Allowed

Abdul Hameed and Another v. State

Allahabad HC26 Jul 2022CRLA/93/1982

Case brief

AI extract

What is this about?

In this criminal appeal against conviction under Sections 363 and 366 IPC, the High Court examined evidence regarding the abduction of a minor girl. The court observed that the prosecutrix remained with the main accused after the appellant left the scene, and the appellant was not present during the arrest. Ruling that the appellant lacked an active role beyond initial enticement, the court allowe

What did the court decide?

Appellant Babu acquitted; trial judgment set aside; bail orders confirmed by cancellation of bonds and discharge of sureties.

Abdul Hameed and Another Vs State — Criminal Trial and Appeal | Allahabad HC (2022)

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(1)

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Court No. - 91

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Case :- CRIMINAL APPEAL No. - 93 of 1982

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Appellant :- Abdul Hameed And Another Respondent :- State Counsel for Appellant :- V.S. Jauhari,Amit Kumar Shukla,Pradeep Kumar Mishra (A.C),Radhey Shyam Shukla,Shakil Makrani,V.S.Jauhari Counsel for Respondent :- A.G.A

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Hon'ble Samit Gopal, J.

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The present Criminal Appeal under Section 374(2) Cr.P.C. has been preferred by the appellants Abdul Hameed and Babu, both sons of Abdul Majid against the judgment and order dated 07.01.1982 passed by VIII Additional District and Sessions Judge, Bareilly in Sessions Trial No.177 of 1980 whereby both the appellants were convicted and sentenced under Section 366 IPC for 4 years R.I with fine of Rs.100/- each and in default of payment of fine to one month further imprisonment. The appellant no.1 Abdul Hameed was further convicted under Section 376 IPC to 5 years R.I. The sentences have been ordered to run concurrently.

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During the pendency of the present appeal, the appellant no.1 Abdul Hameed was reported to have died and as such his appeal stood abated vide order dated 24.10.2016 passed by coordinate Bench of this Court, as such the present appeal, thus, survives only for the appellant no.2 Babu.

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The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and as per Section 228 of the Indian Penal Code. She is, thus, referred to as ‘X’ in the judgment.

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(2)

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The prosecution case as per FIR lodged by Smt. Nayab Begum (P.W.1) on the basis of an application dated 16.07.1979 which is Ext. Ka1 to the records is that on 15.07.1979 at about 7 p.m., Abdul Hameed and Babu Mistri, both sons of Abdul Majid came to her house and said that they will be doing the work of bullock cart and other things in the morning and today is their Panchayat. All the persons will collect for the Panchayat. They have a dispute of partition with their elder brother and as such they may be permitted to stay in the drawing room of the house. The said persons then ate food in the night and were provided two beds. The first informant and her family members then after having dinner, went to sleep. At about 2 a.m. when she woke up, she found that her daughter ‘X’ who was aged about 13-14 years who is the victim was missing. She was fair in colour and was wearing ear-rings, nose-rings and silver ornaments in legs. She was further wearing clothes and plastic sleeper. One suitcase in which some stitched clothes along with jewelleries and un-stitched clothes with Rs.3080/- cash were kept is also missing. She then immediately went to the room and saw that the outdoor gate of the house was open and Abdul Hameed and Babu were missing. She started search of Abdul Hameed, Babu and her daughter but could not know their whereabouts. The said act is being done just to forcibly take her property and play with her respect about which she has many times given information. Her report be lodged against Abdul Hameed and Babu and action be taken. The articles kept in the suitcase are cash Rs.3080/- and clothes. The FIR was thus lodged on 16.07.1979 at about 13:00 hours against the two accused as Case Crime No.297 of 1979, under Sections 363, 366, 380 IPC, Police Station Bahedi, District Bareilly. The same is Ext. Ka-6 to the records.

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Subsequently on 21.07.1979 ‘X’ was recovered along with accused Abdul Hameed and she was medically examined on 27.7.1979 at 2.30

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(3)

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p.m. by Dr. Usha Dhondiyal, P.W.6 wherein she was brought by constable Ram Singh of Police Station Baheri, District Bareilly.

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The doctor had examined her internally and gave opinion as follows:-

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“ P/V:- Old healed edges of torn hymen seen. Vagina admits 2 fingers easily. Cervix and uterus normal in position and size. No bleeding p/v at present .”

