IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 91 of 2006 (Old No. 1487/1995) Matru Lal @ Rakesh Kumar & Ors. ..…. Appellants/Accused Versus State of U.P. …………… Respondent September 10, 2009 Mr. R.P. Nautiyal, Advocate for the appell ts/accused. an Mr. M.A. Khan, Brief Holder for the State. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 4.9.1995 passed by the Sessions Judge, Chamoli (Gopeshwar) in Sessions Trial No. 5/1994, State v. Matru Lal @ Rakesh Kumar & Ors., whereby the learned Sessions Judge has convicted the appellant/accused no. 1 Matru Lal @ Rakesh Kumar under Section 363 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo R.I. for a period of 3 years and 6 months and to pay a fine of Rs. 1000/- and in default of payment of fine, he was directed to undergo further 6 months’ R.I. Appellant/accused no. 2 Surendra Lal and appellant/accused no. 3 Mohan Lal have been convicted under Section 368 IPC and each of them were directed to undergo R.I. for 3 years and 6 months and to pay a fine of Rs. 1000/- each. In default of payment of fine, each of them was directed to undergo further 6 months R.I. 2. Appellant No. 3 Mohan Lal died during the pendency of the appeal and hence, appeal of the appellant no. 3 2 Mohan Lal was abated vide order dated 8.3.2007 passed by this Court. 3. In brief, the prosecution case is that PW3 Mohan Lal moved an application on 11.11.1992 before the Naib Tehsildar, Karnprayag with the averments that his elder brother Chatur Lal (PW2) was the maternal grand father (nana) of Km. Anita (PW1), aged about 16 years. Since the parents of Km. Anita had died, therefore, she was living with her maternal grand father. When in the evening of 7.11.1992, Km. Anita was not found in the home then the complainant PW3 Mohan Lal and some other villagers tried to search her but she could not be traced. On 10.11.1992, Basant Lal (PW4), Bhopal, etc. told the complainant that they had seen Km. Anita in the morning of 10.11.1992 who was being taken away by the appellant/accused no. 1 Matru Lal towards Narain Bagarh in a bus. It was further averred that Matru Lal had taken away Km. Anita by enticing her and he might sell her minor grand daughter and she had also taken Rs. 2000/- from his house. On this application Ex. Ka-1, Naib Tehsildar, Karnprayag passed an order directing the Supervisor Kanoongo, Karnprayag to register and investigate the case. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are vested with police powers vide U.P. Govt. Notification No. 494/VIII-418-16 dated 7/3/1916). 4. Supervisor Kanoongo, Karnprayag prepared the chick FIR Ex. Ka-4 on 11.11.1992 at 5.30 pm on the basis of the FIR Ex. Ka-1. Necessary entries were made in the GD. Copy of the GD is Ex. Ka-5. On 13.11.1992, appellant/accused no. 1 Matru Lal was arrested and the victim Km. Anita (PW1) was recovered. She was medically examined on the same day at 6.30 pm by PW5 Dr. Alka 3 Punetha, who also prepared the medical report Ex. Ka-2. X-ray of the victim was also conducted and the X-ray report is Ex. Ka-3. During the course of investigation, the I.O. prepared the site plan of the place of occurrence Ex. Ka-7. Site plan of the place from where the victim Km. Anita was recovered was also prepared by the I.O., which is Ex. Ka-6. Underwear of appellant no. 1 Matru Lal was taken into possession and fard thereof Ex. Ka-8 was prepared. Petticoat of Km. Anita was also taken into possession through a lady constable and fard Ex. Ka-9 was prepared. Thereafter victim Km. Anita was given in the supardgi of his maternal grand father Chatur Lal (PW2) and prepared the supardginama Ex. Ka-10. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-12 against the appellants/accused. 5. Learned Chief Judicial Magistrate, Chamoli after giving the necessary copies of the documents to the appellants/accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 28.2.1994. 6. On 26.4.1994, learned Sessions Judge framed the charges against the appellant/accused no. 1 Matru Lal @ Rakesh Kumar under Sections 363, 366 & 376 IPC and against the appellant/accused no. 2 Surendra Lal and appellant/accused no. 3 Mohan Lal (appeal of whom stands abated) under Section 368 IPC. The charges were read over and explained to each of the appellants/accused, who pleaded not guilty and claimed to be tried. 