IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.810 OF 2001 (Old No.443/2000) Anand Ram S/o Beer Ram, R/o Village Majhera, P.S. Someshwar, Tehsil & District Almora ……… Appellant The State Versus ……… Respondent Dated: May 4, 2010 Sri Rajendra Kotiyal, learned counsel for the appellant Sri Amit Bhatt, learned Addl. GA for the State HON. DHARAM VEER, J. This criminal appeal, preferred under section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 9.2.2000 passed by the Sessions Judge, Almora in Sessions Trial No.30 of 1995, State Vs. Anand Ram, thereby convicting the appellant/accused u/s 363/366 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentencing him to five years’ rigorous imprisonment u/s 363 IPC and further five years’ R.I. u/s 366 IPC. Both the sentences were directed to run concurrently. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that complainant Ann Ram (P.W.2) lodged an FIR stating 2 therein that he is the resident of village Bagwali Pokhar and he is a mason by profession. The appellant- accused Anand Ram was residing as a tenant and was doing the work of barber in the shop of complainant. Since the conduct of the appellant-accused was not good, therefore, he was turned out from the house on 20.2.1995. On the morning of 24.2.1995, his daughter Km. Reba had gone to village Khadi in her relation’s house. But when she did not come back in the evening, then the complainant went to search his daughter and then he came to know that the appellant- accused had taken his daughter by enticing her with intent to commit rape with her. The complainant continued in making the search of his daughter and then he came to know that the appellant-accused had enticed his daughter and is residing at village Binta along with his daughter. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.2 Ann Ram on 1.3.1995 at 6:30 PM. On the basis of the FIR, PW4 Patwari Madan Ram Arya prepared the Chik FIR of the case, i.e. Ex.Ka-6. (In Rural Hilly Areas of State of Uttarakhand, the Patwaris and certain Revenue Officials are being vested with police powers vide U.P. Govt. Notification No.494/VIII-418-16 dated 7.3.1916). The investigation of this case was taken up by P.W.4 Patwari Madan Ram Arya. Victim Km. Reba was recovered along with the appellant-accused in the house of one Lachhi Ram on 5.3.1995 at 11:00 PM for which Fard Ex.Ka-2 was prepared. The victim was given in Supurdgi of her father Ann Ram for which Fard of Supurdgi Ex.Ka-3 was also prepared. Thereafter, the victim was medically been examined on 7.3.1995 at 10:00 AM and her 3 medical report Ex.Ka-5 and X-ray report Ex.Ka-4 was prepared. During the course of investigation the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. The I.O. during investigation recorded the statements of witnesses and after completing the investigation, submitted the charge sheet against the appellant/accused in the court, i.e. Ex.Ka-9. 4. After receiving the charge sheet, learned Munsif Magistrate, Ranikhet committed the case to the court of Sessions on 14.06.1995 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. On 5.6.1998, learned Sessions Judge, Almora framed the charge against the appellant/accused Anand Ram u/s 363/366 IPC. The charge was read over and explained to appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Reba Devi, victim, PW2 Ann Ram, father of victim and complainant, PW3 Dr. P.C. Gurrani, who conducted x-ray and PW4 Patwari Madan Ram, IO of the case. 7. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. No oral or documentary evidence was produced in defence. 4 8. After hearing learned counsel for the parties and appreciating the entire material available on record, the learned Sessions Judge, Almora vide judgment and order dated 9.2.2000 convicted and sentenced the appellant/accused as above discussed. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 9. To prove its case the prosecution has examined PW1 Reba, who stated that the appellant- accused Anand Ram was known to her. The appellant- accused was a tenant in her house in village Bagwali Pokhar and was doing the work of barber. Since the character of the appellant-accused was not good, hence he was turned out from the house. Thereafter, the appellant-accused had gone in village Binta. After that the appellant-accused called her in village Khari. On the call of the appellant-accused she had gone to village Khari. From village Khari, the appellant-accused took her to Dunagiri temple and performed all the rituals of marriage. Thereafter, the appellant-accused brought her in village Binta in the house of Lachhi Ram where she stayed with the appellant-accused for 2-3 days and there he committed rape with her. From there the appellant-accused taken her to his own house where she stayed along with the appellant-accused for two days and they lived as husband and wife. When the brother of the appellant-accused reprimanded him, then the appellant-accused again taken her in the house of Lachhi Ram. Thereafter his father along with the Patwari came in the house of Lachhi Ram where 5 both of them were caught. After that she was given in the Supurdgi of her father. In cross-examination, she stated that the appellant-accused was staying in her house since last 2½ years before the said incident. She further stated that the appellant-accused used to stay and eat food in her house. When her father constructed a house, then the appellant-accused Anand Ram was there. She further stated that distance of Binta Band from her village is about five kilometers and all the people of village Binta were well known to her father. She further stated that she was caught on 5.3.1995 and she remained with the appellant-accused for about 7-8 days. She had told about the said incident to Lachhi Ram and also to the brother of the appellant-accused. She herself had refused for her internal medical examination. She further stated that Lachhi Ram told to her father about the incident after about 4-5 days of the said incident. She further stated that adjacent to the house of Lachhi Ram, there are also houses of the other people residing over there. 