Shamsher @ Shamsheer vs State Of U.P.

Hon'Ble Abdul Shahid, J.

Heard learned counsel for the appellant and learned A.G.A for the State.

The present criminal appeal has been preferred against the judgment and order dated 2.12.1986, passed by learned Xth Additional District and Sessions Judge, Moradabad in Sessions Trial No. 136 of 1986 (State Vs. Shamsher, convicting and sentencing the appellant to undergo three years RI under Section 366 IPC and seven years RI under Section 376 IPC with a fine of Rs. 2000/-.

The brief prosecution story is begin on the basis of Ext. Ka-1/ written complaint, submitted by father of the victim, Babu Ram son of Bhhullar Dhimar, before the police station Galshaheed District Moradabad on 12.11.1985 under Section 363, 366 IPC.

It is stated in the said complaint/FIR by the complainant that at around 11.00 a.m, my daughter/victim has been abducted by Shamsher/appellant, who is doing work of scrap at Moradabad. He allured my daughter and the daughter has taken Rs. 1,500/- and two pairs of Pazeb alongwith her. The incident has been seen by Ram Swaroop and his son Sita Ram. I had searched her, but when failed to get any information, then I am submitting this written complaint. On the basis of said complaint the FIR was registered.

PW-1/victim has recorded her statement before the learned trial court on 21.7.1986. She has stated that around 6-7 month ago, it was 11.00 a.m, the accused present in the court came to my house. There was nobody present in my house. My parents were at hotel. My father runs a hotel in front of Dr. Malhotra Hospital in a open land. I have a brother of three years, who was also at the hotel. The accused Shamsher had told me that your mother has met with an accident near Chaddha Palace and stated that she should come with him. He also told that my father had already reached there. I have took Jewellery of my mother and box of Rupees and went with the accused/appellant. After moving from the home when, I reached on the road then the accused has seated me on a Rickshaw. He took me on Rickshaw towards Wajid Nagar. When I had objected then he shown me a knife and stated that he will hit with that knife if you made any voice. He had kept the knife on my 'Kokh' (Womb). The accused took myself at the gate of Sambhal. He seated me in a 'matador' and taken to Sambhal. He has forcibly seated me in the matador and taken to Sambhal. He kept me Sambhal for about 8 days. He continuously changing the house. Where he has committed the act which is committed by a man with a woman. He has inserted his private part into my private part. He has committed this act forcefully and without my will and consent. After 8 days, he brought back me to Moradabad. The accused was taken me in a Rickshaw in Harpal Nagar. My father met in front of Prathama Bank. After seeing him, the accused left the Rickshaw and fled away and my father took myself.

The victim has further stated that police personnel had conducted my medical examination on the next day in the Government Hospital. When the accused took myself, at that time my age was 15 years. I have only sister and one brother. I am not educated. I do not know whether my parents were married 25 or 30 years ago. I am unable to tell that after how many years of marriage of my parents, I was born. I know the accused person prior to one year of the incident, when he came to my hotel for eating. I occasionally used to go at my hotel. When I visited to the hotel, no talk was took place with the accused. The accused came to my house one or twice alongwith my father.He came to my house 3-4 months ago of the incident. When he came to my house, neither stayed at my house nor eat. The accused came to my house alongwith my father to take iron, no conversation took place on that day of myself with the accused. I got to know name of accused and his father when he took myself. I am unable to tell name of his father. Even today I do not know name of his father.

The victim has further stated in his deposition that it is true that where I am residing, there is a congested populated area. There are several persons knowing to my father, who resides surrounded to my house. When I got this information that my mother had met with an accident then I had not told about it to anybody. On hearing the news of accident, I was not disturbed or weeped. This conduct of the victim is absolutely unnatural.

She further stated that I had closed the door with the lock as well as lock on the main door of the house. I am not aware what is the distance between my house and the hotel. I do not know that at how many distance from my house I took the rickshaw. When I left my home, there were several persons moving on the road. I had not tell to anybody that my mother has met with an accident. I was weeping at that time when I had left the house.

