CRLA/317/2018 of TANVEER Vs STATE OF UTTARAKHAND

Reserved on:15.11.2019 Delivered on:06.01.2020

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 317 of 2018

Tanveer

.......Appellant

State of Uttarakhand

…....Respondent

With

Criminal Appeal No. 367 of 2018

Hussain Ahmed and another

.......Appellants

Vs. State of Uttarakhand …....Respondent

Mr. V.B.S. Negi, Senior Advocate, assisted by Mr. S.R.S Gill and Mr. Amish Tiwari, Advocates for the appellants. Mr. V.K. Gemini, Deputy Advocate General, assisted by Mr. P.S. Uniyal, Brief Holder for the State.

Coram: Hon’ble Alok Singh, J. Hon’ble Ravindra Maithani, J.

Per: Ravindra Maithani, J.

Both these appeals are preferred against the common judgment and order dated 11.09.2018 and 12.09.2018 in Sessions Trial No.148 of 2006, State vs. Hussain Ahmad and others, therefore, they are decided together by this Judgment. By the impugned judgment and order, appellants Hussain Ahmad, Israr and Tanveer have been convicted under Sections 120-B read with 302

IPC, 364 read with 34 IPC, 302 read with 34 IPC and 201 read with

34 IPC and sentenced as hereunder:

“(i) Under Section 120B r/w 302 IPC life imprisonment, and fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for further period of three months. (ii) Under Section 364 r/w Section 34 IPC, life imprisonment, and fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for further period of three months. (iii) Under Section 302 r/w Section 34 IPC imprisonment for life, and fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for further period of three months. (iv) Under Section 201 r/w Section 34 IPC seven years imprisonment, and fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for further period of three months.

Appellant Hussain Ahmad also has been convicted under Sections 363, 366 and 376 IPC andsentenced as hereunder:-

(i). Under Sections 363 IPC, seven years rigorous imprisonment and fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for further period of three months. (ii). Under Sections 366 IPC, seven years rigorous imprisonment and fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for further period of three months. (iii). Under Sections 376 IPC, ten years rigorous imprisonment and fine of Rs.10,000/-. In default of payment of fine, to undergo simple imprisonment for further period of three months.

2. Facts necessary for disposal of the appeals briefly stated are as hereunder:-

I. Deceased Sahezad was teacher in Madrasa. On 15.02.2005 at about 04:30 PM, brother of the deceased PW2 Mohd. Arshad was in his shop, which was opposite to the Madrasa, when two scooter borne persons approached him and enquired about the deceased. PW2 Mohd. Arshad revealed the whereabouts of the deceased to those persons. Those two persons talked to deceased Sahezad and then the deceased went along with them, in scooter. Deceased Sahezad did not return thereafter. report was lodged to the police on 24.02.2005 by his father PW1 Mohd. Iqbal.

ii. According to the prosecution, appellant Hussain Ahmed had illicit relations with PW8, the victim. Appellant Hussain Ahmed got PW8 the victim engaged with the appellant Israr.

iii. Deceased Sahezad also wanted to marry PW8 the victim. The appellant Hussain Ahmed hatched conspiracy to kill deceased Sahezad. According to the plan, on 15.02.2005 appellants Tanveer and one Istkhar went on scooter to call deceased Sahezad from Madrasa. When deceased was brought by appellants Tanveer and Istkhar, he was offered drink which was spiked. Thereafter, deceased was carried in truck; his belongings were hid in water tank, which included his clothes and books. Thereafter, the deceased Sahezad was buried in an old grave with his legs and hands tied.

(iv) PW8 the victim disappeared from her house on 19.04.2005 and report was lodged by her father PW3. On

07.02.2006 appellant Hussain Ahmed alongwith PW8 the victim were located. Appellant Hussain Ahmed was arrested. Upon his arrest, the story of killing of deceased Sahezad was disclosed by the appellant Hussain Ahmed. Appellant Ishtkhar was also arrested. At their instance, from grave, some bones were recovered on 11.02.2006. recovery memo Ex-A4 was prepared. Subsequent to it, appellant Tanveer was also arrested and at his instance, belongings of deceased Sahezad were recovered from water tank. The bones were taken into custody by the Police. At the police station, an inquest was prepared on 14.04.2006 which is Ex-A11. Post-mortem was conducted on 14.02.2006, the report Ex-A16 is on record. Since, from the bones, the doctor could not ascertain anything about the sex and cause of death etc., sample were kept for examination.