4 7. To prove its case, the prosecution has examined PW1 Km. Anita, the victim; PW2 Chatur Lal, maternal grand father of the victim Km. Anita; PW3 Mohan Lal, complainant and the younger brother of PW2 Chatur Lal; PW4 Basant Lal; PW5 Dr. Alka Punetha, who medically examined the victim and prepared the medical report Ex. Ka-2; PW6 Dr. Lalit Chandra Punetha, who has proved the X-ray report Ex. Ka-3 and PW7 Gopal Ram Arya, Patwari and the I.O. of the case. 8. Thereafter, the statements of the appellants/accused were recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to each of the appellants/accused in question form, who denied the allegations made against them. However, they did not produce any documentary or oral evidence in the defence. (Appeal of appellant no. 3 Mohan Lal, being dead, has been abated). 9. After hearing learned counsel for the parties and after appreciating the evidence on record, learned Sessions Judge, Chamoli (Gopeshwar) vide his judgment and order dated 4.9.1995 convicted and sentenced to the appellants/accused as discussed above. Against the aforesaid judgment and order dated 4.9.1995, the appellants/accused have preferred the present appeal. (Appeal of appellant no. 3 Mohan Lal, being dead, has been abated). 10. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 5 11. Before any further discussion, it would be pertinent to reproduce the injuries mentioned in the medical report Ex. Ka-2 of victim Km. Anita, who was medically examined by PW5 Dr. Alka Punetha on 13.11.1992 at 6.30 pm and the same are reproduced as under: “Injuries: (i) no staining of clothes. (ii) no matting of public heirs. (iii) no injury over external genitilia. (iv) hymen deflagrated.” (v) no marks of struggle. Vaginal smear taken and sent to pathology under seal cover. Opinion: She is habitual of sexual intercourse. There is no evidence of recent forceful intercourse. For external injuries referred to E.M.O. For determination of age referred to radiologist.” 12. To prove the abovementioned medical report Ex. Ka-2, prosecution has examined PW5 Dr. Alka Punetha, who has proved the same. She has further stated that she did not prepare any supplementary report in the said case. 13. To prove the X-ray report Ex. Ka-3, prosecution has examined PW6 Dr. Lalit Chandra Punetha, who has stated that on 1.12.1992, he was posted in the District Hospital. Dr. N. Mehta, Radiologist was also posted there. He has further stated that Dr. N. Mehta had prepared the X-report Ex. Ka-3. 14. To further prove its case, the prosecution has examined PW1 Km. Anita, the victim who has stated that the appellant/accused no. 1 Matru Lal, who was resident of her village Simli, was known to her. He was also known 6 by the name of Rakesh Lal. Appellant/accused no. 2 Surendra Lal, resident of village Bargaon, was also known to her. She has further stated that the appellant/accused no. 3 Mohan Lal (appeal of whom has been abated) was resident of village Juner. Surendra Lal was the cousin brother of Matru Lal and Mohan Lal was the brother-in- law of Matru Lal. Her parents had expired when she was 6 years’ old and since then she was living with her maternal grand father. She has further stated that on 7.11.1992 she was studying in class 10 in Simli Inter College. On that day, she was going to her school from the house of her maternal grand father. Appellant/accused no. 1 Matru Lal met her in the way at 9.15 am, who told her that they would live together as husband and wife and asked her to shift at some distant place. She has further stated that she came along with him to Karnprayag from Simli through a taxi. From Karnprayag, both of them came to Pipal Kothi via bus. At Pipal Kothi, they left the bus and went to forest, where they spent the night. In the forest, appellant/accused Matru Lal committed rape on her. They lived in the forest also on 8.11.1992. On 9.11.1992, both of them came to Karnprayag and lived at the house of appellant/accused no. 2 Surendra Lal in Khambiyana, where Matru Lal again committed rape on her. She has further stated that on 10.11.1992, Matru Lal brought her to village Juner where he kept her at the house of appellant no. 3 Mohan Lal (appeal of whom has been