Saida Mohd. and anr. Vs. State - Court Judgment

Excerpt:
- nirmal singh, j.1. this appeal is directed against the judgment dated 17-1-2002 and order dated 18-1-2002 passed by learned sessions judge, poonch, vide which the appellants have been convicted and sentenced under sections 376, 363, 342 and 109, rpc as under:accused-saida mohd. to undergo rigorous imprisonment for a period of ten years for commission of offence punishable under section 376, rpc and shall also pay a fine of rs. 10,000/-. in default of payment of fine the accused shall further undergo two years r.i.for commission of offence under section 363, rpc accused saida mohd. is sentenced to undergo rigorous imprisonment for a period of five years and shall pay a fine of rs. 2000/-. in default of payment of fine shall bear a rigorous imprisonment for five months.for commission of offence punishable under section 342, rpc accused-saida mohd. is also sentenced to undergo rigorous imprisonment for a period of six months and shall pay a fine of rs. 1000/-. in default of payment of fine shall further undergo r.i. for a period of three months.similarly accused-shamash din is sentenced to undergo rigorous imprisonment for a period of five years for commission of offence punishable under section 363, rpc and shall pay a fine of rs. 2000/-. in default of payment of fine shall suffer rigorous imprisonment for five months.accused-shamash din is further sentenced to undergo rigorous imprisonment for a period of six months and shall pay rs. 1000/- as fine, in default of payment of fine he shall further suffer rigorous imprisonment for a period of three months.all the sentences to both the accused shall run concurrently.2. the prosecution story, in brief, is that azmat bi, prosecutrix, had gone to the house of her maternal grandfather at village digwar two days prior to id festival. on the eve of id festival the prosecutrix, along with maternal grandfather, maternal uncle abdul karim and aunt was present in the house of abdul karim, when saida mohd. and shamash din came there and narrated that the mother of the prosecutrix is ill at village doodi and she has been called there, abdul karim sent the prosecutrix with them. she along with saida mohd. and shamash din boarded the bus from poonch upto dhundak. on way there is house of appellant-saida mohd. they went to the house of saida mohd. when nazir mohd. and mohd. bashir also came there. the prosecutrix got up to go her mother's house, but accused-saida mohd. restrained her and told her that he will marry her. accused-saida mohd threatened her to be eliminated in case she raised alarm, and she was kept locked in a room for five days. accused-saida mohd. tore her clothes and committed rape on her for five days. on 6th day, when no male member was present in the house and only a female was present there, she pretended that she has to answer the call of nature and when the female member opened the door she ran away from the house and came to dhundak bridge from where she boarded a bus and reached poonch and thereafter she went to the house of her maternal grandfather and thereafter to the house of her maternal uncle at digwar and narrated the occurrence to him. abdul karim along with the prosecutrix went to police station, poonch and moved an application before the superintendent of police, on the basis of which an fir was registered against the accused persons, namely, saida mohd. shamash din, wazir mohd. and mohd. bashir.3. after completion of the investigation, challan was presented before the illaqa magistrate and it was committed to the court of sessions. on commitment the accused were charge sheeted under sections 376, 363, 342 and 109, rpc to which they pleaded riot guilty and claimed trial.4. to prove its case prosecution examined, azmat bi (prosecutrix), abdul karim, munira bi, abdul rehman, mohd. sharif, dr. saki mohd. dr. nusrat bhati, dr. g. s. bindra, sh. raghbir singh, investigation officer and abdul latief, sho.5. when the accused were examined under section 342, cr. p.c. to explain the incriminating circumstances appearing in the prosecution evidence they denied simpliciter and false implication. accused saida mohd. in his statement pleaded as under:mst. azmat bi is my wife. munira bi, abdul rehman and abdul karim have concocted a false case against me and other accused persons. abdul rehman who is maternal grand-father of azmat bi has taken rs, 10,000/- for marriage and was demanding more money. when i refused to pay the same, he by force wanted to get divorce and wanted to get azmat bi married with mohd bashir, son of abdul karim and munira bi.6. the accused were called to lead defence evidence. in their defence they examined bishan dass asi, mohd. sharief, moulvi abdul baqi, faiz mohd. buland