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2017 Supreme(UK) 360
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
LOK PAL SINGH, J.
Saleem - Appellant
Versus
State of Uttarakhand - Respondent
Criminal Appeal No. 362, 357 of 2013
Decided on : 24-10-2017
For the Appellant :Ms. Manisha Bhandari and Mr. Syed Kashim Jafri, Advocates
For the Respondent: Mr. P. S. Bohra, A.G.A. alongwith Mr. Balvindra Singh
Headnote:
Criminal Jurisprudence – It is settled proposition of law that a man can tell a lie but the circumstances cannot – Held from the conduct of prosecutrix that she being major had gone with her own violation with the accused persons – And she never made any complaint before the police on the way and remain more than three months with the accused persons with her own will – And that she had not made true and correct statement before the trial court – Further held that the prosecution had miserably failed to prove the case punishable u/Ss 363, 366 and 376, IPC against the accused persons beyond reasonable doubt. (Paras 18 to 22, 24 to 27)
vijkf/kd fof/k'kkL= & ;g fof/k dh LFkkfir izfriknuk gS fd ,d O;fDr }kjk >wB cksyk tk ldrk gS ijUrq ifjfLFkfr;ksa }kjk ugha & vfHk;ksD=h ds O;ogkj ls /kkfjr Fkk fd og o;Ld Fkh] o viuh bPNk ls vfHk;qDr ds lkFk x;h Fkh & mlus jkLrs esa dHkh Hkh iqfyl ls f'kdk;r ugha djh o LosPNk ls vfHk;qDr ds lkFk rhu ekg rd jgh Fkh & vkSj mlds }kjk ijh{k.k vnkyr ds le{k lR; o 'kq) dFku ugha fn;k x;k Fkk & vkSj ;g fd vfHk;kstu i{k vUrxZr /kkjk 363] 366 ,oa 376] Hkkjrh; n.M lafgrk vfHk;qDr ds fo#) fuLlansg okn fl) djus esa cqjh rjg vlQy FkkA
¼izLrj 18 ls 22] 24 ls 27½
Both the aforesaid Criminal Appeals arise out of same case from separate judgment and order dated 30.08.2013 passed by the Additional Session Judge/Special Judge (E.C. Act), Nainital in Session Trial No.103 of 2010 (State vs. Waseem) and S.T. No.104 of 2011 (State vs. Saleem), whereby the Trial Court has convicted the appellants under Sections 363, 366 and 376 of IPC.
2. Brief facts of the case are that Akhter Hussain, father of the prosecutrix made a typed complaint to the Police Station, Ramnagar on 10.03.2010 stating therein that his daughter (name is not disclosed) went for tuition on 29.01.2010, but did not return back, in this regard, the Police was informed on 08.02.2010. It was further alleged in the complaint that his daughter made a call at his house from mobile no.9756680206 on 20.02.2010 and talked to his wife for about 10 minutes and informed that one accused Waseem is willing to marry with the prosecutrix and one Saleem is also accompanying them. His wife then asked Waseem to send back her daughter. It was prayed in the compliant that an action be taken against both the accused persons Waseem and Saleem. On the basis of complaint, initially a FIR under Sections 363 & 366 of IPC was lodged against the accused persons. The investigation was commenced. The prosecutrix was allegedly recovered from Sheeshgarh (Vilashpur) Bus Station, District Bareilly and she was brought to Ramnagar where she was produced before the Magistrate, her statement under Section 164 of Cr.P.C. was recorded on 25.05.2010. She made a statement that she was studying in high school, her age is about 16 years and on 19.01.2010 at about 2:30 PM when she was going for coaching class, three persons came at Santi street and tide her mouth and gave some smell to her, resulting which she became unconscious. Thereafter, she was found in a family where one Saleem and his family members were taking care of her well. After two months, Saleem could find out the contact number of the parents of prosecutrix and made a call to her mother.
3. She further stated that all three persons, who had taken her, are not known to her. She further stated that she did not marry with Saleem and further stated that Saleem did not do anything wrong with her. She further stated that she slept with Saleem for about three months with her own volition. She further stated that Saleem never insisted to have physical relationship with her. She further stated that she may marry with Saleem if her parents are agrees. She further stated that on asking of her parents she is ready to marry. She further stated that she is willing to go with her parents. She further stated that she was not abducted from Ramnagar and nothing wrong has happened with her.
4. The prosecutrix was medically examined on 24.05.2010 at Government Hospital Ramnagar, Nainital. On her medical examination, no injury was found on her body or private part. On 25.05.2010 her ossification test was conducted to ascertain her age.
5. The Investigating Officer after completion of the investigation submitted the charge-sheet and produced as many as 7 witnesses. Investigating Officer also filed a photocopy of the progress report of class 8 of the prosecutrix showing her date of birth as 31.05.1994. On submission of chargesheet, the trial court framed the charges punishable under sections 363, 366 and 376 of IPC, against the accused persons to which they pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution has adduced the evidence of seven witnesses.
7. Akhtar Hussain PW-1 father of the prosecutrix was examined in both the sessions trial, but in his examination in chief he did not made any statement that his daughter has told him that any of the accused persons have committed rape with his daughter. He was cross-examined by the accused persons. Subsequent to the cross examination, Akhtar Hussain PW-1 was recalled and re-examined by the prosecution, where he made a statement that he knows the a
