Shamshad @APPELLANT@Hash State Of Uttarakhand

Sudhanshu Dhulia, J

This criminal jail appeal has been filed by the appellant against the judgment and order dated 20.09.2013 passed by the learned 2nd Additional

Sessions Judge, Roorkee, District Haridwar in Sessions Trial No.196 of 2013, in which the accused/appellant has been convicted under Sections 363

and 376 (1) of the Indian Penal Code (from hereinafter referred to as the “IPCâ€). For the offence under Section 363 of IPC, the appellant has

been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `1,000/- and three months additional simple

imprisonment in case of default in payment of fine. For the offence under Section 376 (1) of IPC, he has been sentenced to undergo seven years of

rigorous imprisonment and to pay a fine of `2,000/- and six months additional simple imprisonment in case of default in payment of fine. Trial Court has

directed that all the sentences shall run concurrently.

Facts, in brief, are that a First Information Report was lodged on 29.03.2013 by the father of the victim i.e. PW-1 stating that his daughter who is 15

years of age had gone to learn “knitting†at 1pm on 20.03.2013, and since then she is missing. He tried to search for her, made inquiries from his

relatives, but in vain. He suspected that it is the appellant who has kidnapped his daughter. The FIR raises a finger of suspicion on the appellant since

he used to visit informant’s house. It is also alleged that the appellant is a tantrik and indulges in black magic. When the appellant was confronted

on phone by the informant, he gave evasive replies. The victim was ultimately recovered on 05.04.2013. There are different versions as to the

recovery of the victim. According to the police, they caught the victim in company of the appellant on 05.04.2013 at Roorkee Railway Station,

whereas the victim in her examination-in-chief and cross-examination states that it was the appellant who had brought her to the police station. We

will revert to this aspect in a while.

On the date of her recovery, the victim was medically examined at Primary Health Centre, Mangalore. Her medical report does not disclose any

abnormality in her behaviour. The medical report states that there is no injury on the body of the victim, either internal or external. There were no

injuries on her genitals and private parts. Thereafter radiological examination was also done in order to determine her age. On the basis of the

radiological examination, the doctors determined the radiological age of the victim to be above 18 years. On the same day i.e. on 05.04.2013, the

statement of the victim was recorded under Section 164 of CrPC. In her statement under Section 164 of CrPC, she states her age to be 16 years. She

further states that she has studied up to class 8th and on 20.03.2013 at 1 pm she had called the appellant and willingly gone with the appellant. She

went to a place called Mirzapur, which is in Saharanpur, where she stayed with the wife of the appellant and their six children. The appellant treated

her like his own daughter and did nothing wrong with her and now she wants to go with her parents.

On these set of facts where there is no allegation of rape, in the first information report, nor is there any such suggestion in the medical report, in

fact to the contrary the statement of the victim under Section 164 of CrPC totally exonerates the appellant, it is surprising as to how charges under

Section 376 of IPC could have been framed against the appellant in the first place. The question would also arise whether on this evidence of the

prosecution the trial under Section 376 of IPC was liable to proceed against the appellant.

Nevertheless, initially the first information report was lodged against the appellant under Sections 363 and 366 of IPC but the police filed the

charge-sheet against the appellant under Sections 363/366-A and 376 of IPC and subsequently charges were also framed by the learned Sessions

Judge, Haridwar under Sections 363/366-A and 376 of IPC.

The prosecution in order to establish its case has examined as many as six witnesses.

PW-1 is the informant and father of the victim who repeats the allegations made by him in the first information report. On being cross-examined as

to why the first information report was lodged belatedly, as the FIR was admittedly delayed by about 9 days, he simply answers this was so as initially

efforts were made to inquire the whereabouts of the girl from near relatives, but when they failed to locate the girl, they suspected kidnapping of the

girl at the hands of the appellant then the FIR was ultimately lodged on 29.03.2013. The incident though is of 20.03.2013.

This witness does not inspire confidence as his statement is conflicting as the first information report itself clearly suggests that the informant was in

touch with the appellant throughout. He has said in the first information report that he was inquiring from the appellant over the phone and the last time

he talked to him was on 28.03.2013 i.e. barely a day prior to the lodging of the first information report. He states that first information report was

lodged only when the appellant refused to answer the call of the informant.

