IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.20 of 2001 Kalipad S/o Devendra Nath, R/o Motipur No.1, PS Rudrapur, Distt. US Nagar ………….Appellant Versus The State …….. Respondent Dated: September 6, 2010 Sri BPS Mer, learned amicus curiae for appellant Sri Prabhakar Joshi, Brief Holder for the State HON. DHARAM VEER, J. This appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 26.7.2000 passed by the Sessions Judge, Nainital in S.T. No.308/1997, State Vs. Kalipad, thereby convicting and sentencing the appellant/accused u/s 363 of the Indian Penal Code, 1860 {hereinafter to be referred as the IPC} for three years’ with fine of Rs.5,000/- and in case of default, six months’ additional imprisonment was awarded. However, the appellant was acquitted for the offences punishable under sections 366/376 IPC. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In nutshell, the facts of the case are that on 12.11.1996 PW1 Banmali Das lodged an FIR at PS Rudrapur with the averments that on 6.11.1996 at about 4 PM, the appellant/accused had taken away his daughter Saraswati, aged about 13 years, by enticing her and since then he along with his family members was searching for his daughter. On 12.11.1996, the complainant came to know that the appellant/accused had come with Saraswati (complainant’s daughter) near the rice mill of his village, then the complainant along with Chitranjan had gone to the rice mill and then the appellant/accused ran away from the place of occurrence and victim Saraswati was found weeping there, who informed the complainant that the appellant/accused had committed bad work with her. With these averments, the FIR Ex.Ka-1 was lodged by PW1 Banmali Kumar on the basis of which 2 H.M. Girdhari Singh prepared CHIK FIR on 12.11.96 at 7:00 PM i.e. Ex.Ka-6 and in the same process, entry was made in the GD, i.e. Ex.Ka-7. Investigation of the case was entrusted to PW4 SI SP Singh. Victim Sarawati was medically examined on 12.11.1996 at 8PM by PW3 Dr. Mamta Kurbabi who after conducting the medical examination, prepared the medical report Ex.Ka-2 and supplementary medical report Ex.Ka-3. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex.Ka-4. The I.O. during the course of investigation recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet Ex.Ka-5 against the appellant/accused. 4. After receiving the charge sheet, learned JM, Rudrapur committed the case to the court of Sessions on 15.07.1997 after giving necessary copies to the appellant/accused as provided under Section 207 Cr.P.C. 5. On 31.1.2000, learned Sessions Judge, Nainital framed the charges against the appellant/accused for the offences punishable u/s 363/ 366/376 IPC. The charges were 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 Banmali Kumar Das, complainant, PW2 Saraswati, victim, PW3 Dr. Mamta Kurbabi, who medically examined the victim and PW4 SI SP Singh, 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 put in defence. 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 26.07.2000 convicted and sentenced the appellant/accused as discussed above. Feeling aggrieved by the aforesaid judgment and order, the accused/appellant has preferred the present appeal. 3 9. Before any further discussion, it is pertinent to mention the medical report of the victim Saraswati who was examined on 12.11.96 at 8 PM by PW3 Dr. Mamta Kurbabi. The medical report Ex.Ka-2 is reproduced as below: - “On Examination- Breast developing, axillary hairs are developing, brown in colour. No marks of injury on her private parts, body and face. Examination of her private parts- pubic hairs are developing, brown in colour, labia majora and minora are developed. Hymen torn posteriority, margins are not red not tender P/V as admits 2 fingers Ut N/S antiverted P/S Normal Vaginal discharge present LMP 20th October Two vaginal smear slides taken and sealed and sent to Pathologist Dr. VP Joshi, JLN Hospital Rudrapur for detection of spermatozoa. She is sent to Radiologist Dr. PC Kapri to SSJ Base Hospital Haldwani for x-ray of wrist and elbow joint for confirmation of age. Two sealed vaginal smear slide handed over to C360 Shri Ram Ranga, PS Rudrapur” 10. The same medical officer also prepared the supplementary report Ex.Ka-3 of the victim and she opined as under: - “Final Opinion- According to vaginal smear report and physical findings and x-ray report: - 1. She had sexual intercourse 2. Her age is below 16 years 3. No definite opinion about rape has been given” 11. To prove the above reports, the prosecution has examined PW3 Dr. Mamta Kurbabi who has proved the medical report Ex.Ka-2 and supplementary medical report Ex.Ka-3 prepared by her. 12. The prosecution has further examined PW1 Banmali Kumar Das who has reiterated the contents as mentioned in the FIR and proved the FIR Ex.Ka-1 lodged by him. 13. PW2 Km. Saraswati, victim, who stated that appellant/accused was known to her who was a resident of her village. At the time of incident she was about 14 years old, time was about 4 PM. She was called by the appellant/accused, who threatened her that if she would not go along with him, she would be killed. Then the appellant/accused took her to Bilaspur and they stayed in a hut where the appellant/accused committed bad work 4 with her daily for six days. After six days, the appellant/accused brought her near a rice mill of her village where her father had come along with some other persons and on seeing them, the appellant/accused ran away and then her father brought her home. Her medical examination and x-ray was also conducted. This witness was cross-examined at length by the defence counsel but nothing has come out which may create any her doubt in her evidence. The evidence of this witness is reliable, believable and natural. 14. PW4 SI SP Singh, IO of the case. He proved the site plan Ex.Ka-4 prepared by him. During investigation, he recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet Ex.ka-5 against the appellant/accused. He also proved the CHIK FIR Ex.Ka-6 and entry made in the GD Ex.Ka-7 by H/C Girdhari Singh. 15. 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 put in defence. 16. Sri BPS Mer, learned amicus curiae for the appellant/accused argued that the prosecution has not proved its case against him beyond reasonable doubt. I do not find any substance in this argument due to the reason that the victim Saraswati, who was aged about 14 years at the time of incident which means that she was minor on the date of incident and she was enticed away forcibly by the appellant/accused from the lawful guardianship of her father without his consent. PW3 Dr. Mamta Kurbabi has also opined in the supplementary medical report Ex.Ka-3 that the age of the victim is below 16 years i.e. she was minor on the date of incident. From the statements of PW1 Banmali Kumar Dass and PW2 Saraswati, victim, who have completely corroborated the prosecution story and also from the evidence of PW3 Dr. Mamta Kurbabi, it reveals that the victim was below 16 years of age at the time of incident i.e. she was minor and she was enticed away by the appellant/accused from the lawful guardianship of her father without his consent and that she was recovered after six days of the incident and the appellant/accused had run away after seeing the complainant and other persons of the village, I am of the considered view that the offence 5 punishable u/s 363 IPC is made out against the appellant/accused beyond reasonable doubt and the trial court was perfectly justified in recording the conviction and sentence of the appellant/accused as stated above. 17. Learned Brief Holder also submitted that the appellant/accused has been released from jail after completing his sentence. CJM, Nainital vide his report dated 13.09.2002 has also informed that the appellant/accused has been released from jail on 02.07.2002 after completing his sentence of three years’ and he has also deposited the fine of Rs.5000/-. 18. In view of the above said facts and circumstances of the case, the appeal is dismissed. Judgment and order dated 26.7.2000 passed by the court below, convicting and sentence the appellant/accused as above discussed, is hereby affirmed. It is reiterated that the appellant/accused has been released from jail after completing the sentence awarded against him. 19. Lower court record be sent back. (Dharam Veer, J.) September 6, 2010 Rajeev Dang