Habiba Khatoon vs State Of U.P. And Another
2023 Latest Caselaw 24088 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:175642-DB
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 25 of 2021
 

 
Appellant :- Habiba Khatoon
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Shashi Dhar Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Surendra Singh-I,J.

1. This appeal under section 372 Cr.P.C. has been filed by the victim/appellant challenging the judgment and order of acquittal of respondent-accused, dated 25.08.2020, passed by the Special Judge (POCSO)/Additional Sessions Judge, Sant Kabir Nagar in Special Session Trial No.351 of 2016 (State of U.P. vs. Mohd. Salman), arising out of Case Crime No.939 of 2016, under Sections 376, 506 IPC and 3/4 of POCSO Act, Police Station Dudhara, District Sant Kabir Nagar.

2. As per the prosecution case, the victim aged 14 years old girl had been taken by the accused for performing domestic work in his house. As per the victim the accused came to her house on 17.10.2016 and requested her grandparents to send the victim with him for cooking food and attending to other domestic works. The victim claimed that her mother had already died and her father was mentally unstable and was residing in Mumbai. On 19.10.2016 when the victim after having had her meal went to sleep at around 12.00 in the night the accused came to her room and started undressing her. The victim woke up and tried to escape but she was threatened by the accused, who tied her and committed sexual assault upon the victim. On hearing screams of the victim the wife of accused came from the other room and when the victim informed of the facts in that regard, the wife of accused stated that she (the victim) has now grown young and would enjoy it the next day. The victim returned to her grandparents and disclosed such facts to them. The accused also extended threats to the victim of killing her grandparents if she raised any protest. The grandfather of the victim then informed uncle of victim about the incident, who came from Mumbai whereafter the written report was made to the police on the basis of which FIR has been registered in aforesaid case crime.

3. The investigation concluded with submission of charge sheet against the accused under Sections 376, 506 IPC and 3/4 of POCSO Act. The accused denied the accusations and demanded trial.

4. The prosecution in order to prove its case has produced documentary evidence in the form of written report as Ex.Ka.1; statement under section 164 Cr.P.C. as Ex.Ka.2; medical examination report as Ex.Ka.3; supplementary medical report as Ex.Ka.4; first information report as Ex.Ka.5; check FIR as Ex.Ka.5; G.D. Entry as Ex.Ka.7; site plan as Ex.Ka.8; and charge sheet as Ex.Ka.10.

5. In addition to above, the prosecution has also produced oral testimony of victim as PW-1; victim's uncle Sahabuddin as PW-2; victim's grandmother Jahidunisha as PW-3; her grandfather Jais Mohammad as PW-4; lady constable Usha Manjhi as PW-5, who had taken the victim for her medical examination and also for recording her statement under section 164 Cr.P.C.; PW-6 is Dr. Sweta Singh, who has medically examined the victim; PW-7 Lakshmikant Tiwari is the Head Moharrir, who has proved the written report received at 04.30 pm on 02.11.2016; and PW-8 is Ravindra Kumar Singh, who was the Investigating Officer in this matter.

6. On the basis of evaluation of oral and documentary evidence led on record by the prosecution, the court below has come to the conclusion that the testimony of victim is not reliable as there are material contradictions in her version made before the court vis-a-vis her earlier statements made under sections 161 and 164 Cr.P.C. The court below has found inconsistency in her deposition with regard to place of occurrence. On the basis of above findings the court below has disbelieved the victim's version holding it to be improbable, particularly as the wife and two young sisters of the accused alongwith their parents and children were all present in the house and occurrence of such incident as also the approach of wife of accused has been found questionable. The court below consequently has acquitted the accused of the charges levelled against them vide impugned judgment and order. Thus aggrieved, the victim is before this Court.

7. Learned counsel for the appellant/victim contends that the judgment of acquittal is wholly perverse and erroneous and is unsustainable since the statement of victim has not been carefully examined. It is further argued that the victim has been consistent in her deposition with regard to implication of accused and minor contradictions in her version were liable to be overlooked. It is also argued that there was no male member in the family of the victim, who could have raised a protest immediately, which fact has not been factored in. Submission is that uncle and grandparents of the victim have supported the prosecution case and, therefore, acquittal of the accused is impermissible in law.

8. The appeal was entertained and lower court records have been summoned by this Court on the previous occasion so that the appeal could be considered on the aspect of its admission. We have perused the records of the present appeal as also the lower court records in order to examine the contention raised in appeal.

9. Facts, as have been noticed above are not in issue. We have examined the statement of victim, who has been produced as PW-1. The victim has supported the prosecution case as per which she was 14 years old and had already lost her mother. Her father was living in Mumbai and was mentally unstable. The victim was residing with her grandparents and her 10 years old younger sister. She has stated that act of sexual assault has been committed by the accused at about 12.00 in the night of 19.10.2016. The victim was working for the accused for the last 6-7 days. The testimony of victim has been carefully examined by the court below as also by this Court and though she has supported the prosecution case but some of the aspects relating to her deposition would require consideration, particularly in order to ascertain credibility and reliability of the victim herself.

