STATE Vs. ABID AND OTHERS
LAWS(UTN)-2012-3-69
HIGH COURT OF UTTARAKHAND
Decided on March 19,2012

STATE Appellant
VERSUS
Abid And Others Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) ON 13th March, 1997, a First Information Report was lodged by the father of the victim, who came in course of trial as PW2. In the First Information Report, it was alleged that Abid, Pappan and Mustakin, respondents, were seen along with the victim, who in course of trial deposed as PW1. Respondents were taking the victim, was the allegation in the First Information Report and the same was witnessed by Hirda, Karan Singh, Rampal and Mohakam. On 14th March, 1997, according to the Investigating Officer, who deposed in course of trial as PW7, victim and the respondents were found at the Bus Stand on the Lakhnauta crossing, when custody of the victim was obtained and Abid was apprehended, while Pappan and Mustakin fled away. On 14th March, 1997, victim was referred to the Doctor, who deposed in course of trial as PW4 and, upon examining the victim, PW4 reported that the hymen of the victim was torn. Her vagina was about two inches in circumference, but there was no mark of injury. Her vaginal swab was taken and the same was kept for further investigation. Victim was also taken to another Doctor, who deposed in course of trial as PW5. The said Doctor, after conducting ossification test, reported that the victim was aged between 11 to 14 years. The statements of the victim and other prosecution witnesses were recorded by the Investigating Officer. PW4, later on, reported that examination of the vaginal swab revealed absence of dead spermatozoa. Thereafter, a chargesheet was filed. On the basis of the chargesheet, charges were framed against the respondents under Sections 363, 366A and 376 of the Indian Penal Code. PW1 deposed that she was drugged by Abid on 11th March, 1997, whereafter, she was taken at a place and at that place, she was raped by Abid, Pappan and Mustakin. She said that she was kept in confinement also on the next date. She then said that she was taken to Delhi and when she was coming back from Delhi on 14th March, 1997, she was recovered by the Investigating Officer in presence of her father and other villagers. PW2 stated what he had stated in the First Information Report and, with that, added that on the next date, there was an information that the respondents will try to take the victim away and, accordingly, he along with the Investigating Officer and others went to Lakhnauta crossing and found there the respondents and the victim. Upon chase, while Abid was apprehended, Pappan and Mustakin fled away and the victim was recovered. PW3 was Jodha Singh, who witnessed the recovery of the girl, in the circumstances mentioned above, from Lakhnauta crossing on 14th March, 1997. PW4 proved the medical report prepared by her. She stated, as was stated in the last medical report prepared by her, that there is no evidence of rape. PW5 proved his report and, thereby, established that as on the date of the incident, victim was 11 to 14 years' old. PW6 Ratan Singh was a formal witness and PW7, as aforesaid, was the Investigating Officer. Since in course of recording of evidence, PW1 had stated that she was kept in the house of Khalil, the defence called Khalil as DW1. Khalil stated in his evidence that his house was not used by the respondents and no incident, as alleged by PW1, took place at his house. Considering the evidence, as above, the trial court did not believe the prosecution story and, accordingly, exonerated the respondents. Aggrieved thereby, the State has preferred the present Appeal. It is the contention of the State that there was no just reason to reject the evidence given by PW1. Since PW1 was a minor and since PW1 had stated that she was raped and since it is well settled that on the basis of evidence, as tendered by the victim, a case of rape can be put home, it was urged that the learned court below erred in exonerating the respondents.
(2.) IN addition to a case of rape, a case of kidnapping and procurement of the victim to force or to seduce her in illicit intercourse was made out, while framing the charge. Kidnapping, as was made out in the First Information Report, took place on 13th March, 1997 and the same was witnessed by Hirda, Karan Singh, Rampal and Mohakam. None of them deposed. Therefore, the case of kidnapping, as was made out in the First Information Report, was not even attempted to be established. Whereas, according to the First Information Report, victim was induced to go on 13th March, 1997, but according to PW1, she was drugged on 11th March, 1997. Since both the stories were run parallel by the prosecution, court below did not err, at all, in not accepting the story that the victim was induced to go either on 11th March, 1997 or on 13th March, 1997. As the most important ingredient of Section 366A of the Indian Penal Code was absent in the instant case, there was nothing wrong in holding that no case under the said section had been made out. From the evidence of PW4 it is clear that though victim was not raped, but she was capable of intercourse. Victim and the respondents were found at the Bus Stand of Lakhnauta crossing i.e. a public place, and it has not come on record that at that time, victim was under the clutches of any of the respondents. The said state of things denote that the victim at that point of time was having free movement with the respondents. From the evidence of PW5, it was established that the victim, at the relevant time, was less than 16 years of age. Though the medical report and the evidence of PW4 revealed that PW1 was not raped, but in the open court she asserted that she was raped. Therefore, the evidence of PW1 should be taken as she had intercourse with the respondents. Such intercourse, in the circumstances as above, should be taken to be with the consent of PW1, but even then, the same would be rape under Section 375 of the Indian Penal Code since PW1 was at that time a minor. Therefore, in the circumstances, despite PW1 holding out that she was raped, the question is, whether, in fact, she had intercourse. According to the First Information Report and the evidence of PW2, the father of the victim, victim was not traceable since 13th March, 1997. On 14th March, 1997, victim was located and she was sent for medical examination, when her vaginal swab was taken and the same was sent for examination. Later examination revealed that there is absence of dead spermatozoa. Dead spermatozoa remains in vagina for about 24 hours from the time of intercourse. The said state of affairs clearly demonstrates that there was no intercourse on 13th March, 1997 and even on 12th March, 1997. According to PW1, she had intercourse on 11th March, 1997. According to her, she did not have any intercourse thereafter. If on 11th March, 1997, victim was taken in the manner she had deposed and thereafter kept in confinement, the father of the victim, PW2, would not have reported that the victim was taken away on 13th March, 1997. In the normal circumstances, ocular evidence must prevail over medical evidence, if there is any contradiction in between them. However, while accepting ocular evidence over medical evidence, one has to be absolutely careful and must come to the conclusion that the ocular evidence is such that there is no just reason to disbelieve the same. In the instant case, the father of the victim lodged the FIR on 13th March, 1997 contending that the victim was taken away on 13th March, 1997, whereas the victim said that she was taken away on 11th March, 1997. As aforesaid, two prosecution stories, thus made out, ran parallel. One of such parallel stories cannot be accepted rejecting the other. Such parallel stories give birth to doubt. In the event, PW1 had intercourse on 11th March, 1997, then on 14th March, 1997 dead spermatozoa would not be available in her vaginal swab, but if she was taken away on 13th March, 1997 and had intercourse subsequent thereto, dead spermatozoa would be available in her vaginal swab. In a situation of this nature, ocular evidence of one of the prosecution witnesses, though she may be the victim, cannot be accepted contrary to the evidence led by the other prosecution witnesses, including the father of the victim. In the circumstances, I find no infirmity in the judgment and order under appeal. The appeal fails and the same is dismissed.;


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