IMRAN AND ORS. Vs. STATE OF U.P.

JUDGEMENT

(1.) Challenge in these two appeals is the judgment and order dated 14.04.2014 passed by the learned Additional Sessions Judge, Court No. 1, Muzaffarnagar in Session Trial No. 62 of 2006 (State Vs. Sanjay and another) and Session Trial No. 1147 of 2007 (State Vs. Imran), both arising out of Case Crime No. 701 of 2005 under Sections 363, 366, 376 (2) (g) IPC, Police Station Nai Mandi, District Muzaffarnagar whereby each of the accused appellants were convicted and sentenced to four years' rigorous imprisonment and a fine of Rs.2,000/ - each under Section 363 IPC; five years' rigorous imprisonment and a fine of Rs.3,000/ - each under Section 366 IPC and ten years' rigorous imprisonment and a fine of Rs.6,000/ - each under Section 376(2)(g) IPC with default stipulation. By the impugned judgment and order it has also been directed that Rs.20,000/ - will be paid to the victim as compensation out of the amount of fine so deposited from the accused appellants.

(2.) Brief facts of the prosecution case are that an application was moved by informant Sarfaraj before the Senior Superintendent of Police, Muzaffarnagar alleging that accused Imran, son of informant's maternal uncle was living with him for last 5 -6 years and two months before family members of informant saw accused Imran in an objectionable position with victim, the minor sister of informant. Then, on being driven out from the house of informant, accused Imran started living with one Kala at village Nyajupura where accused Saleem also lived. They used to come near the house of informant along with accused Sanjay. Sister of Kala, who told her name as Munni, also used to come to the victim. On 18.06.2005, preparations were being conducted in the village for the marriage of daughter of informant's uncle. Family members of informant had gone to the house of his uncle Islamuddin and informant's sister (victim) aged about 14 years was alone at the house. At that time, sister of Kala and accused Sanjay went to the informant's house and they had talk with victim and after some time went away. Thereafter, in the night at about 8:30 PM accused Imran, Saleem, Kala and Sanjay came at the informant's house and they enticed away and kidnapped the minor sister(victim) of informant in a car along with Rs.50,000/ - which were kept in the house for the purpose of marriage of the daughter of informant's uncle. The incident was seen by Naushad, Ayyub and others. When family members returned, on not seeing the victim as well as the money, they searched enough, but could not trace out her. On 25.06.2005, one Mohsin resident of village Nyajupura told the informant that his sister is at the house of accused Kala resident of village Niyajupura along with other accused. Informant went there and found the victim in a fear -stricken state. She told that accused with the help of Kala's sister kept her at many places, they raped her and also took the money. The informant requested the SSP, Muzaffarnagar to lodge FIR against the accused persons and to get the victim medically examined. On the basis of the aforesaid allegations, the chik report/FIR was scribed by Constable 987 Rajesh Kumar, which was marked as Ext. Ka -1 and Ka -3.

(3.) Investigation of the case was entrusted on the same day to SI Anil Kumar Singh. He proceeded to record the statement of informant. Thereafter, he also recorded the statement of victim. Chik report was copied by him in case diary. He also recorded the statements of scriber of chik FIR. Next day, on 08.07.2005, he inspected the spot of incident, site plan was prepared, he also prepared the site plan of the place from where the victim was recovered. The site plans were marked as Ext. Ka -9 and Ext. Ka -10. The victim was sent for medical examination to Women Hospital, Muzaffarnagar. As per the medical examination report Ext. Ka -4, secondary sex character of the victim was found developed, axillary hair were present and there was no mark of injury on external surface of body. As per the said medical report, pubic hair were present, labia majora were found developed, hymen was old torn and healed and vagina was admitting two fingers easily. Vaginal smear was taken in two slides which were sent for pathological examination to detect the presence of spermatozoa. No mark of injury was present on private part of the victim. X -ray of right elbow joint, right wrist joint, right knee joint was advised for determination of her age. According to the supplementary report of medical examination dated 12.07.2005 marked as Ext. Ka -5, the age of victim was about 18 years and no definite opinion about rape was given. Statement of the victim was recorded under Section 164 Cr.P.C. which is exhibited as Ext. Ka -2. In her statement under Section 164 Cr.P.C. she has stated that initially Munni and Sanjay came to her house and when they came to know that there was nobody in the house they came in a car and pulled her into car. They further locked her in a room and Sanjay, Kala, Imran and Saleem raped her and compelled her to sign some papers. In the statement under Section 164 Cr.P.C. there is no mention about the victim took away Rs.50,000/ - from her house. If at all she as abruptly called out of her house and taken away, there was no occasion for her to carry away Rs.50,000/ - with her. The statement under Section 164 Cr.P.C is a previous statement with which the victim could have been confronted and she was confronted. As per her statement under Section 164 Cr.P.C when the victim was recovered with the accused, he was handed over to the police. This statement does not find support from the prosecution evidence. The victim has resiled from certain averments of her statement given under Section 164 Cr.P.C and changing of statement by the victim again and again causes a deep dent in the prosecution case.