Altaf Alias Mehtab vs State Of Uttarakhand
2022 Latest Caselaw 1427 UK

                                  Reserved
   HIGH COURT OF UTTARAKHAND AT NAINITAL

           Criminal Jail Appeal No. 35 of 2021

Altaf alias Mehtab                                     ........... Appellant

                                     Vs.

State of Uttarakhand                                   ........ Respondent



Present : Ms. Deepa Arya, Amicus Curiae for the appellant.
          Mr. Lalit Miglani, A.G.A. for the State.


                               JUDGMENT

Hon'ble Ravindra Maithani, J.

Present appeal is preferred against the

judgment and order dated 17.03.2021/19.03.2021

passed in Special Sessions Trial No. 93 of 2016, State v.

Altaf alias Mehtab, by the court of Additional District

Judge, F.T.C. Roorkee, District Haridwar. By the

impugned judgment and order, the appellant has been

convicted under Sections 376 (2) (f), 506 IPC and Section

5(n)/6 of the Protection of Children from Sexual Offences

Act, 2012 ("the Act") and has been sentenced as

hereunder:-

(i) Section 376 (2)(f) IPC - rigorous

imprisonment for a period of ten years

and a fine of Rs. 20,000/-. In default of

payment of fine, further imprisonment for

a period of one month.

(ii) Section 506 IPC -rigorous imprisonment

for a period of two years and a fine of

Rs. 1,000/-. In default of payment of fine,

further imprisonment for a period of

fifteen days.

(iii) Section 5(n)/6 of the Act - rigorous

imprisonment for a period of ten years

and a fine of Rs. 30,000/-. In default of

payment of fine, further rigorous

imprisonment for a period of one month.

2. The prosecution case, briefly stated, is as

follows. The victim, a girl aged thirteen years, was in her

house, where, according to the prosecution, on

06.05.2016 at 03:30 p.m., she was raped by her father.

One person, namely, Imran was at the gate, when the

occurrence took place. According to the FIR, the appellant

also threatened the victim to life. Somehow, on

18.06.2016 at 11:30 p.m., the victim along with her

mother reached the house of the informant (sister of the

victim's mother). An FIR was lodged on 19.06.2016 by the

informant and a case under Sections 376, 506 IPC and

3/4 of the Act was lodged. The victim was medically

examined on 20.06.2016. In the history portion, the

doctor recorded that, according to the victim, her father

was intoxicated with some drug. After that he sent both

his wives to fetch some medicine and asked one of his

friends to stand outside there. Thereafter father of the

victim did unwanted things with the victim and

discharged outside. After that, the mother of the victim

came back. The victim revealed the incident to her. But,

the victim was asked to take bath and wash the clothes.

The doctor found no injury on the person of the victim.

Even her hymen was intact. The victim was examined

under Section 164 of the Code of Criminal Procedure,

1973 ("the Code") on 21.06.2016. The Investigating Officer

("IO") also collected the record pertaining to the date of

birth of the victim; prepared site plan and thereafter

submitted chargesheet against the appellant and the co-

accused. On 27.01.2017, charges under Sections 376 (2)

(f), 506 IPC and 5(n)/6 of the Act were framed against the

appellant. The appellant denied the charges and claimed

trial.

3. In order to prove its case, the prosecution

examined as many as eight witnesses i.e. PW 1, the

informant; PW 2, the victim; PW 3, the doctor, who

medically examined the victim; PW 4 Deshraj; PW 5 SI

Khasti Bisht, IO; PW 6 constable Chetan Singh, scriber of

the chik FIR; PW 7 SI Rekha Danu, the second IO; and

PW 8 SI Radhika Nabiyal, the third IO.

4. The appellant was examined under Section 313

of the Code. According to him, he has been falsely

implicated because the informant had a dispute with the

appellant with regard to the property.

5. By the impugned judgment and order, the co-

accused Imran, who was also charged for offences

punishable under Section 376-D IPC and 5(g)/6 of the

Act, was acquitted and the appellant has been convicted

and sentenced, as stated hereinbefore.

6. Heard the learned counsel for the parties and

perused the record.

7. Learned Amicus Curiae would submit that the

prosecution has utterly failed to prove the case beyond

reasonable doubt against the appellant. The appellant

ought to have been acquitted, but the court below

committed an error in convicting and sentencing the

appellant. Learned Amicus Curiae would raise the

following points in her submission"-

(i) The place of incident is adjoining a

public path way, hence the incident is not

possible in the broad day light.

(ii) The whereabouts of the grandmother

of the victim has not been narrated or disclosed

by the prosecution. She has not been

examined.

(iii) It has not been shown and

established by the prosecution as to where the

other siblings of the victim were at the relevant

time.