khan, mohd. nazir, abdul gani, mohd hussain, and ishrat hussain.7. after appreciating the evidence of the prosecution and the defence the learned sessions judge acquitted accused wazir mohd. and mohd. basir whereas the appellants saida mohd. and shamash din were convicted and sentenced as stated in para 1 above, aggrieved by which they have preferred the present appeal.8. mr. m. i. sherkhan, learned counsel for the appellants submitted that the learned sessions judge has not appreciated the evidence on record in its right perspective and has convicted the appellants on surmises and conjectures. he submitted that prosecutrix azmat bi is the legally wedded wife of appellant, saida mohd. to prove this fact the appellants have examined d.w. ch. abdul gani, mohd. sharief, and moulvi mohd. baqi, but the learned sessions judge has not discussed their evidence at all. he submitted that from the version of these defence witnesses it has been proved that the prosecutrix was the legally wedded wife of appellant, saida mohd. he further contended that after marriage the prosecutrix was not interested to live with appellant saida mohd. and was interested to re-marry with the son of her maternal uncle, abdul karim. for getting divorce the prosecutrix with the connivance of abdul karim and others, concocted a false story of kidnapping and rape. he submitted that village digwar falls in a prohibited area where no person can go or stay without prior permission of army authorities. this fact has been proved by the defence witnesses and has also been admitted by raghbir singh, investigating officer. he submitted that once it is proved that the appellants had not gone to village digwar and have not taken away the prosecutrix with them, then the entire case of the prosecution stands falsified.9. on the other hand, mr. a. h. qazi, learned aag, submitted that the accused have taken the defence that azmat bi is the legally wedded wife of appellant saida mohd. but the prosecutrix has denied the marriage with saida mohd. he further contended that there is no enmity between the prosecution witnesses and the appellants to falsely depose against them. he further contended that even in case it is believed that the prosecutrix was married to appellant saida mohd. even then offence under section 376 rpc is made out. he pointed out that under section 375 rpc, even a sexual intercourse by a man with his own wife, against her will and consent, when the wife is below 15 years of age, offence of rape is made out. he also supported the judgment of the trial court.10. i have given my thoughtful consideration to the submissions made by learned counsel for the parties and perused the record.11. the core issue in this appeal is whether the prosecutrix azmat bi was the legally wedded wife of appellant saida mohd. and was above the age of 15 years.12. to prove this issue, defence has examined as many as 9 witnesses but the learned sessions judge had not appreciated or discussed the defence evidence but has observed as under:the defence built up by the accused that the prosecutrix is the legally wedded wife of accused saida mohd. he has led evidence in this respect. of course there was no need to lead defence as he has himself admitted that the prosecutrix being his wife had every right to keep her.13. but the learned sessions judge has not recorded any finding to the effect that what is the effect of marriage of azamat bi with the appellant saida mohd. the defence has examined nine witnesses to prove the marriage. the learned sessions judge has skipped over the defence evidence by observing that there was no need to examine the defence evidence as the appellant saida mohd. himself admitted that the prosecutrix being his wife had every right to keep her. the learned sessions judge has to give same weightage to the defence evidence as that of prosecution and not to skip over the defence evidence. if the evidence led by the defence is not discussed by the trial court, it seriously prejudiced the accused person and on that ground the accused is entitled to be acquitted.14. to prove that prosecutrix azmat bi is the legally wedded wife of appellant, saida mohd. the defence examined ch. abdul gani, who has deposed that he was the chairman of panchayat lathung. he deposed that he attended the marriage of saida mohd who was married with azmat bi d/o wall mohd. azmat bi was previously engaged with arshad hussain s/o ch. gulab din r/o doodi. the girl refused to marry him. panchayat was called and rs. 15,000/- was paid by the mother of girl after taking the same from saida mohd. azmat bi was married on 29-11-1993. in the marriage party mohd. sharief s/o ch. faiz mohd, haji feroz din, haji mohd. hussain, haji jalal din were also present. he further deposed