State of HP vs Fajaldeen

R.B. Misra, J.—The present criminal appeal has come up for consideration after the leave to appeal has been granted u/s 378(3) of the Code of Criminal Procedure, in reference to judgment dated 26.10.2004 passed by learned Chief Judicial Magistrate, Chamba, District Chamba in Crl. Case No. 62-II of 2002, thereby acquitting the respondent / accused for the offence u/s 377 of the Indian Penal Code.

The prosecution case is that one child (victim, name not given), while playing on roof of his house at village Dhiloi was taken by the accused/respondent to the field on 19.8.2001 on the pretext that the victim would be provided cucumber. In the field, after opening his own pent, accused committed carnal intercourse with the victim. Despite crying for help, none being available came to the rescue the victim. After commission of crime, accused left the place and victim returned to his house and disclosed this fact to his mother after two days. The matter was reported to the police. After investigation, the accused was charged for the aforesaid offence.

In order to prove its case, prosecution has examined as many as 14 prosecution witnesses whereas, through his statement u/s 313 Cr.P.C, accused/ respondent denied the prosecution case and adduced one defence witness Babu Ram.

Victim/(PW-2) was examined by (PW-10) Dr. K.L. Sharma while he was working as SMO, ZH, Chamba, who observed that there was injury in the anus in interior. No bleeding was observed. In the opinion of PW-10, injury was the result of an act of sodomy and the probable duration of the injury was of 72 hours. PW-10 further stated in the cross examination that he clinically examined the victim and did not perform any test. PW-10 further stated that if a person fall on sharp hard wood or maize, stick/stumps, then such injury is possible. (PW-12) Dr. Om Parkash, while posted as Medical Officer in CHC, Kihar, examined the victim and issued MLC Ext PW-12/B and for final opinion, victim was referred to ZH, Chamba PW-12 observed 2 x 2 centimeter scratch on the right forearm and after perusing FSL report, Junga Ext PA, victim was found the subject of sodomy. PW-12 in cross-examination has suggested that he has checked up the complainant after 22 hours and at that time, victim had taken bath. PW-12 further stated that on 22.8.2001, he examined the accused/respondent Fazaldeen, who was found to be capable of performing sexual intercourse.

(PW-1) Abdul Mazid, father of victim, stated that he is having six children and victim was studying in 2nd class. On the fateful day of 19.8.201, between 12.30 PM to 1.00 PM, he received a telephonic call that quarrel of his son took place and when he returned back, his brother had taken the victim to police station. On asking, victim told that he was playing on the roof, from where he was taken away by the accused to the field on the pretext of providing cucumber and there accused opened his own pent and pent of victim, penetrated his penis into anus of the victim. After five minutes leaving victim, the accused escaped and after checking PW-1 found that the blood was oozing from the rectum and injury had occurred in rectum. PW-1 further stated that he did not witness while his victim son was being taken by the accused and has also stated in the cross-examination that there are 2-3 houses adjacent to his house and not 15/20 houses and at the time of unnatural sexual assault, his son cried, none came at the spot as nobody was available. PW-1 has also stated that the father of the accused has lodged a case against him and his wife in the court of SDM and for the last 3-4 years, they are not in good terms. PW-1 has, however, stated that small children lifted his victim son from path. PW-1 further stated in cross-examination that he had lifted barricade from the field of accused and in respect of land, there is a quarrel and further stated that pent of his victim son was taken into possession by the police. The victim (PW-2) at the time of examination was about 9 years of aged and has given satisfactory reply to the questions asked by the Court and, therefore, it was concluded by the court that the victim understands the consequences of making his statement in the court, thereby he was permitted to be examined without oath.

(PW-2)/ victim deposed that when he was plying on Kotha of his house, he was taken by the accused to the field under the pretext that he would be provided cucumber. After taken in the field, accused opened his pent and the pent of victim and by putting inside the penis in anus, sexual intercourse was committed with him regarding which he informed his mother. The victim felt pain and has stated that his pant which he was wearing at that time was taken into possession by the police as Ex P1. (PW-2) has disclosed the commission of crime to his mother after two days. PW-2 has further deposed that the house of Habib and Gopal and 4-5 other houses are adjoining their house and his parents also reside in that house. PW-2 has also stated that 50-60 persons reside nearby. However, when the offence was committed, he raised cries, but none came to his rescue.

(PW-3)/ Malo, mother of the victim has deposed that carnal intercourse was committed by the accused with her son who told her regarding this. Blood had also oozed from the anus of victim. PW-3 has clearly stated that she was not present on the spot, but the facts were revealed to her. PW-3 has further deposed that they are not having good relations with the family of the accused. PW-3, however, has also stated that she took the victim son to the police station later on. In the cross-examination, she stated she had not gone to police station and had also stated that the sexual assault was not done in front of her and such incident was revealed by her son. PW-3, however, has shown her ignorance about any case pending against her or her husband Abdul Mazid in the court of SDM. (PW-4) Ashraf Mohd has stated that he has witnessed of taking possession of pant and shirt of the victim and also put signature on the seizure memo. (PW-5) Ibrahim has stated that he was told that the accused has committed criminal intercourse with the victim. PW-5 further deposed that no blood was seen by him oozing from the anus of the victim, however, he was declared hostile and the leading questions which could be asked in the cross-examination were permitted to be asked from him. In cross examination, PW-5 further deposed that nothing happened in his presence. PW-5 has, however, in cross-examination has stated that Abdul Mazid, father of the victim, has told him that the accused has committed carnal intercourse with his son and the blood was oozing from his anus and the villagers had assembled at that time and the accused has accepted his guilt.

