Madhya Pradesh High Court
Aarif Khan vs The State Of M.P on 17 October, 2012
1 Cr. A. No.2083/1996
HIGH COURT OF MADHYA PRADESH JABALPUR
Criminal Appeal No.2083/1996
Aarif Khan
Vs.
State of Madhya Pradesh
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Present : Hon'ble Shri Justice N.K. Gupta.
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Name of counsel for the parties:
Shri Siddharth Datt, counsel for the appellant.
Shri G.S. Thakur, Panel Lawyer for the respondent/State.
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JUDGMENT
(Delivered on 17th day of October, 2012) The appellant has preferred this appeal against the judgment dated 19.11.1996 passed by the 1st Additional Sessions Judge Raisen, Camp Begumganj in S.T. No.41/94, whereby the appellant was convicted and sentenced for the offences as under:-
Section Act Sentence Fine amount Sentence in default of payment of fine 363 I.P.C. Three year's R.I. `1,000/- Three month's S.I. 366 I.P.C. Three years' R.I. `1,000/- One month's S.I. 376(1) I.P.C. Seven years' `3,000/- Nine months' R.I. S.I. All the sentences to run concurrently 2 Cr. A. No.2083/1996
2. The prosecution's case, in short is that, the prosecutrix (PW-5) was taking a course of embroidery with Nighat Parveen (PW-6). Nighat Parveen was running a embroidery center at the house of one Matin, Advocate at Begumganj. On 14.1.1994, the prosecutrix went to the center of Nighat Parveen to learn the embroidery. The appellant sent his nephew to take the prosecutrix with a message that mother of the prosecutrix suddenly fell ill and therefore, the prosecutrix went alongwith the nephew of the appellant. In a lonely street, the appellant held the prosecutrix with the help of his companions and thereafter, he took her to a village by a jeep away from the township of Begamgunj. Hidayat Ali (PW-3) father of the prosecutrix went to the embroidery center to inquire about the prosecutrix as she did not come back from the embroidery center to her house after tutorial period. Nighat Parveen informed the witness Hidayat Ali that the prosecutrix was taken by the nephew of the appellant. Hidayat Ali tried to contact with the brother of the appellant, but he could not get any information about his daughter and therefore, he had lodged a complaint before the Police Station, Begumganj, which was written in Rojnamcha number 727.
3. After sometime, the prosecutrix was recovered and she informed that the appellant committed rape with her for several times. She was taken to Sagar, where she was forced to put her signature on various documents. Thereafter, she 3 Cr. A. No.2083/1996 was again taken to the same village, where the appellant committed rape upon her. The prosecutrix was sent for her medico legal examination. Dr. Nalini Gaur (PW-2) examined the prosecutrix and gave her report Ex.P/2. No external or internal injury was found on her person. However. two slides of her vaginal swab were prepared and handed over to the concerned Constable for forensic analysis. Dr. Nalini Gaur also referred the prosecutrix for her ossification test. Dr. S.S. Kushwaha (DW-1) examined the prosecutrix radiologically and gave his report Ex.D/5. He found that the prosecutrix was 18 years old approximately. The appellant was arrested and he was also sent for his medico legal examination. Dr. J.P. Patel (PW-1) examined the appellant and gave his report Ex.P/1. Nothing abnormality was found to the appellant. However, his semen slides could not be taken. After due investigation, a charge sheet was filed before the J.M.F.C. Begumganj, who committed the case to the Sessions Court, and ultimately, it was transferred to the 1st Additional Sessions Judge, Raisen.
4. The appellant abjured his guilt. He has stated that the prosecutrix was in love with the appellant. She went by herself with the appellant to village Budaganj. Hidayat Ali, father of the prosecutrix was called, but he refused to perform the marriage and therefore, the prosecutrix was taken to Sagar, where Imam Hafiz Siddiqu Ahmad (DW-2) performed their Nikah. In defence, Nisar (DW-3), Imran (DW-4) and Ku. 4 Cr. A. No.2083/1996 Jahira Bano (DW-5) were also examined.
