RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.580 of 2001 (Old No.202 of 1991) Sarla Devi W/o Chhotey Lal, R/o Jhopani Bhoot Bangla, P.S. Rudrapur …….….…. Appellant Versus The State …………… Respondent Dated: September 12, 2008 Sri Lalit Sharma, counsel for the appellant Sri M.A. Khan, brief holder for the State HON. 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 04.01.1991 passed by IIIrd Additional Sessions Judge, Nainital in S.T. No.151 of 1987, whereby the learned Sessions Judge has convicted the appellant/accused Sarla Devi under Section 342 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced her to three months’ R.I. 2. I have heard Sri Lalit Sharma, learned counsel for the appellant/accused and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record. 3. In brief, the prosecution case is that the prosecutrix Km. Tara, aged about 13 years, lodged the report on 11.8.1985 with the averments that she was residing along with her father Bahadur Singh in the hut of co-accused Banwari on rent. Her father was a truck driver 2 and 20-25 days before the said incident, her father had gone out on truck. It was also stated that before three days of lodging of report, co-accused Banwari came to her hut and committed bad work with her forcefully. After that when she tried to go in the house of her uncle Sher Singh (P.W.2), then appellant/accused Sarla Devi did not allow her to go and she also told the complainant Km. Tara that she will have to marry with co-accused Banwari. It was also stated that appellant/accused Sarla Devi also used to keep a watch on the victim Km. Tara. In the morning of 11.8.1985, Shankar, brother of victim Km. Tara, came to meet her, then she asked him to call uncle and aunt so that they may take her from there. On the same day at about 12:00 P.M., co-accused Banwari again came in the hut and again tried to commit bad work with her. In the meanwhile, complainant’s brother Shankar, uncle Sher Singh (P.W.2), aunt Motima Devi and Radhey Shyam (P.W.5) reached on the place of occurrence. On seeing these persons, Banwari tried to run away, however he was caught hold on the spot by these persons. With the same averments, the FIR, got scribed by Radhey Shyam (P.W.5), was lodged by Km. Tara (P.W.1), on 11.8.1985 at 1:00 P.M. at P.S. Rudrapur, i.e. Ex.Ka-1. On the basis of this report (Ex.Ka-1), a Chik FIR was prepared by Head Moharrir Rafeeq Ahmed, i.e. Ex.Ka.6. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-7. The investigation of this case was initially entrusted to S.I. Kamal Singh and later on, the investigation was transferred to S.I. K.P. Sharma (P.W.6). The victim Km. Tara was medically examined on 11.8.1985 at 5:45 P.M. at J.L.N. Hospital, Rudrapur by P.W.3 Dr. Mohini Saxena and the medical report was also prepared, i.e. Ex.Ka-3. A supplementary report in respect of victim Km. Tara was also prepared, i.e. Ex.Ka-4. Ex.Ka-5 is the X- ray report prepared by P.W.4 Dr. B.G. Srivastava, X-ray 3 Technician in respect of prosecutrix Km. Tara. During the course of investigation, the I.O. also took in his possession the Petticoat of the victim and prepared a Fard, i.e. Ex.Ka.2. The Investigating Officer during the course of investigation also recorded the statements of witnesses and after completing the investigation, filed the charge sheet against the appellant/accused Sarla Devi and co-accused Banwari Lal under Sections 342/376/354 IPC, i.e. Ex.Ka-8. 4. Learned Chief Judicial Magistrate, Nainital appears to have committed the case to the court of Sessions on 14.8.1987 after giving necessary copies to the appellant/accused and another co-accused as provided under section 207 Cr.P.C. 5. Learned Sessions Judge, Nainital appears to have transferred the case to the court of IIIrd Additional Sessions Judge, Nainital for disposal according to law. 6. On 10.11.1987, the Additional Sessions Judge, Nainital framed the charge against the appellant/accused Sarla Devi u/s 342 IPC. The charge was read over and explained to her who pleaded not guilty and claimed to be tried. The charge against the co-accused Banwari u/s 342/376 IPC was also framed by learned Additional Sessions Judge, Nainital on 10.11.1987. The charge was also read over and explained to him who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Km. Tara, victim; P.W.2 Sher Singh, uncle of victim, P.W.3 Dr. Mohini Saxena, who has medically examined the victim; P.W.4 Dr. B.G. Srivastava, X-ray Technician, P.W.5 Radhey Shyam, scriber of report and P.W.6 S.I. K.P. Sharma, I.O. of the case. 4 8. Thereafter, the statement of the appellant/ accused Sarla Devi as well as the statements of co-accused Banwari were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in their defence. 9. After appreciating the evidence on record and hearing learned counsel for the parties, the learned IIIrd Addl. Sessions Judge, Nainital vide his judgment and order dated 04.01.1991 convicted and sentenced the appellant/ accused as discussed above. Against the aforesaid judgment and order, the appellant/accused Sarla Devi has preferred the present appeal. 