Imran vs State Of U.P.
2016 Latest Caselaw 3244 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
RESERVED ON 06.05.2016
 
DELIVERED ON 31.05.2016
 
                                                                                  (AFR)
 

 

 
1. Case :- CRIMINAL APPEAL No. - 1941 of 2014
 

 
Appellant :- Imran
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mohd. Aslam Ansari
 
Counsel for Respondent :- Govt. Advocate
 

 
2. Case :- CRIMINAL APPEAL No. - 1761 of 2014
 

 
Appellant :- Sanjay And Anr.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mahendra Pratap,Amit Krishan,Anurag Yadav,Atul Kumar,K.P.S. Yadav,Mahendra Pratap,Sanjay Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

Challenge in these two appeals is the judgment and order dated 14.04.2014 passed by the learned Additional Sessions Judge, Court No. 1, Muzaffarnagar in Session Trial No. 62 of 2006 (State Vs. Sanjay and another) and Session Trial No. 1147 of 2007 (State Vs. Imran), both arising out of Case Crime No. 701 of 2005 under Sections 363, 366, 376 (2) (g) IPC, Police Station Nai Mandi, District Muzaffarnagar whereby each of the accused appellants were convicted and sentenced to four years' rigorous imprisonment and a fine of Rs.2,000/- each under Section 363 IPC; five years' rigorous imprisonment and a fine of Rs.3,000/- each under Section 366 IPC and ten years' rigorous imprisonment and a fine of Rs.6,000/- each under Section 376(2)(g) IPC with default stipulation. By the impugned judgment and order it has also been directed that Rs.20,000/- will be paid to the victim as compensation out of the amount of fine so deposited from the accused appellants.

2. Brief facts of the prosecution case are that an application was moved by informant Sarfaraj before the Senior Superintendent of Police, Muzaffarnagar alleging that accused Imran, son of informant's maternal uncle was living with him for last 5-6 years and two months before family members of informant saw accused Imran in an objectionable position with victim, the minor sister of informant. Then, on being driven out from the house of informant, accused Imran started living with one Kala at village Nyajupura where accused Saleem also lived. They used to come near the house of informant along with accused Sanjay. Sister of Kala, who told her name as Munni, also used to come to the victim. On 18.06.2005, preparations were being conducted in the village for the marriage of daughter of informant's uncle. Family members of informant had gone to the house of his uncle Islamuddin and informant's sister (victim) aged about 14 years was alone at the house. At that time, sister of Kala and accused Sanjay went to the informant's house and they had talk with victim and after some time went away. Thereafter, in the night at about 8:30 PM accused Imran, Saleem, Kala and Sanjay came at the informant's house and they enticed away and kidnapped the minor sister(victim) of informant in a car along with Rs.50,000/- which were kept in the house for the purpose of marriage of the daughter of informant's uncle. The incident was seen by Naushad, Ayyub and others. When family members returned, on not seeing the victim as well as the money, they searched enough, but could not trace out her. On 25.06.2005, one Mohsin resident of village Nyajupura told the informant that his sister is at the house of accused Kala resident of village Niyajupura along with other accused. Informant went there and found the victim in a fear-stricken state. She told that accused with the help of Kala's sister kept her at many places, they raped her and also took the money. The informant requested the SSP, Muzaffarnagar to lodge FIR against the accused persons and to get the victim medically examined. On the basis of the aforesaid allegations, the chik report/FIR was scribed by Constable 987 Rajesh Kumar, which was marked as Ext. Ka-1 and Ka-3.