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Her vaginal swab was taken and sent to pathologist District Hospital Bareilly for examination of spermatozoa. She was referred for X-Ray for elbow and wrist joints for estimation of her age. The same is Exb: Ka-4 to the records.

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X-Ray of ‘X’ was conducted on 24.07.1979 and doctor found fusion of all in epiphysis of bones of elbow and there was opinion of lower ends of radius and ulna but they were not yet fused. The same was exhibited as Exb: Ka-3 to the records and X-Ray was exhibited as Exb: Ka-1 to the records.

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A supplementary medical examination was given which is Ext.Ka-5 to the records in which conclusion drawn by the doctor Smt. Usha Dhondiyal, P.W.6 is that ‘X’ was aged about 16 years and no opinion about rape can be given as she is used to sexual intercourse.

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The investigation concluded and charge sheet no.337 dated 28.12.1979 was submitted against the appellants under Section 363, 366 IPC. The same is exhibited as Ext.Ka-9 to the records.

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Vide order dated 16.6.1981, 9^th Additional District and Sessions Judge, Bareilly framed charges against the accused Abdul Hameed and Babu under Section 366 IPC and further vide order dated 16.6.1981 charge under Section 376 IPC was framed against accused Abdul Hameed only.

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(4)

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The accused persons pleaded not guilty and claimed to be tried before the trial court.

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The genuineness of FIR, Exb: Ka-6, copy of the GD No.23, Exb: Ka7, Site plan, Exb: Ka-8 and charge sheet Exb: Ka-9 has been admitted by the counsel of the accused before the trial court.

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The prosecution examined six witnesses in all. Nayab Begum was examined as P.W.1 who is the mother of the prosecutrix ‘X’ and the first informant. Zafar Ali was examined as P.W.2 who has stated about the recovery of the victim ‘X’ after 4-5 days of the incident. The victim was examined as P.W.3. Mahesh Chandra Sharma, the Head Constable was examined as P.W.4 who stated that the victim ‘X’ and accused Abdul Hameed were brought to the police station on 21.7.1979 in the evening at about 7.35 p.m. and he prepared the relevant documents pertaining to the same. Dr. K.S. Tiwary, P.W.5 is the Senior Radiologist under whose supervision X-Ray examination of ‘X’ was conducted. He proved the same and lastly doctor Smt. Usha Dhondiyal, P.W.6 was examined who conducted the medical examination of the prosecutrix and gave a supplementary report after radiological examination.

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In so far as appellant Babu is concerned, in his statement recorded under Section 313 Cr.P.C., he has denied the prosecution case and has stated that he has been implicated due to enmity.

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Rashid Ali Khan, an Advocate of District Court, Rampur was examined as D.W.1 who stated that an affidavit of prosecutrix ‘X’ was prepared on 18.02.1980 which was read over by him to ‘X’ and as he was an Oath Commissioner and he signed the same and affixed his stamp on it. The said affidavit is exhibited as Exb: Kha-1 and Kha-2 to the records.

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(5)

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Heard Sri Amit Shukla, learned counsel for the appellant and Sri S.B. Maurya, learned counsel for the State and perused the records of this appeal and also the trial court records.

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Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is argued that the allegation of rape are against accused Abdul Hameed. He was charged under Section 376 IPC and appellant has been charged only under Section 366 IPC and has been convicted as such. It is argued that the appellant has been falsely implicated only because of the reason that he happens to be the brother of accused Abdul Hameed. As per statement of the prosecutrix, the only role assigned to the appellant is of initially taking away the prosecutrix along with him and accused Abdul Hameed and then providing her a Yashmak (Burkha). As per the prosecution case itself the appellant left the place of occurrence and went away. The prosecutrix was recovered on 21.07.1979 along with accused Abdul Hameed but the appellant was not arrested there. There is no overt-act assigned to the appellant. The prosecutrix in her statement has also stated that she was taken by the appellant and co-accused Abdul Hameed but the same is an exaggerated version. The appellant has no motive to commit the aforesaid offence. The implication of the appellant is without any credible evidence and is only on the basis of suspicion. The appeal deserves to be allowed.

