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Mahboob Pandey And 3 Others vs State Of U.P. on 2 April, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 05.3.2019

Delivered on 02.04.2019

Case :- CRIMINAL APPEAL No. – 2564 of 2017

Appellant :- Mahboob Pandey And 3 Others

Respondent :- State Of U.P.

Counsel for Appellant :- Rajesh Kumar Pandey,Ajay Kumar,Mayank Yadav,Mumtaz Ali,Shad Khan,Sunil Vashisth,Vivek Kumar Singh

Counsel for Respondent :- G.A.,Mohd. Samiuzzaman Khan,Sunil Kumar

Hon’ble Siddharth,J.

Heard Sri Shad Khan, learned Counsel for the appellants, learned AGA for the State, Sri Mohd. Samiuzzaman Khan learned Counsel for the informant and perused the lower court’s record.

This criminal appeal is directed against the judgment and order dated 08.05.2017 passed by Additional Sessions Judge (F.T.C.), Court No.3, Bulandshahr, in Session Trial No. 933 of 2011, (State of U.P. Vs. Mahboob Pandy and others), S.T. No. 238 of 2012 (State of U.P. Vs. Nawab), arising out of Case Crime No. 474 of 2011, under Sections, 366, 376 (2)(G), 506, 147 IPC, Police Station Khurja Nagar, District Bulandshahr.

The appellants have been convicted under Section 366 IPC and sentenced to 7 years’ rigorous imprisonment and fine of Rs.10,000/- each and in default of payment of fine additional imprisonment of one year each; under Section 376 (2)(G) IPC sentenced to 10 years’ rigorous imprisonment and fine of Rs.35,000/- each and in default of payment of fine additional imprisonment of two years each; under Section 506 IPC sentenced to 4 years’ rigorous imprisonment and fine of Rs.5,000/- each and in default of payment of fine additional imprisonment of 6 months each; under Section 147 IPC sentenced to 1 year’s rigorous imprisonment and fine of Rs.2,000/- each and in default of payment of fine additional imprisonment of three month each has been directed.

The prosecution case, in short, is that the prosecutrix gave an application dated 8.5.2011 before the In-charge, Kotwali, Khurja City, stating that on 25.10.2010 at about 5:00 p.m., she was passing through Mohalla, Radha Krishna, for purchasing some goods and for getting photocopies of some documents, when she was kidnapped and forcibly taken away in a Car by Mahboob Pandey S/o Jaan Mohammad R/o Mohalla Mugalpura Khurja, Abid Bhatola, Yaseen, Nawab and Javed, sons of Yameen R/o Mohalla Shekhpen, Khurja, who were standing there. In the Car, Mahboob Pandey put a handkerchief on her nose and she became unconscious and regained consciousness only at Delhi in a closed room. The above persons kept her at an unknown place in captivity. Abid Bhatola and Mahboob Pandey committed rape on her from 25.10.2010 to 7.11.2010 and Yaseen, Nawab and Javed used to beat her and threatened her from 25.10.2010 to 03.5.2011 and they also committed rape on her. Mother of aforesaid Abid Bhatola and other accuseds, Aneesha, used to keep her under her observation by extending threats and she used to instigate the accuseds and also assisted them in commission of her rape. These persons got her signatures on some papers. She suffered torture due to helplessness. On 03.05.2011 when Yaseen, Nawab and Javed had gone out and their mother was asleep, she escaped from their captivity at 2:00 p.m. and returned to her house at Khurja and informed her parents about the entire incident.

On the basis of the application of the prosecutrix, Police Station Khurja City, District Bulandshahr, registered Case Crime 474 of 2011, under Sections 147, 364, 323, 342, 376 IPC against on accuseds 08.5.2011 at 15:50.

The Investigating Officer investigated the case and prepared site plan, victim was medically examined and finally charge-sheet was submitted in S.T. No. 933 of 2011 against Mahboob Pandey, Abid Bhatolaa and Yaseen, under Sections 147, 364, 323, 342, 376, 504, 506 IPC.