10. PW2 Ann Ram, who in his examination in chief, has reiterated the versions as stated in the FIR and proved the same. He further stated that his daughter along with the appellant-accused was recovered from the house of Lachhi Ram for which recovery memo Ex.Ka-2 was prepared and his daughter was also given in his Supurdgi for which Supurdginama Ex.Ka-3 was prepared. In the cross-examination, he stated that village Binta is at a distance of about 6 kilometers from his house and the appellant-accused Anand Ram used to stay and eat food for about 2½ 6 years. He further stated that the appellant-accused Anand Ram gave money to him for the construction of his house. He further stated that it is correct to state that for this reason, he lodged the false report against the appellant-accused. 11. PW3 Dr. P.C. Gururani who stated that on 14.3.1995 he was posted in District Hospital, Almora as Radiologist. On that day, x-ray of victim Reba was conducted by him and he prepared the report. The x- ray of victim was conducted twice and he proved the report Ex.Ka-4. He further stated that the age of the victim is in between 15-17 years. In cross-examination he stated that the age of the victim may be 18 years. 12. PW4 Madan Ram Patwari/IO of the case who stated that on 1.3.1995he was posted as Patwari in Patwari Circle Kama. On that day, he received the report written by Ann Ram having the orders of Naib Tehsildar, Ex.Ka-1. On the basis of that report, he prepared the CHik FIR, Ex.Ka-6. During investigation, he inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. On 5.3.1995, the appellant- accused was arrested from the house of Lachhi Ram when he was present along with the victim Reba. The victim was given in supurdgi of her father for which Supurdginama Ex.ka-3 was prepared. The recovery memo of victim and arrest memo of the appellant- accused was also prepared i.e. Ex.Ka-2. After completing the investigation, he filed the charge sheet, i.e. Ex.Ka-9. In cross-examination, he stated that adjacent to the place of occurrence, there are houses 7 where the people were residing and shops were also there. 13. After that the statement of the appellant/ accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated. No oral or documentary evidence was produced in defence. 14. Sri Rajendra Kotiyal, learned counsel for the appellant-accused argued that the prosecution has not proved the case against him beyond reasonable doubt and the victim Reba had gone with the appellant- accused as per her own consent and she was major on the date of incident. I find substance in the argument of learned counsel for the appellant-accused for the following reasons: - A. That as per the statement of PW3 Dr. P.C. Gururani, the victim is 18 years of age and as per that statement, she was major on the date of incident. Even the victim herself had refused for her internal medical examination, hence there is no report about the internal examination of the victim. B. That as per the statement of the victim Reba herself, the appellant-accused was residing in her house for the last 2½ years of the incident and he also used to take food in her house and he was doing the work of barber and on 20.2.1995, the appellant-accused was turned out of her house. The victim was residing at 8 village Bagwali Pokhar and she was called by the appellant-accused at village Khari from the place where she was residing, which is at a distance of about 5 kilometers. From village Khari, she went with the appellant-accused at Dunagiri temple from where the appellant- accused performed all the rituals of marriage with her. Thereafter, she went with the appellant-accused at village Binta. From there the appellant-accused taken her to his own house where she stayed along with the appellant-accused for two days and they lived as husband and wife. When the brother of the appellant-accused reprimanded him, then the appellant-accused taken her in the house of Lachhi Ram and on 5.3.1995, both of them were caught by the complainant and I.O. In this way, the victim stayed with the appellant- accused for nine days with her own consent and she was also married with the appellant- accused as per the rituals. Thus, as per the above-said discussion, it is proved that the victim was major i.e. above 18 years of age on the date of incident and she remained with the appellant-accused for 9 days as per her own sweet will. Even it has also come in the evidence that there were number of people known to her father where she resided along with the appellant-accused, however she had not made any complaint whatsoever to anyone. These facts also clearly establish that she was a consented party. 9 C. That PW2 Ann Ran has also stated in his examination-in-chief that the appellant-accused had given money to him for the construction of his house and due to this reason, he lodged the false report against the appellant-accused. This fact itself makes the entire prosecution case doubtful. 15. Thus, from the evidence discussed above and as per the arguments advanced by learned counsel for the appellant, the prosecution has failed to prove its case against the appellant/accused beyond reasonable doubt and I do not agree with the view taken by the trial court in convicting and sentencing the appellant/ accused as discussed above. Therefore, the appellant is liable to be acquitted by giving benefit of doubt. 16. Consequently, the appeal stands allowed. The judgment and order dated 9.02.2000 passed by the Sessions Judge, Almora in S.T. No.30/1995, State Vs. Anand Ram, convicting and sentencing the appellant/accused as discussed above, is hereby set aside. The appellant is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. 17. Let the record be sent back. (Dharam Veer, J.) May 4, 2010 Rajeev Dang