IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 193 of 2009 (Old No. 870 of 1987) Pritam S/o Kabaj Singh R/o Jhabredi Kalan, Police Station Jhabreda, District Saharanpur. ...…………. Revisionist Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondents Mr. Rajendra Singh, Advocate for the revisionist. Mr. M.A. Khan, Brief Holder for respondent State. Hon’ble Prafulla C. Pant, J. This revision is directed against the judgment and order dated 15.05.1987, passed by IV Addl. Sessions Judge, Saharanpur, in Criminal Appeal No. 225 of 1985, whereby the judgment and order dated 02.09.1985, passed by First Asstt. Sessions Judge, Saharanpur, in Sessions Trial No. 334 of 1983, convicting the accused / revisionist under Section 452, 366 and 376 of I.P.C. and sentence passed thereon, is affirmed. 2 2) Heard learned counsel for the parties and perused the lower court record. 3) This revision is received from the Allahabad High court after its transfer under Section 35 of the U.P. Re- organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 4) Prosecution story in brief is that complainant Phullu (since deceased), resident of Jhabredi, police station Jhabreda, District Saharanpur (now part of District Haridwar) lodged first information report (Ext. A –4) with police station Jhabreda on 07.02.1982, alleging that accused / revisionist Pritam, son of Kabaj, at 11:00 P.M., in the preceding night (6th / 7th of February 1982) came to the house of the complainant, got opened his door and took his daughter Omi (P.W. 1) forcibly with him. On the basis of said report the police registered a Crime No. 21 of 1982, relating to offences punishable under Section 363, 366 of I.P.C. against accused Pritam. On 8th of February 1982, the girl (Omi) came back to her house, and told that she was raped by the accused / revisionist. She was got medically examined on the very day i.e. 08.02.1982, on the basis of which P.W. 6 Dr. Savitri Singh prepared medical report (Ext. A –11). For determination of the age of the victim her X-ray examination was advised. P.W. 7 Dr. J.G. Garg, Radiologist, after X-ray, prepared report (Ext. A –12), in which he opined that the girl was 3 below 18 years, but above 16 years of age. However, no definite opinion was given by the Medical Officers as to commission of rape. 5) Sub Inspector Harish Chandra Saxena (P.W. 5) on completion of investigation submitted charge sheet (Ext. A –10) against accused Pritam, for his trial in respect of offences punishable under Section 363, 366, 452 and 376 of I.P.C. It appears that after giving necessary copies to the accused, the concerned magistrate committed the case to the court of Sessions. Learned First Asstt. Sessions Judge, Saharanpur, to whom the case was transferred, after hearing the parties, framed charge of offence punishable under Section 452, 363, 366 and 376 of I.P.C., to which the accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Omi (victim); P.W. 2 Smt. Bimla (mother of the victim); P.W. 3 Kabula (uncle of the victim); P.W. 4 Constable Mangal Dass [who prepared the check report (Ext. A –3)]; P.W. 5 Sub Inspector Harish Chandra Saxena (Investigating Officer); P.W. 6 Dr. Savitri Singh (the Medical Officer, who examined the victim) and P.W. 7 Dr. J.G. Garg (Radiologist). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he alleged that evidence adduced against him is false. He also pleaded that Omi was major, aged 22 years of age. Lastly, he pleaded in his reply under Section 313 of Cr.P.C. that he had some litigation with 4 complainant Phullu (since deceased). However, no evidence in defence was adduced. The trial court after hearing the parties found the accused Pritam (revisionist) guilty of charge of offence punishable under Section 452, 366 and 376 of I.P.C. He was acquitted of charge of offence punishable under Section 363 of I.P.C. After hearing on sentence, the trial court sentenced the convict to rigorous imprisonment for a period of three years and to pay fine of Rs. 250/- under Section 452 of I.P.C., rigorous imprisonment for a period of three years and to pay fine of Rs. 250/- under Section 366 of I.P.C., and rigorous imprisonment for a period of four years and to pay fine of Rs. 250/- under Section 376 of I.P.C. Aggrieved by said judgment and order dated 02.09.1985, passed by First Asstt. Sessions Judge, Saharanpur, in Sessions Trial No. 334 of 1984, the convict Pritam preferred Criminal Appeal No. 225 of 1985, before the Sessions Judge, Saharanpur. Said appeal appears to have been transferred to IV Addl. Sessions Judge, Saharanpur, who vide impugned judgment and order dated 15.05.1987, dismissed the appeal, and affirmed the conviction and sentence, recorded by the trial court. Hence, this revision was filed before the Allahabad High Court on 21.05.1987, where the same was admitted on 22.05.1987. I have already mentioned above that this revision is received by transfer from the Allahabad High Court under Section 35 of the U.P. Re-organization Act 2000, for its disposal. 