This statement is contradictory to her previous statement, where she has stated that she was neither was wept nor disturbed.

She has further stated that nobody asked her why she is weeping. I do not know each and every ways of Moradabad at the time of incident. I was not aware ways of Chaddha Cinema, Bus Stand from my house. I had seen Wajid Nagar. Wajid Nagar is at what distance and where is situated from my house, I could not tell. I do not know area of Wajid Nagar. Firstly, I reached Wajid Nagar by Rickshaw, when I reached Wajid Nagar then it was day time and there were several persons were moving. I had asked him where is my mother. I had started weeping and refused to go with him. When I had raised alarm, none of the person had asked the accused why you are taking her. It is unnatural act and is not appeared to be natural, where an unknown person is taking a girl and the girl is weeping and raising alarm and it was day time and none of them had asked the accused or objected.

She has further stated that the accused had told to her that if you raised alarm then I will kill you then I went silently. This conduct of the victim cannot be ruled out that she was a consenting party. She further stated when she sit in the Matador, there were 10-20 persons present in it. Till I reached the Sambhal, several other persons came in the said Matador. I had never told to any person that the accused is taking myself forcefully, neither I had raised any alarm nor voices in the Matador, when I had reached stand at Sambhal, there were several persons met to myself. I had not told to any of them that the accused person is forcibly taking to myself, when we start from my home then police station Galsaheed will lie in between. Police Station Katghar is also lying in the way.There is also a police chowki at the Tempo Stand. I had not told anything with the police.

She has specifically stated that I took myself money and Pazeb; the accused had told me hence I had brought it. Whereas, initially she has stated in his deposition that when she got information that her mother had met with an accident, she took the Jewellery and Cash Box from her house. She has stated that the accused has not taken anything from the house. The accused were doing work of iron at Moradabad and he was residing separately to his parents. He used to come in my hotel occasionally. It is belied to state that accused were keeping his money with my parents. The accused had said nothing to myself till incident. I do not know where accused took myself at Sambhal. He kept myself in the house. There were 6-7 persons residing in said house. I could not tell name of any of them. There were also ladies, children other than 6-7 persons. I had not made any complain to either with male, women and children. When accused was committing bad act with myself then I throw my hand and legs. At that time I had wearing 7-8 bangl es of glasses; due to throwing of my hand and legs, my bangles were broken and there were mark of injuries. There were several incised wound in my whole body. Even, thereafter I had not made any complain to anybody. I had shown all these marks which was on my body to the Doctor. When bad act was committed with myself then blood was oozed out and blood was also stained in my clothes as well as on the bedding and that clothes, I had shown to the inspector. The Inspector did not took that clothes in his possession and after seeing it, he returned the same. Nothing was oozed out except the blood. She has further stated that she came alone from Sambhal and thereafter she told that she was not came alone. Whereas, she has stated in her statement that she resides for 8 days at Sambhal and thereafter returned alone, she did not raise any voice or alarm in between to anybody where she has passed public places and houses of public were there, where male, female and children were also residing. She further stated, it is true, but it is unnatural act and conduct of the victim.

She further stated that I do not know where he was taking to myself from Sambhal as he had not told initially to her that where he will go and taking myself. He brought myself to Moradabad from Sambhal by way of Matador. There were 25-30 persons in the said Matador. I had not told to anybody about anything. Firstly, I had told about the incident to the inspector, when I returned then at the same day at 12.00 noon, I reached the police station.

This statement reflects that she returned alone to Moradabad from Samb hal by way of Matador and thereafter she directly went to the police station at 12.00 noon. She further stated that she reached police station Galsaheed, there were several persons known to myself went to myself to the police station. They have not told this that this is a Muslim boy and you are Hindu and why you had gone with him. The person, who known to me has stated that boy is Muslim. None of them has asked why you went with him. When I went from Moradabad, thereafter on 9th day my medical examination was conducted. My medical examination was conducted once, whereas her medical examination was conducted twice. Thereafter she has been referred for x-ray to determine her age and a supplementary report has been prepared.

