Zakir Husain @ Mikal vs State Of U.P.
2016 Latest Caselaw 3437 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4
 
										AFR
 
Case :- JAIL APPEAL No. - 2513 of 2011
 

 
Appellant :- Zakir Husain @ Mikal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A. G. A.
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Sri Kandarb Srivastava, learned amicus curiae appointed by the High Court on behalf of the applicant and Sri Brijesh Yadav, learned A.G.A. for the State.

This jail appeal has been filed by the appellant-Zakir Husain alias Mikal against the judgment of the trial Court dated 03.02.2011 passed in S.T. No. 95 of 2010 case crime no.1396 of 2009 under sections 376 (2)(f), 504 and 506 IPC.

The prosecution case as per the F.I.R., lodged by the mother of the victim on 2.11.2009 at 10 a.m., is that on 31.10.2009 at about 4 o' clock afternoon, she went for searching her daughter Km. Sahama and found her near Ramghat in the bushes. Her daughter was shouting and accused Zakir Husain @ Mikal was lying over her in naked condition and threatening her daughter not to reveal anything to anybody otherwise she will face serious consequences. The allegation is that the accused Zakir Husain @ Mikal has committed rape upon the girl. It is also alleged by the informant that there are injuries on the private part of her daughter.

After registration of the F.I.R the investigation commenced and case crime no. 1396 of 2009 under sections 376, 504, 506 I.P.C. has been registered at police station Mauranipur District Jhansi. S.I. Shyam Swaroop Khushwaha was entrusted the investigation. He arrested the accused the same day and recorded his statement. On 5.11.2009 he recorded the statement of the victim. He has also prepared the site plan in the presence of the informant. Thereafter on 27.11.2009 the victim was again medically examined and a supplementary medical report has been prepared. After completion of investigation he has submitted charge sheet against the accused under section 376, 504, 506 I.P.C.

In order to prove its case the prosecution has examined five witnesses in all. P.W. 1-Smt. Sabira is the first informant and mother of the victim. She deposed that on 31.10.2009 at about 4 p.m. Her daguther aged about 7 years was playing in the locality and she was enticed away by the accused and he has taken her daughter towards the bushes of Ramghat and was committing rape with her. Her daughter was crying and shouting loudly. She went towards Ramghat in search of her daughter and saw that the accused was standing naked and was threatening her daughter not to reveal anything to anybody otherwise he will kill her. On alarm being raised by her, the accused ran away from the spot. It is further stated that her daughter has received injuries on her private parts and there were injuries on her stomach, hands and knees. Due to fear and fear of defamation after consultation with the relatives she has lodged the F.I.R. on 2.11.2009.

P.W. 2-Dr. Alpana Bartaria has medically examined the victim. She has proved the medical report of the victim. In her deposition she has stated on medical examination that she has not found any external injury on the victim. Hymen was intact. She has stated that there is a small laceration 1 cm. in 6 O'clock position but there was no discharge of blood. She has also stated that as per the report of the two vaginal slides there is no presence of any spermatozoa. She has further stated that there is no evidence of recent sexual activity.

According to the supplementary medical report of the C.M.O. Jhansi dated 13.11.2009, the age of the girl has been determined as about 7 years. The medical report, however, mentions that there is no spermatozoa seen in both the vaginal slides taken, although, in the opinion it has been stated that no definite opinion regarding sexual activity can be given.

P.W. 3 Head Constable Sanjeev Katariya has proved the chik F.I.R.

P.W. 4-SI Shyam Swaroop Khushwaha has investigated the case and submitted the charge sheet against the accused.

P.W. 5-victim Sahima has deposed before the Court that she was playing with her friends and the accused, who is present in the Court took her towards the forest on the pretext that he will give peanuts and toffee. He removed her clothes and his pant and lay down over her. She was crying when her mother reached there. She also stated that the accused threatened her and abusing her mother ran away from there. She also stated that she had bleeding from her private parts. Her mother has took her to the Hospital.

The accused in his defense has stated that the first informant is his cousin sister and she is a woman of bad character and she has also tried to form illicit relations with him but he refused her. Due to this she has become annoyed with him and has lodged a false F.I.R. against him.

The trial court, however, on the basis of the evidence on record and statements of the witnesses found the appellant to be guilty of the offence under section 376 (2) (f) read with Section 511, 504 and 506 I.P.C. and sentenced him to undergo five years rigorous imprisonment with penalty of Rs.5,000/- and one year R.I. each under section 504, 506 I.P.C. All the sentences were directed to run concurrently. In case of default of payment of fine the appellant was to undergo further five years imprisonment.

