Umesh Chandra Dhyani, J. -
(1.) ONE Smt. Anita Bansal wrote a complaint (Ext. Ka -1) to the Senior Superintendent of Police, Haridwar, on 23.08.2005, alleging therein, among other things, that some anti -social elements residing in Bhupatwala kidnapped her minor daughter Richa on 20.08.2005, when Richa (victim) had gone to collect money from the account holders of Sahara India Family. She did not return by the evening. When a search for her was made, it was revealed that Ajarab Ali (accused -appellant) kidnapped her. When the gang leader Shanshah, father of Ajarab Ali, was approached, he admitted that Richa was in the custody of Ajarab Ali. Shahansah dared the informant to lodge the report and face consequences. A chik FIR was lodged on 25.08.2005, at 7:40 p.m., in PS Kotwali, Haridwar as regards offences punishable under Sections 363 and 366 IPC, which was registered as case crime No. 616 of 2005. The victim was recovered subsequently and her statement under Section 164 Cr.P.C. was recorded. Thereafter on the application of her mother, she was given in her custody vide order dated 31.08.2005 of Judicial Magistrate concerned. She was medically examined on 29.08.2005. The medical officer did not find any mark of injury on private part of the victim. Vaginal smear was taken to detect spermatozoa. X -ray of right and left wrist and elbow joint was also taken to confirm her age (Ext. Ka -3). In supplementary report (Ext. Ka -4) it was mentioned that no spermatozoa, alive or dead, was seen on microscopical examination. All epiphysis were found fused with their concerning shaft. It was opined that her age was above 18 years. No definite opinion about rape could be given by the medical officer. Investigating officer took the statements of witnesses, prepared site plan of the place from where the victim was kidnapped/abducted and the place where the victim was recovered. Accused Ajarab Ali and Shanshah were arrested and on being satisfied that the accused persons kidnapped and raped the victim, submitted charge sheet against Ajarab Ali and Shahansah as regards offences punishable under Sections 363, 366 and 376 IPC in the Court of Magistrate concerned. The case was committed to the Court of Sessions.
(2.) WHEN the trial commenced and prosecution opened it's case, charges as regards offences punishable under Sections 363, 366 and 376 IPC were framed against the accused persons, who pleaded not guilty and claimed trial. As many as seven witnesses, namely, PW 1 Anita (victim's mother), PW 2 Richa (victim), PW 3 Ravindra Kumar (father of victim), PW 4 Dr. Manisha Agarwal, PW 5 Ravi Das, PW 6 Dr. Harish Lal and PW 7 SI Amarjeet Singh were examined on behalf of prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in which they said that the prosecution witnesses were telling a lie and they were falsely implicated in the case. DW 1 Smt. Titora Devi w/o. Shahansah was examined in defence. After considering the evidence on record and hearing both the sides, the court below acquitted Shahansah of the charges framed against him but convicted Ajarab Ali s/o. Shahansah of the offences punishable under sections 363, 366 and 376 IPC and was sentenced appropriately. Aggrieved against the conviction and sentence, the criminal appeal was preferred. Prosecution led the evidence through P.W. 2 victim Richa, who said in her examination -in -chief that she was bom on 07.09.1987. Her mother was a working lady in Sahara India. Whenever her mother fell ill, P.W. 2 used to collect money from the account holders. Ajarab Ali was her neighbour. When PW 2 used to go to the accountholders, Ajarab Ali chased her by cycle. On 20th August, 2005, when PW 2 reached near Poonam Studio, accused Ajarab Ali met her at 6:00 -7:00 p.m. Accused provided her with chaumin (a fast food), as a consequence of which, she became unconscious and got fainted. Thereafter, he got her seated on the cycle and threatened that she will be killed if she raised an alarm. She was then taken to Delhi by bus. In Delhi, accused applied vermilion on her Head and had illicit relations with her forcibly. When Ajarab Ali had no money, they came back on 27.08.2005. On 28.07.2005, police arrested him (accused -appellant Ajarab Ali) and apprehended her (PW 2). PW 2 was shown paper No. Ka -9, which was mark sheet of Junior High School of 2004. She admitted that the same was a photocopy of the original marksheet. She also proved her statement under Section 164 Cr.P.C. In cross -examination, she admitted that she gave the statement under Section 164 Cr.P.C. that Ajarab Ali asked her to go to her house (in the evening) but PW 2 explained that the accused got her seated on cycle when she was unconscious. The tickets were purchased by Ajarab Ali she refused (to go to her house) She did not raise hue and cry. She did not tell anybody regarding the incident, in Delhi. She denied that she went with the accused on her own volition. She explained that the accused threatened to kill her, therefore, she went with the accused. She was unconscious and under the influence of intoxication. She admitted that they ran short of money in Delhi and therefore, boarded bus for Haridwar. When they were taken to the police station, Ajarab Ali's father was sitting in the police station. She denied having written any letter to Ajarab Ali Ajarab Ali was her acquaintance. PW 2 used to visit her house. When Ajarab Ali got her seated on the cycle, the place was not densely populated one. She denied that she was having love affair with the accused -appellant Ajarab Ali, her parents opposed the marriage and therefore, the accused was falsely implicated in the case. She said that her father was an Advocate Clerk (munshi) in the court.
(3.) PW 1 Smt. Anita was the informant and mother of victim. She said that her daughter was studying in class VIII when the incident took place. She was aged 16 years. PW 1 also proved her complaint (Ext. Ka -1) and also said that her daughter was given in her supurdagi vide paper Ext. Ka -2. In the cross -examination, she said that her daughter collected Rs. 3000/ - on the date, she went to the account holders to collect the money. She said that her daughter was aged 16 yeas when she was kidnapped by the accused. When her daughter was recovered, she disclosed the entire facts to her mother (PW 1). They went to Jammu and Panipat also. She said that PW 2 was her eldest daughter. She denied that the victim was having love -affair with the accused -appellant. PW 1 also said that she was married 27 years' ago. She has four children, out of whom Richa was the eldest.;