Wajid Ansari vs The State of Jharkhand

D.P. Singh, J.—The sole appellant Wajid Ansari stands convicted under Sections 366, 376 and 363 of the Indian Penal Code, and sentenced to serve rigorous imprisonment for a period of ten years under Sections 366 and 376 of the Indian Penal Code to run concurrently, by the 4th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 96 of 2000 / 97 of 2000.

Brief facts leading to his conviction are that the informant and the appellant were residing in village Massiyatu, Police Station-Bero having their house! opposite each other. Further case of the prosecution is that in the morning of 22nd January 1999, Sabiha Khatoon, the daughter of P.W.7 Naeem Ansari and niece of the informant, P.W. 8 Qudush Ansari, has left her house at about 7.00 A.M. to ease herself. Further it is stated that she went towards a nearby hillock from where she did not return. According to the informant, he along with his family members tried to search the girl and came to know that the appellant has forcibly kidnapped Sabiha Khatoon, aged about 13 years and took her away with the help of his family members. It is further stated that she was seen being taken away forcibly by P.W. 5 Md. Moeem Ansari. The informant went to the house of the appellant and enquired from them where about his niece, but they did not disclose him, rather asked him to perform Nikah of Sabiha with the appellant. The informant further stated that the family members of the appellant were also involved in this case in illegal activity.

The matter was reported to Bero Police by the informant in writing on 2nd February 1999, when he came back from his duty, on which Bero Police registered Bero Police Station Case No. 4 of 1999 under Sections 363, 366 and 34 of the Indian Penal Code and started investigation. During course of investigation, the niece of the informant returned to her house on 8th February 1999, who disclosed that she was confined at Varanasi during last thirteen days and subjected to rape by the appellant. The police got the victim examined by a lady doctor and after investigation, submitted charge sheet against six accused persons. The case was committed for trial by the Court of Sessions where charge was framed against six accused persons under Sections 363, 366, and 120(B) the Indian Penal Code. The appellant was further charged u/s 376 of the Indian Penal Code separately. The defence taken by the accused persons is of false prosecution. The appellant further pleaded that he has not committed any rape and the girl has gone out of her free will with him. The learned trial court after examining the witnesses found and held all the five accused persons except the appellant not guilty of any of the offences and accordingly acquitted them. However, this appellant was found and held guilty for the offences under Sections 366, 376 and 363 of the Indian Penal Code for which he has been sentenced to serve rigorous imprisonment for ten years on both count under Sections 366 and 376 of the Indian Penal Code.

The present appeal has been preferred on the grounds that the conviction of the appellant was not maintainable particularly in the circumstances that the learned trial court has not relied upon the prosecution version, implicating the family members of the appellant. It is further asserted that the first information report was lodged after ten days of the occurrence, which resulted in manipulation, and concoction of this case. It is also asserted that the witnesses have contradicted each other on the manner of occurrence and the conduct of the witnesses during this period. According to the learned Counsel for the appellant, the learned trial court has not put any specific question to the appellant regarding the offence under defence. It is further asserted that the entire prosecution version suffers from improbabilities and the trial court should have discarded the unsupported evidence of P.W.6 Sabiha Khatoon. According to the learned Counsel, when the defence version has been accepted regarding false implication of five accused persons, the conviction of the appellant is not maintainable on the statement of P.W. 6. Learned Counsel for the appellant drew my attention towards the conflicting opinion of the medical officer regarding the age of the victim and no injury found on her body to discard the prosecution version that rape was forcibly committed on her. It is further been pointed out that the Investigating Officer was not given any such statement by the witnesses that she was subjected to rape. Therefore, the appellant may also be acquitted from all the charges.

I have gone through the materials available in the lower court records along with the contentions mentioned above. In the present case, it is undisputed fact on record that the first information report was lodged after ten days. The explanation given by the prosecution side is that they were searching the victim and the appellant and his family members being involved in the alleged offence to get the girl recovered for which the villagers were also trying. However, it is come on record that the father of the victim has not lodged this first information report, rather, her uncle P.W. 8, on arrival from duty, lodged the first information report. It is also undisputed fact on record that the informant could learn about the incident on the same day in the afternoon of 22.1.1999 when P.W, 5 Moeem Ansari informed the father of the victim that he saw the appellant taking away Sabiha Khatoon along with one unknown person towards Chanho at the point of pislol. Therefore, the father of the victim knew what has happened. It is also undisputed fact on record that he went to the house of the appellant where he was denied any information. It is further asserted that he tried to mobilize the villagers for early recovery of his daughter and on failing, he got the first information report lodged by his younger brother. It has come from the evidence of P.W. 7 in cross-examination that the appellant was one of the Gotiyas living just in front of his house and he learnt about the incident on 22nd January 1999. The explanation given by the informant (P.W.8) is that the village Anjuman Committee was informed on 22nd January 1999 in his writing vide para-26. He further admitted that he went to the house of appellant in the evening of 22nd January 1999, which shows the informant having full knowledge of the occurrence has preferred not to lodge the first information report for next ten days for the reasons best known to him. The delays therefore, in lodging the first information report for ten days remains unexplained.