(iv) Statement of the victim is not

reliable. The victim's mother and the informant,

though are sisters, they are in dispute with

regard to the property. The victim was taken by

the informant under some pretext and

thereafter false report was lodged long after the

incident. Even the mother of the victim has not

supported the prosecution case.

(v) Medical examination does not

support the prosecution case.

8. On the other hand, learned State Counsel

would submit that the victim is daughter of the appellant.

It cannot be believed that a daughter would falsely

implicate her father. The victim was terrorized in the

house of the appellant. When she was taken by the

informant, she got confidence and the FIR was lodged.

Dispute of property may not be a ground to implicate

falsely in such a heinous offence. Learned State Counsel

would argue that medical examination is not conclusive to

determine the offence of rape because partial penetration

is also sufficient to prove offence of rape. It is argued that

no interference is warranted in this appeal.

9. According to the prosecution, it is a case of

rape of a girl, aged thirteen years, by her father. The law

on this aspect is well settled. Conviction can be based

solely on the basis of statement of the victim, provided it

transpires confidence. Corroboration of the statement of

the victim is not a rule.

10. PW 1 is the informant, who is sister of the

mother of the victim. According to her, on 18.06.2016, the

victim along with her mother came to her house. The

victim revealed that on 06.05.2016, her father did Galat

Kaam with her with the help of Imran. Thereafter, this

witness lodged the FIR, Ex. A-1. According to this

witness, the victim was thirteen years of age at the time of

incident.

11. PW 2 is the victim herself. She has stated that

her date of birth is 27.01.2003. According to her, on

06.05.2016, at about 03:30 p.m. in the afternoon, her

father sent her mother, step mother and aunt outside the

house to get medicine. She was all alone in the house.

Her father asked Imran to guard the house and told that

first he will do and thereafter Imran can do. The appellant

thereafter bolted the door from inside; made the victim lay

on the cot; took out her salwar; tied her legs on the cot;

applied oil on her vagina and did Galat Kaam with her.

Thereafter, the appellant went out. Later on, the mother,

step mother and aunt of the victim came back to house.

She revealed the incident to them, but they asked her to

maintain silence. According to PW 2, the victim, the

appellant confined her in the room and did not permit her

to go outside. Since, Imran could not do anything, he told

the incident to other people. Thereafter, the information

reached to the maternal uncle of this witness. He

telephoned and asked that the victim be sent to his

house. Thereafter, according to this witness, somehow

she and her mother could leave the house on 18.06.2016.

They went to the house of the informant and thereafter

the report was lodged. This witness has also proved her

statement recorded under Section 164 of the Code.

According to her, she was medically examined also.

12. PW 3 is Dr. Nisha, who had medically

examined the victim. According to her, she examined the

victim on 20.06.2016 at 12:15 p.m. She has recorded the

history as told to her by the victim. It has already been

referred to hereinbefore in this judgment. She did not find

any injury on the victim. She proved her report, Ex. A-3.

In her cross-examination, PW 3 has stated that based on

medical examination report, it cannot be said that rape

was committed.

13. PW 4 Deshraj is the Principal of the school,

where the victim was studying. According to him, the date

of birth of the victim, as per the school record, is

27.01.2003. He has proved the records, Ex. A-6 and A-7.

This witness has also proved the birth certificate issued

by this witness, Ex. A-8.

14. PW 5 SI Khasti Bisht is the first IO. She

conducted the investigation. Subsequently, the

investigation was transferred to PW 7 Constable Rekha

Danu. She prepared the site plan, Ex. A-11. The

investigation was still transferred to PW 8 SI Radhika

Nabiyal. She submitted the chargesheet.

15. PW 6 constable Chetan Singh has proved the

chik FIR and other documents.

16. On behalf of the appellant, his wife was

examined in the defence as DW 1. DW 1 is the mother of

the victim. According to her, false case has been lodged

against the appellant because the informant wanted to

grab her property. She had taken the victim under some

pretext and thereafter she did not allow the victim to meet

them. She had also asked this witness to leave her

husband with the assurance that she would get the victim

married with her son.

17. It is a case where a daughter has levelled

allegation of rape against her father. In the case of State

of Punjab v. Gurmeet Singh, 1996(2) SCC 384, the

Hon'ble Supreme Court observed "The courts must,

while evaluating evidence, remain alive to the fact

that in a case of rape, no self-respecting woman would

come forward in a court just to make a humiliating

statement against her honour such as is involved in

the commission of rape on her. In cases involving

sexual molestation, supposed considerations which

have no material effect on the veracity of the

prosecution case or even discrepancies in the

statement of the prosecutrix should not, unless the

discrepancies are such which are of fatal nature, be

allowed to throw out an otherwise reliable prosecution

case. The inherent bashfulness of the females and the

tendency to conceal outrage of sexual aggression are

factors which the courts should not overlook. The

testimony of the victim in such cases is vital and

unless there are compelling reasons which necessitate

looking for corroboration of her statement, the courts

should find no difficulty to act on the testimony of a

victim of sexual assault alone to convict an accused

where her testimony inspires confidence and is found

to be reliable. Seeking corroboration of her statement

before relying upon the same, as a rule, in such cases

amounts to adding insult to injury".

