Yameen vs State Of U.P.
2022 Latest Caselaw 8510 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                               Reserved on 22.7.2022
 
                                                                               Delivered on 29.7.2022
 
Court No. - 91
 
Case :- CRIMINAL APPEAL No. - 2939 of 1985
 
Appellant :- Yameen
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Keshav Sahai,Himanshu Mishra,Kuldeep Singh Tomar
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Samit Gopal,J.

1. This Criminal Appeal under Section 374 Cr.P.C. has been filed by the appellant Yameen against the judgment and order dated 29.10.1985 passed by 4th Additional Session Judge, Muzaffarnagar, in Sessions Trial No. 287 of 1983, State of U.P. vs. Mushtyak and another, whereby the appellant has been convicted and sentenced under Section 366 I.P.C. for 5 years rigorous imprisonment along with co-accused Mushtyak who was also convicted and sentenced under Section 366 I.P.C. to 5 years rigorous imprisonment, and under Section 376 I.P.C. to 7 years rigorous imprisonment who had preferred Criminal Appeal No. 2938 of 1985, Mushtyak vs. State of U.P. which stands abated vide order dated 6.1.2022 passed by a co-ordinate Bench of this Court since he had died.

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 prosecution case as per the First Information Report lodged on 29.7.1982 at about 09.30 am at Police Station Khatauli, District Muzaffarnagar by Ikram (P.W.-2) by moving an application before the District Magistrate, Muzaffarnagar dated 27.7.1982 which is Ex. Ka-3 to the records which was ordered to be heard and necessary action be taken, was lodged as a First Information Report being Ex. Ka-4 A to the records, is that he is a resident of Kasba Khatauli, Police Station Khatauli, District Muzaffarnagar and belongs to ''kujra caste'. The incident is of 24.7.1982 on which date his sister ''X' was taken by his real brother-in-law Mushtyak and Yameen to their house wherein they kept his sister in a room and Mushtyak committed rape on her. She was then left out on 25.7.1982 at about 12.00 pm which was a Sunday. His sister then cam back to home in a very bad condition after which the first informant and his brother Islam went to the house of Mushtyak and made a complaint about the incident and asked him as to why he played with their respect, on which Yameen, Mushtyak, [email protected] Umar and Babu tried to assault him. Babu caught hold of him by collar and Mushtyak beat him around 2-3 times. He then went to police station Khatauli for getting a First Information Report lodged but constable present there threatened him and chucked him out. He told him that no useful purpose would be served in lodging a report and he should go and get a case filed. He states that he is a very poor man, he even cannot get the treatment of his sister done, justice has not been done with him and he is totally shattered. He prays that Station House Officer, Khatauli be directed to immediately lodge a report and initiate action against the accused persons. The F.I.R. was thus lodged as Case Crime No. 220 of 1982, under Section 376 I.P.C. at Police Station Khatauli, District Khatauli.

4. ''X' was medically examined on 29.7.1982 at 3.30 pm after being brought to Dr. Smt. M.D. Agarwal (P.W.-1) by constable Sitaram (C P No. 484). Dr. Smt. M.D. Agarwal found the following injuries on the person of ''X':-

"(i) One bruise on the back of chest on the right side in the middle having size of 3½ cms. x 2½ cms. in oblique direction of the blueish colour.

(ii) One bruise on the right thigh on the medial aspect having the size of 5 cms. x 2½ cms. in oblique direction- blueish in colour."

The doctor opined that the injuries were caused by blunt weapon and the duration were beyond 36 hours. ''X' was opined to be used to sexual intercourse. On internal examination of private part of ''X' the doctor transcribed her observations as follows:

"(i) The hymen was torn and replaced by a tag of mucous     membrane. 
 
      (ii) Vagina was admitting three fingers easily.
 
 (iii) There was tenderness in fornices."
 
	The said medical examination report is Ex. Ka-1 to the records. By the said medical report ''X' was advised for X-ray for determination of her age.
 

5. A supplementary medical examination report of ''X' was prepared on 4.8.1982 at 09.00 am by Dr. Smt. M.D. Agarwal who opined her age to be above 16 years. In so far as the opinion of the doctor about rape is concerned, the doctor opined that ''X' is used to sexual intercourse. The said supplementary medical examination report is Ex. Ka-2 to the records.

