Abrar @ Bhura vs State of U.P.

Hon''ble Imtiyaz Murtaza, J.—Challenge in this appeal is to the judgment and order dated 15.11.2010 passed by Additional Sessions Judge/F.T.C VIII, Lucknow, whereby appellant has been convicted u/s 376 I.P.C and sentenced to undergo imprisonment for seven years and a fine of Rs. 10,000/- and in default of payment of fine further imprisonment for one month. The informant in the instant case is Mohd Atique, the father of the prosecutrix. The FIR in the case was registered at case crime no 213 of 2009 with the allegations that the appellant who was his neighbour and was residing in the same building in which he was residing with his family, situated in the field of Purana Haiderganj Maurya enticed away his daughter aged 15 years on 19.4.2009. It is further alleged that the appellant Abrar originally belonged to Pilibhit and he was residing in the said building on rent alongwith his family consisting of wife and six year old daughter. On the basis of the written report, the FIR was lodged at case crime No. 213 of 2009 under Sections 363, 376 I.P.C. After the conclusion of the investigation charge-sheet was submitted in the Court and in due course, the case was committed to the Court''s of Sessions. The Sessions Judge framed charges u/s 363, and 376 IPC.

The prosecution in order to prop up its case, examined P.W-1 Atique, father of the victim, P.W-2 Victim, P.W-3 Vishwamitra, P.W-4 Dr. Smt. Subodh, P.W-5 S.I. Ramesh Singh and P.W-6 Arun Kumar Dubey.

The case of the defence was one of denial and claimed that he was falsely roped in the case.

The Sessions Judge after delving into the materials on record and appraising the evidence adduced by the prosecution, recorded verdict of conviction against the appellant as aforesaid. It is in this conspectus that the present appeal has been preferred.

I have heard at prolix length, Km. Shameem Jahan Amicus Curaie on behalf of the appellant and Smt. S.Sachan learned A.G.A appearing for the State.

The learned counsel for the appellant has assailed the findings recorded by the trial court submitting that the victim was a consenting party and false allegations have been leveled against him. It was further argued that the Sessions Judge did not properly appreciate the evidence on record. Per contra, the learned A.G.A canvassed for correctness of the judgment recorded by the trial court.

In order to properly appreciate the contentions of the parties counsel, it is necessary to examine the evidence on record.

P.W-1 Atique has reiterated the allegations set out in the F.I.R and deposed that incident took place on 19.04.2009 around 6 O'' clock in which the appellant had enticed away his daughter and thereafter, she was subjected to sexual assault. He along with his family members had made assiduous search for his daughter but she was no-where traceable. On 06.06.2009, he came to know that appellant was on way to Idgah crossing Aishbagh alongwith victim and believing this information correct, he along-with the police personnel arrived at Idgah crossing on 07.06.2009 and it was in between 5.30 and 6.00 that they saw that his daughter and Abrar were going on a rickshaw. The police intercepted and detained them. The victim was sent for medical examination and thereafter her statement was recorded by the police. He had proved the written report (Ext.Ka-1).

In cross examination, he stated that his daughter was not fully unlettered but had received some education. He also stated that he could not produce any testimonial in support of her age. He also stated that her daughter Sana was born from his earlier wife. He also stated that he had not scribed the written report but it was scribed by someone else. He could not tell the name of informer who informed about the whereabouts of his daughter. He also stated that when his daughter was recovered, she had told that she was forcibly taken away. He denied the suggestion that he ever battered her daughter on her indiscretion. He also stated that he used to eke out his livelihood by pulling Rickshaw and that he had no addiction. He denied the suggestion that he or step mother ever beat Sana and it was on this count that she rescued herself from further harassment. He also denied the suggestion that on the day on which the victim escaped, she was subjected to severe beating and was starved. He also denied the suggestion that on the day of occurrence, he and his wife had come back to the house at about 12 in the night.

P.W-2 is victim in the instant case. Her deposition in substance is that at the time of incident, she was residing in old Haiderganj in the house owned by one Rais along with her parents in which Abrar was also a co-tenant in the same building. She also deposed that she was enticed away by Abrar and she was taken to his village where she was kept for about a week. During this period Abrar had outraged her modesty and thereafter she was taken to Delhi and then, she was brought to Lucknow. She was medically examined. She has corroborated her statement recorded u/s 164 Cr.P.C. She has also proved her statement recorded u/s 164 Cr P C which is marked as Ext. Ka-2 and her recovery memo which is marked as Ext. Ka-3.

In the cross examination, she stated that she was married off after 11 months of the occurrence. She denied that appellant ever took liberty with her. She also denied that she was intimidated by Abrar but stated that she was seduced into escaping with him. She also stated that she had woken up at 5 or 5.30 am and at that time, all persons in the house were fast asleep. She also stated that she was taken in a tempo alongwith other passengers and that in the village, she was kept in a secluded room. She denied that she was forced by Abrar to have intercourse with him. She also denied that her hands or feet were tied at the time of sexual intercourse. She denied that she was consenting party and stated that she resisted the appellant but her resistance went unheeded. She also stated that at the time resisting, her cloths were slightly torn but where from she got the cloths, she could not recollect. She also stated that she had cried resisting the appellant and she also tied to ward him off her. She also stated she was subjected to sexual assault on two or three occasions in a day. She also stated that her mother had died and Seema was her step mother. She also stated that when she was recovered, she was about to board the rickshaw. She denied that her step mother ever ill-treated her. She stated that she was intimidated by Abrar if she dared to depose against him.