3. Investigation of the case was entrusted on the same day to SI Anil Kumar Singh. He proceeded to record the statement of informant. Thereafter, he also recorded the statement of victim. Chik report was copied by him in case diary. He also recorded the statements of scriber of chik FIR. Next day, on 08.07.2005, he inspected the spot of incident, site plan was prepared, he also prepared the site plan of the place from where the victim was recovered. The site plans were marked as Ext. Ka-9 and Ext. Ka-10. The victim was sent for medical examination to Women Hospital, Muzaffarnagar. As per the medical examination report Ext. Ka-4, secondary sex character of the victim was found developed, axillary hair were present and there was no mark of injury on external surface of body. As per the said medical report, pubic hair were present, labia majora were found developed, hymen was old torn and healed and vagina was admitting two fingers easily. Vaginal smear was taken in two slides which were sent for pathological examination to detect the presence of spermatozoa. No mark of injury was present on private part of the victim. X-ray of right elbow joint, right wrist joint, right knee joint was advised for determination of her age. According to the supplementary report of medical examination dated 12.07.2005 marked as Ext. Ka-5, the age of victim was about 18 years and no definite opinion about rape was given. Statement of the victim was recorded under Section 164 Cr.P.C. which is exhibited as Ext. Ka-2. In her statement under Section 164 Cr.P.C. she has stated that initially Munni and Sanjay came to her house and when they came to know that there was nobody in the house they came in a car and pulled her into car. They further locked her in a room and Sanjay, Kala, Imran and Saleem raped her and compelled her to sign some papers. In the statement under Section 164 Cr.P.C. there is no mention about the victim took away Rs.50,000/- from her house. If at all she as abruptly called out of her house and taken away, there was no occasion for her to carry away Rs.50,000/- with her. The statement under Section 164 Cr.P.C is a previous statement with which the victim could have been confronted and she was confronted. As per her statement under Section 164 Cr.P.C when the victim was recovered with the accused, he was handed over to the police. This statement does not find support from the prosecution evidence. The victim has resiled from certain averments of her statement given under Section 164 Cr.P.C and changing of statement by the victim again and again causes a deep dent in the prosecution case.

4. Thereafter, the investigation ended into charge sheet against the accused Kala, Sanjay and Saleem in Crime No. 701 of 2005, charge sheet No. 195 was marked as Ext. Ka-11 and against the accused Imran, charge sheet No.195/1 was marked as Ext. Ka-12, were filed under Sections 363, 366, 376 IPC. On the basis of the aforesaid charge sheets, charges were framed by the learned Additional Sessions Judge vide order dated 20.02.2006 against the accused persons for the offences punishable under aforesaid Sections.

5. The Prosecution in support of its case has examined as many as seven witnesses namely Sarafraj(informant) as PW-1, the victim as PW-2, Naushad as PW-3, Rajesh Kumar as PW-4, Dr. Manorma Gupta as PW-5 and Smt. Geeta Devi as PW-6 as well as SI Anil Kumar Singh as PW-7.

6. After close of evidence by the prosecution, statements of accused persons were recorded under Section 313 Cr.P.C. in which they denied the incident and claimed trial. Accused appellant Imran in his statement recorded under Section 313 Cr.P.C. pleaded that he gave Rs.2.5 lakhs, which he obtained from selling the land after partition of his house, to the parents of victim and he also gave Rs.2.5 Lakhs to them, which he earned by doing labour work. On demanding the aforesaid money, he has been falsely implicated in this case. Accused Saleem has pleaded that he stayed with co-accused Kala, for this reason he has been falsely implicated in this case. He also stated that he did not know the victim as well as Imran, the accused. He never went to her house and he has nothing to do with her family. Similarly, accused appellant Sanjay in his statement recorded under Section 313 Cr.P.C. stated that his father did not support the election of village Pradhan to the aunty of the informant and due to which he has been falsely implicated. Co-accused Kala had died during the trial proceedings, hence the criminal proceedings against him have been abated.

7. In support of their case, they examined as many as five defence witnesses namely Wareesa as DW-1, Ayub as DW-2, Furkan as DW-3, Mohsin as DW-4 and Arbaz @ Bhura as DW-7.

8. After hearing the arguments advanced by the learned counsel for the parties, the Trial Court proceeded to convict and sentence the accused appellants as narrated in para-1 of the judgment.

9. Feeling aggrieved, the accused appellants have preferred the present appeals.

10. Heard the learned counsel for appellants, learned AGA appearing for the State and perused the record of the case.

11. The learned counsel for the accused appellants have contended that the judgment and order of the learned Trial Court is based on surmises and conjectures, hence it is bad in the eyes of law and both the appeals deserve to be allowed.

12. Per contra, the learned AGA has supported the impugned judgment and order of learned Trial Court and submitted that the accused appellants have been found guilty of committing gang rape and the appeals filed by them are liable to be dismissed.

13. At the outset counsel for the appellants has submitted that there is an inordinate delay in lodging the FIR which is fatal for the prosecution case. He has further submitted that as per Ext. Ka-2 i.e. chik report the occurrence took place on 18.06.2005 whereas the report regarding the same was lodged on 07.07.2005 at 11:00 AM, the police station being six kilometers away from the place of occurrence. There is an inordinate delay in lodging the FIR which is fatal for the prosecution case.