that about 40 persons attended the marriage. nikah was performed by qazi mohd. pazir and in the nikah rs. 40,000/- was fixed as mehar (dower amount) out of which rs. 15,000/- was paid in cash and rs. 25,000/- was kept as balance. he also deposed that wazir mohd. and fiaz mohd. witnessed the marriage. his statement has been corroborated by ch. mohd. sharief.15. qazi pazir ahmed deposed that he knew saida mohd and azmat bi. he stated that he has performed their nikah. when this witness was being examined the prosecution raised an objection that witness be directed to produce the record of nikah. the witness produced the record from auqaf committee, poonch which was exhibited. all these witnesses were cross-examined by the prosecution at length but failed to make any dent in their statements.16. under the mohammedan law the marriage will be deemed to be valid if it has been witnessed by two male members and if not one male and two females, as has been laid down in mt. shamul v. dost mohamed khan air 1933 sind 317, wherein it has been held as under:it is not the rule of the mohammedan law that although a large number of persons who are competent to act as witnesses to a marriage are present and are witnesses to the requisite consent having been given, the marriage must not be deemed to be valid unless two of them if males and if not, one male and two females, amongst those who are present are specifically asked to act as witnesses.17. similar view has been taken in shazada qanum v. fakher jung air 1953 hyderabad 6, wherein it has been held that under the mohammedan law when marriage is attested it is attested by two witnesses.18. the prosecution has examined dr. g. s. bindra, radiologist. as per this witness, he conducted the following tests for determining the age of the prosecutrix:the epiphysis for head of radius was fused, that of lower end of radius and ulna and that of ischial spine were not fused. bone age 15-16 years.19. as per the report of the radiologist the prosecutrix was between the age of 15 to 16 years, therefore, she was competent to contract the marriage under the mohammedan law. as has been discussed above that marriage has been witnessed by two witnesses, therefore, it is proved that azmat bi was the legally wedded wife of saida mohd, appellant, and at the time of marriage a dower of rs. 40,000/- was fixed out of which 15,000/- was paid in advance whereas rs. 25,000/- was recoverable by the prosecutrix.20. the next point which has to be considered is whether the offence is made out against the husband when he has sexual intercourse with his own wife without her consent and will. rape has been defined in section 375 rpc as under:firstly - against her will;secondly - without her consent;thirdly - with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;fourthly - with her consent, when the man knows that he is not her husband and that her concent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;fifthly - with her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;sixthly - with or without her consent, when she is under sixteen years of age.explanation : penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.exception : sexual intercourse by a man with his own wife, the wife not being under fifteen years age, is not rape.21. perusal of this section shows that offence of rape is made out against the husband only when has an intercourse with his own wife without her consent or will if the wife is below 15 years of age. but in the case in hand the prosecutrix azmat bi was 16 years of age at the time of the alleged rape, therefore, no offence under section 376, rpc is made out.22. when azmat bi is the legally wedded wife of appellant saida mohd. and was above 15 years of age, then no offence is made out against the appellants. from the evidence of the prosecution and defence it is proved that the version given by the defence was more probable than the prosecution.23. azmat bi has deposed in her statement that she had gone to the house of her maternal grand father at village digwar two days prior to the id festival. on the day of id she was in the house of her maternal uncle, abdul karim at digwar. her maternal grand father was also present there. accused saida mohd and shamash din came there and narrated that her mother is ill at doodi and asked her to accompany them. her maternal uncle abdul karim sent her with them. she further deposed that on way to her house, the house of saida mohd falls where she stayed for some time where accused wazir mohd and mohd bashir also came there. when she got up for going to her mother's house, accused saida mohd, restrained her and told her that he will marry her. saida mohd also threatened her to be eliminated and kept her in captivity for five