Reserved on 17.1.2019 Delivered on 28.2.2019 Case :- CRIMINAL APPEAL No. - 1167 of 2015 Appellant :- Asif @ Ballu Respondent :- State Of U.P.
Counsel for Appellant :- Ankit Saran,Mohd. Farooq Counsel for Respondent :- Govt.Advocate
Hon'ble Siddharth,J.
Heard Mohd. Farooq,learned counsel for the appellant and learned A.G.A. for State.
This appeal is directed against the judgement and order dated 27.2.2014 passed by the Additional Sessions Judge, F.T.C. Court No.1, Bulandshahr in S.T. No. 877 of 2012 (State Vs. Asif @ Ballu) arising out of Case Crime No. 178 of 2012 under sections 363, 366, 376 I.P.C. P.s. Salempur District Bulandshahr.
The appellant has been convicted under section 363 I.P.C. for three years rigorous imprisonment and fine of Rs. 2,000/- and in default in payment of fine to undergo one month's additional imprisonment; under section 366 I.P.C. to undergo five years rigorous imprisonment and fine of Rs. 3,000/- and on default on payment of fine to undergo one month's additional imprisonment and under section 376 I.P.C. to undergo seven years rigorous imprisonment and fine of Rs. 5,000/- and in default of payment of fine two months' additional imprisonment, all the aforesaid punishment are to run simultaneously.
The prosecution case is that on 15.6.2012 at about 3 P.M. his daughter was enticed away by Asif alias Ballu. He was seen by Farroq and Fakrudeen Khan and after search of the victim the First Information Report was lodged on 21.6.2012 before the police and case crime no. 178 of 2012 under sections 363 and 366 I.P.C. was registered .The victim was recovered by the police on 22.6.2012 and was sent for medical examination. The doctor found the victim to be aged about sixteen years and no sign of rape was found .The victim was found to be used to intercourse and in the pathology report no dead spermatozoa was found. The doctor opined that no evidence of rape can be given. The statement of the victim under section 164 Cr.P.c. was recorded and the Investigating Officer conducted the investigation and submitted charge sheet under sections 363, 366, 376 I.P.C. and charges were accordingly framed by the trial court.
The accused denied the charges and sought trial.
The prosecution brought on record the documentary evidence regarding the age of the victim , First Information Report, investigation,record and medical examination of the victim. The defence brought on the record the documents of Nikaha, marriage agreement along with affidavit of Asif @ Ballu and High School mark-sheet of the victim.
In her statement under section 164 Cr.P.c. the victim has stated that she is aged about fourteen and half years and she has appeared in class Xth examination. On the date of incident at about 3 P.M. Asif @ Ballu came to her and asked her to accompany him . She asked where will he go and he stated that somewhere. She refused to accompany him and then he stated that he will consume poison and die in case she will not accompany him. There was no one in her house. She went alongwith him upto ‘Bhatta’ and thereafter went to Salemgarh on motorcycle. Thereafter to village 'Bhurana' and then to 'Shivali' and from 'Shivali' to Bulandshahar and finally from Bulandshahr to Roorkee. They reached Roorkee at 1 A.M. on night of 15.6.2012 where the appellant raped her in hotel. From Roorkee she went to Gawlior and then to Faridabad and then from Balabhgarh to Faridabad and from Faridabad to Paligaon. She was raped everywhere they went and finally police of Salempur was spotted by her and she went with police to police station.When she left her house she was seen by her uncle Farukh and elder uncle Fahimuddin.In her statement before the court she repeated her allegations in her statement under section 164 Cr.P.c. with further details. She admitted that accused-appellant Asif used to frequent her house and used to talk to her.
P.W.1 informant deposed before the court that appellant enticed away her daughter. P.W.3, Farukh, was examined before the court and he proved that he saw the victim going with appellant. P.W.4, Chottey Singh, was examined as Investigating Officer of the case and he proved the investigation record and charge sheet. Dr. Rita Singh was examined as P.W5 and she proved medical and pathological report of the victim. P.W. 6, Dr. Dinesh Kumar, proved age of the victim between 16-17 years . P.W.7, constable Yashpal Singh, proved chik report and G.D. entry of F.I.R. before the court. P.W. 8, Dr. Bhudev Prasad, proved that age of the victim as per X-ray report cannot be 18 years.