14. Although, the written typed application by the informant is dated 06.07.2005, but it was actually presented before the authorities on 07.07.2005 as is evident from the endorsement of the police station. This report was lodged after the victim was recovered. Since nothing has been mentioned in the FIR, hence the statement of informant has to be taken recourse to whether he has given any explanation for lodging the FIR after such a long delay or not. I am aware of the fact that delay in lodging the FIR in all cases of rape is not fatal for the prosecution case because in cases of rape generally the victims and family members are hesitant in lodging the report at the police station in fear of defame and bringing ill-repute to the family. However, if delay is explained, then, it would not be fatal for the prosecution. In his statement the informant Sarfaraj, PW-1, has stated that on 25.06.2005 Mohisin told him that he had seen Imran, the accused and sister of this witness at the house of Kala at Niyajupura. He went to the house of Kala and saw the victim siting in a fearful state and she was weeping. The recovery and other part of the statement shall be looked into later but from his statement as appeared it is clear that on 26.06.2005 the informant had come to know that the victim was at the house of Kala. This was even eight days after the incident. There is no reason why the informant or his parents hesitated to lodge the missing report about the girl since 18.06.2005 when he had come to know that the girl was missing.

15. In (2015) 7 SCC 272: Mohd. Ali alias Guddu vs State of U.P., it has been held as under:

20. "For the aforesaid purpose, first we shall advert to the issue of lodging of the First Information Report. As is demonstrated, the victim missed from the house on 22.11.1996 but the mother lodged the FIR on 3.12.1996 almost after expiry of eleven days alleging the factum of kidnapping by the accused persons, namely, Ali Waris and Md. Ali @ Guddu. It is interesting to note that the mother, had alleged that Ali Waris had left the girl at her door steps. In such a circumstance, if nothing else, the PW-2, the mother, who is expected to have necessitous concern, could have gone to the police station to lodge a missing report which could have prompted the investigation officer to act. It baffles the commonsense that the mother after searching in the neighbourhood as well as amongst the relatives still, for some unfathomable reason that defeats the basic human prudence approached the police station quite belatedly.

21. It is apt to mention here that in rapes cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. The authorities of this Court have granted adequate protection/allowance in that aspect regard being had to the trauma suffered, the agony and anguish that creates the turbulence in the mind of the victim, to muster the courage to expose oneself in a conservative social milieu. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all the psychological inner strength to undertake such a legal battle."

16. PW-1 was confronted with the version of the first information report since the maker of FIR can be confronted with its contents. The informant stated that if one goes from Bilaspur first of all he would have to cross the police station, Nai Mandi. After that he would have to cross police station Kotwali Nagar. Abkari outpost would also fall in the way. After that Niyajupura would fall. But since they were in hurry the did not go the police station. The statement given by this witness before the Court was correct and he has tried to justify by saying that FIR was written in hot-haste but this explanation offered by the informant does not appeal because the first information report is typed and is not hand-written. In fact, annexures with the application were written by hand which show that there was absolutely no hurry in scribing the first information report. Every thing was thought-well and written in the first information report. The informant has not at all said that he did not lodge the report due to fear of ill-repute to his family or the obstructions in the marriage of victim. Thus, there is an inordinate delay in lodging the first information report which has not been explained by the prosecution and the same is fatal for the prosecution.

17. Coming to the age of the victim, the learned AGA has submitted that the victim was minor on the date of occurrence. Hence, even if there was any consent from the side of the victim, it would be of no consequence. PW-6 is Geeta Devi, In-charge Principal who submitted the original school leaving certificate in the Court and stated that the date of birth of victim was 15.07.1991. This school leaving certificate was exhibited as Ext. Ka-7 before the learned Trial Court. The counsel for appellants has submitted that reliance cannot be placed on this document. This witness Geeta Devi was subjected to the cross-examination in which she stated that she could not tell as to who admitted the victim in the school because it is not written in the record. The record does not indicate as to by whom the victim was admitted in the school. She has further stated that the Transfer Certificate was not issued by her. She being the In-charge Principal brought the Transfer Certificate when the Court summoned it and at the relevant point of time, she was not working in the School. It is trite law that the evidentiary value of the school leaving certificate would only be relevant if the person who admitted the child in the School and made entries in that regard in the School register, was produced before the Court.

18. The counsel for the appellants has relied on 2006 (2) SCC (Crl.) 632: Ravindra Singh Gorkhi Vs. State of U.P., in which it has been held that however, in this case it has been observed that entries made in school leaving certificate, evidently had been prepared for the purposes of this case.