6. The investigation concluded and Charge Sheet No. 28 dated 7.10.1982 was submitted under Section 363/376 I.P.C. against accused Mushtyak and under Section 363 I.P.C. against the accused Yameen, the same is Ex. Ka-4 to the records.

7. Vide order dated 12.12.1984 passed by 4th Additional Session Judge, Muzaffarnagar, accused Mushtyak and Yameen were charged under Section 366 I.P.C. Further vide order dated 12.12.1984 the accused Mushtyak was further charged under Section 376 I.P.C. Both the accused pleaded not guilty and claimed to be tried.

8. In the trial Dr. Smt. M.D. Agarwal was produced as P.W.-1 who medically examined ''X' initially and then gave a supplementary medical report about her, Ikram the first informant and brother of ''X' was produced and examined as P.W.-2, Nawab Ali was produced and examined as P.W.-3 who belongs to Khatauli Kasba who states to have heard shirks of the victim girl from the house of the accused persons, the victim girl ''X' was produced and examined as P.W.-4, Tanveer Singh Yadav the 2nd Investigating Officer was produced and examined as P.W.-5 who took up the investigation from 7.10.1982 and concluded and filed charge sheet and lastly Todi Singh S.I. was produced and examined as P.W.-6 who was the first investigating officer who took up the investigation from its inception till the time it was handed over to Tanveer Singh Yadav P.W.-5. The accused Yameen in his statement under Section 313 Cr.P.C. stated of false implication due to enmity and further stated that since he was the real brother of Mushtyak he has been falsely implicated in the present matter.

9. The trial court then convicted the accused persons as stated above against which the present appeal has been filed.

10. Heard Sri Durvijay Singh, holding brief of Sri Kuldeep Singh Tomar, learned counsel for the appellant, Sri Sanjay Kumar Singh, learned State counsel and perused the records.

11. P.W.-1 Dr. Smt. M.D. Agarwal medically examined ''X' on 29.2.1982 at 3.30 pm while she was brought to her by Constable of Police No. 484 Sitaram. Observations of external examination and internal examination, opinion of doctor and advise as extended have also been stated above. Subsequently a supplementary medical report was prepared by the said witness on 4.8.1982 after receiving the reports of pathologist and radiologist, after which she opined the age of ''X' to be above 16 years and found her to be habitual to sexual intercourse.

12. P.W.-2 Ikram is the brother of ''X'. He got prepared a typed application dated 27.7.1982 addressed to District Magistrate, Muzaffarnagar which was given by him to officer concerned on which Additional District Magistrate passed an order on 27.7.1982 directing Inspector of Police Station Khatauli to hear him and take necessary action, after which the same was transcribed as a First Information Report. The contents of which have been stated above as the prosecution case of the matter.

13. P.W.-3 Nawab Ali is a resident of Kasba Khatauli. His brother Gulab lives near the house of accused Mushtyak. He states that at the time of the alleged incident he was going to market from the house of Gulab and when he came near the house of Mushtyak he heard screams of someone from inside. He further states that one person named Abdul Karim came from the other side and both of them entered into the house of Mushtyak after pushing the door which was open. They then found ''X' lying and accused Mushtyak was above her, committing rape on her. They then challenged Mushtyak after which he left ''X' there and went away. The said witness and Abdul Karim then went away from the place.

14. ''X' was produced and examined as P.W.-4 who states that she is a resident of Mohalla Pakka Bag of Khatauli in District Muzaffarnagar. Her eldest sister Smt. Shafiqan was married to accused Mushtyak. She had died about 3-4 years prior to the incident. She states that on 24.7.1982 she and her old ailing mother were present at the house. Her brother Ikram had gone for his work. Mushtyak and his brotherYameen (both the accused persons) came to her house at about 12.00 pm. They told her that Akhtari @ Akko the daughter of her sister Smt. Shafiqan has come and was calling her, on which her mother told her to go and meet her, then she went with both the accused persons to the house of Mushtyak. The house of Mushtyak is situated about four house away from her house. Later on Yameen went away from there and then Mushtyak tried to bolt the door from inside in which she and Mushtyak were there. She got terrified and started crying and raised alarm on which Mushtyak gagged her. He then took off her clothes on which she resisted after which Mushtyak threw her on the floor and committed rape upon her. She started shouting and crying on which Mushtyak slapped her. On her shouts Nawab Ali and Abdul Karim came and reprimanded Mushtyak. They told him that the girl is of the age of his daughter on which Mushtyak showed repentance and requested them to go away and stated that he would send the girl to her house, after which both persons went away. But Mushtyak detained her in his house and kept her confined there. He again committed sexual assault on her in the night. On that day and in the night except for ''X' and Mushtyak there was no other person in the house. She did not meet Akhtari on whose pretext she was called to the house. On the next date in the evening Mushtyak left her and she went to her house. She then narrated the entire incident to her brother who came on the next day in the evening. She was wearing Kurta and Salwar at the time of incident which got blood stained. The said clothes were washed by her mother by saying that it is a matter of respect of the house and as the incident has already happened she should not tell it to anyone. He medical examination was conducted after 4-5 days.