In this background when the statement of witnesses are taken up, P.W.I Ayoob Ansari said to be the brother-in-law of the victim asserted that he brought the victim along with appellant to their village on his motorcycle. He did not identify the appellant. The consistent story of prosecution is that this witness has brought Sabiha Khatoon with the appellant to village Massiyatu on 8lh February 1999. P.W.2 Shakoor Ansari has gone in search of Sabiha Khatoon and appellant, who returned after eight to ten days. He has admitted in cross-examination that the entire village knew about the elopement of Sabiha in the evening of 22nd January 1999, but the prosecution did not prefer to report the matter to the police. P.W.3 Md. Mobin Ansari is another hearsay witness of the occurrence. He has asserted that he has gone in search of the girl and met the villagers, after which case was lodged. P.W.4 Samiruddin Ansari asserted that he saw the appellant carrying the victim along with one unknown and taking them towards Khardewari. It is also come from the evidence of P.W. 3 and P.W.4 that the victim has went to village Ganeshpur, residence of her Fuwa. According to P.W. 5, he saw, the victim being carried by the appellant near Dharsila hillock, which is situated at about half kilometer from village Chapri. P.W. 5 has further asserted that he went to the informant and narrated the entire incident, but he has failed to say why he did not try to rescue the victim from the appellant.

As against this, evidence of P.W.6 Sabiha Khatoon, the victim, gives a different story. According to her version, she was forced to go by the appellant at the point of pistol when she had gone to ease herself. She has stated that she was taken by force to village-Chanho, about 25 kilometers. She has asserted that when she was taken away front there, all the family members of the appellant threatened her to get married with the appellant, which is not believed by the trial court. According to her version, from Chanho she went to Chandwa Station, where they boarded a train to reach Dehri and from Dehri, they took a bus to arrive at Varanasi. During stay at Varanasi, she has alleged that she was sexually exploited by the appellant. According to this witness vide para-8, after thirteen days when money with the appellant was spent, they returned to reach Tang Basuri where her brother-in-law (P.W.I) met, who brought both of them to village. According to this witness, appellant thereafter fled away. She was examined by police and medically examined by P.W. 9 on 9th February 1999. This witness has given contradictory evidence during cross-examination. According to her statement, the hillock was situated about three kilometers where she has gone to ease herself. She further staled that in between her house and the hillock, Rahar was planted. She further asserted that Chanho was situated at about 22-25 kilometers from the hillock and she went to Chanho with the appellant on foot. She further admitted that from Chanho, they boarded a trekker to reach Chandawa Station where they remained for about one and half hours to catch the train. According to her own version at about 5.00 A.M., they reached Dehri where she stayed about two hours and thereafter they took a bus for Varanasi. She further stated that at Varanasi she was confined in a room for thirteen days and during this period, she remained in one clothe, but she never tried to resist her being carried by the appellant nor raised any alarms when she got opportunity with the co-passengers or anyone. During cross-examination, this witness has admitted vide para-18 that she has not seen P.W. 4 and P.W. 5 when she was being taken up by the appellant. She has also admitted that she was never assaulted by the appellant nor any injury was caused on her body, externally or internally. She has admitted vide para-20 that she did not try to bolt the door when the appellant had gone outside the room nor she even tried to flee from varanasi and father and mother of the appellant used to stay with them. She has asserted that she indicated the room where she used to live with the appellant to the police. However, this assertion is falsified by P.W. 10, the Investigating Officer, who admitted in cross-examination that the neighbours of the informant did not agree to give evidence; therefore, he recorded the statement of other witnesses. He further admitted vide para-17 that he has not gone to Varanasi to verify where the victim was found. He has not tried to seize the clothes worn by the victim nor sent it for any forensic examination. He even denied that any document showing the date of birth of victim was shown to him, nor he obtained any medical certificate about her age. He has contradicted the victim vide para-28. P.W.9 has examined the victim and found no injury on her body or on her private parts and proved her report as Ext.3. She further admitted in cross-examination that she was not disclosed about any sexual exploitation by. the appellant. She further admitted that a girl with 14th teeth each in upper and lower jaw may be aged above 16 years. According to this witness, spermatozoa may be found even after seven to ten days of the rape, which was not found in the present case.

The other point raised by the learned Counsel for the appellant is that the trial court has committed a mistake of law and fact by not asking any question u/s 313 of the Code of Criminal Procedure regarding alleged rape to him and holding him guilty u/s 376 of the Indian Penal Code. Therefore, denying the appellant opportunity to defend himself properly. On perusal of the recorded statement of the appellant u/s 313 of the Code of Criminal Procedure, it is found correct. No question was put to the appellant in presence of parents of the appellant further causes a doubt in her version that she has been confined in a room for thirteen days without any protest. The learned trial court has disbelieved the version of the evidences to this extent that other accused persons, five in number, participated in the alleged offence of kidnapping as well as confinement of her in a room at Varanasi. The Investigating Officer has not conducted the investigation properly when he admits that he did not verify the truth of statement made by the victim that she was confined in a room at Varanasi. All other accused persons have been acquitted from the charges. The appellant has been convicted on the sole testimony of the victim, which is not found reliable. It is also apparent from the records that the appellant has remained in custody from May 1999 to August 2001, nearly 27 months.

In the facts and circumstances of the case and the evidences discussed above, I find and hold that the prosecution has not been able to prove the charges against the appellant beyond all reasonable doubts.

In the result, I find and held that the present appeal has got merit and is allowed and conviction of the appellant is hereby set aside. The appellant is acquitted from the charge levelled against him and discharged from the liability of his bail bond.