abated) and committed rape on her. On 11.11.1992, they remained at the house of Mohan Lal. The family of Mohal Lal was also there. On 12.11.1992 and 13.11.1992 also they remained at the house of Mohan Lal. On 13.11.1992, on the threatening of the appellant no. 1 Matru Lal, she had written on a paper in village Juner that her maternal grand father wanted to sell her and her step mother, who was her real mausi (mother’s real sister), used to beat her. 7 She has further stated that on 13.11.1992, appellant/accused no. 1 Matru Lal brought her to Narain Bagarh from Juner for court marriage. In the way, Kanoongo arrested both of them and brought them at Karnprayag police station. She was medically examined and X-rayed at Gopeshwar Sadar Hospital. She has further stated that she did not remember her date of birth. Kanoongo had taken her petticoat in his possession. In the cross-examination, she has stated that she did not steal Rs. 2000/- from her house on 7.11.1992. She was going to the school. She was alone in the way. Appellant/accused no. 1 Matru Lal met her in the way from where Simli market was at a distance of one kilometer. They came at Simli station where 15-20 shops were located. Shops were open. She has pleaded ignorance about the number of taxi by which she came to Karnprayag. She has further stated that its colour was white and she started from Simli at 9 am. Apart from her and Matru Lal, 4-5 persons were also in the said taxi and all of them came to Karnprayag. Matru Lal had not taken her to Karnprayag court. She has further stated that she was aware of the fact that court, tehsil and police station are situated in Karnprayag. She has further stated that the bus by which they came to Pipal Kothi, 25-26 persons were also in the said bus. Karnprayag station was crowded. 15. PW2 Chatur Lal, maternal grand father of victim Km. Anita has stated that after the death of mother of Km. Anita, he married his second daughter Maheswari with his son-in-law i.e. the father of Km. Anita. But his son-in-law died two years thereafter and eversince then, Km. Anita and his widow daughter Maheswari were living with him. At the time of incident, Km. Anita was a student of class X in Simli Inter College. She used to go her school at 9 am 8 and come back to the house at 5 pm. In 7.11.1992, Km. Anita had gone to the school but she did not return. Then she was searched but could not be traced. On 10.11.1992 Basant Lal (PW4) and Bhupal Lal, who were also the resident of village Simli, told him that Km. Anita had gone with the appellant/accused no. 1 Matru Lal in the vehicle which was going towards Narain Bagarh. He has further stated that he tried to find out Matru Lal but he was not at his house. Then on 11.11.1992 he told his brother Mohan Lal (PW3) to lodge the report in Karnprayag police station. Matru Lal and Km. Anita were arrested in the night of 13.11.1992. He has further stated that Km. Anita had told him about the incident that the appellant/accused no. 1 Matru Lal had beaten him and forced her to write on the paper. In the cross-examination, this witness has stated that he had not seen from his eyes when Km. Anita was being taken away by Matru Lal. 16. PW3 complainant Mohan Lal has proved the report Ex. Ka-1 which was lodged by him and reiterated the contents thereof in his deposition. 17. PW4 Basant Lal has stated that in the morning of 10.11.1992 he was having tea in a hotel at Simli. One Permanand, chowkidar of Jal Sansthan who was coming from Karnprayag, deboarded at Simli and told him that appellant/accused no. 1 Matru Lal and the victim Km. Anita went towards Narain Bagarh by the same vehicle. He asked Basant Lal to tell this event at the house of Km. Anita. Thereupon he went to the house of Mohan Lal (PW3) and informed him about the same. 18. PW7 Gopal Ram Arya has stated that on 11.11.1992 he was posted as Patwari at Patwari Circle Karnprayag. On the basis of the report Ex. Ka-1, he prepared the chick 9 FIR Ex. Ka-4. