SHAMIM Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Sri Sudhir Kumar, learned counsel for the appellants and Sri Rahul Asthana, learned Additional Government Advocate for the State. This is an appeal under Sec. 374(2) Criminal Procedure Code (Cr.P.C.) preferred by the appellants Shamim, Shafi and Khurshid challenging the Judgment and Order dtd. 30/10/2004 who have been convicted under Sec. 376 IPC for imprisonment of life and a fine of Rs.10,000.00 and under Sec. 452 IPC for imprisonment of three years and a fine of Rs.3,000.00 with default stipulations passed in Sessions Trial No. 438/1996 by Additional Sessions Judge (Fast Track Court No.-4), Badaun. PROSECUTION CASE:- The prosecutrix gave a written Tehrir on 14/11/1991 at 12:30 p.m. at P.S. Mujariya, District Badaun stating that about two years back, her husband purchased two bighas of land from Shamim. But later he wanted to sell it for personal necessity. Shamim desired to get back the land sold by him for the same amount but her husband was reluctant as he had a habit of gambling. In revenge, Shamim expressed his anger and on being insulted, he threatened of dire consequences. About a week before the incident, her husband went to Dehradun for a job. Then, on the intervening night of 12/13/11/1991 at around 12:00 at night, accused Shamim along with Shafiq, Khurshid and Ashfaq of her village, entered into her house. On hearing the noise, she woke and enquired as to why they entered her house in odd hours. Her sister-in-law (Jethani) Firozi, who was nearyby, also woke. The accused dragged her towards the sugarcane field. On being dragged, she screamed and her sister- in-law (Jethani) too raised an alarm. The villagers came but the accused dragged her away towards the sugarcane field and committed rape for the whole night one by one. In the morning, when the tillers saw her, they rushed to rescue her, the accused fled away. The prosecutrix came out from the sugarcane field with their help and then lodged the FIR. On the basis of the aforesaid Tehrir, the First Information Report was lodged as Case Crime No. 179/1991 under Sec. 452, 376 IPC at P.S. Mujariya, District Badaun on 14/11/1991 at 12:30 p.m. against the four named accused Shamim, Shafi, Khurshid and Ashfaq. On the same day, i.e. 14/11/1991 at 08:30 pm, the prosecutrix was produced for medical examination at Community Health Center, Ujhani, Badaun. According to the doctor, no external injuries were found. As per the internal examination, the vagina was two fingers loose and uterus was normal in size and the vaginal smear was taken for pathological examination of sperms. The prosecutrix was then referred for X-ray for the determination of age. Next day, i.e. on 15/11/1991, salwar of the prosecutrix having stains of semen was collected and the recovery memo dtd. 15/11/1991 was prepared (Exhibit Ka-2).

(2.) According to the X-ray Report dtd. 24/1/1992, the epiphysis around the right elbow and the right wrist were found fused. As per the supplementary report dtd. 29/1/1992, radiological age of the prosecutrix was more than 18 years. It was opined that no opinion could be given about rape as there were no sperms seen in the vaginal smear and was habitual to sexual intercourse.

(3.) The Investigating Officer made the spot inspection, prepared the site plan and recorded the statement of prosecutrix and the witnesses under Sec. 161 Cr.P.C. and was produced before the Magistrate for the recording of her statement under Sec. 164 Cr.P.C. The charge-sheet was submitted against all the four accused persons under Ss. 452, 376 IPC. The co-accused Ashfaq died during inquiry, therefore, the proceedings were abated against him. After the cognizance, the learned Magistrate committed the case to the Sessions Court for the commencement of the trial. The charges were framed against the accused Shamim, Shafiq and Khurshid under Ss. 452 and 376 IPC. The accused denied the charges and claimed to be tried. The prosecution produced as many as seven witnesses. PW-1- is the prosecutrix/first informant, who proved the written Tehrir as Exhibit Ka-1. PW-2- Smt. Firozi sister-in-law (Jethani) of the prosecutrix and PW-3-Janab Khan (son of PW-2) were examined as the eye witnesses, PW-4- Dr. Suman Nagar proved the injury report and supplementary report , PW-5- Dr. M.P. Gangwar proved the X-ray report, PW-6- Inspector D.K. Baliyan was the second Investigating Officer and PW-7- Yashveer Singh was the first Investigating Officer. After the prosecution evidence was closed, the statement of the accused were recorded under Sec. 313 Cr.P.C. in which they denied the occurrence and stated that they were falsely implicated. The accused Shamim denying the incident stated that a property dispute was pending amongst them as he sold 2 bighas of land to the husband of the prosecutrix on being llured. So his wife instituted a suit for cancellation of the sale deed against the prosecutrix. The co-accused Shafiq also denied the incident and stated that he had been falsely implicated due to enmity. The co-accused Khurshid also denied the incident and stated that he too had been falsely implicated, due to political rivalry. In defence, the accused produced the copy of the sale deed dtd. 25/4/1991 and the copy of the Suit No. 242/1991 Shamim vs. Prosecutrix. But, no oral evidence was placed in defence. PROSECUTION WITNESSES:- PW-1 (Prosecutrix) in her examination-in-chief recorded on 14/8/2001 deposed that her age was about 30 years. She knew the accused Shamim, Shafiq, Khurshid and Ashfaq who were the residents of her village. The prosecutrix supported the prosecution case and deposed that all the four accused entered into her house by crossing over the wall. After hearing the noise, she woke up and saw them inside her house and questioned their presence in odd hours. In the meanwhile, her sister-in- law (Jethani) Smt. Firozi also woke up and identified the accused in the light of Chirag and Lantern. At this, the accused dragged