15. P.W.-5 S.I. Tanveer Singh Yadav is the second investigating officer who took up the investigation from 07.10.1982 and submitted charge sheet against the accused persons.

16. P.W.-6 S.I. Todi Singh was the first investigating officer who took up the investigation right from inception till then it was handed over to Tanveer Singh Yadav. He further proves the chik First Information Report which was prepared by Head Constable Dharmpal Singh and the relevant GD entry for the same.

17. Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case only because of the reason that he happens to be the real brother of co-accused Mushtyak who was the husband of the eldest sister of the first informant and ''X'. It is next argued that in so far as the appellant is concerned there is no allegation whatsoever that he committed rape upon ''X'. He has no motive to commit the offence. It is argued that Section 366 I.P.C. is not made out against the appellant as the victim ''X' as per the prosecution story itself went from the house with the appellant and the co-accused Mushtyak out of her own free will and consent of her mother. It is next argued that the victim ''X' has in her examination-in-chief stated that when she reached the house of Mushtyak, the appellant Yameen went away. It is argued that the allegation of rape is against the co-accused Mushtyak. The reason for false implication has been specifically stated by the appellant in his statement under Section 313 Cr.P.C.

18. Per contra, learned State counsel while rebutting the submissions of learned counsel for the appellant argued that the appellant is named in the F.I.R. The victim ''X' was aged about 12-13 years as per her statement and as per medical evidence she was aged about 16 years and was a minor girl. It is argued that Section 366 I.P.C. is made out as the victim ''X' was taken away by the appellant and the co-accused Mushtyak from her house knowing that she would be forged to sexual assault. It is argued that the trial court has considered every aspect of the matter and has convicted the appellant by a well reasoned and just judgement and order. The appeal lacks merit and deserves to be dismissed.

19. The prosecution case in so far as the appellant-accused Yameen is concerned, is specific to the fact that he along with the co-accused Mushtyak who was the husband of the eldest sister of the victim ''X', came to the house and represented a false fact on which her mother was given consent and she willingly went with them to the house of the co-accused Mushtyak, after which the appellant-accused left the place and went away. The conviction of the appellant is under Section 366 I.P.C. The opening of the said section itself states that the said section would be attracted only if anyone kidnaps or abducts any woman.

20. Kidnapping or abducting in the present case is not the prosecution case as the victim ''X' went with the accused persons out of her own sweet will and with the consent of her mother. In so far as going of the victim ''X' with the appellant and the co-accused Mushtyak is concerned, as she had gone with them out of her own sweet will and with the consent of her mother and there was no force applied on her to go from any place. The detention in the house and the act of rape upon the victim ''X' is by the co-accused Mushtyak. There appears to be absolutely no motive for the appellant to join the hands of co-accused Mushtyak for committing the offence. The appellant thus deserves to be extended the benefit of doubt. The appellant is acquitted of the charge levelled against him.

21. The judgment and order dated 29.10.1985 passed by 4th Additional Session Judge, Muzaffarnagar, in Sessions Trial No. 287 of 1983, State of U.P. vs. Mushtyak and another, is hereby set aside. The present appeal is allowed.

22. Non bailable warrants were issued against the appellant vide order dated 24.2.2022 passed by a co-ordinate Bench of this Court. In compliance of the said order as per office report dated 16.3.2022, a report of C.J.M., Muzaffar Nagar has been received stating therein that the accused-appellant Yameen has been arrested and has been sent to District Jail, Muzaffar Nagar. The appellant is since then in jail.

23. Let the appellant be released from jail forthwith unless wanted in any other case.

24. The copy of this judgement along with the lower court records be transmitted to the court below forthwith for its compliance.

(Samit Gopal,J.)

Order Date :- 29.07.2022

Naresh