Allahabad High Court
State Of U.P. vs Raees Ahmad on 20 May, 2011
Bench: Amar Saran, S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 46
Application for Leave to Appeal No............ of 2004
In
Case :- GOVERNMENT APPEAL No. - 6553 of 2004
Petitioner :- State Of U.P.
Respondent :- Raees Ahmad
Petitioner Counsel :- Govt Advocate
Hon'ble Amar Saran,J.
Hon'ble S.C. Agarwal,J.
This Government Appeal has been preferred against the judgment and order dated 16.8.2004 passed by the Additional Sessions Judge, Court No.13, Bareilly acquitting the accused respondent in Sessions Trial No.294 of 2003 under sections 363, 366, 376 I.P.C. arising out of case crime no.334 of 2002, P.S. Nawabganj, District Bareilly.
The F.I.R. of this case was registered on 17.9.2002 at 18:30 hours at P.S. Nawabganj, District Bareilly on the basis of a written report submitted by the complainant Ashfaq Ahmad alleging that on 6.9.2002 at about 4:00 A.M., his daughter Tasqeem Bano (P.W.2), aged about 14 years, had been kidnapped by the accused-respondent Raees Ahmad. Both of them were seen by villagers Mohd. Saeed and Zafar Hussain. Despite search, the girl could not be traced till the lodging of the F.I.R. On the very next day i.e. on 18.9.2002, S.I. - R.K. Sehgal, accompanied by Constable Preetam Singh and the complainant Ashfaq Ahmad, arrested the accused-respondent Raees Ahmad along with the victim at 10:15 A.M. and memo (ex.ka-2) was prepared.
The victim was medically examined on the same day at Women Hospital, Bareilly by Dr. Alka Katiyar. No mark of injury was found on external or private parts of her body. Hymen was old torn. Vagina admitted two fingers. Vaginal smear was taken and sent for histopathology examination and the girl was sent to x-ray department. Medico legal examination report is ex.ka-3. On 19.9.2002, the girl was subjected to radiological examination through x-rays by Dr. K.K. Saxena, who submitted x-ray report ex.ka-8. On pathological examination, no sperms were found in the vaginal swab. As per the supplementary report of Dr. Alka Katiyar, the age of the girl was determined to be between 16 to 17 years.
The statement of the victim was recorded by the Magistrate under section 164 Cr.P.C. wherein she supported the respondent.
During trial, the complainant was examined as P.W.1 and the victim was examined as P.W.2. Dr. K.K. Saxena (P.W.3) is the Radiologist and Dr. Alka Katiyar (P.W.4) has proved medico legal certificate ex.ka-3, pathology report ex.ka-4 and supplementary report ex.ka-5. S.I. R.K. Sehgal (P.W.5) is the investigating officer.
Heard learned Additional Government Advocate and perused the trial court's record.
It is argued by learned A.G.A. that the trial court judgment is unwarranted and unjustified because the accused-respondent had entered the house of the victim and took her away against her will and that the statement of the prosecutrix was sufficient to convict him.
The trial court has given several reasons for acquitting the accused and for reaching the findings that the victim and the accused-respondent appeared to be consenting parties.
Reliance was placed on the statement of the victim recorded under section 164 Cr.P.C. (ex.kha.-1) wherein the victim had stated that she had gone from her house out of her own sweet will and Raees had not committed anything with her against her will. Learned trial court has also found that statement of the complainant that the prosecutrix was 14 years old was not reliable. On medical examination, her age was found to be between 16 to 17 years and there can be variation of 2 years on either side and, therefore, she can be deemed to be major.
As per the statement of the victim recorded during trial, the accused came to her at about 3:00 ? 4:00 A.M. and took her out of the house after threatening her with a country made pistol and also committed rape with her. She was taken from village Rasoola Talib Hussain to village Richhaula and from village Ricchaula to Bakainia. Later she was again brought back to village Richhaula. When both of them were going from village Ricchaula to some other place, they were apprehended by the police. In cross-examination, the victim admitted that in her statement recorded under section 164 Cr.P.C. she stated that she had enticed Raees Ahmad and had gone with him out of her own sweet will and nothing was done with her against her wishes and that she wanted to marry Raees, but she gave an explanation that the statement under section 164 Cr.P.C. was given by her out of fear of the accused. This explanation can hardly be accepted. The statement under section 164 Cr.P.C. was recorded in Court of the Magistrate and at that time the accused was in custody and was in jail. She could have freely stated the facts. It can hardly be believed that she gave her statement under section 164 Cr.P.C. under any pressure or undue influence. She was given in the supurdgi of her parents and after a long span of time when the victim was examined in Court, she changed her version and alleged that she was kidnapped and raped by the respondent.
We do not find any error in the judgment of the trial court placing reliance on the statement of the victim recorded under section 164 Cr.P.C. rather than her statement given in the Court and the trial court has given sufficient reasons for the same.
The story of kidnapping the prosecutrix from her house is also unbelievable. The incident is alleged to have taken place at 4:00 A.M. in the night. The victim has admitted that after entering from the main gate, there is a courtyard and thereafter there is a room with a door on it. The boundary of the house is about 6 feet high. There is a concrete lintel on the room. She was lying in the said room. Her father, four brothers and four sisters were also lying there. It is unbelievable that the accused-respondent entered the house of the complainant in the night and in presence of nine persons took the victim away without any resistance. The whole story of kidnapping under threat appears to be concocted and we agree with the finding of the trial court that the prosecutrix appears to be a consenting party. No injury was found on the private or external parts of the body of the victim. She was used to sexual intercourse. Keeping the door unlocked even in the night speaks volumes about the complicity of the victim in her alleged kidnapping.
Considering the overall circumstances and submissions of learned A.G.A. and after going through the evidence and other papers, we are of the view that no good reasons exist for upsetting the judgment of the trial court regarding acquittal.
There is no merit in the application for leave to appeal. It is accordingly dismissed.
Order Date :- 20.5.2011
ss