(PW-6) Tilak Raj was regarding production of the pant of victim through his father, however, he deposed that nothing happened in his presence. (PW-6) admitted his signatures on Fard Ext PW-6/A which is stated to have been prepared by the I.O when the pant was taken into possession. (PW-7) Raj Deen has deposed that regarding commission of offence he was told by mother of victim. However, he was declared hostile. Despite leading questions which could be asked in the cross-examination were permitted to be asked. In cross-examination, PW-7 deposed nothing against the accused. (PW-8) Sharif Mohd has deposed that he was told by Malo (PW-3) that the accused had committed carnal intercourse against the order of nature with victim. PW-8 has stated that he went to the spot subsequent to commission of the offence and found that the blood was oozing from the anus of the victim. However, admittedly, he was not present on the spot where occurrence took place. (PW-9) Sumitra, Panchayat Sahayak is a formal witness. Nothing is emanating from her testimony. (PW-11) Ravinder Pal, ASI, PS Kheri has acknowledged that on 20.8.2001, PW-1 came with his victim son and lodged FIR Ex PW-11/A and after giving medical examination PW-10/A, MLC Ext PW-10/B was received by him. PW-12 and PW-13 are other official witnesses. (PW-14) Kadrar Ali, who was an Investigating Officer, has endeavoured to support the prosecution case.

On analysis of the prosecution witnesses and materials on record, though it appears that the family of victim was not in good terms with the family of the accused. However, this inimical aspect may affect both ways. As such, the prosecution witnesses are to be seen carefully. The victim minor has deposed that while playing on the roof, was allured by the accused, taken in the field and was victimized for unnatural offence in the hands of accused. Though as per his testimony, PW-2 victim has come on his own from the place of incident, contrary to the statement by PW-1 Abdul Mazid, the father of the victim stated that children brought the victim from the path. On medical examination both PW-10 and PW-12 have indicated that unnatural offence, i.e. the internal injury in the anus of the victim was the result of sodomy and red colour was also noticed in the anus on medical examination. The FIR was not lodged immediately, however, after two days, as per the information given by the victim to his mother, the same was lodged. There is no proper explanation for delay in filing the FIR. First medical examination of the victim was conducted on 20.8.2001 and PW-10 conducted medical examination on 21.8.2001, where no bleeding was detected. In the opinion of PW-10, injury was found in the anus which was said to be the result of act of sodomy and the injury could have been caused within 72 hours. (PW-10) has also further created a doubt by saying that if a person falls on sharp hard wood or maize, stick/stumps, then such injury is possible. Statement of PW-10, therefore, creates doubt that unnatural offence has been made against PW-2. As per PW-1, after the alleged carnal intercourse or unnatural offence with PW-2, blood was oozing from the rectum, whereas no such thing had been stated by PW-2/victim. As stated by PW-2, 50-60 persons reside nearby and despite his raising cry, none has come to rescue him, also cannot be believed. As when PW-2/victim was being taken by the accused to the field, it also cannot be believed that many of the persons residing nearby could not have observed the accused taking the victim to the filed. When PW-2 has divulged the incident after two days to his mother (PW-3)/Malo Devi and has not told anything about the blood oozing from the rectum, then how PW-3 could have asserted that blood had oozed from the anus of the victim consequent upon unnatural offence. It reveals from the testimony of PW-1 and PW-3 that the family of the victim is not in good terms with the family of the accused as father of the accused had lodged the case against father and mother of the victim and such case is pending in the court of SDM.

In the facts and circumstances, the testimony of PW-2/victim cannot be believed as he has not divulged his mother promptly about the fact that blood had oozed from the anus of the victim. Such fact was narrated by PW-1, father and PW-3, mother which is not corroborated by the medical evidence. Both PW-1 and PW-3 had not seen the occurrence. In fact, none has seen the occurrence. PW-10 though had observed red marks in the anus of victim but his opinion creates doubt when PW-10 further opined that if a person falls on sharp hard wood or maize, stick/stumps, then such injury is possible. For persistence of enmity on record, the prosecution case also becomes doubtful. Despite taking into possession shirt and pant of the victim, no spot was found on such cloths.

In these circumstances, the prosecution story becomes doubtful. In our considered view, findings and verdict of the learned Chief Judicial Magistrate requires no interference. The criminal appeal, being devoid of merit, is accordingly dismissed.

Bail bonds, furnished by the accused/respondent, are hereby discharged.