The testimony of the victim herself, which was made on 23.08.2013 as PW-2 is important. She takes a completely different view and gives

statement in her examination-in-chief that she did not go with the appellant on her own free will, but rather on the fateful day when she was going to

learn knitting, the appellant met her on the way and asked her as to where she was going to learn “knittingâ€. The appellant then said that he will

take her to a place where she will learn the knitting very quickly. Then she got into the vehicle which the appellant was driving. Later she wanted to

resist, but the appellant used a substance which made her unconscious. She further states that appellant took her to Mirzapur which is adjoining to

Saharanpur district, where she was repeatedly raped for 14 days by the accused/appellant. On being questioned as to who brought her to the police

station, she says that she was taken to the police station by the appellant.

The story narrated by the prosecutrix is doubtful. When being questioned as to why she did not raise an alarm as the place from where she was

allegedly taken by the appellant was a crowded place, she refuses to answer.

There is also contradictory version as to the recovery of the prosecutrix. Whereas as per her own statement, it was the appellant who took her to

the police station, however, as per the police, the victim was recovered from the Roorkee Railway Station from the custody of the accused/appellant.

Other witnesses in this case are merely formal witnesses.

Initially, when this matter had come up before this Court, the Court appointed Mr. Mohd. Safdar, Advocate as the Amicus Curiae. The appellant

as of now is on bail which was granted by this Court on 13.07.2017.

Heard learned counsel for the parties and perused the records.

I am of a considered view that on the basis of the evidence which were there before the trial court, even the charges ought not to have framed

under Section 376 of IPC, as there was no material or evidence with the prosecution. There is no mention of rape in the FIR. Her medical

examination does not say about rape and more importantly neither in her statement under Section 161 of CrPC nor under Section 164 of CrPC she has

said anything about rape. No doubt, the victim in her statement in the Court as a witness and cross-examination has made clear allegation of rape

against the appellant and this Court is also conscious of the fact that the conviction can be based merely on the strength of the sole testimony of the

victim provided that the same inspire the confidence to the Court. In the present case, as discussed hereinabove, the statement of the victim does not

inspire confidence for many reasons. Firstly, the prosecutrix has taken a complete somersault in her statement under Section 164 of CrPC recorded by

the Magistrate, where she has given a categorical statement that she was not kidnapped by the appellant. Secondly, there is no satisfactory

explanation as to why she did not raise an alarm when admittedly she was being taken from a crowded area. Moreover, there are no injuries on the

body of the prosecutrix and the trial court has not considered the medical report which was liable to be considered in which the age of the girl was

stated to be more than 18 years and yet the trial court convicted the appellant for rape ignoring the discrepancies in the statements of the prosecutrix.

While determining the age of the prosecutrix, the trial court relied upon the documentary evidence rather than medical evidence. The trial court has

clearly gone wrong on this aspect. In the first information report the age of the girl is 15 years. The victim in her statement under Section 164 of CrPC

has said that she is 16 years of age, whereas in her examination-in-chief she disclosed her age to be 14 years. No reliance can be placed on it. The

trial court ought to have considered the medical age of the victim which is 18 years, as it is a settled principle of law that the medical evidence in these

cases should be the chief consideration.

Even the offence under Section 363 of IPC is not made out against the appellant as evidently it is not a case of kidnapping considering that the

medical evidence which is conclusive enough to show that the victim was more than 18 years of age at the time of incident and therefore it cannot at

all be termed as a case of kidnapping. From the set of evidence which have been narrated hereinabove, it cannot be a case of abduction either as

there was neither any force applied nor there was any act of deceit which could have made out the offence of abduction.

In view of the above observations, the present criminal jail appeal succeeds and is hereby allowed. The judgment and order dated 20.09.2013

passed by the learned 2nd Additional Sessions Judge, Roorkee, District Haridwar is set aside. Conviction of the appellant is quashed. The appellant is

acquitted of all the charges leveled against him. The appellant is already on bail and he need not surrender unless wanted in any other case.

Let the lower court record be sent back to the court concerned.