3. After investigation, charge-sheet was submitted against

Hussain Ahmad, Israr, Mustkeen and Tanveer which is the basis of the criminal trial. separate charge-sheet was also submitted against Istkhar and Mukhtyar, which is the basis of the Sessions Trial No.101 of 2007.

4. The cases were committed to the court of sessions for trial. On 24.01.2009, charges under Sections 120-B read with 302 IPC, 364 read with 149 IPC, 302 read with 149 IPC, 201 read with 149 IPC were framed against appellants Hussain Ahmed, Israr and Tanveer. Charges under Sections 363 and 366 and 376 IPC were also framed against the appellant Hussain Ahmed. Co-accused were also charged.

5. In order to prove the case, the prosecution examined as many as 14 witnesses, namely, PW1 Mohd. Iqbal, PW2 Mohd. Arshad, PW3 father of the victim, PW4 Ninha, PW5 Hussain Ahmad, PW6 Mohd. Ashfaq, PW7 S.I. Harpal Singh, PW8 the victim, PW9 H.C. Mukesh Kumar, PW10 brother of the victim, PW11 S.I. Raghuveer Singh Rana, PW12 Dr. Guman Singh Rana, PW13 Mohan Singh Barnia and PW14 Ravindra Kumar Chamoli.

6. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973. According to them, they have been falsely implicated. By the impugned judgment and order, the appellants have been convicted and sentenced as hereinbefore. Rest of the accused have been acquitted of the charges. Aggrieved by their conviction, the appellants preferred these appeals.

7. On behalf of the appellants, it is argued that the prosecution utterly failed to prove the charges against the appellants. Learned counsel raised the following points, in his arguments:-

1. FIR is delayed and no explanation has been offered by the prosecution. prosecution.

2. FIR is not reliable because if the persons who took the deceased alongwith them, on 15.02.2005 were known to PW2 Arshad, their names ought to have been recorded in the FIR, which is not done. alongwith them, on 15.02.2005 were known to PW2 Arshad, their names ought to have been recorded in the FIR, which is not done. 3. Recovery of skeleton does not indicate that it was the skeleton of deceased Sahezad. The statements of the witnesses are contradictory about the skeleton. deceased Sahezad. The statements of the witnesses are contradictory about the skeleton.

4. Recovery of other belongings of deceased Sahezad is also doubtful. doubtful.

5. There are material contradictions, in the statements of the witnesses, which make prosecution case doubtful. witnesses, which make prosecution case doubtful.

8. On the other hand, learned State counsel would argue that the statement of PW2 Mohd. Arshad is reliable; there is motive for the appellants to commit the crime; the dead body of Sahezad was recovered at the instance of appellants Hussain Ahmed and Israr and the belongings of deceased Sahezad were recovered, at the instance of the appellant Tanveer; statements of the witnesses are corroborating to each other. The prosecution has been able to prove the case beyond reasonable doubt and the appeals deserve to be dismissed.

9. Prosecution relied upon following three parts of the chain to prove the case;

1. Appellant Tanveer took the deceased alongwith him on 15.02.2005 on his scooter from Madrasa.

2. On 14.04.2006, the appellant Tanveer got the belongings of deceased Sahezad recovered from water tank

3. Appellants Hussain Ahmed and Israr, recovered the dead body of deceased Sahezad on 11.02.2006.

10. Motive has also been attributed by the prosecution. It is that the deceased Sahezad wanted to marry PW8 the victim, who was already engaged with appellant Israr and who had illicit relations with the appellant Hussain Ahmed. The learned court below considered it, chain complete and convicted the appellants. The case of prosecution is one thing and the case which is proved before

the court is another. In criminal trial, prosecution has to prove the case beyond reasonable doubt.

11. It is case based on circumstantial evidence. In the case of circumstantial evidence, the prosecution has to prove the complete chain which may lead to one and only one irrestible conclusion that it is the accused and accused alone, who has committed the offence.