5 6) Learned counsel for the revisionist argued before this Court that the girl is major, and she was habitual of sexual intercourse, as is apparent from the medical report (Ext. A –11). As per the report of Radiologist (P.W. 7 Dr. J.G. Garg), as mentioned in his report Ext. A –12), the girl was above 16, but less than 18 years of age, and he has stated that there may be variation of six months either way. From the statement of P.W. 2 Bimla Devi, mother of the victim, it is also clear that victim (Omi) was major on the date of incident. She P.W. 2 Bimla Devi has admitted that her eldest daughter was 30 years old, and Omi (P.W. 1) was six years younger to her. That also indicates that the girl was major. But the point of age is not relevant in the present case for the reason that accused Pritam has already been acquitted from the charge of offence punishable under Section 363 of I.P.C. For the purposes of other offences punishable under Section 452, 366 and 376 of I.P.C., mere fact that the girl was major does not shake the prosecution story. What this Court has to see is that whether the courts below have rightly assessed the evidence on record, and whether they have committed any error of law, or not? Both the courts below have believed the testimony of P.W. 1 Omi (victim) that she was forcibly taken by accused Pritam and raped, as stated by her, in the field of sugarcane, and also in the house of the accused. Where after, she was left and came to her house on the third 6 day. Her testimony on the point of her abduction gets corroboration from the statement of P.W. 2 Bimla Devi, mother of the victim. It is pertinent to mention here that the complainant Phullu (father of the victim) has died before he could be examined during the trial. Said fact has come on the record in the statement of P.W. 1 Omi, and also in the statement of P.W. 2 Bimla Devi. The third witness P.W. 3 Kabula, who is uncle of the victim, has corroborated the prosecution story in his examination-in-chief, but in the cross-examination he says that he himself did not see accused Pritam taking Omi with him, and he heard about it after the incident. This witness was got declared hostile. But, his statement otherwise also appears to be natural for the reason that the prosecution has come up with a case that at 11:00 P.M., on 06.02.1982, accused Pritam knocked the door, got opened the house and took Omi forcibly with him on which on raising alarm, the neighbours gathered there, including the P.W. 3 Kabula. 7) Learned counsel for the revisionist submitted that there is delay in lodging of the first information report, as for whole night the complainant did not go to the police station to lodge the first information report. Copy of the check report (Ext. A –3) shows that the first information report was lodged on the next day i.e. 07.02.1982, at 01:00 P.M. It has come on the record in the statements of P.W. 1 Omi, and P.W. 2 Bimla Devi that Phullu (complainant) was a patient of Asthma, and 7 was suffering from illness on the day of the incident. It has also come on the record in the statement of the two witnesses that the accused, who was armed with the knife, threatened the victim and her parents. In such circumstances, there appears sufficient explanation on the part of the prosecution on the point of delay in lodging the first information report. It is contended on behalf of the revisionist that there was no mention of ‘knife’ in the first information report, and it is the improvement in the prosecution story, made by the aforesaid two witnesses. The first information report (Ext. A –4) shows that though there is no mention of ‘knife’ in the report, but it is clearly stated that the complainant was threatened as he states – ‘eq>s Mjk dj pys x,’. Had the prosecution got examined the victim under Section 164 of Cr.P.C., it would have been easier for them to further corroborate the testimony of P.W. 1 Omi. However, on going through her entire testimony, this Court finds that nothing has come in the cross- examination of P.W. 1 Omi which creates doubt in her natural narration of facts stated by her. As such, this Court concurs with the trial court and holds that in believing the testimony of P.W. 1 Omi, which is corroborated also by the statement of her mother P.W.2 Bimla, the trial court had committed no error of law in recording conviction of the accused under Section 452, 366 and 376 of I.P.C. and sentencing him on those 8 counts. The appellant court has rightly affirmed the order passed by the trial court. 8) Lastly, it is stated on behalf of the revisionist that there is no mark of injury on the person of the victim recorded by the Medical Officer, and it is argued that the consensual sex cannot be ruled out in this case. Mere not finding of the external injuries on the person of the victim cannot be a sufficient ground for disbelieving the otherwise natural testimony of the victim. She has nowhere stated that she suffered injuries. What P.W. 1 has stated is that on the point of knife she was raped. 9) For the reasons as discussed above, this Court does not find force in this revision, which is liable to be dismissed. The same is dismissed. Lower court record be sent back to make the revisionist serve out remaining part of sentence (His bail stands cancelled). (Prafulla C. Pant, J.) Dt. April 17, 2010. H. Negi