The trial court framed charges against the accuseds, Mahboob Pandey, Abid Bhatola and Yaseen, under Sections 147, 363, 366, 376, 323/149, 504, 506 IPC and ¾ Indecent Representation of Woman (Prohibition), Act, 1986. The accuseds denied the charges and sought trial.

In Sessions Trial No. 238 of 2012, charges were framed against accused, Nawab, under Sections 147, 363, 366, 323/149, 376, 504, 506, 342, 364 IPC. The accused denied charges and sought trial.

In Sessions Trial No. 933 of 2011, the prosecutrix filed an application for amendment of charges against Mahboob Pandey, Abid Bhatola and Yaseen and Nawab and therefore, the charges were amended and fresh charges were framed under Sections 147, 363, 366, 376 (2)(g), 323/149, 504, 506 IPC and ¾ Indecent Representation of Woman (Prohibition), Act, 1986.

The prosecutrix was examined as PW-1 before the trial court and she repeated the allegations made in the FIR in her statement before the court in examination-in-chief and proved application given at the police station. She recognized accuseds, Mahboob Pandey, Abid Bhatola, Yaseen and Nawab present in the court and stated that she understands the meaning of rape. She further stated that after returning to her house, she was frightened and disturbed. She was threatened by the accuseds, who are bad elements. She had informed the Inspector and the Magistrate about the incident and she was medically examined. In her cross-examination, she stated that after going to Delhi, she came to know about the locality of the accuseds after 5-6 days. On the date of incident, she has gone to college, but did not purchased any book nor got any document photocopied. She claimed herself to be major aged about 20 years. She further stated that she was unconscious after being thrown in the car and admitted that she regained conscious only at Delhi. She admitted that after coming back, no member of her family lodged the first information report for five days and in the entire locality, people started talking that she has returned back after 7 months. In her cross-examination, she further stated that her signatures are there on marriage deed but they were taken on the gun point. She further stated that all the five accuseds used to rape her 4-5 times in 24 hours and she never got opportunity to raise alarm. Accuseds, Mahboob Pandey and Abid Bhatola did not came to her after 7.11.2010 and they raped her only till this date. Before giving statement before the Magistrate at Khurja, she lived with her parents for 1 month and 22 days and thereafter, gave evidence. She denied having any video of blue film. She stated that her signatures on the Nikahnama with Abid Bhatola, registered at Delhi, were taken by force. In High School Certificate, her age is mentioned as 20.12.1991. Her educational certificates are with the accuseds. She further stated that all her signatures have been taken after putting pistol on her head. She stated that she had also stated before the Delhi High Court that she has danger to her life from the accuseds. She denied entering into marriage with Abid Bhatola by consent. She further denied that she has lodged FIR under the pressure of her elder uncle, Rizwan Ansari and other family members.

PW-2, Constable Rakesh Kumar proved the FIR and its G.D. Entry at 15:50 on 8.5.2011.

PW-3, Dr. Sudha Sharma, stated that on 9.5.2011, she medically examined the prosecutrix and prepared two slides of her vaginal smear and sent it for pathology examination to the District Hospital. She referred the prosecutrix for radiological examination to the CMO’s office. She further stated that there is no possibility of injury, in case rape is committed on threat and under fear. She, in her cross-examination, stated that in the pathology report, no spermatozoa was found and there was no injury on the private part of the victim or her body. Her hymen was found to be old torn.

PW-4, Ashok Kumar Investigating Officer, proved that he investigated the case and submitted charge-sheet against the appellants before the court.

Statement of the accuseds under Section 313 Cr.P.C. was recorded, wherein they denied the alleged incident and the prosecution case.

In S.T. No. 933 of 2011, accused Mahboob Pandey stated that the prosecutrix had affair with Abid Bhatola and she eloped with him and went to Delhi. He has been falsely implicated being friend of Abid Bhatola.

