State Of U.P. vs Kasri Intzar And 2 Others
2014 Latest Caselaw 3324 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- GOVERNMENT APPEAL No. - 2604 of 2014
 

 
Appellant :- State Of U.P.
 
Respondent :- Kari Intzar And 2 Others
 
Counsel for Appellant :- G.A.
 

 
Hon'ble Uma Nath Singh, J.

Hon'ble Arvind Kumar Mishra-I, J.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

This State Appeal has been preferred against the judgment and order of acquittal dated 15.3.2014 passed in Sessions Trial No.939 of 2010, State Vs. Kari Intzar and another connected with Sessions Trial No.938 of 2010, State Vs. Jubair for offence under Sections 363, 366, 368, 376, 120-B IPC passed by court of Additional District and Sessions Judge, court no.4, Bijnor.

Factual matrix of the case is that complainant Hafiza Khatoon lodged a written report stating therein that she is having eight children and her husband is away at South Arabia where he is doing a job. Her daughter Tarannum Jhan, who is eighth class pass has left school and is learning Kuran Sharif and Dini Talim at her house. Accused-respondent Kari Intzar, who was in the Madarsa of Mithan used to give her lesson of Kuran Sharif and Dini Talim for the last about four months. In the evening of 12.3.2008, some villagers saw the accused-respondent Kari Intzar along with Tarannum Jhan going together. Daughter of complainant did not return back, then the complainant searched about her daughter in her relations. During search, she came to know that one Anwar had seen Kari Intzar and his brother Jubair going along with the victim girl Tarannum Jhan about 7 p.m. near Amhera Phatak. When the complainant was under the bonafide belief that Kari Intezar with the help of his brother and family members have enticed away her minor daughter, she made hectic search for her but all in vain. On the basis of aforesaid, first information report was lodged at Case Crime No.150 of 2008, under Sections 363, 366, 368, 376, 120-B IPC, Police Station Haldaur, district Bijnor. The matter was investigated and statement of witnesses were recorded by the Investigating Officer and victim was recovered in the meanwhile. Site plan of the incident and recovery memo of victim was prepared and charge-sheet was filed against all the three respondents in this appeal. On the written report of complainant Hafiza Khatoon regarding kidnapping of her daughter Tarannum Jhan a report was lodged wherein it was alleged, inter alia, that the respondent-accused have kidnapped her daughter Tarannum Jhan, who is eighth class passed. It was also stated that she has every reason to believe that Kari Intezar along with his brother and family members has kidnapped her daughter. She searched for her daughter but in vain. This report was lodged at Case Crime No.150 of 2008, under Sections 363, 366, 368, 376, 120-B IPC, Police Station Haldaur, district Bijnor and after investigation charge-sheet was filed against accused Kari Intezar and his two brothers Iftekhar and Jubair for offence under Sections 363, 366, 368, 376, 120-B IPC.

The case was committed to the court of sessions for trial whereupon the prosecution got examined as many as eight prosecution witnesses. There were only two witnesses of fact P.W.1 Hafiza Khatoon and P.W.2 victim Tarranum Jhan. Rest of the witnesses are formal witnesses. After closure of evidence of the prosecution, the statements of the accused persons were recorded under Section 313 Cr.P.C.

In their statements accused persons have denied the allegations made in the charges framed against them and have specifically stated that the victim on her own volition has accompanied Kari Intezar and has got married. The two accused persons Iftekhar and Jubair have taken plea of alibi.

In defence accused persons have produced D.W.1 Raj Hans, Senior Clerk of C.M.O. Office, Meerut, who has proved X-ray report, Exhibit Kha-1 and the age certificate Exhibit Kha-2 and marriage certificate Exhibit Kha-3. Besides defence also produced paper no.66 Kha/6 and 67 Kha/1 and Exhibit 67 Kha/32. The trial court after hearing the respective submissions of both the sides and after analysing fact and evidence on record found charges not proved and acquitted the accused respondents of the charges under aforesaid sections of Indian Penal Code. Feeling aggrieved by the same, State has filed this appeal.

We have heard learned AGA for the State as well as learned counsel for the accused-respondents and perused the record.

In this case, as per version of the prosecutrix allegations have been made that Kari Intezar kidnapped her daughter Tarranum Jhan on 12.3.2008 and her daughter was minor about 14 years of age. Although, in her cross-examination, she has submitted that she herself did not see the victim being kidnapped by anyone. She could not even disclose as to who saw her daughter being kidnapped. Thus, testimony of P.W.1 does not inspire any confidence so far as the offence of kidnapping and rape is concerned and she is not the witness of kidnapping and rape.