12. In the case of Ganpat Singh Vs. State of Madhya Pradesh (2017) 16 SCC 353, the Hon’ble Court has held as hereunder:-

“9. ……… In case which rests on circumstantial evidence, the law postulates twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused. The principle has been consistently formulated thus:

“The normal principle in case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must cogently and firmly established; that those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.”[1]

1.- See Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487; Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 : (2006) 3 SCC (Cri) 512; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, p. 689, para 12 : (2007) 1 SCC (Cri) 80; Venkatesan v. State of T.N. (2008) 8 SCC 546, p. 460, para 8 : (2008) 3 SCC (Cri) 546; Sanjay Kumar Jain v. State of T.N., (2008) 8 SCC 456, p. 460, para 8 : (2008) 3 SCC (Cri) 546; Sanjay Kumar Jain v. State of Delhi, (2011) 11 SC 733, p. 737, para 13 : (2011) 3 SCC (Cri) 608; Madhu v. State of Kerala, (2012) 2 SCC 399 : (2012) 1 SCC (Cri) 892; Munna Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174, p. 188, para 25 : (2012) 3 SCC (Cri) 42 and Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439 : (2014) 6 SCC (Cri). 782. Khanna Reddy v. State of A.P., (2006) 10 SCC 172 : (2006) 3 SCC (Cri) 512; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, p. 689, para 12 : (2007) 1 SCC (Cri) 80; Venkatesan v. State of T.N. (2008) 8 SCC 546, p. 460, para 8 : (2008) 3 SCC (Cri) 546; Sanjay Kumar Jain v. State of T.N., (2008) 8 SCC 456, p. 460, para 8 : (2008) 3 SCC (Cri) 546; Sanjay Kumar Jain v. State of Delhi, (2011) 11 SC 733, p. 737, para 13 : (2011) 3 SCC (Cri) 608; Madhu v. State of Kerala, (2012) 2 SCC 399 : (2012) 1 SCC (Cri) 892; Munna Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174, p. 188, para 25 : (2012) 3 SCC (Cri) 42 and Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439 : (2014) 6 SCC (Cri). 782.

13. PW1 Mohd. Iqbal is the father of the deceased, who lodged the report on 24.02.2005 about missing of his son from 15.02.2005. PW2 Mohd. Arshad is brother of the deceased. He states that on 15.02.2005 when he was sitting in his shop, two persons on scooter approached and enquired from him about deceased Sahezad. Thereafter, those two persons took Sahezad alongwith them on scooter. According to PW2 Mohd. Arshad, they were appellants Tanveer and Istkhar, who had wrongly revealed their names to him. According to PW2 Mohd. Arshad, the proposal of marriage of PW8 the victim with his brother deceased Sahezad was pending consideration. This witness also states that after few days the appellant Hussain Ahmed took away PW8 the victim with him. This witness was told by the brother of PW8 the victim that Hussain Ahmed had killed Sahezad.

14. PW3 is the father of the victim (PW8). According to him, appellant Hussain Ahmed, his brother-in-law took his daughter PW8 the victim, alongwith him, when she was only 15 years old. They were caught by the police. Police handed over his daughter to him. He proved the supurdgi nama. This witness denied that any proposal to marry his daughter with deceased Sahezad was ever pending consideration.

15. PW7 S.I. Harpal Singh is the person, who received the report given by PW10 brother of the victim (PW8) about missing of his sister. He has stated about it.

16. PW8 the victim, was declared hostile. In her cross-examination, she revealed that the appellant Hussain Ahmed took her to Jaipur and she was pregnant due to her relationship with the appellant Hussain Ahmed. According to her, she did not know deceased Sahezad.

17. PW10 is brother of the victim (PW8). According to him, his sister had left the house on 19.04.2005 but subsequently, she was traced in Jaipur. He has not stated anything more than that.

18. There is another set of witnesses about the recovery of dead body. PW11 S.I. Raghuveer Singh Rana has stated that on 07.02.2006 when appellant Hussain Ahmed was arrested, he confessed his guilt. Subsequent to it, appellant Israr was also arrested and at their instance on 11.02.2006, from grave of Smt. Hussein wife of Nazir, who had died 6-7 years prior to then, male skeleton was recovered which was taken into custody. This witness proved the recovery memo Ex-A4. PW4 Ninha, PW5 Shamim Ahmed, PW6 Mohd. Ashfaq, PW9 Head Constable Mukesh Kumar and PW13 Mohan Singh Barnia corroborated the statement of PW11 Raghuveer Singh Rana about the recovery of skeleton.