Accused, Abid Bhatola, stated that the prosecutrix used to love him and she came with him to Delhi and entered into marriage. For 7 months she stayed with him as his wife and entered into physical relationship with consent. The other accuseds are his family members and Mahboob Pandey is his friend, who have been falsely implicated.

Accuseds, Yaseen and Nawab, stated that they are real brothers of Abid Bhatola and therefore, they have been falsely implicated.

DW-1, Zaheer @ Mohammad Zaheer, stated before the court that he knows Abid. He comes to Okhala Mandi, where he does the business of vegetables for last 20 years. Abid and Yameen met him at Kadkadduma Court, Delhi and Yameen informed that Abid is getting married to prosecutrix and he should become the witness. He asked the prosecutrix whether she is marrying on her own free will and she admitted this fact and advocate read out the documents of marriage deed bearing photographs of bride and groom. Thereafter, Rizwan and Shaukin put their signatures on the marriage deed. In his cross-examination, he failed to testify the contents of the documents on the ground that it is written in English. He stated that he did not knew the prosecutrix earlier, but he signed on papers alongwith her.

DW-2, Mukhtyar Ahmad, stated that he read the Nikahnama and entered it in the Nikahnama Register on 28.10.2010. He got the marriage of Abid and the prosecutrix solemnized and the same was registered in the Nikahnama Register. He proved the name of witnesses as Yaseen and Mohammad Shaveer. He produced the Nikahnama and Nikah Register before the court.

DW-3, ASI Mahendra Singh, stated that he was on emergency duty on 03.5.2011 from 8:00 p.m., when he got the information that on 30.10.2010 Abid S/o Yameen entered into love marriage with the prosecutrix and the father of girl had come with U.P. Police of Police Station Khurja, and taken back his daughter, the prosecutrix and no incident of kidnapping had taken place.

On the basis of the aforesaid evidence, the court below found that the victim was major. There was no delay in lodging the FIR. The prosecutrix escaped from the custody of the accuseds on 03.5.2011 and she lodged the FIR on 08.5.2011 since she was frightened and quite disturbed. The charges under Section 363 IPC were dropped by the court below since the prosecutrix was found to be major. The accuseds were also absolved of the charges under Section 323/149 on the basis of the statement of the PW-3, Dr. Sudha Sharma, who did not found any injury on the body of the prosecutrix. The charge under Section 504 IPC was also dropped against the accuseds. The charges under Section ¾ Indecent Representation of Woman (Prohibition) Act, 1986 was also dropped since the prosecution could not prove the allegation that the accuseds made her blue film. No such film was produced before the court.

Charges under Section 147 IPC against Mohboob Pandey, Abid Bhatola, Yaseen and Nawab were found to have been proved on the ground that they kidnapped the victim for the common object of rape by dragging her into car.

Charges under Section 506 IPC was also found to be proved on the ground that the accuseds threatened the prosecutrix at gun point and raped her and also got her signatures on marriage deed, etc., by threat.

The trail court found the offence under Sections 366, 376 (2)(g) IPC also proved against Mahboob Pandey, Abid Bhatola, Yaseen and Nawab, beyond doubt.

The court recorded the findings that mere statement of the victim that she was gang-raped by the accuseds is sufficient for convicting them. Court below found that marriage deed produced before the court is not registered document and it was only notarial document, which has not been proved by the notary. The prosecutrix had denied her marriage with the Abid before the Delhi High Court and therefore, she was given in custody of her parents. The factum of taking the victim by her father with the help of Khurja Police does not stands proved. The statement of DW-3, ASI Mahedra Singh, did not proved anything. The allegation of forcible rape by all the accuseds was correct. All the appellants have been accordingly convicted and sentenced while acquitting them of charges under Sections 366, 323 read with Sections 149, 504 IPC and Section ¾ of Indecent Representation of Woman (Prohibition) Act, 1986. Hence this appeal.

