HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.96 of 2002 Ummed Singh S/o Sri Prem Singh Bhandari .……….. Appellant Versus State of Uttarakhand ..…….. Respondent Dated: August 24, 2009 Mr. Vinod Sharma, Advocate for the appellant Mr. M.A. Khan, Brief Holder for the State Hon’ble Dharam Veer, J. This appeal, preferred by the appellant u/s 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 02/03.05.2002 passed by Sessions Judge, Uttarkashi in S.T. No.6/2000, State Vs. Umed Singh, whereby the learned Sessions Judge convicted the accused/appellant u/s 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo rigorous imprisonment for five years and a fine of Rs.5,000/-. In default of payment of fine, further three months’ R.I. was awarded. 2. I have heard Mr. Vinod Sharma, Advocate for the appellant as well as Mr. M.A. Khan, Brief Holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that Prem Singh Chauhan (PW4) moved an application before Superintendent of Police, Uttarkashi alleging that the appellant/accused, by enticing her daughter Rudreshwari, committed rape on her in August 1999 as a result of which her daughter gave birth to a female child. Prior to this report, he also lodged report before District Magistrate. On 2 his report, Police enquired the matter. During the enquiry, father of the accused/appellant told him that after searching his son, he will marry his son with his daughter Rudeshwari. It is further alleged that he has doubt that the appellant/accused will not marry his daughter and the father of the accused is giving false assurance to him and is misguiding him. With the same averments, application Ext.Ka-1 undated was moved by Prem Singh Chauhan, father of the victim before S.P., Uttarkashi. On the basis of said application, a case u/s 376 IPC was registered at P.S., Uttarkashi. Chik FIR of the case was prepared by Head Mohirror Balveer Singh Negi, which is Ext.Ka-4. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-5. As the place of offence was under the jurisdiction of Patwari Circle, Dhauntari so the case was transferred there for investigation. (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). During the course of investigation, the I.O./Patwari recorded the statements of the witnesses, visited the place of occurrence and prepared the site-plan, which is Ext.Ka-7. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellant i.e. Ext.Ka-3. 4. Learned Chief Judicial Magistrate, Uttarkashi committed the case to the court of Sessions on 13.7.2000, after giving necessary copies to the accused/appellant as prescribed u/s 207 Cr.P.C. 5. On 20.7.2000, learned Sessions Judge, Uttarkashi framed the charge of offence punishable u/s 376 IPC against the accused/appellant Ummed Singh. The 3 charge was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined PW1 Km. Rudeshwari, victim; PW2 Smt. Chindari, mother of the victim; PW3 Smt. Purna, sister of the victim; PW4 Prem Singh, father of the victim and complainant of the case; PW5 Mohan Ram Semwal, PW6 Kundan Singh, Patwari, I.O. of the case; PW7 Head Constable Balveer Singh, who prepared the Chik FIR Ext.Ka-4 and made necessary entries in the G.D. Ext.Ka-5; PW8 Nathi Singh Panwar, Patwari, I.O. of the case. 7. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. In defence, he filed the age certificate (Ext.Kha-1) of the prosecutrix as documentary evidence and in oral evidence, Rakesh Mohan Bisht was examined as DW1. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Uttarkashi vide his judgment and order dated 02/03.05.2002 convicted and sentenced the accused/appellant as stated above. Against the said judgment and order, the accused/appellant has preferred the present appeal. 9. To prove its case, the prosecution examined PW1 Km. Rudreshwari, who stated that on the date of incident she was student of Class X in Inter College, Dhautari. She used to come school from her Village Chaundiyat and sometimes she used to come from Village Saur. In Village 4 Saur, she used to stay in the house of her elder sister Purna Devi (PW3) and the accused Umed Singh was also resident of the Village Saur Gajana. He was student of class XII in Inter College, Dhauntari. She further deposed that the accused used to visit her sister’s house. He proposed to marry her. Love affairs developed between them and they have also made physical relations with each other. The accused/appellant used to do sexual intercourse with her and asked her that he will marry her. She further stated that first time the accused did sexual intercourse with her in the house of her sister. After 6-7 months of first sexual intercourse, she came to know that she has become pregnant. She disclosed this fact to her sister. She further stated that when her sister asked the accused/appellant about their relationships then the accused admitted that the prosecutrix is pregnant by him. Thereafter, her father approached parents of the accused and told about the said fact to them but they refused to marry with her. After that the accused ran away from his house to Haryana. Her father brought him back then the accused assured her father that he will marry her. She further deposed that when the accused was not ready to marry her and had run away from his house then his father lodged the report in the police station. In the cross-examination, she stated that she and the accused used to come and go school with each other and she was in love affairs with him. The accused/appellant had assured her that he will marry her, therefore, she allowed the accused for sexual intercourse. She further stated that when she got pregnant of 6-7 months then she told this fact to her mother. 10. PW2 Smt. Chindari, PW3 Smt. Purna, PW4 Prem Singh i.e. mother, sister and father of the prosecutrix, respectively have corroborated the statements of PW1 5 Rudreshwari. PW4 Prem Singh has also proved the application Ext.Ka-1. 11. PW5 Mohan Ram Semwal is the formal witness who has proved the certificate Ext.Ka-2. 