19. PW12 Dr. Guman Singh Rana conducted post-mortem of the skeleton. According to him, he could not ascertain as to whether the skeleton was that of male or of female. He could not ascertain the duration of death but according to him such skeleton is formed, after six months of the death.

20. There is another set of evidence with regard to recovery of the belongings of deceased Sahezad. PW11 Raghuveer Singh Rana has stated that when the appellant Tanveer was questioned, he confessed his guilt and stated that he had kept some belongings of the deceased. On 14.04.2006, at the instance of the appellant Tanveer, from water tank, bag containing Kurta-Pyajama and three books were recovered. No other witness has proved this recovery. PW6 Mohd. Ashfaq in his cross-examination at one stage told about recovery of clothes and books from the jungle.

21. The prosecution in the instant case has, in fact, joint two separate incidents namely, I. Killing of deceased Sahezad and II. Kidnapping of PW8 the victim.

22. Insofar as killing of deceased Sahezad is concerned, all the appellants have been charged under Section 120-B read with 302 IPC, 364 read with 149 IPC, 302 read with 149 IPC and 201 read with 149 IPC. Insofar as kidnapping of PW8 the victim is concerned for it the appellant Husain Ahmad has been charged under Sections 363, 366 and 376 IPC.

23. Deceased Sahezad, according to the prosecution was taken alongwith by the appellant Tanveer and co-accused Istkhar, who has been acquitted. This is the first part of the story. Thereafter, according to the prosecution on 11.02.2006 appellants Hussain Ahmed and Israr recovered the skeleton of deceased Sahezad. Finally

on 14.04.2019 appellant Tanveer recovered the personal belongings of deceased Sahezad namely, Kurta-Payjama and books.

24. With regard to charges against appellant Hussain Ahmed, according to prosecution, appellant was arrested on 07.02.2006 when PW8 the victim was with him. In this order, the evidence will be appreciated.

25. The star witness is PW2 Mohd. Arshad. He is the brother of deceased Sahezad. According to him, his brother was taken along by the appellant Tanveer and one Istkhar on scooter. The matter was reported by PW1 Mohd. Iqbal. He is father of the deceased. The report was lodged on 24.02.2005. FIR is definitely delayed. In the FIR, it is stated that PW1 Mohd. Iqbal searched for deceased Sahezad but when they could not trace him, the report was lodged. The explanation of delay is not convincing. boy becomes untraceable and the matter is not reported to police for many days. Why? What prevented PW1 Mohd. Iqbal to lodge the report and simultaneously, continue search for the deceased Sahezad.

26. Related to it, is another issue which is that the FIR is not named, FIR does not name the appellant Tanveer and co-accused Istkhar. PW2 Mohd. Arshad states that in his presence, deceased was taken along by appellant Tanveer and Istkhar. He also states that the appellant Tanveer and Istkhar wrongly introduced to him but he came to know their names subsequently. In his cross-examination, when asked PW2 Mohd. Arshad has categorically stated that when

the report was lodged, he had revealed the names of Tanveer and Istkhar as the persons, who took deceased Sahezad alongwith them. According to him, even he had given the address of them to his father. But PW1 Mohd. Iqbal denies it. According to him, names of the persons, who took the deceased from Madrasa on 15.02.2005 was not told to him by his son PW2 Mohd. Arshad. It doubts the authenticity of FIR and statements of PW1 Mohd. Iqbal and PW2 Mohd. Arshad with regard to the appellant Tanveer. If PW2 Mohd. Arshad knew that it is Tanveer and Istkhar, who took his brother alongwith them on 15.02.2005, what prevented him to approach, those two persons immediately, as to where the deceased was? Had they ever been approached, if not, why and, if yes, what did they say? If they were giving some wrong explanations about deceased Sahezad at the relevant time, why FIR was not promptly lodged, naming appellants Tanveer and Istkhar as accused, who took deceased Sahezad alongwith them on 15.02.2005? These all are unanswered questions. It doubts the prosecution story. FIR is delayed. FIR is not inspiring confidence. It doubts the prosecution case.

