Shahjad vs State Of U.P. And 5 Others
2015 Latest Caselaw 3228 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 27
 
Reserved
 
A.F.R.
 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 4461 of 2015
 

 
Appellant :- Shahjad
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Appellant :- Nipun Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

The instant criminal appeal has been preferred against the judgment and order of acquittal  dated 4.8.2015 passed by the Additional Sessions Judge, court no.1, Kairana, Muzaffarnagar in S.T. No.185 of 2012, State Vs. Ahsan and others in relation to Case Crime No.243 of 2008 at Police State Kairana, District Muzaffarnagar. By the aforesaid order the accused persons have been acquitted for the offence under Sections 363, 372/511 IPC.

I have heard respective submissions for learned counsel for the applicant as well as learned A.G.A. and perused the record as available on the file.

The factual matrix of this case as emanates from perusal of record reflects that appellant Shahjad being first informant lodged a written report at police station Kairana on 20.3.2008 around 1.00 p.m. to the effect that the daughter of the first informant aged 13 years has been kidnapped/enticed away by accused persons Ahsan, Balla, Kasim, Sajid and two unknown persons on 19.3.2008 around 7.00 p.m. This incident was witnessed by Nawab, Hakim and Salim. The first informant made hectic effort for his daughter but in vain. This report was lodged at Crime No.243 of 2008 at police station Kairana, district Muzaffarnagar, under Section 363 IPC. Thereafter investigation took place and the victim was recovered in the meanwhile and after her medical examination and after completing necessary formality, charge-sheet under Sections 363, 372 and 511 IPC was filed against accused Ahsan, Balla, Kasim and Sajid. Thereafter the matter was duly committed to the court of Sessions from where it was made over for trial to the Additional Sessions Judge, Court No.1, after numbering the same as Sessions Trial No.185 of 2012. During the course of trial, another accused Guljar son of Islam was summoned under Section 319 Cr.P.C. Consequently, after hearing the prosecution and the accused persons, charges under aforesaid sections of IPC were framed against accused persons, who denied the charges and opted for trial.

In turn, the prosecution was directed to produce its evidence whereupon the prosecution examined in all 8 witnesses P.W.1 Shajad, father of the victim, P.W.2 victim herself, P.W.3 Nawab, P.W.4 Dr. Anita Garg, P.W.5 S.I. Karam Singh Pundir, P.W.6 S.I. Ramchander Singh, P.W.7 Constable Shishkewar Rana and P.W.8 Retired Dr. P.K. Jain and the evidence for the prosecution was closed.

Thereafter, the statement of the accused persons was recorded by the learned trial Judge under Section 313 Cr.P.C. In their statement accused termed their implication false on account of village party-bandi. The defence did not lead any evidence.

The learned trial court after hearing the respective submissions of both the sides recorded aforesaid findings of acquittal. Consequently, this appeal against acquittal by the first informant.

Learned counsel for the appellant has vehemently persuaded this Court to believe in the involvement of the accused persons in kidnapping the minor girl for selling her out and the trial court misread the evidence and circumstances as a whole and overlooked the act of criminality and recorded unjust finding of acquittal, which finding of acquittal cannot be said to supported by record, but the same is extraneous and the same cannot be relied upon. Conversely, the evidence on record vis-a-vis circumstances of the case  profusely allude to the guilt of the accused persons. The trial court was not justified in recording such finding of acquittal.

Learned AGA has objected the aforesaid arguments by submitting that the trial court  has rightly adjudged the veracity of the story after proper appraisal of the evidence on record vis-a vis circumstances. To say that the finding of acquittal is  based on extraneous material than the record is not warranted by the  material already available on record.

The moot point involved in this appeal relates to fact whether the finding of acquittal is vitiated for the reason that the same is not supported by material on record? 

At the very inception, a bare perusal of the certified copy of the judgment, which has been placed on record, it is reflected that the minor girl as suggested in the first information report to be around 13 years  of age was discovered to be major about 19 years by the trial court. In this perspective, the trial court took  note of the medical examination report, the domestic circumstances of the victim and also considered the radiological report which reads as under:

1- X-Ray Wrist Epiphysis of lower and of radius and ulna are partially fused and epiphysis live is visible.

2- X-Ray knee A/P and lateral.

3- X-Ray eldbow A/P and lateral.

4- Epiphysis of both the joints are fused.

Radiological age about 17 years.

There is no worthy evidence other than the medical report so available on record. There is no specific date of birth of the victim proposed by the prosecution then learned trial court added two years margin in her age and recorded findings that the victim was  about 19 years of age. Perusal of the judgment itself further reflects that the victim is said to have been recovered on 24th March, 2008, whereas her statement was recorded under Section 164 Cr.P.C. on 24.3.2008. The statement (under Section 164 Cr.P.C.) as a whole reads out that the victim was taken to the police station Shamli on 20.3.2008 around 12.00 noon. This  fact by itself is surprising development and hints that the entire story of recovery is cooked up and afterthought and the prosecutrix has been tutored.

