State of Himachal Pradesh vs Mohd. Ali

Justice Deepak Gupta, J.—This appeal by the State is directed against the judgment, dated 5.9.2003, passed by the learned Sessions Judge, Sirmaur at Nahan, H.P., in Sessions Trial No. 13-ST/7 of 2003, whereby he acquitted the accused Mohammad Ali of having committed offence under Sections 363, 366, 376(2)(g) and 506 IPC, and acquitted the respondents Babloo Singh and Harmail Singh of the offence of having abetted the accused Mohammad Ali. Brief facts of the case are that telephonic information was received in Police Station, Sadar Nahan at 12.00 noon. This telephonic information was received from an anonymous person, who informed the police that three boys have come in a red Maruti Van bearing No. HR-01K-4381 with one girl. They had taken the girl on foot on a path into the jungle. This information was recorded in the daily diary vide Ext. PW-D/A and thereafter the police officials went to the spot where they found the girl but all the accused managed to run away. The statement of the prosecutrix Ext. PW- 3/A was recorded. In this statement, the prosecutrix alleged that she was taking some treatment for an eye ailment at the hospital at Nahan. Her father works in a factory at Parwanoo and normally she used to come to the hospital with her mother. However, on 25th January, 2003, she came alone to Nahan at about 11.30 a.m. Near the Bus Stand, when she was waiting for a bus going towards Gunnughat, one person came to her and told her that he could give her a lift in his Van to the place she wanted to go. She refused, but he insisted that he would drop her and on his insistence, she boarded the red coloured Van. At that time, two Sikh gentlemen were also sitting in the Van. As soon as the Van started, one of the Sikh gentlemen told the driver to take the Van towards Cantt. area. One of the Sikh gentlemen, who was fat, was addressed as Babloo and the thinner Sikh gentleman was addressed as Tuch. The three persons threatened her that she should not raise an alarm and if she did so, they would kill her. She, therefore, got scared and remained silent. When they reached the Cantt. area, near a temple, where there was an idol of Lord Shiva, the Van was stopped and all the three persons caught hold of her and took her into the jungle. The driver told the two Sikh gentlemen that they should stand on the road and look out for the persons who are going on the road and he would call them after some time. The driver took the prosecutrix towards the bushes, opened the string of her Salwar and had sexual intercourse with her without her consent. Thereafter, the driver wanted to call the Sikh gentlemen, but in the meantime, the police officials came from the upper side and on seeing the police officials, all the three accused ran away towards the jungle.

On the basis of this complaint, the FIR Ext. PW-10/F was recorded and the prosecutrix was got medically examined at the Hospital at Nahan. The accused were also arrested and thereafter, the challan was filed and the accused were arraigned for having committed the offences aforesaid.

At the outset, from the version of the prosecutrix itself it is clear that she neither knew the driver nor the two Sikh gentlemen, when she met with them. True it is, that she stated that she could identify these persons but other than saying that one of the Sikh gentlemen was being called Babloo and the other Tuch, she gave no detailed description. Be that as it may, the fact remains that even after the accused were arrested, no test identification parade was held, which was required in the present case. The prosecutrix, while appearing in the Court, has clearly stated that she could not identify the Sikh gentlemen. Therefore, as far as these two accused persons are concerned, there is not a shred of evidence against them.

As far as the driver Mohammad Ali is concerned, it is apparent that he is the driver of the Van in question. The owner of the Van Balwant Singh stepped into the witness box as PW-5 and has clearly stated that the accused Mohammad Ali was his driver and he had told the owner that he was taking the Van because he wanted to go home to take meals. Thus, there is some evidence to link this accused with the Van. Even if we accept that Mohammad Ali was the driver of the Van and that he had sexual intercourse with the prosecutrix, it was incumbent upon the prosecution to either show that the sexual intercourse was without the consent of the prosecutrix or that the prosecutrix was below 16 years of age and, therefore, unable to give her consent.

From the narration of the facts given above, it is apparent that the prosecutrix boarded the Van at Delhi Gate, Nahan. This is a crowed portion of Nahan Town and she has admitted that there were a number of shops which were open at that time. Why should a young girl get into a Van with a person whom she does not know? Even her statement that she had come for treatment to the Hospital does not inspire confidence. She herself states that she used to come alongwith her mother for treatment. 25th January is Himachal Statehood day and it is known to all that it is a holiday. In her statement recorded u/s 154 Cr.P.C., she does not state that she actually went to the hospital or that she found out from somebody that the hospital was closed since it was a holiday. It was only when her statement was recorded in the Court that, for the first time, she came up with the version that in the bazaar she asked whether the hospital is open and then came to know that the hospital was closed since it was a holiday.

The Van went from Delhi Gate to the Cantt. area via Bus Stand and on the way also, no alarm was raised. However, here the prosecutrix does give an explanation that she had been threatened by the accused and, therefore, did not raise an alarm. This explanation may hold good when she was inside the Van, but would not hold good when she was taken out of the Van again in an area of the Town which had residences and a temple and then taken to the jungle about 500 meters. This distance could not have been traversed in less than 5 minutes and she had ample opportunity to raise alarm. Therefore, it appears to us that she had gone willingly and of her own consent with the accused. This brings us to the most important question as to the age of the prosecutrix.

The prosecution alleges that the prosecutrix was less than 16 years of age and reliance in this behalf is placed on the school leaving certificate Ext. PW-8/A in which her date of birth is shown to be 5th October, 1987, which would make her 15-1/2 years of age at the time of occurrence. However, PW-8 Y.S. Chauhan, who produced and proved this school leaving certificate, has clearly stated that the same has been issued on the basis of the entries made in the admission and withdrawal register and those entries were made by one Sunita Bhardwaj. It has not been explained as to on what basis the entries were made in the school register.

PW-2 Dr. D.V. Kulkarni has proved the skeletal age of the prosecutrix and according to him, the age of the prosecutrix could be between 15 to 16-1/2 years and in cross examination, he has clearly admitted that there could be variation of two years on either side. The prosecutrix in her statement on oath had not given her age or her date of birth. In the other documents on record i.e. the statement u/s 154 Cr.P.C. Ext. PW-3/A, the age of the prosecutrix is recorded as 17 years. Similarly, in the MLC, her age is recorded as 18 years. In these circumstances, it would be imprudent to hold that she was below 16 years.

The statement of the prosecutrix also does not inspire confidence because there is one inherent flaw in her statement. Whereas according to the prosecutrix previously she never had sexual intercourse, according to the medical evidence of PW-9 Dr. Ravinder Kaur, the prosecutrix was habitual to sexual intercourse. In view of above discussion, we find no merit in the appeal filed by the State, which is dismissed.