The submission of the learned counsel for the appellant is that there is delay in lodging the F.I.R. and the appellant has falsely been implicated in this case. The medical examination report also does not show any injury on the private parts of the accused. The informant is the cousin sister of the accused and wanted to have illicit relation with him but when the appellant refused her, she has lodged a false F.I.R. against him.

Learned AGA supported the judgement of the trial court by submitting that the doctor, in her medical report, had not given any definite opinion that there was any recent sexual activity but had stated that there was a laceration mark, therefore, the judgement of the trial court was absolutely correct. Learned AGA further submitted that to establish the charge of rape, penetration is not necessary.

Doctor Alpana Bartariya also examined the victim and her statement was recorded on 17.9.2010, in which she has stated that on medical examination she did not find any internal injury on the body of the girl. Hymen is intact. Although, she mentioned that there is a small laceration mark but there is no discharge of blood. She has repeated her findings in her medical report and stated that as per the report of the two vaginal slides there is no presence of any spermatozoa. She has also stated that there is no evidence of recent sexual activity.

In her testimony the mother of the victim while identifying the yellow underwear worn by the victim at the time of the alleged incident deposed that it was torn in front from top to bottom and had several stains. There is nothing on record to show that any forensic laboratory test was conducted to find out as to what the stains were. The mother of the victim has also stated that when she returned from Ramghat with her daughter, her neighbours of the locality had collected there and had advised her to report the matter to the mother of Zakir. Not a single person of the locality has been examined as a prosecution witness with regard to the incident alleged to have happened with the victim. Thus, there is no independent witness to corroborate the story of the victim or her mother.

The accused Zakir was also medically examined and his medical report shows "NIL" injury.

As per the statement of the mother of the victim that she went searching of her daughter Km. Sahima and found her near Ramghat and her daughter was shouting and accused Zakir Husain @ Mikal was lying on top of her without any clothes and threatning her daughter not to reveal anything to anybody and upon arrival of the mother of the victim the accused Zakir Husain @ Mikal ran away from the site. However, medical report does not support the prosecution case. As per the medical report and also the deposition of the doctor during the course of trial, there was absolutely no injury upon the body of the girl. Hymen was intact. There was no blood discharge and there was no presence of spermatozoa in both the vaginal slides taken. Therefore, in my opinion, the definite case of rape beyond all reasonable doubt under section 376 (2) (f) IPC is not made out.

The Supreme Court in the case of State of Karnataka Vs F.Nataraj reported in 2015 AIR (SCW) 6241 where the prosecutrix was aged between 13-14 years and therefore, less than 16 years and a minor, has held in paragraphs 9 to 17 as under:-

"9.To arrive at a conclusion as to whether actual sexual intercourse took place or not, the statements of the prosecutrix (PW1) and medical officer (PW5) need to be examined in detail. As per the averments made by the prosecutrix in the complaint (Ex.P-1) filed by her on 15.11.2003, she was in love with the respondent and it is because of her coercion that the accused took her to Bangalore where they got married and led life like a married couple for a period of 20 days. She mentioned that their marriage had consummated as well. However, the evidence in examination-in-chief of the prosecutrix (PW1), is totally inconsistent with the averments in the complaint (Ex.P-1). In her testimony made before the Court she has stated that in the early morning of 26.10.2003, when she came out of her house to ease herself, the accused met her and forcibly took her to Bangalore saying that he loved her and would marry her. She further stated that she was made to stay in the house of Kaveramma (aunt of the accused) for about 20 days and they lived there as husband and wife. But in her examination-in-chief she also mentioned that she did not lodge any complaint or make any statement and the document Ex.P-1 though has her sign, was not read over to her by the Police. After being treated as hostile, when the Public Prosecutor cross-examined her, she admitted that after they came to Bangalore, the accused brought a ready-made Thaali and tied it to her neck and they got married and sexual intercourse took place between them. But she vehemently and categorically denied the suggestion that the averments made in Ex.P-1 are true and correct and that the complaint came to be written at her instance. In cross-examination by the advocate for the accused, she categorically stated that she was well aware of the meaning of the word "intercourse" and that it was painful and she felt like screaming when the accused had intercourse with her for the first time.