10. Before further discussion, it is pertinent to mention that injured Km. Tara (P.W.1) was medically examined on 11.08.1985 at 5:45 P.M. by P.W.3 Dr. Mohini Saxena and her medical report was also prepared i.e. Ex.Ka-3. On the person of Km. Tara, the medical officer found as under: - “There are no mark of violence present on the other part of the body except on the private part, the fourchettes (labia majora) are swollen and red. Internal Examination- She has changed the clothes. Pubic hairs –present in few number and soft. Grayish brown in colour. No vaginal tear, no bleeding. P/V- Hymen absent. Old Scar P/V- There is a painful insertion of 2 fingers into the vagina. One finger permitted easily. 5 Vaginal Smear- Sent for the pathological examination. For Age-X-ray wrist and elbow advised. Opinion- No definite opinion can be given for the act of rape but she is not habitual of intercourse.” After receiving of X-ray report, the medical officer also prepared the Supplementary Report (Ex.Ka-4) and it was opined as under: - There is appearance of pisiform e.g. at the age of 12 years and there is no fusion of medial epicondyle to the shaft e.g. at the age of 14-15 years. Conclusion- The age is between 12 to 14 years approximately. 11. To prove the aforesaid injury report, the prosecution has examined P.W.3 Dr. Mohini Saxena who has stated that on 11.8.1985 at 5:45 P.M., she had medically examined the victim Km. Tara who was brought to her by Constable Harish Chandra Singh. She had medically examined the victim and recorded the injuries which have been recorded in para 10 of the judgment. After the x-ray, she also prepared the supplementary report. She also opined the age of the victim in between 12 to 14 years approximately. The medical report is Ex.Ka-3 and supplementary medical report is Ex.Ka-4. 12. P.W.4 is Dr. B.G. Srivastava who has stated that he was posted in J.L.N. Hospital, Rudrapur as X-ray Technician since 1982. He took the x-ray of Km. Tara according to the directions of Dr. Mohini Srivastava (P.W.3) and prepared the X-ray report, i.e. Ex.Ka-5 and X-ray plate Ex.1. 6 13. To further prove its case, the prosecution has examined P.W.1 Km. Tara, victim of the case, who has stated that her father had taken hut of co-accused Banwari on rent in which she was residing along with her father. Her father was a driver and about 20-25 days before the incident, her father had gone on truck somewhere and she was alone in the hut. About three days before the incident, co-accused Banwari committed rape with her forcefully. After that when she tried to go in her uncle’s house, then appellant/accused Sarla Devi did not allow her to go anywhere and asked her that she (Sarla Devi) will get her (Km. Tara) married with co-accused Banwari. After third day of incident, her brother Shankar came in the hut to meet her, then she narrated the entire incident to her brother and asked him to call her uncle and aunt. Then at about 12:00 P.M., co-accused Banwari again came to her hut and tried to commit rape with her forcefully. Meanwhile, her uncle Sher Singh and aunty Motika Devi came at the place of occurrence along with Radhey Shyam and Shyam Lal and they saved her and caught hold co- accused Banwari there. Then she got the report scribed by Radhey Shyam, i.e. Ex.Ka-1. Thereafter she filed the said report in the police station, Rudrapur. The police also took her Petticoat into possession and prepared a Fard, i.e. Ex.Ka-2. She also stated that her mother had died before the said incident. This witness was cross-examined at length by the defence counsel but nothing has come out in her evidence which may create any doubt in her evidence. The evidence of this witness is reliable and believable. 14. P.W.2 is Sher Singh, who has stated that on 11.8.1985 at about 10:30 A.M., his nephew Shankar came 7 to him and informed him about the incident that co-accused Banwari has committed rape with victim Km. Tara before three days and he (Shankar) also informed him that Km. Tara has called him (Sher Singh). On this information, he had gone along with his wife Motima Devi, Radhey Shyam and Shyam Lal. When they reached near the hut of co- accused Banwari then they saw that co-accused Banwari was trying to commit rape with victim Km. Tara and then the co-accused Banwari was caught hold by these persons. Thereafter, Km. Tara got scribed the report from Radhey Shyam and Km. Tara also informed him about the forceful rape committed with her by co-accused Banwari and also informed him that appellant-accused Sarla Devi (sister in law (BHABHI) of co-accused Banwari) did not allow the victim Km. Tara to go anywhere. After that the co-accused Banwari was handed over to police at the police station and the report was also given by Km. Tara at police station. The petticoat of Km. Tara was also taken by police persons and a Fard was prepared, i.e. Ex.Ka-2. He also stated that Km. Tara was about 12 years of age at the time of incident and the mother of Km. Tara had died 4-5 years before. This witness was also cross-examined at length by the defence counsel but nothing has come out in his evidence which may create any doubt in his evidence. The evidence of this witness is also reliable and believable. 