P.W-3 Constable Vishwamitra has proved the factum of lodging of the F.I.R and also G.D entry which are marked as Ext. Ka-4 and Ext. Ka-5.

P.W-4 Dr. Smt Subodh had medically examined the victim and she had noted following opinion.

Axillary and pubic hair developed, Breast well developed. L.M.P is 15 days beak( according to victim).

Ext. Exam-No mark of injury seen on any part of the body.

Internal Exam-No mark of injury seen on private parts.

Hymen torn, old healed, admits two fingers, vaginal smear was taken and sent for examination.

P/v-uterus-Nullipaxon size, firm, fix clear.

No bleeding p/v seen.

The Doctor opined the age of the victim to be about 17 years. However, she stopped short of giving any opinion about rape.

In cross examination, she stated since there was no trace of sperm, hence no opinion about rape could be given. She also stated that she based her opinion about age in the light of x-ray report. She also stated that the victim seemed habitual to sexual intercourse.

P.W-5, S.I Ramesh was the police officer who initially investigated the case and after investigation, he had submitted charge-sheet against the appellant.

In cross examination, he reiterated all those details about raiding and about recovery. He also stated that he tried his best at the time of recovery of the girl, to persuade independent witnesses but none of them was willing to appear as a witness in the case. He explained that he did not take off cloths of the girl as she had no alternative cloths. He however stated that during all this period, the victim claimed to be wearing the same cloths. He denied the suggestion that the accused was arrested from his house. He also denied the suggestion that the victim had gone with the accused on her free volition.

P.W-6 Sri. Arun is the second Investigating Officer who had submitted charge-sheet against the appellant which is Ext.Ka-10.

This witness was also subjected to gruelling cross examination. He denied the suggestion that he had filed charge sheet merely on the basis of statement recorded u/s 164 Cr.P.C and also on the basis of medical report.

The main brunt of the contention advanced across the bar by the counsel for the appellant is that the victim was major and that she was consenting party studded with the contention that the statement of the victim in court should not be believed as it was a tutored statement and she was deposing under the pressure exerted by her family. It was further submitted that the trial court has erroneously held victim as minor. To buttress his submission, the counsel for the appellant placed credence on the case of Alamelu and Another Vs. State represented by Inspector of Police, wherein it was observed

In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW 8 Dr. Gunasekaran. However, the High Court failed to notice that in his evidence before the court, PW 8, the x-ray expert had clearly stated in the cross-examination that on the basis of the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.

In addition, the High Court failed to consider the expert evidence given by PW 13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognised by this Court in Jaya Mala v. Govt. of J & K. In the aforesaid judgment, it is observed as follows: SCC p. 541, para 9

... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.

We may further notice that even with reference to Section 35 of the Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in Ravinder Singh Gorkhi v. State of U.P. which held as follows: SCC p. 595, para 38

The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.

(emphasis supplied)

In such circumstances, we are constrained to hold that the High Court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was a minor at the time of the alleged abduction. There is no satisfactory evidence to indicate that she was a minor.

I have carefully considered the evidence on record and considered the submission of the counsel for the appellant. The medical examination report (Ex Ka 9)of the victim shows that on the basis of her x ray examination her radiological age was about 17 years and no definite opinion about rape was given. The Sessions Judge has wrongly assessed the age of the victim as less than sixteen years. Except medical evidence there was no evidence to conclusively prove the age of the victim. The statement of the father of the victim regarding age of the victim is contradicted by the x ray examination report. The prosecution has been failed to prove that victim was minor at the time of incident in question.

Now the next question is whether victim was forcibly abducted or she was a consenting party as submitted by the learned counsel for the appellant. I have carefully considered her testimony. She deposed that she and appellant were tenants in the house of Rais. On the date of incident appellant had enticed her away and kept her in her village for about one week. During this period he used to commit rape. Thereafter,he brought her to Lucknow for taking her to Delhi.. Near Aishbagh her father had seen them and police also arrived and both were apprehended.In the cross examination she had admitted that she was enticed away by the appellant and she was not threatened by him. She was taken away ona tempo and other passengers were also sitting in the tempo. From village she had travelled on a bus and several passengers were sitting in the bus and she did not disclose to anyone. Again she was cross examined about three months and she had deposed that when she was taken away by Abrar she stated that Abrar had extended threats and while she was being taken away by Abrar he was catching hold of her hand and he was holding a knife in his hand. She has changed her earlier statement and deposed that she was taken to a bus stand by a rickshaw. Earlier she had stated that she had traveled on a tempo. She had stayed with Abrar for about one and one and a half month. From a careful scrutiny the possibility of victim being a consenting party can not be ruled out. The victim stayed with the appellant for a considerable long time and she did not raise any alarm or tried to escape from the clutches of the appellant. She had several opportunities to raise alarm but she did not. She had traveled on public transport where admittedly several passengers were present but she made no effort to attract them. She was seen by her father and thereafter she was apprehended along with the appellant. The entire conduct of the victim shows that the victim was a consenting party and the learned Sessions Judge has wrongly appreciated the testimony of the victim. In view of the above the appeal is allowed the judgement and order of the trial court is set aside. The appellant is in jail he shall be released forthwith if not wanted in any other case.