19. In 2011 (1) SCC (Crl.) 688: Alamelu and another Vs. State represented by Inspector of Police, it has been laid down that date of birth mentioned in the Transfer Certificate would have no evidentiary value unless the person who made the entry in school register is examined. The prosecution failed to examine the person who made the entry. Besides, even the Investigating Officer Anil Kumar Singh, PW-7, has specifically stated that during the investigation, he did not verify the genuineness of the school leaving certificate. He also did not inquire as to who admitted the victim in the School and on what basis her date of birth was entered. Thus, the school leaving certificate i.e. Ext. Ka-7 is not reliable.

20. Now coming to the age of the victim, the learned AGA has submitted that victim was minor on the date of occurrence. Hence, even if there was any consent from the side of the victim it would be of no consequence.

21. As per the supplementary report of the victim which was marked as Ext. Ka-5, the age of the victim was opined about 18 years on 12.07.2005. The age of consent on the relevant date being 16 years. As per the provisions of Rule-12 of Juvenile Justice (Care and Protection of Children) Rules, 2007, the academic record of the victim would be looked into for determination of her age. But in absence of academic record the medical evidence has to be relied upon. In the present case, there is no academic record to prove the age of the victim, hence as per the Rules specified aforesaid, the radiological age has to be given weightage. As per the radiological report, the age of the victim at the time of occurrence was much above the age of consent.

22. Reverting back to the statement of PW-1 Sarfaraj, he did not see the accused taking away the victim. He is said to be a witness of recovery. But he has stated that when he recovered the victim, she told him that Saleem, Imran, Sanjay and Kala with aid of Munni took her away, her money was also snatched and she was raped by Saleem, Imran, Sanjay and Kala.

23. First of all, I would like to consider the manner in which the victim was said to have been kidnapped. The victim was not kidnapped in the presence of her brother. Her brother Sarfaraj, PW-1, has stated that Naushad and Ayyub had seen the accused persons kidnapping away the girl. Thus, the evidence either of Naushad or Ayyub would be very relevant in the case. However, Ayyub was not examined before the Court but Naushad was produced before the Court as PW-3. He is the witness, who saw the accused persons taking away the girl. He has stated that on 18.06.2005 he was working in Bilaspur in the house of Islamuddin. There was a marriage in the house of Islamuddin and he was doing work of painting and at the relevant point of time, he was painting the gate of house of Islamuddin. When between 8-9 PM, an ambassador car came in which Saleem, Sanjay, Imran, Kala and Munni were sitting. He also saw the victim sitting in the car. He thought the victim was going along with the accused to market to do some purchasing because Imran was the real maternal brother of the victim. This witness Naushad appears to be very well conversant of the relations of villagers. Thus, he could also state that accused Imran was the maternal brother of the victim. He has also stated that when girl returned late, her brother and other family members were trying to trace her. This witness was subjected to the test of cross-examination but he could not face the cross-examination and projected a very bad picture of the case. He has stated that the actual time must be about 8:00 PM. He was painting gate in the light of pole. He has stated that he could identify all the passengers in the car because it was not dark at that time and there was sufficient light. No doubt, the occurrence took place in June, but to say that at 8 PM in June, it would be sufficient daylight, cannot be pleaded and there could not have been any source of light in moving car to this witness to identify the passengers in the car. But this witness had already told the brother of victim about her going away with accused on the next day but nothing was done in the matter and no missing report was lodged. Further, this witness has stated that initially Imran, the accused used to reside in the house of victim. Once, he left the house, he came to know but how this witness came to know this fact, is not clear in as much as Sarfaraj, PW-1, has stated that initially the accused Imran used to live in the house of the victim and once he was caught misbehaving with the victim when he was turned out of the house. This witness also knew the relationship of Imran, the accused with the victim. I have thoroughly gone through cross-examination of this witness. He has narrated surname, caste of practically all the people asked by him although he does not belong to that village. DW-1 is Wareesa wife of Islamuddin. There is no doubt the evidence of defence witness has to be evaluated on the same footing as the evidence of prosecution witness is evaluated. DW-1 Wareesa has stated that she belongs to the same family of the victim. The victim eloped with Imran, the accused. She was recovered from Nasik after a week. The telephonic call was received from some police station at Nasik at which Sarfaraj and others went to fetch her back. They returned seven days after along with the victim. This witness also stated that she was contesting Pradhani election and during that period neither there was any marriage in her house nor any work of painting was done in her house. In cross-examination although she has stated that whatever accused persons told her she narrated in the Court but she denied that she stated before the Court on the instigation of accused. Here, I would like to refer the statement of Investigating Officer also. Investigating Officer Anil Kumar Singh, PW-7, has stated as follows:-