27. Another set of facts is that upon their arrest appellants Hussain Ahmed and Israr recovered the skeleton from grave in village Khushalpur on 11.02.2006.

28. PW11 S.I. Raghuveer Singh is the Investigating Officer. According to him, when confessed, both the appellants Hussain Ahmed and Israr, narrated as to how and why did they abducted

deceased Sahezad and how they killed and buried him. According to this witness thereafter, the appellants Hussain Ahmed and Israr took the police party and witnesses to grave in the village Khushalpur. They first went there on 09.02.2006 but the villager did not allow them to dig the grave. Thereafter, they took permission and again reached at the grave on 11.02.2006. When the grave was dug, skeleton was recovered, which was taken into custody by the police and sealed. This was grave of Smt. Hussain wife of Nazir, who had died some 6 to 7 years prior to the date of recovery.

29. According to PW11 S.I. Raghuveer Singh they took into custody the skeleton and sent it for Forensic Examination. PW4 Ninha, PW5 Hussain Ahmad, PW6 Mohd. Ashfaq, PW9 H.C. Mukesh Kumar, PW13 Mohan Singh Barnia and PW14 Ravindra Kumar Chamoli the Investigating Officer, all have stated about recovery of the skeleton at the instance of appellants Hussain Ahmed and Israr.

30. PW4 Ninha also states that from near the grave book and Kurta-Payjama were also recovered, which this witness has proved as Ex-A1, A2 and A3 respectively. In his cross-examination, at page four, this witness states that there were two packets sealed on that day. One, in which, bones were sealed and another in which, books and Kurta-Payjama were sealed. PW5 Hussain Ahmed in page three of cross-examination states that handkerchief was also recovered from near the bones. There were some semi decomposed clothes on the skeleton, which were not taken into custody but

according to him, the handkerchief was taken into custody. PW4 Ninha has not stated that there were any clothes on the skeleton. He has also not stated that there were any handkerchief, which was taken into custody. These are major contradictions and it just cannot be ignored.

31. PW6 Mohd. Ashfaq in his cross-examination states that on the date, when bones were recovered, no other articles were recovered. According to him, appellant Tanveer got recovered Kurta-Payjama from forest, on 14.04.2006 (statements of PW6 Mohd. Ashfaq are at page five).

32. PW4 Ninha categorically states that from near the grave book and Kurta-Payjama were recovered. PW6 Mohd. Ashfaq would say that on that date only skeleton was recovered. Why is this contradiction? PW14 Ravindra Kumar Chamoli is the Investigating Officer. According to him, the skeleton was in position of hands and feet tied together. No other witness has stated about it. No inquest was prepared at the spot. The statement of the witnesses regarding recovery is not consistent. There was grave of some other woman, which was dug out, and skeleton was recovered, which according to prosecution was that of the deceased. PW11 S.I. Raghuveer Singh would say that since appellants Hussain Ahmed and Israr have said that the skeleton belonged to Sahezad, he says that it belonged to deceased Sahezad. But in his cross-examination, in last para 11 he also states that there were two skeletons, one of

male and another one of female. This statement of PW11 S.I. Raghuveer Singh is not supported by any other evidence.

33. PW12 Dr. Guman Singh Rana inspected the skeleton, he submitted his report Ex-A16. This witness has not stated that he conducted post-mortem. What he says is that he inspected the skeleton and he could not say as to whose skeleton was it, male or of female? Even he could not tell the duration of death. The Investigating Officer got the DNA sample of PW1 Mohd. Iqbal father of the deceased but DNA profiling report would say that DNA analysis of the bones yielded no result.

