State of U.P. vs Shamshuddin

We have heard learned Counsel for State and perused the trial court''s judgment.

This leave to appeal arises out of a judgment dated 06.07.2009 passed by learned Additional Sessions Judge, Barabanki in Sessions Trial Nos. 447 of 2006 recording acquittal of accused (respondent herein) of an offence under Sections 376 and 506 I.P.C.

As it appears from prosecution case, on 22.05.2005 parents of prosecutrix had gone out of their house to some relatives at about 8.00 O'' clock in the evening. Accused Shamshuddin came to their house where prosecutrix was present and indulged in obscene conversations with her and later also committed sexual intercourse with her. The prosecutrix remained silent and after one and half months, when she realized that she had became pregnant, she disclosed this fact to the accused and asked him to marry her. The accused kept on making false promises and the prosecutrix remained waiting for 4 months. Finally, the proposal of marriage with accused was turned down by her parents. On 24.09.2005, parents of prosecutrix married her to one Aquil. However, even after the marriage the accused kept on meeting her secretly and also kept on giving assurances that if she took divorce from her husband he would marry her. On 12.02.2006, a female child was born to the prosecutrix and having known about the pregnancy conceived before the marriage, her relationship with husband became strained and on the promise made by the accused that he would marry the prosecutrix, she took divorce from her husband on 11.03.2006. Thereafter, the accused refused to marry her, and hence, the prosecutrix lodged a report on 03.02.2006 by submitting a complaint to the S.O. at Police Station Tikait Nagar. She also submitted an application on 20.03.2006 to the Superintendent of Police, Barabanki. However, when the police did not take any action she filed a complaint u/s 156(3) Cr.P.C in the Court of Additional Chief Judicial Magistrate, Court Nos. 16, Barabanki. The Magistrate vide order dated 30.03.2006 directed registration of an F.I.R. Hence, case crime Nos. C-21/06 u/s 376 and 506 I.P.C was registered at 16.30 hours on 02.05.2006. During the course of investigation the prosecutrix was put to medical examination on 12.05.2006 at 11.10 AM which was conducted by Dr. Anjali Srivastava. On internal examination it was noticed that she had given birth to a child, two and half months back. Thus, the doctor could not find any mark of forcible sexual intercourse. In order to determine her age, a radiological examination was also conducted vide Ext. Ka-7. Thereafter, a supplementary medical report vide Ext. Ka-8 was prepared. Thus, the age of prosecutrix was determined to be above 18 years. After collecting incriminating materials during the course of investigation, S.I. Anwar Husain Siddiqui submitted a charge sheet Ext. Ka-6 in the competent court. The case was finally committed to the Court of Sessions on 25.11.2006 and the accused was thus tried upon the charges framed against him to which he pleaded not guilty and claimed trial.

In order to establish the prosecution case, prosecutrix Shahjahan Bano, (PW-1) and Jahida Nisha Bano (PW-2), mother of the prosecutrix, were produced by the prosecution in court as witnesses. Formal witness like Arjun Prasad Chaudhary (PW-3) who had written chik F.I.R. and Dr. O.P. Shrivastava, (PW-4) who had conducted medical examination of the accused, S.I., Anwar Hussain Siddiqui (PW-5), Investigating Officer, Dr. Anjali Shrivastava (P.W.-6), who had conducted the medical examination of prosecutrix, and S.I. Dev Sharan Mourya (PW-7), who had also investigated the case, were also produced as prosecution witnesses. That apart, documentary evidence i.e. application u/s 156(3) of the Cr. P.C., Ext. Ka-2 affidavit, Ext. Ka-3 chik F.I.R., Ext. Ka-4 carbon copy of G.D. Entry, Ext. Ka-5 X-ray report, Ext. Ka-6 Charge sheet, Ext. Ka-7 Medical report, Ext. Ka-8 Supplementary Medical Report, and Ext. Ka-9 spot map were submitted. In examinations u/s 313 Cr.P.C. by the Court, the evidence led by prosecution was denied by the accused and he pleaded false implication due to enmity. However, the accused did not lead any evidence in his defence.

The principal question that came up before the Court for determination was as to whether the prosecutrix was a minor on the date of incident, and the learned trial court after considering the oral as well as medical evidence on record noticed that the age of prosecutrix was above 18 years.

Moreover, as this case appeared to be of obtaining consent by fraud, the point was also considered by the trial court. Besides, there was a delay in lodging F.I.R and there was no sufficient explanation for that. That apart, the trial court while taking into consideration the conduct of prosecutrix did not think it fit to place reliance on her sole testimony regarding the factum of sexual intercourse. Similarly, the trial court also declined to place reliance on the testimony of her mother and other interested witnesses.

It is submitted by learned Counsel that it is a case of consent obtained by fraud. On a careful scrutiny of the trial court judgment, and the one and only submission made by learned State Counsel as aforesaid, we are not inclined to interfere with the judgment of acquittal for the reasons that the prosecutrix was about 18 years of age on the date of sexual intercourse; that though the accused was initially inclined to marry her but the proposal of marriage was turned down by her parents; that the prosecutrix kept on meeting the accused secretly during the survival of her marriage and later took divorce; that there was an inordinate delay in lodging the F.I.R which was more than 11 months, and that the complaint was filed only after the proposal of marriage with accused was turned down by him.

In view of the aforesaid discussion, we do not find any merit in this application for leave to appeal, hence it is dismissed.