10. In the first information report the victim alleged that the accused came to her house on 17.10.2016 and took her for attending domestic works with the permission of grandparents of the victim. In the deposition before the Court, however, this version has not been supported and the victim has stated that the accused took her without saying anything to her grandparents. As per the statement of victim the incident occurred while she was sleeping with her sister in the room. During her examination in court the victim has, however, stated that she was not sleeping in the room, rather, she was sleeping in the gallery from where she was taken by the accused to the bedroom. There are distinct versions of the victim with regard to the actual incident of sexual assault. In her statement u/s 161 Cr.P.C. the victim stated that the accused sexually assaulted her and on her raising an alarm/scream the wife of accused came and when the victim informed about the incident to his wife she stated that now the victim has grown young and these things are normal about which no complaint be made. The victim has been confronted with her statement under section 164 Cr.P.C. wherein she has stated that at the time of sexual assault she got scared and did not raise any alarm/scream. The victim after the incident went to sleep and informed the wife of the accused in the next morning. There is thus an apparent contradiction with regard to the incident, inasmuch as in one version the victim claims to have raised an alarm/scream on which the wife of accused came on the spot but supported the accused, whereas in the other version no such alarm was raised and it was in the next morning that the victim informed of the incident to the wife of accused.

11. The other major contradiction found in the testimony of victim is with regard to date when the incident itself occurred. As per the victim the incident occurred on 19.10.2016 at about 12.00 in the night. 19.10.2016 was a Wednesday. The victim has stated that when she came home to report the incident to the grandparents, the next day her grandfather had returned after offering Namaz of Juma, which is on Friday. The court below has, therefore, noticed that there are distinct versions of the victim with regard to the date of incident. One being Wednesday i.e. 19.10.2016, whereas the other being a Thursday i.e. the day preceding Friday. The court below has also found contradictions in the version of victim with regard to place of incident, inasmuch as in first version the victim claims to be sleeping in the gallery and was taken to the room by the accused for committing offence, whereas the other version is that she was sleeping in the room where the incident occurred. The court below has also taken note of the fact that younger sister of the victim although was sleeping on the same cot from where the accused allegedly took her for sexual assault but she has not been produced in evidence.

12. The victim has been examined medically after about two weeks of the incident and no external or internal injury has been found on her. Not much importance can be attached to the medical evidence on the ground of delay in reporting of offence or conduct of medical examination, since the delay has been sufficiently explained by the victim. It is, however, clear that medical examination report cannot be read as a corroborative piece of evidence in the facts of the present case. The medical examination report has been proved by PW-6, who has found victim's hymen old torn and healed. The doctor has refused to give any definite opinion with regard to allegation of sexual assault. No sperm or spermatozoa etc. have otherwise been found on the victim. The medical evidence, therefore, cannot be used as corroborative piece of evidence in the facts of the present case.

13. The court below apart from noticing the contradictions in the version of the victim has also found her version to be somewhat improbable, inasmuch as the conduct of wife of accused in not supporting the victim, upon being informed of the act of sexual assault by her husband on the victim, has not been found natural. The accused is married person with two children and his two young sisters aged 22 and 23 years were also residing in the same house. Parents of the accused were also living in the same house. The fact that offence of this kind is committed in his own house in the presence of various family members is also doubted.

14. The court below has also taken note of the fact that the victim was found speaking to some other person on phone which fact was noticed by accused, who apparently objected to which could have been a ground for the annoyance on part of the victim and may have led to implication of the accused.

15. So far as the testimony of other prosecution witnesses PW-2 to PW-4 are concerned, they are admittedly not witnesses of fact and their testimony is based upon the disclosure made by the victim herself. The contradictions in the testimony of victim, therefore, are relied upon by the court below to discard the testimony of other prosecution witnesses i.e. PW-2 to PW-4.

16. We have been taken through the judgment of the court below and on a careful analysis of the evidence on record, the conclusions drawn by the court below are clearly permissible. The testimony of victim of sexual assault is treated at par with the statement of an injured witness and her version is entitled to weight, unless the testimony of witness itself is disbelieved on account of material contradictions in her version. In the facts of the present case, we find substance in the conclusions drawn by the court below with regard to inconsistency in the version of victim regarding actual commissioning of the offence. The testimony of victim is not consistent with regard to place of incident; the date of incident; or even the manner in which offence has been committed. The view taken by the court below that the accusation of victim is improbable as there are family members including ladies and parents living in the house also cannot be questioned. On the basis of evidence on record, which we have thoroughly scanned, we find that the view taken by the court below is a plausible view and in view of the law settled that just because a different view could be taken in the case would hardly be a ground to interfere with the judgment of acquittal. The accused is a teacher and has already lost his job on account of his implication in the present case.

17. In view of the aforesaid, we do not find any perversity or illegality in the findings returned by the court below or any triable issue to arise in the instant appeal. The appeal is summarily rejected, at the admission stage itself.

Order Date :- 6.9.2023

Ashok Kr.