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-5. During the course of investigation, he recorded the statements of the witnesses. On 13.11.1992, Km. Anita was recovered and the appellant/accused no. 1 Matru Lal was arrested by him. He prepared the site plan Ex. Ka-6 of the place of recovery. He also prepared a separate site plan Ex. Ka-7 of the place of occurrence from where Matru Lal had taken away Km. Anita. Underwear of Matru Lal was taken into the possession and fard thereof Ex. Ka-8 was prepared. He has further stated that petticoat of Km. Anita was also taken into possession through a lady constable and fard Ex. Ka-9 was prepared. Thereafter Km. Anita was sent to Gopeshwar hospital through a lady constable for medical examination. Thereafter Km. Anita was handed over in the supardgi of her maternal grand father Chatur Lal (PW2) and supardginama Ex. Ka-10 was prepared. On 14.11.1992, after receiving the medical report, Section 376 IPC was also added in the case along with Sections 363/366 IPC. Necessary entries were made in the GD. Copy of the GD is Ex. Ka-11. Thereafter investigation was transferred to the Supervisor Kanoongo, Sri Mitranand Bhatt, who filed the chargesheet Ex. Ka-12 against the appellants/accused after completing the investigation. 19. Thereafter, the statements of the appellants/accused were recorded under Section 313 Cr.P.C. The oral and documentary evidence were put to each of the appellants/accused in question form, who denied the allegations made against them. However, they did not produce any documentary or oral evidence in the defence. (Appeal of appellant no. 3 Mohan Lal, being dead, has been abated). 10 20. Learned Counsel for the appellants/accused submitted that on the basis of the evidence discussed above, no offence under Section 363 IPC is made out against the appellant/accused no. 1 Matru Lal. I find substance in the argument of learned Counsel for the appellants/accused for the following reasons: (i) That the trial court has recorded a clear cut finding that Km. Anita was a consenting party to the sexual intercourse committed by Matru Lal with her and therefore there was no question of compelling or use of force against her for the act of sexual intercourse and due to this reason, no offence under Sections 366 and 376 were found against the appellant no. 1 Matru Lal. (ii) That it reveals from the statement of Km. Anita (PW1) that on 7.11.1992 she started for her school at 9 am and Matru Lal met her in the way. From there they came together at Simli Station on foot which was situated at a distance of nearly one kilometer from there. There were 15-20 shops at Simli station which were open. Thereafter she along with Matru Lal went to Karnprayag from Simli through taxi in which 4- 5 other persons also travelled with her up to Karnprayag. From Karnprayag, both of them came to Pipal Kothi via bus in which 25-26 other passengers travelled with them. At Pipal Kothi, they left the bus and went in the forest, where they spent the night. She lived with Matru Lal in the forest also on 8.11.1992. On 9.11.1992, both of them came to Karnprayag and lived at the house of appellant/accused no. 2 Surendra Lal in Khambiyana. On 10.11.1992, Km. Anita came at village Juner along with 11 Matru Lal where they stayed at the house of appellant no. 3 Mohan Lal (appeal of whom has been abated). She stayed there with Matru Lal till 13.11.1992. The family of Mohal Lal was also there. During this period she was allegedly raped by Matru Lal. On 13.11.1992, she was coming along with appellant no. 1 Matru Lal to Narain Bagarh for court marriage and they were arrested by the Kanoongo in the way. Thus, during the aforesaid period, she travelled with Matru Lal from one place to other and in this way passed through densely populated areas. Even on the bus and taxi by which they travelled during the aforesaid period, so many passengers were present. But she did not made any hue or cry nor did she complain to anybody. This conduct of Km. Anita shows that she was a consenting party and she had gone with appellant no. 1 Matru Lal on her own consent. (iii) That as per the statement of PW6 Dr. Lalit Chandra Punetha, the age of Km. Anita at the time of incident was about 17 years. It is settled law that two years margin either on the upper side or lower side can be given. If two years margin on upper side is applied in this case, then her age is worked out as 19 years. Thus, she was more than 18 years’ old and was a major at the time of incident. (iv) That admittedly Km. Anita lived