10. The statements of the prosecutrix are highly inconsistent. The statement made by her to the police has been categorically denied and the statements made by her before the Court seem to be tutored. At the time when her statement was recorded as PW1, the age of the prosecutrix was about 17 years and it is quite natural for a girl of that age to know as to what is "sexual intercourse". Also, the aunt of the accused i.e. Kaveramma, at whose house at Bangalore the prosecutrix and the accused stayed after fleeing from Hiriyur Town, has not been examined. Further, the fact that the prosecutrix did not raise any alarm when the accused tried to kidnap her, seems to be quite unnatural. The testimony of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence.

11. The medical examination of the prosecutrix took place on 16.11.2003 and she was examined by Dr. M. Latha (PW5) who was the Lady Medical Officer at the Government Hospital, Hiryur. Her deposition was that upon examination, no injury was found on the private parts of the prosecutrix and her hymen was intact. She also stated that there were no signs of recent sexual intercourse as the prosecutrix was not subjected to sexual intercourse during the past seven days from the date of her medical examination and she issued a certificate Ext.P-7 to this effect. But she could not say clearly as to whether the prosecutrix was subjected to sexual intercourse previously or not.

12. It is not elicited by the evidence of PW5 as to what was the nature of the hymen that was found intact in the person of the prosecutrix. Though it may be true that the rupture of the hymen may not occur in all cases of sexual intercourse, but it is the burden of the prosecution to extract from the medical examiner examining a rape victim, that the nature of the hymen was such that it could remain intact despite there being intercourse with the girl on several occasions within a period of 15 to 20 days. The medical examiner has merely mentioned that there were no signs of recent sexual intercourse which is inadequate to establish that sexual intercourse took place before that at all.

13. The appellant State relied upon the case of Madan Gopal Kakkad v. Naval Dubey, (1992)(3) R.C.R.(Criminal) 461 : (1992) 3 SCC 204, wherein this Court has held that even the slightest penetration of penis into vagina without rupturing the hymen would constitute rape. The appellant contended that the fact that the hymen of the prosecutrix was not ruptured does not lead to the inference that there was no sexual intercourse. But we do not find any weight in this submission as there is no medical evidence even to suggest the slightest of penetration.

14. Learned counsel for the respondent relied upon the case of Radhu v. State of M.P., 2007(4) R.C.R.(Criminal) 158 : 2007(5) Recent Apex Judgments (R.A.J) 118 : (2007) 12 SCC 57, wherein this Court had laid down the principle that a conviction of rape can be based on the uncorroborated testimony of the prosecutrix and even the absence of injuries on the private parts of the victim will not falsify the case of rape, but at the same time, the Courts must bear in mind that the question whether there was rape or not would depend ultimately on the facts and circumstances of each case.

15. Learned counsel for the respondent further relied upon Mohd. Ali v. State of U.P., 2015(2) R.C.R.(Criminal) 206 : 2015(2) Recent Apex Judgments (R.A.J.) 177 : (2015) 7 SCC 272, wherein this Court recently held as follows:

"30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony..."

16. In the present case, the gaps in the evidences of the prosecutrix and the medical officer make it highly improbable that sexual intercourse took place. It would be erroneous to rely upon such discrepant testimonies and convict the accused. It can thus be stated with certitude that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical evidence, is not of such quality which can be relied upon. The accused- respondent is, therefore, entitled to benefit of doubt.

17. Thus, in the light of the above discussion, we are of the view that the present appeal is devoid of merits, and we find no grounds to interfere with the judgment passed by the High Court. The appeal is, accordingly, dismissed."

In view of the above, in my opinion the prosecution could not prove its case and the learned Trial Court has erred in recording a finding of guilt against the appellant.

The appeal is therefore allowed. The impugned judgment and order mentioned above convicting and sentencing the appellant Zakir Husain @ Mikal is set aside. He is acquitted of the charge under Sections 376 (2)(f) read with Section 511, 504 & 506 I.P.C. The appellant was arrested on 2.11.2009 and is in jail till date. If he is not wanted in any other case, he shall be released forthwith provided he files his personal bond and two sureties in accordance with section 437(A) Cr.P.C. to the satisfaction of the Court concerned.

Office is directed to communicate this decision to the Court concerned forthwith and to send back the record.

Learned Amicus Curiae Sri Kandarb Srivastava, who has assisted the Court very well may be paid Rs. 7,000/- as his fee.

Order Date :- 8.6.2016

N Tiwari/o.k.