Sabir vs State of U.P.

Ranjana Pandya, J.—Heard learned counsel for the appellant and learned Additional Government Advocate and perused the record of the case.

This appeal has been filed against the judgment and order dated 13.12.2011 passed by the Additional District and Sessions Judge, Court No. 1, Ghaziabad in Sessions Trial No. 275 of 2009 (State v. Sabir and another), under sections 363, 366 and 376(2)(Chha) IPC, Police Station Loni, District Ghaziabad, whereby the accused appellant has been convicted under section 363, 366 and 376(2)(Chha) IPC and sentenced to seven years'' imprisonment each under sections 363 and 366 IPC and a fine of Rs. 10,000/- each, ten years'' RI under section 376(2)(Chha) and a fine of Rs. 20,000/- with default stipulation.

In brief, the facts of the case are that a written report was lodged by Naseem Uddin, which was scribed by Anil Kumar, stating that the informant was resident of C-821 Monika Vihar, police station Loni, district Ghaziabad. On 28.10.2008 at about 6.00 p.m. his daughter Rukhsar aged 15 years went to the market to purchase some house-hold goods, but she did not return. On enquiry, the informant was told that the accused Sabir and Riyazul alias Gopal had taken her away to Delhi. Both the accused persons were known to the informant as they used to come to his house. On the basis of this written report, the case was registered at Case Crime No. 1604 of 2008 and investigation was entrusted to S.I. Rajendra Chandra Pandey, PW-5. He started the investigation, copied the copy of the report and chik in his case diary. Later on, he recorded the statement of the victim, witness Naresh, inspected the spot, prepared the site plan and proved it as Ext. Ka-5 and submitted charge sheet against the accused and proved it as Ext. Ka-5.

The prosecution examined total five witnesses. PW-1 is Naseem Uddin, who is the complainant and father of the victim. He proved the report as Ext. Ka-1. PW-2 is Ansaro Khatoon, who is the mother of the victim. PW-3 is the victim of the case. PW-4 is HCP, Gajendra Kumar, who prepared the chik report and proved it as Ext. Ka-3 and made entries in the G.D. and proved it as Ext. Ka-3. After examination of all the five witnesses, prosecution closed his evidence.

The statements of accused persons were recorded under section 313 Cr.P.C., in which they denied the occurrence and stated that they have been falsely implicated in this case on incorrect facts. They have not adduced any evidence. Learned lower court on the basis of evidence on record and after hearing the parties convicted the accused as aforesaid.

Feeling aggrieved, the accused-appellant preferred this appeal.

Following points were raised before this Court:

"* The FIR is delayed,

* The evidence of witnesses does not inspire confidence,

* Victim was a consenting party. Hence, the judgment is bad in the eyes of law."

(i) The FIR is delayed

As far as the FIR is concerned, the occurrence is said to have taken place on 28.10.2008 at 6.00 p.m. The report was lodged on 30.10.2008 at 20.30 hours. The distance of the police station from the place of occurrence being 3 kms. In this regard Naseem Uddin, PW-1, the informant has stated that when he tried to find out about the whereabouts of the girl, he came to know that Sabir and Riyazul alias Gopal had enticed away the girl. The FIR is not very happily worded. Hence, it would be proper to revert to the statement of the informant, PW-1 Naseem Uddin, who had stated that his daughter was missing since 28.10.2008. He was trying to trace out his daughter when some people told him that the accused had taken away his daughter. In these cases of missing of young girls are concerned, generally the family members are hesitant in lodging the FIR, because the reputation of the family is at stake. Hence, if the informant was busy in tracing his daughter and lodged the report on 30.10.2008. I do not think this to be a delay, which would affect the prosecution.