5. The learned 1st Additional Sessions Judge, after considering the evidence adduced by both the parties, convicted the appellant for the offences punishable under Sections 363, 366 & 376(1) of IPC and sentence him as mentioned above.
6. I have heard the learned counsel for both the parties.
7. The learned counsel for the appellant has submitted that the the prosecutrix was above 18 years of age at the time of incident and she was a consenting party. She went with the appellant by her own will and appeared before the Imam at Sagar and therefore, a Nikah was performed by the concerned Imam. The prosecutrix had also executed an affidavit in support of her conduct but the trial Court ignored the Nikahnama as well as the affidavit. Hence, no offence punishable under Sections 363, 366 & 376(1) of IPC is made out against the appellant and therefore, it is prayed that he may be acquitted.
8. On the other hand, the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be appropriate.
9. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether 5 Cr. A. No.2083/1996 the appeal filed by the appellant can be accepted? And whether the sentence directed against him can be reduced?
10. First of all, it should be considered as to whether the age of the prosecutrix was below 18 years at the time of incident or not? Hidayat Ali (PW-3), father of the prosecutrix and Asgari Bi (PW-4), mother of the prosecutrix could not say about the exact date of birth of the prosecutrix and her age. Asgari Bi has stated that she has four children, wherein four boys and one girl child. Out of them, one elder son was expired. However, she has stated that she was married 22-23 years ago and her son Akram is aged about 21 years, whereas next son is 19 years old and youngest son is 16 years old. She did not accept that the prosecutrix was the third child in serial. Under such circumstances, there is no evidence given by the parents about the age of the prosecutrix. The prosecutrix herself could not tell her actual age in her statement. No educational record has been produced before the trial Court and therefore, there is no option except to consider the medical evidence. Dr. Nalini Gaur (PW-2) had examined the prosecutrix and gave her report Ex.P/2. Looking at the development of the secondary sex characteristics of the prosecutrix, it appears that she was above 16 years of age at the time of her medico legal examination. Dr. Nalini Gaur referred the prosecutrix for her ossification test. Dr. S.S. Kushwaha (DW-1) examined the prosecutrix radiologically, but 6 Cr. A. No.2083/1996 Dr. Kushwaha was not examined by the prosecution, whereas he was called as a defence witness and he proved his report Ex.D/5, in which he has computed the age of the prosecutrix to be 18 years. The learned 1st Additional Sessions Judge tried to brush aside the age computed by Dr. Kushwaha but looking to the secondary sex characters of the prosecutrix, opinion given by Dr. Kushwaha cannot be brushed aside. There is no reason shown by the prosecutrix and her parents by which any substraction may be done in the age computed by Dr. Kushwaha. Under such circumstances, the report given by Dr. Kushwaha is to be accepted. If the ossification test done by Dr. Kushwaha is not accepted as such, then still it is not proved beyond doubt that the prosecutrix was below 18 years of age. She could not tell the basis by which she told her age in the Court. Hence, the prosecution has failed to prove that the prosecutrix was below 18 years of age at the time of incident.
11. The prosecution story was that the prosecutrix went to the embroidery center to learn the embroidery. The appellant sent his nephew with a message that mother of the prosecutrix suddenly fell ill and therefore, the prosecutrix went with the nephew of the appellant and she was held by the appellant and other persons in a lonely street. Nighat Parveen (PW-6) has specifically denied that no one came to call the prosecutrix at her embroidery center. On the contrary, the prosecutrix went away on her own from the center and 7 Cr. A. No.2083/1996 therefore, the story told by the prosecutrix and her father appears to be a false one. The prosecutrix has stated that she was kept in a village and her father came to meet her but the appellant did not permit her father to meet her and therefore, her father went away and lodged an FIR. On the contrary, Hidayat Ali has accepted that he went to the village Budaganj to meet the prosecutrix. He was taken by Afroj brother of the appellant but since the prosecutrix was not sent with him therefore, he lodged an FIR after coming from the village Budaganj. There is a material contradiction between the statements given by Hidayat Ali and the prosecutrix. Hidayat Ali was suggested that he refused to marry his daughter with the appellant and he was demanding a sum of `20,000/-. However, it is apparent that the prosecutrix was living at Budaganj with the appellant and her father Hidayat Ali could not bring to her daughter back to his house.
