Yunus And Others vs State Of U.P.
2022 Latest Caselaw 8804 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 91
 
Case :- CRIMINAL APPEAL No. - 776 of 1983
 
Appellant :- Yunus And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.A. Gilani,Amit Rai,Garun Pal Singh,Vikas Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Samit Gopal,J.

1. Heard Sri Vikas Sharma, learned counsel for the appellant no.2/Suleman, Sri B.B. Upadhyay, learned Additional Government Advocate, for the State of U.P. and perused the material on records.

2. Name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgements and Section 228 of the Indian Penal Code. She is, thus, referred to as ''X' in the judgement.

3. The appeal in regard to the appellant no. 1/Yunus has already been abated vide order dated 10.3.2021 passed by a co-ordinate Bench of this Court and as such this appeal is being heard and decided only with regard to the appellant no. 2/Suleman.

4. By means of this Criminal Appeal under Section 374(2) Cr.P.C. the appellant no.2/Suleman has challenged the impguend judgement and order dated 31.3.1981 passed by IInd Additional Sessions Judge, Muzaffarnagar in Session Trial No. 407 of 1981, by which he has been convicted and sentenced under Section 109 I.P.C. to undergo seven years rigorous imprisonment and a fine of Rs.500/- with default stipulation.

5. The prosecution case as per the application dated 18.5.1980 of which Om Prakash son of Jay Bhagwan is the scribe and is given by Ilyas son of Rasheed, is that at 5.00 a.m. his sister ''X' aged about 15 years had gone to ease herself in the jungle where there was sugar-cane field of Jhojha on which Yunus and Suleman came there and caught hold of his sister and Yunus committed rape upon her. Suleman had gagged her mouth and as soon as he removed his hand, his sister made a hue and cry on which Smt. Shakooran the mother of the first informant, the first informant himself, Fattu and Latif Jhojha the persons of the village reached the place on which they saw Yunus above on his sister and Suleman had immobilized her and on seeing them, they ran away. The incident was seen by all. He is a poor man. Some persons of the village had tried to get the matter settled through Panchayat due to which there is a delay. He has come with his sister and mother for lodging of a report. His report be lodged and appropriate action be taken. The said application is Ex. Ka-1 to the records. On the basis of the said application a First Information Report was lodged on 18.5.1980 at 17.15 hours as Case Crime No. 116 of 1980, under Section 376 I.P.C. at Police Station Bhopa, District Muzaffarnagar. The chik F.I.R. is Ex. Ka-10 to the records.

6. The victim ''X' was medically examined by Dr. S. Grawal on 19.5.1980 at about 7.30 a.m. The doctor found the following injury on her person :

"Small abrasion about 1-1/2 cm x 1 cm behind left ear."

No mark of injury was found on her private parts. Hymen was found to be old torn and healed which admitted two fingers easily. Cervix and uterus were normal in position and shape.

A vaginal smear was taken and she was referred for X-ray for ascertainment of her age. The said medical examination report is Ex. Ka- 8 to the records.

The vaginal smear report did not find any sperm present. On the basis of X-ray report the victim ''X' was found to be aged about 16 years and the conclusion by the doctor was that no opinion about fresh rape can be given as she is used to sexual intercourse. The said report is Ex. Ka-9 to the records.

7. The investigation concluded and a charge sheet no. 81 dated 25.5.1980 was filed against the accused Mohammad Yunus under Section 376 I.P.C. The same is Ex. Ka-3 to the records.

8. Charge sheet no. 81-A dated 8.6.1980 was submitted under Section 109/376 I.P.C. against the accused Suleman. The same is Ex. Ka-4 to the records.

9. Vide order dated 17.2.1980 passed by the IInd Additional Sessions Judge, Muzaffar Nagar, charge was framed under Section 376 I.P.C. against the accused Yunus.

Vide order dated 18.2.1983 passed by the IInd Additional Sessions Judge, Muzaffar Nagar charge was framed under Section 109 I.P.C. against the accused Suleman.

Both the accused denied the charges and claimed to be tried.

10. Learned counsel for the appellant no. 2/Suleman argued that the appellant has been falsely implicated in the present case. It is argued that though the specific case of the prosecution for committing rape upon the victim ''X' is upon the co-accused Yunus but the appellant has been given an ornamental role of gagging mouth of the victim and making her immovable . It is argued that the same is with malafide intentions as the appellant in his statement under Section 313 Cr.P.C. has stated in detail the reasons for his false implication. He states that as a sum of Rs.300.00 was outstanding against Wahid (who is brother of the complainant Ilyas-P.W.-3 and the victim ''X' and there was exchange of heated words between the aforesaid Wahid on one side and the accused persons on the other side on the issue of returning of the said amount, the appellant has been falsely implicated in the case.

11. It is further argued that even otherwise the story regarding the allegations of rape does not corroborate from the medical evidence. The doctor has opined the victim ''X' was habitual to sexual intercourse and did not find any fresh injury both external and on her private parts. It is argued that in so far as one small abrasion found on the ear of the victim ''X' is concerned, the doctor in his cross-examination has stated that the same could be due to scratching. It is argued that the prosecutrix states that in the field there was a cloth by which she wiped off her private parts after the incident of rape but no such cloth has been taken into custody by the investigating officer and even no such cloth has been found by the investigating officer at the place of occurrence. It is argued that in so far as the said two eye witnesses namely Latif (P.W.-1) and Fattu (P.W.-2) are concerned, they were examined before the trial court but although they were not formally declared hostile but they have not supported the prosecution case. They stated that they did not see the incident. It is argued that as such the prosecution version with regards to the fact of the said two witnesses being eye witnesses also gets falsified.

12. It is argued that looking to the same the present appeal deserves to be allowed and the impugned judgement and order of conviction deserved to be set aside.