18. In the case of Ranjit Hazarika v. State of

Assam, (1998) 8 SCC 635, the Hon'ble Supreme Court

observed "The mere fact that no injury was found on

the private parts of the prosecutrix or her hymen was

found to be intact does not belie the statement of the

prosecutrix as she nowhere stated that she bled per

vagina as a result of the penetration of the penis in

her vagina. She was subjected to sexual intercourse in

a standing posture and that itself indicates the

absence of any injury on her private parts. To

constitute the offence of rape, penetration, however

slight, is sufficient".

19. In Modi's Medical Jurisprudence and

Toxicology, 22nd Edition, at page 503, discussion is made

with regard to the position of genitals when hymen is

intact and it is noted as hereunder:-

"In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, (more so in posterior half) the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. These tears heal within five or six days and after eight to ten days, become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called caruculae hymenealis or myrtiformes. In cases where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual

intercourse having taken place without rupturing the hymen may be inferred if the vaginal orifice is capacious enough to admit easily the passage of two fingers.

The circumference of the hymen can also be measured by a measuring cone. A circumference of 9 to 10 cm is considered the least necessary for coitus1. In girls under fourteen years of age, the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen. It is often difficult to distinguish between an indentation in a fimbriated hymen and a tear, unless the hymen is stretched by a finger tip, glass rod or Brittan's hymenscope, which also give excellent transillumination of hymen when a tear is found to extend upto the vaginal wall2."

20. As per the prosecution case, the incident took

place on 06.05.2016. The report was lodged on

19.06.2016. It is a belated FIR.

21. Delay in such cases is not always fatal for

prosecution. After all, the reasons need to be examined.

In the instant case, according to the prosecution and as

told by PW 1, aunt of the victim and PW 2 the victim, after

the incident when the victim reached in the house of PW

1, the informant, the FIR was lodged. According to PW 2,

the victim, after the incident, she was not allowed to go

outside and somehow she could reach the house of the

informant along with her mother and thereafter the FIR

was lodged.

1. Practitioner, Sept 1972, 291

2. MSL. Aug 1963, 118-120

22. It is true that in all cases of rape, it is not

necessary that hymen be ruptured or there may be any

injury on the genital of the victim. But, in the instant

case, allegation is of rape committed on a girl aged

thirteen years by a man of forty-two years of age. The

victim has not stated that it was partial penetration. She

has been categorical in her deposition. She submits that

the appellant made her lay on the cot; took her salwar

out and tied her legs on the cot. Thereafter, the appellant

applied oil on the vagina of the victim and did Galat Kaam

with her and then went outside. Reference may be made

to the medical examination report, Ex. A-3 proved by PW

3 Dr. Nisha. In this medical examination report, history is

recorded, which is as hereunder:-

"The father was intoxicated with some drug, after that he has sent both his wives to fetch some medicine and asked one of his friend to stand outside. Then he did unwanted things with the child and discharged outside. After that his mother came & she told the incident, then she was asked to take bath & wash the clothes. This incident happened on 6th May, 2016 at around 3 p.m."

23. A perusal of it, reveals as if at the time of

examination, the victim told it to the doctor that her

father committed unwanted things with the victim. The

appellant discharged outside. It reveals that the victim

knew the nature of the act, which she complained of

against the appellant. The victim has not stated that the

appellant could not commit sexual intercourse with her.

The victim has not stated that it was partial penetration.

The hymen of the victim was intact. It may remain intact,

as observed by Modi in his medical jurisprudence. But,

according to Modi's jurisprudence, in cases "where the

hymen is intact and not lacerated, it is absolutely

necessary to know the distensibility of the vaginal

orifice in the number of fingers passing into vagina

without any difficulty." But, it has not been done by the

doctor, who medically examined the victim. It is nowhere

stated in Ex. A-3. In fact, according to PW 3, the doctor,

the medical examination of the victim does not suggest of

any rape.

24. In the facts and circumstances of this case,

this Court is of a view that non-existence of any injury on

the genitals of the victim raises doubts on the credibility

of the statement of the victim. It reflects that the

statement of the victim is not wholly reliable statement.

25. Admittedly, there is a dispute between PW 1,

the informant and DW 1, the mother of the victim.