She has further stated that when she has been medically examined, the blood was oozing out from my private part. It is belied to state that the accused person had not abducted myself and I had went with him on my own free will. It is belied to state that due to pressure of my family I am recording this false statement. She has specifically stated that her marriage was performed after the incident.

PW-2 – Babu Ram, who is the father of the victim. His statement has been recorded before the learned Trial Court on 25.8.1986. He has stated in his examination-in-chief that six months ago around 11.00 a.m in the day, the accused abducted my daughter. I am running a hotel of tea and bread. I and my wife both were working at the hotel on the day of incident; myself and my wife were at hotel and the victim was alone at the house. I have another son, who also came with me at the hotel. I have no other children. Ram Swaroop and Sita Ram had told me that they were seen my daughter with the accused Shamsher at 11.00 a.m. I had searched my daughter, but did not find her. I had scribed the report by Sita Ram and verified by him as Ext. Ka-1. My daughter took one box in which one pair and 1500/ cash was there. He further stated that my daughter met near Bus Stand alongwith accused Shamsher, it was 6.00 p.m in the evening. At that time, Najakat and Javed met to myself. After seeing us the accused Shamsher left the Ric kshaw and fled away. Whereas the victim has stated that she came to Moradabad by Matador and thereafter she went to police station Galshaheed directly. Even, this witness has stated that she did not find the accused and he fled away from the spot and he found his daughter alone. Further, he has stated that Javed and Najakat and myself took the daughter and went to the police station, thereafter completed the requisite formalities and the victim has been delivered to him. Medical examination of the victim took place on the next day.He further stated that my marriage taken place 20-25 years ago. The victim was born after 8 years to my marriage and prior to her, my five children had died. The first child was born after 3 years of the marriage and second after 1 year thereafter. It is belied to state that no child were born prior to her. He further stated that I had not myself saw the accused of taking the victim with him. He has stated that I used to go hotel in the morning and return in the night. He further stated that he know the accused 2-4 years ago to the incident because he used to eat in my hotel. Occasionally, the accused also visited to my house. On that day at 1.00 p.m I had got information that my house was locked and my daughter was not there. I had searched my daughter, but could not find her.

On asking of the court, he replied that I had searched my daughter after registration of the report. He stated that he has searched his daughter at Sambhal and Rampur also. He stated that he had searched his daughter for 8 days, he knows the name of the accused and he is also residence of Sambhal, but he did not know the name of his father and Mohalla. He has not mentioned the name of his Mohalla in the report. He further stated that I do not know that how this name of Mohalla Barielly Sarai is mentioned in the report. It also shows that father of the victim was well aware of the address and the details of the accused, that is why he has mentioned name of his Mohalla as Barilley Sarai.

He had further stated that he went to Sambhal and at the time of reaching in the house of accused, raid took place on 4th day of the incident, but no information of my daughter was made at Sambhal, whereas her daughter has stated that she had been remained in Sambhal with the accused for 8 days. He has further stated that the place of recovery of the victim was an open market. There were several shop keepers were siting and none of them became witness. It reflects that the recovery as stated by the father of the victim is neither true nor correct. He further stated that the place where my daughter was found, it is stated to be Prathama Bank and my hotel is 500 paces away from that place. When my daughter met then there was no blood oozing from her body. There was no injury of incise on her body. There was neither any stained of blood on her clothes. Hence, statement of the victim and the statement of father of the victim both are contradictory and not corroborating to each other.

It is belied to state that age of my daughter is more than 18 years and I am knowingly concealing it. It is also belied to state that accused person was residing in my house and he provided income to us. It is belied to state that my daughter had went by her own will and made false report. He has stated that I had broken the lock of the house and shown the broken lock to the Inspector.

PW-3, Sadaqat Hussain. He is alleged to be witness of recovery of the victim. He has stated that when on the noise and alarm, my eyes were gone o n the Rickshaw then victim was alone in that Rickshaw. He stated that this place is congested populated area and there were also heavy traffic. He further stated that we stayed 5-7 minutes at that place and we left that Rickshaw. We had not asked name and address of Rickshaw man. I reached the police station after half an hour after reaching the victim at the police station. My signature was obtained at the police station on one paper. I had not saw the face of the person, who fled away from the spot. It is belied to state that being acquaintance of father of victim, Babu Ram, I am recording my false statement. It is also belied to state that no recovery of the victim was took place before myself.