13 Per contra, learned Additional Government Advocate while replying to the arguments of learned counsel for the appellant/Suleman, argued that the prosecutrix was found to have received injury on her ear. It is argued that the appellant is named in the F.I.R. and the case, in so far as his role is concerned, is throughout consistent. The prosecution has succeeded in proving the case against the appellant no.2/ Suleman beyond reasonable doubt and hence, the present appeal deserves to be dismissed.

14. In the trial Latif was examined as P.W.-1 who is alleged himself to be an eye witness of the incident, Fattu was examined as P.W.-2 who is also himself alleged to be an eye witness of the incident, Ilyas was examined as P.W.-3 who is the first informant of the present case and brother of the victim ''X', the victim ''X' was examined as P.W.-4, Smt. Rakesh Bala Tyagi was examined as P.W.-5 who is the Investigating Officer of the matter, Constable Mozam Ali was examined as P.W.-6 who had taken the victim ''X' for her medical examination, Dr. Mrs. S. Grawal was examined as P.W.-7 who medically examined the victim ''X' and gave supplementary report and Constable Maruf Ali Khan was examined as P.W.-8 who had transcribed the chik F.I.R.

15. The accused appellant Suleman in his statement under Section 313 Cr.P.C. denied the accusation levelled against him and stated to have been falsely implicated in the case as Rs. 300/- of accused Yunus was lying outstanding against Wahid who is the brother of the first informant Ilyas and of the victim ''X' and there was some quarrel between them and since Wahid did not pay the amount, he had intervened for it which was the reason for his false implication.

16. In defence Suresh Chandra Saxena was examined as D.W.-1 who is working in the court of Magistrate who states that in the statement under Section 164 Cr.P.C. of the victim, which is written by the Magistrate with whom he was working, the victim ''X' had affixed her thumb impression. Maqsood Ahmad was examined as D.W.-2 who states of the dispute between the accused and the side of the first informant with regards to Rs.300/- which was outstanding on accused Yunus.

17. The trial court after considering the entire evidence on record and considering the same came to a conclusion that the case against the accused has been proved beyond reasonable doubt and the testimony of D.W.2 is of no avail to the accused and hence convicted them as aforesaid.

18. P.W.-1 and P.W.-2 Latif and Fattu respectively, did not support the prosecution case although they were stated to be the eye witness of the incident. The trial court although did not formally declare them hostile but their cross-examination was permitted to be done by the State counsel.

19. P.W.-3 Ilyas is the first informant of the matter. He reiterates the version as given in the F.I.R. He proves the application given by him which was Ex. Ka-1 to the records.

20. The victim ''X' was examined as P.W.-4. She states that the incident was of around 5.15 a.m. when she had gone to ease herself all alone in the field of Fattu in which sugar cane was sown. As soon as she was preparing herself to ease, the accused Yunus and Suleman came there. Suleman caught her hand and gagged her from behind. Yunus caught hold of her legs and pulled down her ''salwar', after which he committed rape upon her. She tried to raise a shout but could not do so. As soon as the hand of Suleman went out, she raised a hue and cry. On hearing her shriek, her mother, her brother, Fattu and Latif and others came there. The accused ran away after seeing them and then she came back with her mother and brother. When the witnesses had come there the accused Yunus was above her and was committing rape. In the village people had collected and were pressurizing them for settlement but settlement could not take place and then with her mother and brother the victim ''X' came to the police station after getting the application transcribed. Her medical examination was done.

21. Dr. S. Grawal who conducted medical examination of the victim and gave supplementary report though found a small abrasion on the ear of the victim but in cross-examination she stated that the same could have been caused by scratching also. She gave an opinion that the victim was habitual to sexual intercourse and no fresh rape was committed upon her.

22. After having heard learned counsels for the parties and perusing the records, it is evident that the allegation of committing rape upon the prosecutrix is upon the co-accused Yunus. The victim ''X' in her cross-examination has tried to improve the version of the prosecution by stating there was some discharge at the time of rape from the accused which was wiped of by her from a cloth present in the field. No such cloth was recovered by the investigating officer. The medical evidence states of her being habitual to sexual intercourse. Though she stated to have been raped in the sugar cane field but there is no external injury on her body. The field in which rape is stated to have been committed in which sugar cane was sown and as per the evidence there were some plants of sugar cane also broken but still her not receiving any injury on her body is very unlikely. The accused appellant takes up a defence of enmity between them and the side of the first informant for which D.W.-2 has been produced and examined who has also corroborated the same. The likelihood of any enmity between them cannot be ruled out looking to the evidence of D.W.-2 The role assigned to the appellant is of gagging the mouth of the victim ''X' at the time of rape. The same appears to be an ornamental role as the act of rape is stated to have been committed by the co-accused Yunus coupled with the fact that sugar cane field was found to have had broken plants of sugar cane but there was no external injury and even no internal injury on the person of the prosecutrix in spite of her saying that she had bled from her private parts and had received injury but the doctor did not find any injury on her person and as such the appellant/Suleman deserves to be extended the benefit of doubt.

23. Looking to the facts and circumstances of the case and in view of the above discussion the appeal is allowed in so far as it relates to the appellant- Suleman. The impugned judgement and order dated 31.3.1981 passed by IInd Additional Sessions Judge, Muzaffarnagar in Session Trial No. 407 of 1981 is hereby set aside.

24. The appellant- Suleman is acquitted of the charge levelled against him. The appellant is on bail. His bail bond is cancelled and sureties discharged.

25. Office is directed to transmit the copy of this judgement along with the lower court records to the court below forthwith for its compliance and necessary action.

(Samit Gopal,J.)

Order Date :- 2.8.2022

Naresh