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Per contra learned counsel for the State has opposed the arguments of learned counsel for the appellant and argued that as per FIR the appellant alongwith accused Abdul Hameed stayed overnight in the house of the first informant and they abducted the daughter of the first informant aged about 13-14 years who was a minor. The appellant has active role in the present case. The trial court after examining the evidence on record has

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(6)

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convicted the appellant.

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P.W.1 Smt. Nayab Begum is the mother of the victim ‘X’. She has stated that at the time of occurrence ‘X’ was at about 13-14 years. The accused Abdul Hameed and Babu had kidnapped her daughter. She reiterates the version as given by her in the FIR. She proves the application given by her for lodging of the FIR. She states that she reached Senthal after about 4-5 days with Zafir Ali and Mohd. Yaseen as she had come to know that accused Hameed along with her daughter was going towards railway station Senthal. She met a police constable near floor mill. She took him with herself. Around 15-20 steps ahead of the floor mill on the road towards the station, her daughter and accused Abdul Hameed met her. They were apprehended there only. They were apprehended in the evening and then they were lodged at the police station and information to Bahedi Police Station was given about it. In the cross-examination she states that ‘X’ is now married. She got her married after 6-7 months of the incident. ‘X’ had gone with her brother from the house once about which she had got a FIR lodged against her son and Abdul Hameed. She did not get her son arrested but her son Rahat Ali and ‘X’ were apprehend by the police and brought to the police station. She had gone with her brother after about two months of the present incident. She was handed over the custody of both the persons through court. She had seen Abdul Hameed at the police station.

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Zafar Ali, P.W.2 is the real brother of the victim ‘X’ who states that the victim was aged about 13-14 years at the time of incident. He states of the victim being apprehend near the floor mill of which he is a witnesses. She was apprehended on the 5^th day.

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The victim ‘X’ is P.W.3 who states that she was enticed away by Babu and Abdul Hameed. She knew both the accused persons. They had

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(7)

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come to her house to repair the door and bullock cart. The stayed in the drawing room of the house. She was sleeping in the courtyard in the house where Abdul Hameed came in the night, gagged her mouth and took her away. There were 3-4 persons outside the house whom she did not recognize due to night. Abdul Hameed took her to the house of his brother-in-law. She did not know the name of that person. She was taken during day time to the said house. Abdul Hameed stayed there but Babu went to bring a yashmak (burkha). He brought the yashmak (burkha) and then went away. Abdul Hameed made her wear it and then took her to village Dadiya, from there she was taken to Sitarganj and then to Pilibhit and later on to Bareilly on a train. She reached Bareilly at about 8-9 p.m. and stayed there in a hotel for one night. On the next morning she was taken to Budaun at a Mazar where they stayed for two nights and then she was brought by Abdul Hameed to Senthal where she and Abdul Hameed were apprehended. She was then brought to the police station and her medical examination was done. She states that she was threatened by the accused that if she raises hue and cry, she will be murdered. Abdul Hameed used to sexually assault her daily without her consent. Her brother Rahat Ali brought her to Bareilly and surreptitiously made her to put her thumb impression on a paper saying that it is needed in the pairvi of the case.

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After having heard the learned counsel for the parties and perusing the record, it is evident that although the prosecutrix stated that she was forcibly taken away from her house by the accused persons but her conduct goes to show that she travelled with accused Abdul Hameed to various places on various modes and even stayed at various places including hotel without any resistance. She was arrested with accused Abdul Hameed. The appellant was not present with the prosecutrix and accused Abdul Hameed when they were arrested. The only role assigned

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(8)

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to the appellant is initially of taking away the prosecutrix along with accused Abdul Hameed and then providing her a yashmak (burkha). The prosecutrix has stated that the appellant had left the place of incident but she remained with accused Abdul Hameed, as such the appellant is entitled to be given benefit of doubt.

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The appeal stands allowed. The judgment of the trial court is hereby set-aside. The appellant Babu is acquitted of the charges levelled against him.

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The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

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The Registrar General of the Court is directed to send the certified copy of the judgment along with the trial court records to the trial court concerned for necessary information and follow-up action.

(Samit Gopal, J.)

Dt.26.07.2022.

Gaurav

Digitally signed by GAURAV KULSHRESTHA Date: 2022.08.02 10:36:12 IST Reason: Location: High Court of Judicature at Allahabad

Abdul Hameed and Another v. State

Case brief

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Abdul Hameed and Another v. State

Case brief

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