He has stated that when his eyes was gone of Rickshaw, the victim left the Rickshaw and he did not saw the accused. Even, he did not saw face of the person, who fled away. Hence, his evidence is not specific against the accused person for his identification.

PW-4, Dr. Ranjana Agrawal. She has conducted the medical examination of the victim on 21.12.1985 at 12.45 p.m. She has been referred for determination of her age to District Hospital. She has identified her medical examination report as Ext. Ka-3. She has also recorded her statement about X-ray and Vaginal smear report, where she has submitted her supplementary report. She concluded that no opinion about rape can be given as the lady is used to sexual intercourse. The age of the girl is about 17 years, which is verified by her as Ext. Ka-4. She has stated in the court that at the time of examination of the victim, she did not find any mark of incised wound or any kind of abrasion on her body. She did not find any bleeding in the private part of the victim. She has also stated that I had written age of the victim after seeing fuse of ulna, it varies from person to person because it depends upon the food habit and their living style. As per medical jurisprudence, the age of the victim may be six months more. The father of the victim did not find any spot of liquid or blood stained on the clothes of the victim Hence, statement of the victim that there were incised wound on several parts of the body of the victim and there were blood was oozing out from her private part and there were blood stained and other liquid stained in her clothes, it is neither corroborated with the statement of her father nor with the medical report of the victim nor corroborated with the statement of the Dr. PW-4, who had conducted the medical examination of the victim.

The check report is Ext. Ka-5 and GD is Ext. Ka-6 which are verified by PW-5 head Constable Vijender Singh. The memo of recovery of the victim is Ext. Ka-7. He is a formal witness.

PW-6, K.N Pushkar, who is the Investigating Officer of the said case. He has stated that the investigation of this case was provided to SI, AK Dixit on 12.12.1985 on the date when the case was registered, but he has suffered injuries in his hand, hence on 13.12.1985, the investigation has been given to him. He has stated that he has inspected the place of the incident and prepared the site plan and verified it as Ext. ka-7. He has stated that after completion of the investigation, the charge sheet has been filed against the accused, Shamsher and verified it as Ext.Ka-8.

In his cross-examination, he has stated that it is not in his memory whether said FIR was registered in his presence or not. He has specifically stated that neither SI A.K Dixit nor myself were went outside Moradabad for investigation in this case. The girl told me that where accused took her, that place she did not know and she had forget it.

As per prosecution story, the accused took the victim from Moradabad to Sambhal and she resided there for 8 days and thereafter on 9th day, she returned to Moradabad, but the IO never visited to Sambhal, hence Investigating Officer has not conducted the proper investigation.

He has stated that I had not saw the broken door or broken the 'kundi' of main door of the house of the complainant, whereas father of the victim has stated that he has shown the broken lock to the IO. Hence, statement of PW-2/victim is also not reliable to this count. He has further stated that I have recorded the statement nearby to the complainant, but they all have stated that they were not present on the spot. Their wives and children were not present at the spot. The house of the complainant is situated in the congested area. The victim has shown her clothes and has stated that she had come after bath and cleaning to herself. He has specifically stated that he did not saw any blood stained on her clothes. He did not took possession of her cloth es. There was neither any spot nor stained of blood on them. Hence, the statement of the victim that there was blood stained on her clothes are not corroborated with the statement of Investigating Officer. Even, the blood stained clothes were not even shown by the victim to the IO as per deposition of the IO before the learned trial court. He has further deposed in her cross-examination that whatever proceedings, I had conducted, I had not mentioned the timing of those proceedings in the case diary. He has specifically stated that the father of the victim was not shown broken lock to him, hence statement of the father of the victim is totally contradictory to the statement made by the IO. It is belied to state that with the collusion of the complainant, I had completed the entire formalities at the police station with fabrication.