12. The prosecutrix has stated that she resided for 4-5 days at village Budaganj and thereafter, she was taken to Sagar. After coming back from Sagar, she was kept for 4-5 days at village Budaganj. When she was asked that, whether she made any hue and cry at that time, when she went to answer to call of nature then, she told that she did not go for toilet or urination in those days when she resided in that village, because she was neither eating nor drinking anything. The answer of the prosecutrix appears to be unnatural. If a 8 Cr. A. No.2083/1996 person is not taking any food or any drink, then still one has to go for toilet as well as urination and therefore, the answer of the prosecutrix indicates that, she did not make any hue and cry in those days, when she remained with the appellant at village Budaganj. Her conduct indicates that she was a consenting party.
13. The defence witnesses namely Imam Hafiz Siddiqu Ahmad (DW-2) and Nisar (DW-3) have stated that the prosecutrix, Arif and Imran (DW-4) went to Sagar, where Nisar was requested to arrange for performance of marriage of the prosecutrix with the appellant and Nisar has stated that he asked specifically from the prosecutrix and she was willing to do the marriage with the appellant. Similarly, Imam Hafiz Siddiqu Ahmad (DW-2) has proved the Nikahnama Ex.D/3. He was the person, who performed the Nikah of the prosecutrix and the appellant. The prosecutrix has stated that she was given some sedatives and therefore, she was directed to put her signature on so many papers under intoxication, but Imam of a Mosque is a person, who is not expected to enter in such a fraud or mischief. It appears that the prosecutrix got her Nikah performed voluntarily by saying yes for three times before Imam and therefore, looking at her conduct before Imam, it appears that she was a consenting party. Ku. Jahira Bano (DW-5), friend of the prosecutrix has stated that the prosecutrix went from embroidery center to the house of the 9 Cr. A. No.2083/1996 appellant on her own. Under such circumstances, if the entire conduct of the prosecutrix is considered then, it would be clear that she left the embroidery center on her own and went with the appellant to the village Budaganj. She resided peacefully for five days with the appellant then, she went to Sagar where she got her marriage performed with the appellant. Again, she came back to the village Budaganj, where she resided with the appellant for five days without any resistance. Under such circumstances, the prosecutrix appears to be a consenting party and therefore, no offence punishable under Sections 366 & 376 of IPC is made out against the appellant. The learned 1 st Additional Sessions Judge has erred in convicting the appellant for such offences.
14. As discussed above, the prosecutrix was 18 years old at the time of the incident and therefore, she was not a minor child for the offence punishable under Section 363 of IPC. She was a major girl, who could take her own decision and therefore, if no permission was obtained by the appellant from the parents of the prosecutrix to take the prosecutrix with him, then it makes no difference. Hence, no offence punishable under Section 363 of IPC is made out against the appellant. The learned 1st Additional Sessions Judge has also erred in convicting the appellant for the offence punishable under Section 363 of IPC.
15. On the basis of aforesaid discussion, where the 10 Cr. A. No.2083/1996 prosecutrix was above 18 years of age at the time of the incident and she was a consenting party, hence the appellant could not be convicted for the offences punishable under Sections 363, 366 & 376(1) of IPC. The appeal filed by the appellant appears to be acceptable and therefore, it is hereby accepted. The conviction as well as the sentence directed by the trial Court for the said offences is hereby set aside. The appellant is acquitted from all the charges levelled against him. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
16. At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is hereby directed that his bail bonds shall stand discharged.
17. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.
(N.K. GUPTA) JUDGE 17.10.2012 pnkj