prosecutrix was medically examined to determine her age and to find out the possibility of commission of rape. The appellants were also examined medically. After conclusion of the investigation, the matter was committed to Sessions Court and trial commenced. Prosecution examined as many as 16 witnesses in support of its case. The defence examined 4 witnesses. Mohd.

Imran Khan, first appellant also examined himself under Section 315 Cr.P.C. After conclusion of the trial, the Trial Court vide judgment and orders dated 29.5.1999 and 31.5.1999 convicted the appellants under Section 366 IPC read with Section 34 and sentenced them to undergo RI for 4 years and a fine of Rs.2,000/- each. In default of payment of fine, they would undergo SI for two months. Both the appellants were further sentenced under Section 376 IPC to RI for 7 years and a fine of Rs.3,000/- each. In default of payment of fine, they would undergo SI for 3 months. However, both the sentences were directed to run concurrently.

5. Being aggrieved, both the appellants preferred separate Criminal Appeal Nos.311 of 1999 and 312 of 1999 which have been disposed of by the common impugned judgment and order dated 8.12.2009, by which the High Court acquitted both the appellants of the charges under Sections 366/34 IPC, but maintained their conviction under Section 376 IPC. However, the sentence under Section 376 IPC was reduced from 7 years to 5 years each and to pay a fine of Rs.10,000/- each failing which to undergo SI for 3 months.

8. Per contra, Shri P.P. Malhotra, learned ASG appearing for the State of Delhi has opposed the appeals contending that Monika, prosecutrix was below 16 years of age on the date of incident. She remained under persistent threats from the appellants. Therefore, she could not raise hue and cry. The concurrent finding of facts 5 regarding rape by both the appellants does not warrant any interference. The appeals lack merit and are liable to be dismissed.

The accused kept their respective knives on the back of the prosecutrix in such a manner that neither the passengers nor the bus conductor could notice of their activity. She was taken to Hotel Ajanta in Meerut where the appellant Jamal Ahmed made the entry in the Hotel register and took her to room no.101. At the time of making entry in the Hotel register by accused Jamal Ahmed, accused Mohd. Imran Khan stayed with the prosecutrix throughout. Both the accused persons committed rape upon her in that room. Next day in the morning she was taken by the accused persons to the house of the sister of one of them and from there she was brought to Delhi to the house of elder brother of appellant Jamal Ahmed. Both the accused persons committed rape upon her in that house. They had put their knives on her back in such a manner that other persons could not notice them. She could not raise hue and cry while coming from Meerut to Delhi as she was totally in a position of shock and the accused appellants threatened to kill her in case she raises voice or tries to run away. On 27.11.1989 she had been locked inside the 7 house as the appellants had gone away and after coming back in the evening she was raped by both of them. On 28.11.1989 both the appellants left the house and returned in the evening along with elder brother and brother-in-law of accused Imran. These two persons had taken the prosecutrix to a flat behind G.B. Pant Hospital where she found both the appellants present. After sometime, police recovered her from that place and she was sent for medical examination. Her statement was recorded under Section 164 Cr.P.C. on 29.11.1989.

Both the appellants denied their involvement while their statements under Section 313 Cr.P.C. were recorded. Some defence witnesses were examined, however, relevant witness had been appellant Imran Khan who has examined himself as DW.5 under Section 315 Cr.P.C.

In our considered opinion, such arguments may be relevant in case we reach the conclusion that the findings of fact recorded by the courts below on the issue of age of the prosecutrix and commission of rape could not be factually correct and were liable to be set aside.

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550) In view of the above as we have seen the original record produced before us, we are of the considered opinion that the prosecutrix was less than 16 years of age on the date of incident.

It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the "birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix."

19. Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O.

(PW.15) particularly in view of the birth certificate available on the record. In view of our finding in respect of the date of birth we are of the view that Puran Singh, I.O. (PW.15) unfortunately made an attempt to help the accused/appellants, though in the examination-in-

The appeals lack merit and are, accordingly, dismissed.