(ii) The evidence of witnesses does not inspire confidence

As far as the witnesses of fact are concerned, there is no mention of the names as to who saw the accused taking away the girl. In the FIR also it has not been stated that that who told the informant that the accused-appellant took the girl. When PW-1 Naseem Uddin was cross-examined on this point, he stated that two people told him that the accused had taken the girl, but he did not know their names. Ansaro Khatoon, PW-2 is the mother of the victim, who had said that some unknown persons stated that her daughter had gone by three wheeler with the accused. No doubt, all the witnesses of fact are related and interested witnesses, but it is settled law that the evidence of related and interested witness has to be read with caution. The evidence of related and interested witnesses cannot be scored out only on the ground of they being related to the victim.

(iii) Victim was a consenting party

As far as the occurrence is concerned, PW-3 is the star witness being the victim herself. Rukhsar, PW-3 has stated that on the fateful day, Sabir met her and he said that he could get the victim a good job at Delhi. He took her to Delhi at Subhash Nagar, where she was raped by Sabir and Riyazul alias Gopal. When she resisted, she was threatened to be murdered. She has further stated that the accused bit her on her cheeks. According to this witness, she was kept in the room for two days. This witness was cross-examined by the defence, in which she has stated that she did not think it necessary to take permission from her parents to go to Delhi with Sabir. She has also admitted that she went with him on her own accord to do some job, but Sabir took her to the house of Riyazul alias Gopal. She has further stated that Riyazul alias Gopal did not entice her, but Sabir enticed her away. She has admitted that she went with Sabir initially by Auto. She got down on the bus stand and then went to Riyazul''s house. There is no reason why she did not raise alarm during this period. This witness has further stated that when she was raped she became unconscious. Reiterating her statement, she has again stated that she went with Sabir on her own accord. Thus, the conduct and statement of the victim has recorded by the trial court does not inspire confidence. The mother of the victim, namely, Ansaro Khatoon has said that when the girl was found, she had teeth bites on her cheeks, but there is no medical report to support the same. The doctor was also not produced before the court.

As far as the age of the victim is concerned, the learned lower court has mentioned her to be about 14-15 years, but how the learned lower court came to this conclusion is not very convincing, inasmuch as the learned lower court in para 30 of the judgment has specified that the report of the medical officer is on record, but the medical report as submitted by the doctor as regards the age of the victim is concerned, it is admissible under the provisions of section 293 Cr.P.C. it appears that the learned trial court mislead and misconstrued the provisions of section 293 Cr.P.C., which reads as follows:

"293. Reports of certain Government scientific experts.

(1) Any document purporting to be a report under the hand of a Governments scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.

(4) This section applies to the following Government scientific experts, namely:--

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

[(b) the Chief Inspector of- Explosives;]

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director,[Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.

(g) any other Government scientific expert specified, by notification by the Central Government for this purpose.]"

According to section 293 Cr.P.C. definitely a report submitted by the doctor cannot be used as evidence in the trial without it being proved. In this background, it is clear that there is nothing on record to prove the age of the victim. Much to the surprise of the court, there is no medical report of the victim. Only supplementary report is available on record, which shows how carelessly this trial has been conducted by the trial court.

Be that as it may, the position as it stands on the file is that there is no medical evidence on record and the oral evidence on record is wholly unreliable, not worthy of credence and conviction cannot be based on such shaky and unreliable evidence.

Consequently, we conclude that the prosecution has miserably failed to prove the case against the accused and charges levelled against the accused beyond reasonable doubt, as such the accused is entitled to be acquitted and the appeal is liable to be allowed. Hence the impugned judgment of conviction and sentence dated 13.12.2011 passed by the Additional District and Sessions Judge, Court No. 1, Ghaziabad in Sessions Trial No. 275 of 2009 (State v. Sabir and another), under sections 363, 366 and 376(2)(Chha) IPC, Police Station Loni, District Ghaziabad is hereby set aside.

Accordingly, the appeal is allowed.

The appellant is in jail. He shall be released forthwith in this case. The provision of Section 437-A Cr.P.C. shall be complied forthwith.

Let a copy of this order be sent to the Chief Judicial Magistrate concerned for compliance of the order.