Learned counsel for the appellants has submitted that the prosecutrix entered into legal marriage with Abid Bhatola and they lived together as husband and wife for seven months. She never raised any alarm nor made any complaint that she had been kidnapped and held in captivity by the accuseds. She has not explained the delay of five days in lodging the FIR dated 8.5.2011, when she admits running from Delhi on 03.5.2011 to her house at Khurja. The Nikahnama dated 28.10.2010 was duly proved by the Qazi by producing his Nikah register before the court, but the court below has ignored the same and has convicted the appellants. The appellants filed Habeas Corpus Writ Petition (Crl.) No. 637 of 2011 before the Delhi High Court, where prosecutrix appeared and she simply stated that she wants to stay with her parents and therefore, her custody was given to her parents. The court below has drawn wrong inference from the dismissal of the writ petition and has held that since the writ petition of the appellant was dismissed, therefore, it cannot be accepted that the prosecutrix married Abid Bhatola. Learned counsel for the appellants has stated that in habeas corpus writ petition, no finding was recorded regarding marital status of the prosecutrix or the appellant Abid. The scope of the proceedings was confined only to the question whether the prosecutrix, who was major, wants to live with Abid or wants to go with her parents. In the aforesaid petition, no finding was recorded that the prosecutrix was not married to Abid Bhatola. Being major, her wish was honoured by the court and she was allowed to go with her parents as per her will. It has been submitted that the prosecutrix married Abid on her own will and when after seven months, initial euphoria of newly married couple vanished, she ran away from the company of her husband and members of his family and only to prevent them from compelling her to come back to her matrimonial home, she lodged the FIR and got the other members of the family and friend of Abid, Mahboob Pandey, implicated in this case. The medical report of the victim did not supported the prosecution case at all. The allegations made by the prosecutrix were absolutely impossible. She had made wild allegations of rape by all the accuseds 4-5 times in 24 hours in turn only to add colour to the allegations made by her and the court below has accepted the statement of the victim without testing his correctness on the basis of the surrounding circumstances, medical evidence and the probability of such allegations. The appellants are in jail since 03.6.2011.

The case of the prosecutrix is not covered by Section 114-A of the Evidence Act, since the victim was legally wedded wife of the appellant No.2., Abid, and the court was required to assess the evidence on record in its entirety before inflicting punishment upon the appellants.

Learned counsel for the informant has submitted that the prosecutrix was forcibly kidnapped and taken to Delhi and gang-raped. The trial court gave ample opportunity to the defence and the prosecution to prove their case. Merely signing of Nikahnama will not help the prosecution and will not imply consent of prosecutrix and it was done by force and by creating fear for her life. The Apex Court has held that in the case of gang-rape, the testimony of the victim has to be relied upon as that of on injured witness. As per Section 114-A of the Evidence Act, where sexual intercourse by accuseds is proved and the question is, was it without consent of woman and the woman denied the consent, the court will presume she did not consented.

After hearing rival contentions this Court finds that the presumption under Section 114-A of the Evidence Act is rebuttable. The Hon’ble Apex Court in the case of Rajesh Patel Vs. State of Jharkhand, (2013) 3 SSC 791, has relied upon the judgment of the Apex Court in the case of Raju Vs. State of M.P., (2008) 15 SCC 133, wherein It has been held in paragraph No. 12, read as follows:-

“12. Reference has been made in Gurmit Singh case to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutr ix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.”

Similarly the Apex Court in the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and another, (2006) 10 SCC 92, has held in paragraph Nos. 8 and, read as follows;

“8. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.

9. In the present case there were so many persons in the clinic and it is highly improbable the appellant would have made a sexual assault on the patient who came for examination when large number of persons were present in the near vicinity. It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbablise the prosecution version.”

