Hoshiyar Singh and Another vs State of U.P.

S. Prasad, J.—This is a criminal revision against the judgment and order dated 5-3-1986 passed by the V Additional Sessions Judge, Mathura in Criminal Appeal No. 98 of 1985 (Hoshiyar Singh and Anr. v. State) dismissing the appeal of the revisionists filed against the judgment and order dated 21-12-85 passed by the II Assistant Sessions Judge, Mathura in Sessions Trial No. 123 of 1985, whereby the learned Assistant Sessions Judge convicted and sentenced the accused Hoshiyar Singh and Nihal Singh to undergo three years rigorous imprisonment u/s 366 IPC and further sentenced accused Hoshiyar Singh to undergo five years rigorous imprisonment and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo three months rigorous imprisonment u/s 376 IPC.

The facts of the case briefly stated are that on 13-10-82 Bhagwati Prasad, father of Km. Saroj went to the Bus-stand along with her to see her off for his sister''s place. He returned after seeing her off at the Bus-stand on 13-10-1982. His younger son Satish came from Alwar, the place of his (Bhagwati Prasad''s) sister, and told him that Km. Saroj had not reached there. Consequently Bhagwati Prasad started tracing her in the village and at some of his relative''s places, but she was not traceable. It is on 22-10-1982 that Ranjeet Singh and Biri Singh told him that they had seen Km. Saroj along with Hoshiyar Singh at the Milan Talkies. Consequently a report was lodged against Hoshiyar Singh and on that basis a case was registered against him. The police started investigation and recovered Km. Saroj on 21-10-1982 from the house of Devi Ram within the circle of police station Gonda in the presence of Hoshiyar Singh, Devi Ram, Kare Singh Pradhan of village Rajawal and a Sub-Inspector of the police station Gonda. The recovery memo was prepared and was signed by the two accused and the witnesses present there. Thereafter the girl was produced for medical-examination on 22-10-1982 in the Women Hospital, Mathura. She was examined by Dr. Nisha Srivastava. After completion of investigation into the case, the chargesheet was submitted against Hoshiyar Singh, Devi Ram and Nihal Singh.

The learned Assistant Sessions Judge charged the accused Hoshiyar Singh under Sections 366 and 376 IPC and Nihal Singh and Devi Ram u/s 366 IPC. The accused pleaded not guilty to the charges framed against them. They have stated that they have been falsely implicated on account of enmity. The defence of Hoshiyar Singh is that Km. Saroj married him in the presence of Radhey Shyam and certain others. This was resented by her father Bhagwati Prasad who has falsely implicated him.

The prosecution examined Jugdish Sharma (PW 1), Dr. Nisha Srivastava (PW 2), Ajai Kumar (PW 3), Satya Dev Yadav (PW 4), Bhagwati Prasad (PW 5), Ranjit Singh (PW 6), Km. Saroj (PW 7), and Hukum Singh Yadav (PW 8) and relied upon certain documents in support of its case.

The accused-revisionists examined Govind Prasad and Radhey Shyam and relied upon certain documents in support of their contentions.

Having heard the learned Counsel for the parties and having considered the evidence on record, the learned Assistant Sessions Judge, Mathura convicted and sentenced the accused-revisionists as mentioned above and acquitted Devi Ram vide his judgment and order referred to above. The accused-revisionists preferred an appeal which was dismissed, hence this revision.

I have heard the learned Counsel for the parties and have perused the record.

Dr. Nisha Srivastava PW 2 had examined Km. Saroj and prepared the medical report Ex. Ka-2. This report, inter alia, runs as under:

Height-155 CM.

Teeth 7 plus 7/7 plus 7.

No external marks of injury seen any where on the body.

Gair was normal.

Axillary hair black in colour and not cut.

M.C. 5 days back.

Breast well developed and no mark of injury.

Uterus normal size, Hymen reptured, two fingers passing through vegina with pain. No marks of injury on private part.

Thigh could be easily separated.

P/S NAD.

According to Dr. Nisha Srivastava, the age of the girl was 17 years. She has stated that a definite opinion about the rape or intercourse could not be given It may be mentioned that there may be variation in age of two years on either side. This proposition of law cannot be disputed. Therefore, the instant is a border line case. In view of all this it is difficult to say with any amount of certainty that the prosecution had succeeded in proving beyond reasonable doubt that the girl was not above 18 years of age at the time of occurrence. The contention of the learned Counsel for the revisionists to this effect finds support from the case of Mushroo alias Rustam - Appellant v. State of U.P. - opposite party reported in (XXII) 1985 ACC 387.

It is alleged that Bhagwati Prasad, who is father of the girl, had taken her to the Bus-stand to see her off for his sister''s place. He had seated her in the Bus. He had remained there for about ten minutes. Thereafter, he came back to his house. But no Bus ticker was purchased by him or the girl. She got down from the Bus after her father''s departure from the Bus-stand. She was taken by the accused to their sister''s house. She also accompained them to the Milan Talkies to see the cinema. She had remained in the house of Devi Ram, brother-in-law of the accused. She has stated that the accused had threatened her showing knife to her. But there is nothing as such in her statement u/s 161 Code of Criminal Procedure. She had ample opportunity at different places to make complaint against the accused. But she did not do so. There are documentary evidence to show that she married the accused Hoshiyar Singh, although she denied this fact. But all the facts and circumstances, if carefully considered, go to point out that she was a consenting party. The contention of the learned Counsel for the accused, revisionists to this effect appears to be correct.

The learned Counsel for the opposite party has argued that concurrent findings of fact have been recorded by the courts below and therefore, the same can not be interfered by this Hon''ble Court in revision. The learned Counsel for the revisionists has, on the other hand, placed reliance upon The State of Gujrat - Appellant v. Rasulmiyan Ahmedmiyan Malek - Respondents ( XXVII) 1990 ACC 303 wherein Dudh Nath Pandey Vs. State of Uttar Pradesh, has been referred to, the Hon''ble Supreme Court has quoted the observations made by it in Dudh Nath Pandey''s case as under:

The mere circumstance that two or more courts have taken the same view of facts does not shut out all further inquiry into the correctness of that view. Concurrence is not an insurance against the charge of perversity though a strong case has to be made out in order to support the charge that findings of fact recorded by more than one court are perverse.

Therefore, the contention of the learned Counsel for the opposite party to the contrary is not tenable.

In the result the revision is allowed. The impugned judgments and orders passed by the courts below are set aside. The accused-revisionists are acquitted of the charges framed against them. They are on bail. Their bail bonds are cancelled and sureties stand discharged.