PW 1, the informant, in page 3 of her examination,

admitted that her father had a house, which was in her

possession. She was taking rent of the house, but after

the death of her father, the rent has been divided between

her and DW 1. It was done after the interference of

various other persons and partition was done. PW 2, the

victim, in her statement recorded at page 3, has also

stated about the partition due to intervention of other

peoples. DW1, the mother of the victim has also stated

that false case has been lodged, because PW 1, the

informant wanted to grab the property.

26. In the instant case, what is interesting is that

the mother has not supported the prosecution case. The

mother of the victim says that it is a false case. The victim

was with her mother in the house of the appellant, when

allegedly the incident took place. This situation compels

this Court to be little careful in accepting the testimony of

the victim.

27. PW 1, the informant would submit that she

had come to know about the incident much before the FIR

was lodged. Her maternal brother had informed her

telephonically about it (statement at page 4, bottom line).

But, PW 1, the informant would submit that she did not

take any action because her maternal brother was not

confirmed about the incident. This witness did not make

a telephone call to her sister, DW 1, to know about the

incident. Although in page 5 of her statement, in

paragraph 2, she would submit that she had the

telephone number of the mother of the victim. Why did

she not contact her sister when she came to know about

the incident? Delay in lodging FIR under such

circumstances has significance. It raises doubt on the

credibility of the FIR.

28. PW 2, the victim has stated that she was not

allowed to leave the house after the incident. But, in her

cross-examination, she would submit that she used to

visit Landhora town quite often and on the date when she

visited the house of PW 1, the informant, she went to

Landhora town, where there is a police station also. The

victim is staying with PW 1. DW 1 would submit that her

sister PW 1 had taken the victim with her under false

pretext and lodged false report.

29. The victim did not reveal it to the police during

investigation that her legs were tied and she was raped

after applying oil on her genitals.

30. There were many other persons in the family.

PW 2, the victim has stated that her younger brother

remains in the house. He does not do anything. Although

in page 2, last line, she would submit that on the date of

incident her younger brother was not at home, but this

witness has proved her statement recorded under Section

164 of the Code where she would state that on the date of

incident, her younger brother was at home when the

incident took place. But, he has not been examined.

31. The site plan has been proved by the

prosecution. PW 2, the victim, in her cross-examination

has stated about the position of her house. She would

submit that her uncle, who is married also stays in one of

the rooms. It has been shown in the site plan, Ex. A-11. It

is just in front of the house of the appellant. But, none of

the family members of the victim was examined by the IO.

PW 7 SI Rekha Danu has stated that she did not examine

the aunt of the victim. According to this witness, even she

did not inquire from the grandmother, aunt or mother of

the victim, as to where were they when the incident took

place. The IO did not examine any person from the

Madarsa, where allegedly the victim was studying.

32. In the instant case, the statement of PW 2, the

victim is not wholly reliable. The statement of PW 2, the

victim cannot be made sole basis for conviction. The

statement of PW 2, the victim is not corroborated by other

statements.

33. PW 1, the informant would submit that she

was told by her maternal brother about the incident. But,

that brother has also not been examined. The uncle of the

victim, who was residing in a room, just in front of the

place of incident has also not been examined. How many

members of the family were in the house at the relevant

time? It is also not established. In her statement recorded

under 164 of the Code, the victim would submit that her

younger brother was with her in the house when the

incident took place, but in court, she would submit that

her younger brother was not at home. There has been no

injury on the person of the victim. She was a young girl of

thirteen years, who was allegedly raped by a person of

forty-two years. PW 2, the victim has been meticulous

about the incident, when she told it to the doctor that

after raping her the appellant discharged out. But, she

has not stated that it was a partial penetration.

34. In view of the above, this Court is of the view

that the prosecution has not been able prove to its case

against the appellant beyond reasonable doubt.

Consequently, the appeal deserves to be allowed.

35. The appeal is allowed. The judgment and order

dated 17.03.2021/19.03.2021 passed in Special Sessions

Trial No. 93 of 2016, State v. Altaf alias Mehtab, by the

court of Additional District Judge, F.T.C. Roorkee, District

Haridwar is set aside.

36. The appellant is acquitted of the charge under

Sections 376 (2) (f), 506 IPC and Section 5(n)/6 of the Act.

37. The appellant is in jail. Let he be set free

forthwith, unless he is not wanted in any other case,

subject to the appellant furnishing personal bond and two

reliable sureties, each of the like amount to the

satisfaction of the court concerned, under Section 437A of

the Code.

38. Let a copy of this judgment along with the

lower court record be sent to the court concerned for

onward compliance.

(Ravindra Maithani, J.) 09.05.2022 Avneet/