Finally in the case of Narendra Vs. State of U.P., Criminal Appeal No. 3799 of 2009, this Court has held;

“A presumption has been enacted in Section 114A of the Evidence Act which says that in a case inter alia of gang rape, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she sates in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Hence the legal position is that if the fact of sexual intercourse would have to be believed and it would not help the defence merely to show that the woman was of easy virtue. It is true that the presumption about want of consent is not conclusive. Evidence may still be given to disprove it. But in the absence of any evidence of disproof, there is no option with the Court but to raise a presumption about non-consent if circumstances for raising the presumption under Section 114A exist. It must however be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals. It may be difficult to believe a woman of immoral character if she says that some persons had sexual intercourse with her unless there existed satisfactory proof in support of the story of sexual intercourse.”

Keeping in view of the above authorities of the Apex Court and this Court, this Court finds that the statement of the victim is not absolutely consistent and probable. The Apex Court in the case of Rajak Mohd. Vs. State of Himachal Pradesh, (2018) 9 SCC 248, has held that where the victim did not raised any alarm or made any complaint to any one while she was with the accused, the court did not upheld the sentence awarded to the accused.

Statement of the victim and her cross-examination shows that it is not free of exaggerations, unnatural and improbable allegations. No doubt if the evidence had been convincing and reliable, no corroboration was required.

The allegation against the mother of the appellant Nos. 2, 3 and 4 that she instigated them to commit rape of the prosecutrix and helped them in the aforesaid crime, cannot be accepted to be correct and probable allegation keeping in view the normal course of conduct in the society. Four real brothers and their mother were implicated together for committing most heinous crime against the prosecutirx, who appeared before the Kadkadduma Court, Delhi and Qazi for the purpose of Nikah and she never made any complaint to anyone that she was under threat and is doing everything under threat. The courts are full of lawyers litigations and police personnels. Any woman, who raises cry at a public place for help, is always helped instantly in the courts. The prosecutrix is not a minor girl, rather she is aged about 20 years and cannot be said to be a frightened and incapable of asserting her liberty and free will in public. The medical report of the victim does not supports her allegations of repeated rape by five men at all. In the case of Sadashiv Ramrao Hadbe (Supra), the Apex Court refused to accept the allegation of sexual assault on patient in a clinic, where large number of persons were present in the vicinity. The allegations were made against doctor by 20 years old prosecutrix, which were not accepted by the Apex Court regarding incident in public clinic. In the aforesaid case also the medical report did not supported the allegation of rape levelled by the prosecutrix against accused.

From the totality of evidence on record, it appears that the prosecutrix married the appellant No.2, Abid Bhatola after running away from her parents’ house and she lived with him and his family members for 7 months and thereafter, for the reasons best known to her, like difficulty in adjustment with the family of her husband or incompatibility with the appellant No.2 or any other reasons, she ran away from their company and then made such serious allegations against them, which would prevent them forever to seek her return in the family.

Had there been no marriage between the parties, the appellants would have never filed the habeas corpus petition before the Delhi High Court for production of the prosecutrix before the court. No rapist will approach court for seeking the custody of the victim by preferring such petition before the High Court. Even before the court, the prosecutrix never alleged that she was raped and, therefore, would not go with the accuseds rather she only stated that she wants to go with her parents and the court allowed her to go with them as per her own will. The LIC policy brought on record also proves that after her marriage with Abid, he took LIC policy in the name of the prosecutrix and therefore, it cannot be said that there was no justification for taking such policy.

Considering the above facts and circumstances, this Court has no hesitation to conclude that even by taking assistance of Section 114-A of Evidence Act, the prosecution has failed to prove its case. This Court is of the view that the conviction and sentence awarded to the appellants is absolutely unjustifiable and they are entitled to be acquitted of the charges against them.

Judgment and order dated 08.05.2017 passed by Additional Sessions Judge (F.T.C.), Court No.3, Bulandshahr, is hereby set aside. Appellants are directed to be set at liberty forthwith, it not wanted in any other case.

This criminal appeal is allowed.

The record of this case be sent back to the court below for necessary follow-up action forthwith, within three days.

Order Date :- 02.04.2019

Ruchi Agrahari

 

 

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