12. PW6 Kundan Singh, Patwari stated that during the period 15.5.2000 to 30.6.2000 he was Patwari, Dhauntari. He started the investigation of the said case on 15.5.2000. Before him, the investigation was conducted by PW8 Nathi Singh Panwar, Patwari. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the accused/appellant, which is Ext.Ka-3. 13. PW7 Head Constable Balveer Singh stated that on 14.2.2000 he was posted as Head Mohirror at Police Station Kotwali, Uttarkashi. On that day, he received the application Ext.Ka-1 moved by the complainant Prem Singh (PW4) through post. On the basis of the said application, he prepared the Chik FIR (Ext.Ka-4). Necessary entries were also made by him in the G.D., carbon copy of which is Ext.Ka-5. 14. PW8 Nathi Singh Panwar, Patwari stated that from the period 6.3.2000 to 26.4.2000 he was posted in the area Dhauntari because Patwari Kundan Singh was on leave during that period. On 6.3.2000, he received the application (Ext.Ka-1), Chik FIR (Ext.Ka-4) and copy of the G.D. (Ext.Ka-5) and thereafter he made entries in the G.D. (Ext.Ka-6). During the course of investigation, he recorded the statements of the witnesses and on the pointing out of the prosecutrix, prepared the site-plan, which is Ext.Ka-7. 6 After that on 26.4.2000, he handed over the investigation of the case to PW6 Kundan Singh, Patwari. 15. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. In defence, he filed the age certificate (Ext.Kha-1) of the prosecutrix as documentary evidence and in oral evidence, Rakesh Mohan Bisht was examined as DW1. 16. DW1 Rakesh Mohan Bisht, Stenographer stated that on 12.7.2000 he was posted on the aforesaid post at C.M.O. Office. On that day, he typed the age certificate of the prosecutrix on the dictation of the C.M.O. He further stated that at that time Sri R.C.S. Sapana was the C.M.O., who had signed on the said certificate. He has proved the certificate Ext.Kha-1. 17. On 03.4.2008, learned counsel for the appellant filed supplementary affidavit in which it was stated that the appellant/accused and the prosecutrix-Rudeshwari have got married with each other and now they are living together as husband and wife and three children (two girls and one boy) have been born out of their wedlock. On this, this Court vide orders dated 23.4.2008, 6.11.2008 and 25.03.2009, directed the State to enquire the matter and to submit the report regarding marriage of the prosecutrix with the appellant. In reply, the State filed the affidavit of Sri Ranveer Singh Panwar, Naib Tehsildar, Tehsil Dunda, District-Uttarkashi who in his affidavit stated in Para-3 that the appellant and the prosecutrix have married before the Marriage Officer. Both of them are living peacefully with each other at Village Saur Patti Gajna, District Uttarkashi. In this regard, the Village Pradhan of concerned village has 7 issued a certificate (Annexure No.1 of the supplementary affidavit). 18. Learned counsel for the accused/appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt against the accused/appellant u/s 376 IPC and even the accused/appellant and the prosecutrix-Rudreshwari are now living peacefully with each other as husband and wife at Village Saur Patti Gajna, District Uttarkashi. I find substance in the submission of learned counsel for the accused/appellant, due to following reasons:- (i) As per the certificate Ext.Kha-1 issued by Chief Medical Officer, Uttarkashi, age of the prosecutrix was found 18 years. It is a settled law that two years’ margin either on the upper side or lower side may be taken. Thus, as per the certificate (Ext.Kha-1), if the prosecutrix was 18 years old on the date of incident, then by the margin of two years in the upper side, her age comes to 20 years. (ii) It has come in the evidence of the prosecutrix that she was the student of class X and the appellant/accused was the student of class XII at Inter College, Dhauntari and both of them used to come and go from the school together. Love affairs developed between them. In the cross-examination, she has specifically stated that the accused proposed to marry her, therefore, she did not resist the sexual intercourse with the appellant. Thus, it is clear that the prosecutrix was the consented party and the appellant committed sexual intercourse with her own consent. 8 (iii) As per the prosecution case the alleged incident was said to have taken place in August, 1999 whereas the FIR was lodged on 14.2.2000. This delay in lodging the FIR has not been explained properly by the prosecution by showing the sufficient cause, which creates a reasonable doubt in the prosecution story. (iv) Lastly, as per the affidavit of Naib Tehsildar, the appellant and Rudreshwari Devi are now married to each other. In support of this fact, certificate (Annexure No.SA.1) issued by Village Pradhan has been filed, according to which the appellant and Smt. Rudreshwari are married to each other and they are living peacefully with each other at Village Saur Patti Gajna, District Uttarkashi and three children i.e. two girls and one boy have been born out of their wedlock. 19. Thus, in view of facts and circumstances of the case, it can safely be inferred that the prosecution has been failed to prove the case against the appellant/accused under Section 376 I.P.C. As such, the learned trial court erred in holding the appellant/accused guilty and convicting him under section 376 IPC and the impugned judgment and order of the trial court, in view of the above narrated evidence and facts and circumstances of the case, is not justifiable and is liable to be set aside. 20. For the reasons recorded above, the appeal is allowed. The judgment and order dated 02/03.05.2002 passed by Sessions Judge, Uttarkashi in S.T. No.6/2000, State Vs. Umed Singh, is hereby set aside and the conviction against the appellant u/s 376 of the IPC is quashed. Consequently, sentence of five years’ R.I. and a 9 fine of Rs.5,000/-, is also set aside. If the appellant has deposited the fine of Rs.5,000/- as directed by the court below, the same shall be refunded to the appellant, after verifying the records. 21. Let the lower court record be sent back. (Dharam Veer, J.) 24.08.2009 RG