days, saida mohd. torned her cloths and committed rape on her. on 6th day when only a female member was present, she on the pretext of answering the call of nature, asked the female member to open the door and on opening the door, she ran away and reached dhundak bridge from where she boarded a bus and reached poonch and thereafter she went to the house of her maternal grandfather and then to the house of her maternal uncle abdul karim and narrated the occurrence to him.24. this version given by the prosecutrix is not trustworthy. shamash din and saida mohd, as per the prosecutrix, are not related to her or to her maternal uncle. if they were not related to the prosecutrix or her uncle, her maternal grand father and maternal uncle would never have send her along with them. complainant, abdul karim has not enquired for five days from the mother of the prosecutrix as to whether the prosecutrix had reached at her house or not. as per the complainant abdul karim and azmat bi, the appellants took the prosecutrix on the pretext that her mother is ill and she has been called. it has come on record that abdul karim was closely related to the mother of the prosecutrix. if the mother of the prosecutrix has seriously ill and the appellants had come to the house of abdul karim to take the prosecutrix, firstly, as a prudent man, abdul karim his father or his son must have accompanied the prosecutrix who were present in the house. even the wife of abdul karim was also present in the house but none of them accompanied her, neither they enquired about the health of the mother of the prosecutrix for five days nor they enquired as to whether the prosecutrix has reached her mother or not. so the story put forward by the prosecution is not plausible.25. digwar village falls in a prohibited area. this fact is proved from the statement of the investigator raghbir singh who has deposed that digwar is a prohibited area and a person who is unknown to the army requires permission to visit the said village. he admitted that he has not enquired from the army check post as to whether the accused had taken the permission to visit the village digwar. when village digwar is a prohibited area and no one can enter there without prior permission, then going to the house of the complainant abdul karim by the appellants is highly doubtful.26. the case of the prosecution is doubtful on other scores also. the mother of the prosecutrix was the best witness to prove that she was ill and she has sent the appellants to the house of complainant to call her daughter but the prosecutrix has not examined her for the reasons best known to it. the story put forth by prosecutrix azmat bi that she left the house of saida mohd. when a female member was present in the house and from there she went to dhundak bridge and after travelling in a bus from dhundak bridge to poonch, she travelled on foot to reach the house of her maternal uncle. investigator raghbir singh has admitted in his cross-examination that it takes one hour on foot to reach digwar. the house of the mother of the prosecutrix was in the same village where the appellants reside but the prosecutrix instead of going to the house of her mother has travelled a long distance to reach the house of her maternal uncle and for reaching there she had to travel by bus as well as on foot. no doubt the prosecutrix has tried to give an explanation that she did not go to her mother's house because of threat of the accused persons but the house of the mother of the prosecutrix was adjacent to the house of the accused persons and after her release she could have raised alarm and reached her mothers house within few minutes instead of travelling by bus as well as on foot for a long distance to reach village digwar, which is a prohibitory area.27. the version given by the prosecutrix is also doubtful. as per the prosecutrix saida mohd. was residing along with his mother, wife and children in the same house. if the mother and wife of the appellant saida mohd. was in the same house then these two women would not have allowed the appellant to keep the prosecutrix in capacity and commit rape on her. these women must have served meals to the prosecutrix. the prosecutrix could have narrated them that she has been kidnapped and raped.28. from the evidence on record it is established that the defence put forth by the appellants is more probable than the prosecution version. the prosecution version is highly doubtful, therefore, 1 give the benefit of doubt to the appellants.29. in views of the above discussion, the appeal is accepted. the conviction and sentence is set aside. the appellants are acquitted of the charges level against them. the appellants are on bail. their bail bonds and surety bonds shall stand discharged.