^^;s ckr lgh gS fd bl iwjs jkLrs esa dksbZ fotyh dk [kEHkk Hkh ugh gSA jkLrs dh pkSM+kbZ , fcUnq ls lkeus djhc 15 fQV gksxhA^^

24. Thus, according to the statement of this witness who inspected the spot there was no pole near the house of Islamuddin. Thus, the statement of this witness read with the statement of DW-1, Wareesa, completely falsified the version of Naushad and places him in the category of a totally unreliable witness. Hence, the statement of Naushad, PW-1, cannot be relied upon and it also falsifies the version of Naushad that he had seen the accused persons taking away the girl.

25. As far as recovery is concerned, as per the prosecution case the victim was recovered at the house of Kala situated at Niyajupura. The informant Sarfaraj, PW-1, has stated that on 25.06.2008 Mohsin told him that the victim and the accused were present at Niyajupura at the house of Kala, this witness went to the house of Kala at Niyajupura and recovered the girl. He has stated that Mohsin was known to him from before. The room was not locked from the outside. The accused had fled away from the house. Only the victim was present there. He himself had not seen the accused fleeing away but his sister(the victim) told him that accused had fled away. Thus, Mohsin is the witness who told the witness Sarfaraj, brother of the victim whereabout of the girl. Mohsin was not examined by the prosecution, but he was examined by defence as DW-4. He stated that 8-10 years prior the sister(the victim) of Sarfaraj had eloped, at which Sarfaraj came to the house of this witness and told his father that the victim had eloped to Nasik from where he had received a telephonic call. He requested the father of this witness to accompany him to Nasik, at which his father went with PW-1 to Nasik from where she was brought back to home. He has further stated that the victim was never recovered from the house of Kala, nor she requested this witness to inform her family members. Thus, the source of information of whereabouts of the victim as per PW-1 Sarfaraj was Mohsin who has completely denied about having given any such information. In fact, he has stated otherwise. Arbaj @ Bhoora, DW-5, who has stated that Sarfaraj and Babu took him to Nasik, Maharashtra. This witness accompanied them to Maharashtra because his elder brother was residing at Maharashtra. The sister(victim) of this informant was recovered at Maharashtra from where she was brought back by the informant to home. Even DW-2, Ayyub, who is a witness named in the first information report has stated that there was no marriage at the house of Wareesa wife of Islamuddin and he did not see the victim going with anybody. No doubt, the prosecution discharged this witness but there was not bar for the defence to produce this witness in support of his defence. As per the recovery memo, the recovery of victim also becomes doubtful.