The statement of the accused-appellant was recorded under section 313 I.P.C. and he denied the charges and stated that prosecution witnesses have deposed against him falsely;the victim married him as per her wish and he never abducted her.
Learned counsel for the appellant has submitted that the victim was a consenting party and she has admitted love affair with the appellant. In her statement under section 164 Cr.P.C. the victim has clearly stated that when she refused to go with the appellant, he stated that he will consume poison in case she does not accompanies him and thereafter victim accompanied him and went to different places and stayed with him at different hotels and place of lodging where she alleges that she was raped. Learned counsel for the appellant has relied upon the judgment of Apex Court in Rajak Mohd. Vs. State of Himachal Pradesh (2018) 9 SCC, 248.He has further relied upon the judgement of the Apex Court in the case of Mussauddin Ahmed Vs. State of Assam, 2009 Lawsuit (SC) 1243 wherein the Apex court has held that where there is no explanation on record as to why in the absence of any allegation of threat or coercion the prosecutrix did not raised any alarm and informed the other persons in hotel about her abduction when she went to different places with the accused and come across number of persons, the allegation of rape cannot be accepted to be correct even if it is admitted that victim was minor at that time. The medical evidence collected by the prosecution did not supported the allegation of rape.
Doctor has not found any spermatozoa, dead or alive in the report of the pathologist and has not given any opinion of rape. The age of the victim has been found to be above sixteen years.
Learned A.G.A. has submitted that the victim has clearly alleged offence of rape which was repeatedly committed by the appellant when she was taken to different places by him and only on the basis of her sole testimony the appellant's conviction can be justified. He has further submitted that victim being minor her consent of running away with the appellant is of no consequence. He has further submitted that victim was taken away from the company of her guardian without his consent therefore offence under section 363 I.P.c. is clearly made out.
After hearing learned counsel for the appellant, learned A.G.A. for the State and going through the material on record this court finds that testimony of the victim is the only material which has been made basis of conviction of the appellant.
The age of the victim was sixteen years as per medical report at the time of incident and therefore keeping in view of the margin of two years on either side , she can be assumed to be aged about eighteen years and therefore offence under section 363 I.P.C. is not made out. The offence under section 366 I.P.C. can also not be attributed against the appellant since there was no allegation that appellant enticed her for the purpose of marriage although the victim and appellant later entered into marriage. She went with appellant only for the purpose of outing. She has not stated that appellant has promised marriage with her and therefore she went with him. In her statement under section 164 Cr.P.C. victim has not stated that she was enticed away for the purpose of marriage. Even in her statement before the court that she has not made any allegation regarding offence under section 376 I.P.C. against the appellant. The court below has relied upon the testimony of the victim and convicting him. Though as a matter of law the course adopted by the trial court cannot be faulted with but in the present case her version is improbable and difficult to be accepted on its face value. The Apex Court in the case of Narendra Kumar Vs. State (NCT of Delhi), 2012, 7 SCC., 171 has held that once the statement of the prosecutrix inspires confidence and is accepted by the court no corroboration of the same is required and conviction can be based only thereon. However if her testimony is difficult to be accepted on its face value and its corroboration of material particulars is required and it is not found on record her sole testimony cannot be made basis of conviction.
In the present case victim made no effort to raise any alarm and made any complaint to any person, she met during her excursion with appellant. She went to different places , hotels and rented rooms but at no point of time she made any effort to free herself from the alleged captivity of the appellant. She never raised any alarm,therefore judgment of Rajak Mohd. Vs. State of Himachal Pradesh and Massauddin Ahmed Vs. State of Assam (Supra) are applicable in this case. The conduct of the victim cannot be justified and benefit of her suspicious conduct will go the accused. The prosecution has failed to prove its case against the appellant beyond reasonable doubt, the court below has committed error in convicting and sentencing accused- appellant. He is absolved of all the charges. The impugned judgement and order is hereby set aside. In case appellant is not wanted in some other case he shall be set at liberty forthwith.
The appeal is allowed.
Office is directed to communicate this order to the court below and return the lower court record for compliance at the earliest along with copy of this judgement.
Order Date :- 28.2.2019 Atul kr. sri.