15. P.W.5 is Radhey Shyam, who has not supported the prosecution case and was declared hostile. But he has admitted that report Ex.Ka-1 is in his handwriting. 16. P.W.6 is S.I. K.P. Sharma, I.O. of the case, who has stated that Chik FIR of this case was prepared by Head Moharrir Rafique Ahmed, i.e. Ex.Ka-6. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-7. The investigation of this case was initially entrusted to S.I. 8 Kamal Singh. After the transfer of S.I. Kamal Singh, the investigation of the case was entrusted to him. He also filed the charge sheet against the accused persons, i.e. Ex.Ka-8. 17. Thereafter, the statements of the appellant/ accused Sarla Devi as well as the statement of co-accused Banwari were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them and stated that they have been falsely implicated. However, they did not produce any oral or documentary evidence in their defence. 18. Sri Lalit Sharma, learned counsel for the appellant/accused Sarla Devi argued that as per the evidence discussed above, the case against the appellant/accused is not proved beyond reasonable doubt. I do not find any substance in this argument advanced by counsel for the appellant/accused Sarla Devi as P.W.1 Km. Tara has clearly deposed in her evidence that her father had taken hut of co-accused Banwari on rent and about 20- 25 days before the incident, her father had gone on truck somewhere and she was alone in the hut. About three days before the incident, co-accused Banwari committed rape with her forcefully. After that when she tried to go in her uncle’s house, then appellant-accused Sarla did not allow her to go anywhere and asked her that she (appellant/accused Sarla Devi) will get her (Km. Tara) married with co-accused Banwari. After third day of incident, her brother Shankar came in the hut to meet her, then she narrated the entire incident to her brother and asked him to call her uncle and aunt. Then at about 12:00 P.M., co-accused Banwari again came to her hut and tried to commit rape with her forcefully. Meanwhile, her uncle Sher Singh and aunty Motika Devi came at the 9 place of occurrence along with Radhey Shyam and Shyam Lal and they saved her and caught hold co-accused Banwari. Then she got the report scribed by Radhey Shyam, i.e. Ex.Ka-1 and thereafter she filed the said report in the police station, Rudrapur. She also stated that her mother had died before the said incident. The evidence of P.W.1 Km. Tara is reliable, believable and natural and the same is also corroborated from the oral evidence of P.W.2 Sher Singh and from the medical evidence of P.W.3 Dr. Mohini Saxena as well as from the medical report (Ex.Ka-3) and supplementary report (Ex.Ka-4). Thus, from the evidence discussed above, the prosecution has fully proved that appellant/accused Sarla Devi wrongfully confined the victim Km. Tara in hut of co-accused Banwari so that she may not go in her uncle’s house and thus, the case against the appellant/accused Sarla Devi is proved beyond reasonable doubt u/s 342 IPC and I concur with the view taken by the trial court in convicting the appellant/accused Sarla Devi u/s 342 IPC. 19. Sri Lalit Sharma, learned counsel for the appellant/accused Sarla Devi argued that appellant/accused Sarla Devi is an old lady about 70 years of age and she is doing worship at an Ashram and she is sick and infirm and ailing with various diseases and even she is unable to walk. Hence, he prayed the sentence against the appellant/ accused Sarla Devi may be reduced to the sentence already undergone by her. 20. On a perusal of the statement of appellant/ accused Sarla Devi recorded u/s 313 Cr.P.C., it reveals that she was 50 years of age at the time of recording of that statement and her statement was recorded on 4.12.1990, thus, now a period of about 18 years has been expired and now the appellant/accused Sarla Devi must be aged about 10 68 years. Besides this, a perusal of the record also reveals that appellant/accused Sarla Devi also remained in jail for nine days (i.e. from 12.8.1985 to 20.8.1985). Thus, after considering the facts of the case that the appellant/accused Sarla Devi is an old lady of 68 years and she is sick and infirm and unable to walk and ailing with various diseases, the Court is of the view that it would be in the interest of justice to reduce the sentence of appellant/ accused Sarla Devi to the sentence already undergone by her (i.e. for nine days) with fine of Rs.500/-. 21. In view of the above-said discussed facts and circumstances of the case, the appeal preferred by appellant/accused Sarla Devi is partly allowed. Her conviction u/s 342 IPC as awarded by the trial court is hereby confirmed. However, the sentence of appellant/accused Sarla Devi for three months’ R.I. u/s 342 IPC is hereby set aside, instead her sentence is reduced to the sentence already undergone by her (i.e. for nine days) with fine of Rs.500/- and in default of payment of fine, she will undergo R.I. for 15 days. 22. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) September 12, 2008 Rajeev Dang