26. Now, coming to the statement of the victim who is the star witness of this case, I would like to observe that the statement of the victim should be given weightage on the ground that the victim of a rape case should be placed on higher pedestal than an injured witness. If the evidence of the victim is fully reliable and has no dent, the accused can be convicted on her testimony. But if the testimony of the victim belies the story, then the Court would need corroboration from other evidence. The victim, PW-2, has stated that all her family members had gone to attend the marriage in another village when Sanjay and Munni came to her house on 18.06.2005. Sanjay and Munni asked her about the whereabout of her family members, on which she told them that they had gone to attend the ceremony of marriage of her cousin. Thereafter, they came 5-10 minutes after that and enticed her away on the point of country made pistol and said that she accompanied them. They also forced her to take Rs.50,000/- which were kept for the marriage of her cousin. It is strange how the accused came to know that Rs.50,000/- were kept in the house for the marriage of cousin of the victim. She has further stated that she was forced to sit in the car along with Munni. Further, she has stated that she was kept 5-6 days at different places. She was forcible raped one by one by Imran, Kala, Sanjay and Saleem. Whereas, Munni was on the guard. It is also stated that Rs.50,000/- was snatched from the victim by Imran, the accused. The whole story has been shattered as I have discussed above. She has further stated that on the point of country made pistol the accused Imran forced her to sign some papers. Imran, the accused did this to save his life. As far as letters are concerned, the Investigating Officer, Anil Kumar Singh, PW-7 who also conducted the investigation, has stated in cross-examination that he did not interrogate the victim about her love letters. He has further stated that the girl was recovered by her brother. No one else was found at the time of alleged recovery. He had received a letter written by the father of the accused Sanjay that the victim was recovered from Nasik, Maharashtra. But neither this witness went to Nasik nor he did bother to talk Nasik Police telephonically. He has admitted that the date of the application written by the father of Sanjay was 18.05.2005 but he did not bother to verify the date. He also did not bother to verify its contents and did not even record supplementary statement of informant and the victim. When contradictions were pointed out to this witness, he stated that the victim did not state him that her Rs. 50,000/- were snatched by accused Imran. These contradictions and omissions are relevant which strike out the root of the case. She has stated that Mohsin came to the house of Kala and on her request, he called the brother of the victim, but Mohsin has denied of having called the brother of the victim. The victim has admitted that Imran, the accused was her real maternal brother. She has stated that when her brother came, Munni and Imran were present in the house. Munni fled away but her brother caught Imran, the accused. This is against the statement of Sarfaraj, PW-1 who has stated that he found his sister(the victim) alone in the room. She has admitted the love-letters written by her but she has tried to clarify that they were written under threat. A perusal of these letters though not accepted by the learned Trial Court, which have been exhibited, make it clear that they have been written leisurely taking one's own time and do not appear to have been written under any threat. The letters are in volume, hence this explanation of the victim that the love-letters were written under threat does not carry any weight. The victim has further stated that Imran, the accused pointed out the country made pistol at her and compelled her to sit in car with the jewellery and the cash. Taking away of the jewellery has been introduced by this witness for the first time in her statement before the Court. She has admitted that in the letters it was mentioned that some jewellery was in her possession. It is very strange how the accused could have known this victim and could have forcibly made the victim write all these things in the letter under threat. As regards the paper No. 10/1 to 10/4, she admitted that those papers were in her handwriting and she has stated that she was forced to write those papers. Another story has been introduced by the victim by stating that she was blindfolded when she was being taken in the car. There was absolutely no reason to blindfold this girl specially when she was being taken in car just from near her house as blindfolding her mouth from her house would cause suspicion, hence this witness being the victim is also totally unreliable. Contradicting herself she has stated that when her brother came, nobody was present and all had fled away. Now, another new story has been introduced by this witness by saying that all along she was kept unconscious. They used to make her smell something to keep her unconscious. When her brother reached, she was unconscious. What was the necessity to make the girl unconscious, specially when the accused were armed with country made pistol, they were large in number and the victim being alone was not at all in a position to resist or raise any alarm. Thus, the statement of this victim is just a bundle of lies. She has tried to mislead the Court also by stating absolutely an impossible and logic belying story. It appears that the witness forgot that she had denied her recovery from Nasik in as much as intentionally she has stated as follows before the Court:-

^^esjh lcls cM+h cgu tks ej x;h gS mldk uke vklehu FkkA og esjs iSnk gksus ls igys gh ej x;h FkhA eSaus ukfld iqfyl dks ;g ugh crk;k Fkk fd tSls esjh cgu dks ekj nh Fkh mlh izdkj eq>s ekj nsaxsA vt[kqn dgk fd ukfldh dh lHkh ckrsa xyr gSaA^^

27. The victim has stated that Imran, the accused came to her house to take her away in car. She has stated that Mohsin told her the names of Saleem and Sanjay, whereas Mohsin has denied the same. She has stated that the door was locked but she shouted to call Mohsin through a hole in the door. She has tried to intelligently explain that when anybody is compelled to smell something, will that person concentrate on the smell or will try to protect himself. Contradicting herself she has told that she kept on weeping and shouting in her defence. She has also stated that Sanjay blindfolded her and he caused her to inhale the intoxicant.

28. Thus, as I have said earlier, the complete statement of the victim is wholly unreliable. Even medical evidence does not support the prosecution version in this case of alleged gang rape. Thus, the above discussions lead to an irresistible conclusion that the prosecution has miserably failed to prove the charges framed against the accused appellants beyond all the reasonable doubt.

29. Accordingly, both the appeals are allowed.

30. The appellants are on bail. Their bail bonds are hereby cancelled and sureties are discharged. However, provisions of Section 437-A Cr.P.C. shall be complied with.

31. Let a certified copy of this judgment be sent to the Court concerned.

Order Date :- 31.05.2016

LBY