At this stage, the testimony of P.W.2, the victim Tarranum Jhan assumes grave significance. As per testimony of P.W.2 the victim, it was around 7 p.m. when someone knocked at his door. She opened the door when she saw Kari Intezar standing over there. He asked her to accompany him to Madarasa. She refused. He again asked her whereupon she agreed and went to Madarasa. This witness nowhere deposes that she was ever threatened or compelled by the accused to leave her home. This testimony further disclosed that victim without informing her family members left her home. She has described the details about her alleged kidnapping that after leaving her home, she first went to Muzaffarnagar where she stayed for one night. From Muzaffarnagar she went to Banglore by train where she stayed for 9-10 days in hotel. Lot of passengers were there in the train. From Banglore she came to Delhi by train and got down at the Delhi Railway Station from where she went to Bus Stand where she boarded bus for Meerut. This factual aspects of the case shows that the victim had every reasonable opportunity of coming into contact with other people while travelling by train and by bus but still she did not raise any hue and cry. During her long drawn travelling this tacit response on the part of the victim reasonably leads to two inference. First, that the victim accompanied the accused without any pressure on her own free-will. Secondly, she travelled with him without protest. Even the recovery memo Exhibit Ka-5 shows that on 6.8.2004 the victim was recovered while sitting in the waiting room. On being asked she told that she is waiting of Kari Intezar. This further discloses availability of reasonable opportunity to complain against kidnapping to others but the victim neither tried to make any complain nor did she make any attempt to escape for her safety. This very particular circumstance of the case cannot be overlooked. Further, defence has filed papers 66-Kha/3, which is copy of complaint against her mother wherein she has stated that she on own free-will has married Kari Intezar. In her statement under Section 200 Cr.P.C. as per paper 66 Kha/6 she is stated her age to be about 20 years. Thus, these factual aspect of the case shows that the victim is a consenting party and she without being enticed away or threatened at the instance of the accused on her own free will accompanied him and live with him for quite some time. In view of above back drop of this case, the moot point that requires serious consideration is the actual age of the victim. Record profusely and overwhelming shows that the victim was 18 years of age as per her medical report Exhibit Ka-4. P.W.3 Dr. Savita Gupta has stated in her testimony that epiphysis of right elbow, right knee and right wrists were fused, therefore, the victim was above 18 years of age. This fact of age as stated by Dr. Savita Gupta has not been challenged by the prosecution. Conversely, prosecution has tried to prove Exhibit Ka-12, which is admission register of Purva Madhyamik Vidaylaya, Amhera wherein the date of birth of the victim is 19.1.1994. P.W.8 has proved this admission register by secondary evidence. But this witness has also stated that in normal circumstances parent given lesser age of their children. As per the law laid down by Hon'ble Apex Court in the case of Dayachand Vs. Sahib Sing C.A.R. Page 127 Supreme Court. It has been observed that it is known to everyone that in school records the parents have developed tendency to given lesser age of their children and considering that particular aspect Hon'ble Apex Court has observed that much reliance can be placed on the medical examination report fixing date of a person. Therefore, the date of birth as given and proved by P.W.2 Dr. Savita Gupta is liable to be accepted. Further, the defence has placed on record Exhibit Ka-2 the age certificate issued by Chief Medical Officer, Meerut wherein age of the victim as on 1.4.2008 is shown 21 years. Paper no.92/5 is copy of affidavit produced by the victim before C.M.O. Meerut wherein she is stated her age 20 years and in the complaint by the victim against her mother paper no.66 Kha/3, 66 Kha/4 victim has stated her age as 20 years. Therefore, in the ultimate analysis the age of the victim cannot be said to be less than 18 years. Now, it is proved that the age of the victim is over 18 years then the discussion made herein above in regard to other possibility of opportunity of complaint to other people about the crime by the victim and non-utilization of the same by the victim virtually hits at the root of the prosecution case and generates reasonable doubt that the victim was forcibly kidnapped. Further, conduct of victim disfavours the allegation made in the first information report and her conduct is not natural. Testimony of victim in regard to the commission of the very offence under Section 161 Cr.P.C. and under Section 164 Cr.P.C. are contradictory.

Factual aspect of the case is that first information report itself mentions eyewitness Anwar, who saw Kari Intezar and Jubair in the company of victim but he was not examined in Court. This throws doubt on the prosecution case as to how and why this star independent witness was not produced.

In view of above, we may infer that the charges framed against accused persons were rightly found by the trial court not proved. We may record that there are serious infirmity in the prosecution case and version of incident is scanty, scratchy and improved one. victim had every opportunity to complain to other people about the crime while she was travelling from one place to another place of long distance. On the contrary her conduct and testimony on record suggests that she is consenting party and her age as per medical examination report is convincingly above 18 years. She could not give any reason as to how and why she filed a complaint against her own mother and stated to be above 20 years of age. Therefore, finding of acquittal as recorded by the trial court cannot be said to be either illegal or perverse. It is well settled principle of criminal jurisprudence that in case, two views are possible regarding an incident the one taken by the trial court cannot be disturbed. Therefore, the finding of acquittal recorded by the trial court appears to be based on material on record and the appeal preferred against the same is devoid of merits and the same is liable to be dismissed.

The leave to appeal is refused.

Let copy of this order be certified to the court concerned.

Dt.18th July, 2014

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