PW-7, Dr. A.K Gupta, Radiologist, who has conducted the X-ray report of the victim and verified his report as Ext.Ka-9 and verified X-ray plate as Ext. 1. He has specifically stated in his cross-examination that on fuse of elbow joint, the age may be above 16 years. I have not mentioned anything about age of the victim in my report. I send my report to the doctor, who refers.

The statement of the accused has been recorded under Section 313 Cr.P.C . He has denied all the charges and evidences, which is proved by the prosecution against him. He has stated that due to enmity and by way of confusion, he has been false implicated in the present case.

There is no substantive piece of evidence regarding age of victim on record. There are Radiological report, X-ray report, X-ray plate as well as medical examination report of the victim. Neither any injury of incised nature nor any other kind of injury on the body of the victim and oozing of blood was found on the body of the victim. As per the opinion of the expert, the age of the girl as per Radiological report is about 17 years. Doctor further strengthened her opinion about Radiological report that it may be further six month be added to the age of the victim.

The evidence of PW-1 and PW-2 father and victim and the IO are not corroborated to each other. The act of the victim is showing that she is well understood the nature of act and she has went with the accused with her own consent and resided at Sambhal for continuous 8 days with him. In between it, she did not raise any alarm or tried to make any complain with anybody, where she has found several persons present there.

The Four Judges Bench of the Hon'ble Supreme Court in Rajak Mohammad Vs. State of Himachal Pradesh; 2018 (9) SCC 248 held that where nothing substantive evidence is on record and there is only radiologist report is available on record and the prosecutrix had remained with the appellant for 12 days moving free and met several people at different points of time, but she did not complain of any criminal act on the part of the accused-appellant, hence the Supreme Court held that the possibility of the prosecutrix being a consenting party cannot be ruled out.

The Supreme Court has further held that the evidence of doctor, radiologist, who has given opinion that age of the prosecutrix was between 17-18 years. While, it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused. Hence the Supreme Court held that in the present case, the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out.

The Hon'ble Supreme Court has, therefore, concluded that the accused appellant deserves to be acquitted on the benefit of doubt. The Supreme Court, consequently, set aside the order of the High Court and the conviction recorded as well as the sentence imposed and acquit the accused appellant of the offences alleged. The accused appellant had been directed to be released from custody forthwith unless his custody is required in connection with any other case.

In the present case, there is no substance in the statement of victim and her father as both are contradictory to each other. The statement of the victim about nature of injury on her body is not corroborated with the medical examination of the victim. Doctor did not find any kind of injury on the body of the victim. There were no clothes found by the Investigating Officer or shown by the victim to the I.O. as stated by him. As per doctor, she did not find any blood stained or any other kind of liquid on the clothes of the victim. Further, the victim did not raise any voice or alarm in the way from Moradabad to Sambhal and even thereafter, she resided for consistent eight days at Sambhal and, thereafter, she was found alone at Moradabad on 9th day of the incident.

All these acts and conduct show that the victim is appeared to be consenting party. In absence of any convincing and cogent document of age and the only document regarding age of the victim is radiological report, where she was found about 17 years and as per medical jurisprudence mentioned by doctor, it may be six month more which may be added to that age.

The Hon'ble Supreme Court also held in Rajak Maohammad (supra) that in all these circumstances, the benefit of doubt must go in favour of the accused. Hence, in view thereof, the benefit of doubt is in favour of the accused/appellant. The prosecution has failed to prove its case beyond reasonable doubt against the appellant/accused.

In view thereof, the impugned judgment and order dated 2.12.1986, passed by learned 10th Additional District and Sessions Judge Moradabad in Sessions Trial No. 136 of 1986 (State vs. Shamsher), is hereby set aside. The appellant is acquitted of all the charges levelled against him. The appellant is on bail, he need not surrender. The bail bonds is hereby cancelled and the sureties stands discharged.

The present criminal appeal is allowed, accordingly.

Let a copy of this judgment alongwith original trial court record be sent to the learned trial court for necessary compliance.