34. From grave of Smt. Hussain some bones were recovered. How many skeletons were there? PW11 S.I. Raghuveer Singh says that there were two skeletons, one male and another female but this statement is not supported by any other evidence. Prosecution could not establish that the bones belonged to the deceased Sahezad. DNA profiling report could not establish that these were the bones of deceased Sahezad. Were there any clothes with the bones? Particularly were there any clothes of deceased Sahezad? PW4 Ninha, PW5 Hussain Ahmad would say that there were clothes and books also but recovery of books and Kurta-Payjama were made from water tank on 14.04.2006. This has been stated by PW11 S.I. Raghuveer Singh. This would be discussed at later stage. There is no cogent evidence, which may even suggest that the bones allegedly recovered on 11.02.2006 were that of the deceased Sahezad.35. Prosecution also tried to prove that books and clothes of deceased Sahezad were recovered by the appellant Tanveer from water tank. PW11 S.I. Raghuveer Singh would say that on 14.04.2006 at the instance of appellant Israr, from place at about 2-3 Km from Timli from an old water tank, clothes of the deceased and books were recovered. In the book, deceased had written his name, in his own hand writing. PW6 Mohd. Ashfaq in his cross-examination states that from the forest, these articles were recovered. The only evidence on this aspect is of PW6 Mohd. Ashfaq and PW11 S.I. Raghuveer Singh. The place of recovery is different, according to these two witnesses. PW11 S.I. Raghuveer Singh says that in the book deceased had written his name in his own hand writing. Interestingly, these articles were proved by PW4 Ninha saying that they were recovered on 11.02.2006 from near the grave. In fact, PW2 Mohd. Arshad, brother of the deceased Sahezad, was re-examined on 18.07.2018. In his cross-examination, he has stated that in the book nothing was written by hand. PW11 S.I. Raghuveer Singh says that book was recovered at the instance of appellant Tanveer and on it, the deceased had written his name, in his own hand writing but there is nothing written on the book as stated by PW2 Mohd. Arshad. Why is this contradiction? This aspect may be examined from another angle.

36. According to PW2 Mohd. Arshad on 15.02.2005 two persons, on scooter came to him and enquired from him about his brother deceased Sahezad. Deceased Sahezad was teaching in

Madrasa, opposite to the shop of PW2 Mohd. Arshad. PW2 Mohd. Arshad informed those two persons, one of whom was appellant Tanveer that the deceased is teaching in Madrasa. They both, Tavneer and another person approached Sahezad and thereafter, these two persons took Sahezad alongwith them. Why deceased had bag with his Kurta-Payjama in the Madrasa? Was he waiting for them? Did he intend to go for few days? Neither in the FIR nor in the initial statement of PW2 Mohd. Arshad it is stated that the deceased took alongwith him, his bag keeping his Kurta-Payjama. These all create doubts in the prosecution case. The recovery of Kurta-Payjama and books is doubtful. Recovery of skeleton is also doubtful. It is not proved that the bones allegedly recovered belonged to the deceased Sahezad. There is no cogent evidence to establish it. FIR is not reliable. It is not named, though according to PW2 Mohd. Arshad, he had revealed the names to informant PW1 Mohd. Iqbal. This doubts prosecution case with regard to abduction and killing of Sahezad and this Court is of the view that the prosecution has not been able to prove the charges under Sections 120-B r/w 302 IPC, 364 r/w 34 IPC, 302 r/w 34 IPC and 201 r/w 34 IPC against the appellants and all the appellants deserve to be acquitted of these charges.

37. Appellant Hussain Ahmed has also been separately charged under Sections 363, 366 and 376 IPC. According to the charges, appellant Hussain Ahmed kidnaped PW8 the victim, minor with the intention to have illicit intercourse with her and, in

fact, did rape her. PW3 is father of the victim. The victim has been examined as PW8. What is interesting to note is that the appellant Hussain Ahmed is, in fact, uncle of PW8 the victim. (Appellant Hussain Ahmed is the husband of the sister-in-law of PW3 father of the victim). According to PW3 father of the victim, appellant Hussain Ahmed took the victim alongwith him when she was about 15 years of age. PW8 the victim gave birth to child from appellant Hussain Ahmed because it is the appellant Hussain Ahmad, who had taken her away. They were caught by police and PW8 the victim was handed over to him. He proved the memo, handing over PW8 the victim to him. PW10 is brother of the victim. He also states that PW8 the victim had left her house on 19.04.2005 and he had reported the matter. Subsequently, she was recovered.38. PW8 in her examination-in-chief did not support the prosecution case. She was declared hostile but in cross-examination, she has admitted that she was medically examined and at that time, she was pregnant for eight and half months and the child in her womb was that of appellant Hussain Ahmed. Appellant PW5 Hussain Ahmad took her under some pretext and the child was not conceived by her consent or will. PW11 S.I. Raghuveer Singh has stated that he arrested the appellant Hussain Ahmad and at that time PW8 the victim was with him. PW8 the victim remained with appellant for long period. She left her house on 19.04.2005 and was recovered with appellant Hussain Ahmad on 07.02.2006. Appellant PW5 Hussain Ahmad and PW8 the victim are close relatives. The

circumstance reveals that PW8 the victim had willingly gone with the appellant Hussain Ahmed. The statement of PW8 the victim is wholly reliable that the appellant had sexual intercourse with her but under the facts and circumstances of the case, it was consensual relationship between the appellant Hussain Ahemd and the victim PW8.