Learned counsel for the applicant could not properly reply on this factual aspect, however, he submitted that the date 20.3.2008 as stated by the victim in her statement under Section 164 Cr.P.C. was per chance not correctly written and has submitted that infact the girl was recovered on 24th March, 2008. At this stage, learned counsel was queried on point of existence of any recovery memo of  the victim, whereupon, learned counsel could not state about the existence of any such document. The judgment itself clarifies that no recovery memo of victim was ever prepared by the trial court. On this point, specific reference has been made in the judgment that the recovery memo of the victim has not been prepared by the police. This by itself goes to show that the prosecution has tried to do  away things in a most improper and casual manner. If the victim/girl was taken to the police station Shamli on 20.3.2008 at 12.00 noon then the theory of recovery so staged that the girl was recovered on 24.3.2008 stands falsified and in the absence of  preparation of recovery memo of the girl, the entire story regarding recovery of the girl on 24th March, 2008 poses dubious question  mark against prosecution story as set-up and puts the prosecution to its peril and detriment. Partial fusion of wrist and ulna- is sufficient to infer that the victim must have been around 17 years of age. Thus conclusion drawn by the learned trial court by adding two years to margin in the same on the lower side rightly puts the age around 19 years.

Further, the copy of the statement of the girl itself has been placed on record (Annexure No.2) which reflects that the victim was having affair with accused Ahsan. This by itself gives strong possibility that the victim had every desire to accompany the accused of her own free-will. On the point of wilful accompaniment, a number of contradictions have crept  in the statement of the victim as recorded before the trial court and the statement recorded by the I.O. under Section 161 Cr.P.C., which contradictions hit at the credibility of the testimony of the victim itself. She has gone to the extent that she is unable to recall about the fact whether she had stated before the Magistrate in her statement  (under Section 164 Cr.P.C.) that she was taken to police station Shamli on 20.3.2008 or not.  Relevant to observe that the circumstances of the case have been consistently appraised vis-a-vis testimony by the trial court and  the trial court has rightly concluded that there is no specific evidence bringing the case under Section 372/511 IPC, for the reason that the only piece of testimony available on record, in this context, relates to fact that the accused persons were talking about sale of the victim. No further testimony has forthcome as to whom and where the victim was targetted to be sold. Therefore, mere statement that the accused were talking of selling  out the victim by itself is not sufficient to bring the charge under Section 372 IPC  home.

The very genesis and the initial stage of the crime is said to be a  trivial  quarrel, which took place between the victim and her brother Navshad. As a result of the same Navshad went out of the  house and  the victim followed her brother Navshad outside her house when she was kidnapped. But statement recorded under Section 161 Cr.P.C. depicts another story and the same is in materially contrast to the statement given in the court. Thus  creditworthiness of victim's testimony is shaken and she is not worthy of credit.

It is obvious from perusal of her statement after the victim was recalled for further cross-examination that she was having love affairs with Ahasan. If the story of love affair is very much stated by the girl herself, who under facts and circumstances of this particular case is discovered to be above 18 years of age then the unimpeachable and inescapable conclusion would follow that she being major was consenting party. All these factual aspects of this case vis-a-vis testimony on record  have been given due weightage by the trial court and the trial court has recorded finding in a consistent manner on the vital aspects of the case particularly on the statement of the girl/victim and her age. The circumstance  (as recorded in statement  under Section 164 Cr.P.C.) that the girl infact was taken to the police stage on 20.3.2008  is in  sheer contrast to the claim of the prosecution that the girl/victim was recovered on 24.3.2008.  This circumstance by itself is sufficient to show that the things have been managed to great extent and improved. Testimony if discovered  to be improved one is to be discarded by court and such improved testimony throws lot of doubt on the prosecution story.

Pertinent question that arises worth consideration in the instant appeal as to whether the finding of acquittal  though based on the materials available on record can be said to be unfounded and extraneous? The answer immediately comes out is in affirmative because the finding of acquittal so recorded is found to be based on material available on record and the finding so made is reasonable, just and consistent. Conversely, the prosecutrix's testimony does not inspire confidence as her testimony appears to be sketchy and shallow just to colour the situation in her own way, which testimony, as a whole  on careful scrutiny of the entire evidence is not believable.

Criminal jurisprudence very much stipulates that sole testimony of the prosecutrix is sufficient  to record  conviction but a rider intervenes  to the extent that such sole testimony should be consistent and  convincing. If it is shaky and improved one then it hits at the root of the prosecution case. So far as  Navshad (real brother of victim) is concerned, he appears to be prime witness of the  fact of initial quarrel between him and the prosecutrix,   but he has been withheld by the prosecution for no obvious reasons.

The length and breadth of the argument advanced to the extent by the counsel for the Appellant- informant that the finding of acquittal is based on no record and extraneous, is under aforesaid circumstances and facts is liable to be disapproved.

It is cardinal principle of criminal jurisprudence that presumption of innocence of the accused right from the stage of commencement of trial continues upto Appellate stage. In case finding of acquittal is found to be based on material available on record then the presumption of innocence gets fortified and strengthened in favour of the accused and  the same need  no interference by the Appellate Court. This legal aspect has been considered and elaborated by Hon'ble Supreme Court in the case of Kanhaiya Lal and others Vs. State of Rajasthan AIR 2013 SC 1940.

Here in this case also the presumption of innocence goes in favour of the accused, even in cases where two views are possible regarding the same incident then the view taken and adhered to by the trial  court will not be disturbed at Appellate stage, if the material on record justifies the finding so recorded. This very legal periphery finds support from the pronouncement of the Hon'ble Apex Court in the case of Bhadrigiri Venkata Ravi Vs. Public Prosecutor High Court of A.P. Hydrabad, 2013 (4) Supreme 450.

The above analysis of evidence, facts and circumstances of the case in hand invaribaly leads to the conclusion that the finding of acquittal is backed up by sufficient material and the same is  liable to be sustained as such.

In view of above, the grounds urged in this appeal vis-a -vis the submission raised before this Court on behalf of the learned counsel for the informant-appellant do not carry force and the appeal lacks merit and the same is dismissed, accordingly.

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

Order Date :- 15.10.2015

RK