with Matru Lal from 7.11.1992 to 13.11.1992. But as per the medical report Ex. Ka-2 which was prepared after the medical examination of Km. Anita on 13.11.1992 at 6.30 pm, no sign of rape or forceful intercourse was found. There 12 was no marks of any struggle nor there was any injury over her external genitilia. Rather, she was found habitual to sexual intercourse. Thus, statement of Km. Anita is not corroborated by the medical report. (v) That as discussed above, Km. Anita was more than 18 years’ old and was a major at the time of incident and she had gone with appellant no. 1 Matru Lal with her own consent, therefore, charge of kidnapping is not proved against the appellant no. 1 Matru Lal by the prosecution beyond reasonable doubt and he is entitled to get the benefit of doubt. 21. For the reasons recorded above, the prosecution has not proved the case against the appellant no. 1 Matru Lal for the offence punishable under Section 363 IPC and, therefore, the impugned judgment and order of the trial court convicting the appellant no. 1 Matru Lal under Section 363 IPC is not correct and justified. 22. Learned Counsel for the appellants/accused further argued that in view of the facts and circumstances of the case and foregoing discussion, no offence under Section 368 IPC is made out against the appellant no. 2 Surendra Lal. I find force in the argument of learned Counsel for the appellants for the following reasons: (i) That the charge under Section 363 IPC against appellant no. 1 Matru Lal has been found to be not proved and it has already been held that Km. Anita went along with Matru Lal and lived with him on her own consent. (ii) That it has come in the statement of Km. Anita that she stayed in the house of appellant no. 2 Surendra Lal on 9.11.1992, but neither Km. 13 Anita nor any other witness has stated that appellant no. 2 Surendra Lal had knowingly and wrongfully concealed or confined Km. Anita in his house even after having came to know that she was kidnapped by appellant no. 1 Matru Lal. Rather, as has already been held, Km. Anita was a consenting party and she had gone with Matru Lal on her own consent and stayed on her own consent with him at the house of appellant no. 2 Surendra Lal, who was cousin brother of Matru Lal. (iii) That no evidence has been produced by the prosecution to prove the charge under Section 368 IPC against the appellant no. 2 Surendra Lal beyond reasonable doubt. 23. For the foregoing reasons, prosecution has failed to prove the charge under Section 368 IPC levelled against the appellant no. 2 Surendra Lal and he is entitled to get the benefit of doubt. Therefore, on this count also, the impugned judgment and order of the trial court is not correct and justified and the same is liable to be set aside. 24. In view of my foregoing discussion and for the reasons recorded above, the prosecution has failed to prove its case against the appellant no. 1 Matru Lal and appellant no. 2 Surendra Lal. (Appeal of appellant no. 3 Mohan Lal has been abated). As such, the impugned judgment and order dated 4.9.1995 passed by the Sessions Judge, Chamoli (Gopeshwar) is incorrect and unjustified and the same is liable to be set aside. 25. Resultantly, appeal is allowed. Judgment and order dated 4.9.1995 passed by the Sessions Judge, Chamoli (Gopeshwar) in Sessions Trial No. 5/94, State v. Matru Lal 14 @ Rakesh Kumar & Ors. convicting the appellant no. 1 Matru Lal under Section 363 IPC and appellant no. 2 Surendra Lal under Section 368 IPC is set aside. The conviction of the appellant no. 1 Matru Lal under Section 363 IPC and appellant no. 2 Surendra Lal under Section 368 IPC is hereby quashed. Sentence of rigorous imprisonment for a period of 3 years and 6 months and fine of Rs. 1000/- awarded to appellant no. 1 Matru Lal under Section 363 IPC and sentence of 3 years and 6 months and fine of Rs. 1000/- awarded to appellant no. 2 Surendra Lal under Section 368 IPC are hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appellant No. 3 Mohan Lal died during the pendency of the appeal and hence, appeal of the appellant no. 3 Mohan Lal has already been abated vide order dated 8.3.2007 passed by this Court. 26. Let the lower court record be sent back. (Dharam Veer, J.) 10.9.2009 PRABODH