39. The prosecution has not proved the medical examination report of the victim. The defence endorsed on it that the formal proof is dispensed with. According to it, on 08.02.2006, when she was medically examined, she was having eight and half months’ pregnancy. She was referred for X-ray for her age determination.

40. PW3 father of the victim and appellant Hussain Ahmed are married to two real sisters. PW3 father of the victim would say that because the wife of Hussain Ahmed was sick, therefore, he took the victim with him. She became pregnant. According to him PW8 victim at that time was 15 years of age. PW12 Dr. Guman Singh Rana has not stated her age. PW8 the victim was examined on 31.03.2011, on that date, she revealed her age 17 years. In the FIR, the age given by her brother PW2 Brother of the victim is written 16-17 years.

41. The learned court below on the basis of oral evidence recorded that no documentary evidence of age was produced. On the basis of oral evidence, it was held that the age of PW8 the victim is below 18 years. Age cannot be ascertained in the manner, in which it

was ascertained. In the instant case. In fact, there is documentary evidence which could not be brought to the notice of the court below.

42. The victim was medically examined on 08.02.2006 at Women Hospital, Dehradun. The medical examination report, as stated, has not been proved by the prosecution. The defence endorsed formal proof dispensed on it on 14.03.2018. Surprisingly, on the order-sheet of the case on 14.03.2018, it is not mentioned that this medical report of the victim was admitted by the defence on that date, but the fact remains that on that date, it was marked as Ex. A-19. According to this medical report, for age determination, the victim was referred to radiological examination. She was then found having about eight and half months pregnant; her breast were well developed, auxiliary and pubic hairs were well developed and no mark of injury on any part of her body.

42. The victim had undergone radiological examination at Doon Hospital, Dehradun on 08.02.2006. The report is Ex.A-20 on the original record. It has also not been proved by the prosecution and its formal proof has been dispensed with by the defence. Based on the x-ray of the wrist the radiologist opined that the victim was above 18 years of age and based on the x-ray of elbow and knee, the radiologist opined that the victim was above 17 years of age. The proper course would have been that the report of radiologist be placed before the Doctor who referred the victim for medical examination. But, this course was not adopted. There are variations

in the statements of the witnesses about age of the victim. Documentary evidence would prevail upon the oral evidence. Ossification test is not supporting the oral evidence. Therefore, this Court has no option, but to rely on the ossification test report about age proof. Unfortunately, this piece of document could not be brought to the notice of the learned court below. According to ossification test, the victim was above 18 years of age.

43. This Court has concluded that, in fact, PW8 the victim had willingly gone with appellant Hussain Ahmed. Appellant Hussain Ahmed had sexual intercourse with her but it was consensual. According to ossification test on 08.02.2006 the victim was found above 18 years of age. The prosecution failed to prove that PW8 the victim was below 18 years of age on 19.04.2005, when she left her house. Therefore, this Court is of the view that prosecution also failed to prove the charges under Section 363, 366 and 376 IPC against the appellant Hussain Ahmed and he deserves to be acquitted of the charges also.

44. In view of the above, both the appeals are allowed. The impugned judgment and order is set aside. All the appellants are acquitted of the charges under Sections 120-B read with 302 IPC, 364 read with 34 IPC, 302 read with 34 IPC and 201 read with 34 IPC. The appellant Hussain Ahmad is also acquitted of the charges under Sections 363, 366 and 376 IPC.

45. All the appellants are in jail. They be released forthwith if not wanted in any other case, subject to their furnishing personal bonds and two sureties by each one of them, each of the like amount to the satisfaction of the court concerned under Section 437-A of the Code.

46. Let copy of the judgment alongwith Lower Court Record be sent to the court below for compliance.

(Ravindra Maithani, J.)

Shubham

(Alok Singh, J.)