the prosecutrix outside the home and pulled her towards sugarcane field where she was raped in the whole night one by one. In her extensive cross-examination, she deposed that she was married about 10-12 years before the incident and had a son and a daughter. Her husband was suffering from disease and was feeble. He was undergoing treatment in Delhi and Agra. She further deposed that she was illiterate. She stated that the accused were not armed with any weapon at the time of the incident. They came across the boundary wall and opened the latch of the door. She was well aware that before sleeping she had latched the door. When the accused entered, she was sleeping and was awakened by accused Shamim. The accused did not insult or rape her inside her house rather they dragged her by holding her hands and legs towards the sugarcane field. She received injuries in her legs and back. Even the clothes were torn. The distance of the sugarcane field from her house was about a mile. When she was dragged, she screamed and even her sister-in-law (Jethani) raised an alarm. The villagers reached but no one chased to rescue her as the accused were dangerous miscreants, who forcefully committed rape and badly tortured her. No blood was oozing from her back, only marks were present. Few injuries were on her hands and back. At the time of incident, the blood oozed and fell on the ground. PW-2 Smt. Firozi, the sister-in-law (Jethani) of the prosecutrix deposed that about ten years before the incident at around 12:00 at night while she was sleeping in her Verandah, she heard the noise of prosecutrix and saw the accused Shamim, Khurshid, Shafiq and Ashfaq inside the house in the light of lantern and Dibbi. She was an illiterate lady. All the four accused dragged away the prosecutrix to insult her. Though she raised an alarm but no villagers chased the accused persons. During cross-examination, the said witness deposed that she was present in her house. There was no prior enmity with the accused persons. Before the incident, the wife of accused Shamim, namely, Tamizan had instituted a case against the prosecutrix for cancellation of the sale deed. PW-3 Janab Khan, the son of Smt. Firozi in his examination-in- chief deposed that he was sleeping with his mother and aunt. When the accused entered his house, he woke up on the alarm of his aunt and saw the accused persons in the light of Dibbi who dragged away his aunt from the house. During extensive cross-examination, the said witness deposed that he had not seen the torn clothes of his aunt nor any injuries on her body with the oozing blood. PW-4 Dr. Suman Nagar was posted as Medical Officer Incharge at Community Health Center, Ujhani, District Badaun stated that on 14/11/1991, she examined the prosecutrix. There were no mark of external injuries. The vagina was two fingers loose and the uterus was normal in size. The vaginal smear was taken to examine the presence of spermatozoa. For age determination, the victim was referred for X-ray. A supplementary X-ray Report was prepared according to which the age of the victim was more than 18 years. No opinion could be given about rape as there was no sperms seen in the vaginal smear. She was habitual to sexual intercourse. In her cross-examination, she deposed that there were no internal injuries. She further deposed that in case the prosecutrix was dragged holding her hands and legs then definitely some injuries could be caused on her body but no external injuries were found nor any spot of blood was found on her body nor on her clothes. In case, any female is forcefully subjected to rape, the injuries could be caused on her back. From the perusal of the injury report, there were no signs of external or internal injuries nor any sign of commission of rape. PW-5 Dr. M.P. Gangwar was the Radiologist posted at District Hospital Badaun, who stated that on 24/1/1992, he performed the X-ray of the right elbow and the right wrist of the prosecutrix. Both the epiphysis were found fused. According to the X-ray Report, the age of the prosecutrix was determined as above 18 years. PW-6 Inspector D.K. Baliyan was the second Investigating Officer and was entrusted with the investigation. He deposed that the prosecutrix was produced before the Magistrate for recording her statement under Sec. 164 Cr.P.C., whereby the prosecutrix supported the prosecution case. The said witness deposed that from the perusal of the Medical Report, no injuries were present on the body of the prosecutrix nor the doctor opined about commission of rape. PW-7 Inspector Yashveer Singh was the first Investigating Officer. In his examination-in-chief, who deposed that on 14/11/1991, the said case was registered in his presence and the copy of Chik Report and General Diary were handed over to him. On 15/11/1991, he recorded the statement of the prosecutrix made a spot inspection and prepared the site plan. He collected the salwar of the prosecutrix and prepared the recovery memo. The said witness deposed that no blood was found from the place of incident. Though the sugarcane plants were found broken but he did not make any such entry in the case diary. The salwar which was collected from the prosecutrix was also not sent for the chemical examination. He did not enquire from the prosecutrix about the reasons for the delayed FIR. STATEMENT OF THE ACCUSED UNDER Sec. 313 Cr.P.C.:- The accused Shamim in his statement recorded under Sec. 313 Cr.P.C. stated that he was falsely implicated due to personal enmity as his wife had instituted a case against the prosecutrix. There was a property dispute as the sale deed of two bighas of land was executed in favour of the prosecutrix by being llured. The co-accused Shafiq also stated that he had been falsely implicated due to political enmity and rivalry. The co- accused Khurshid stated that he had been falsely implicated that he too had been falsely implicated due to political rivalry. SUBMISSIONS ON BEHALF OF THE APPELLANTS:-