IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1496 of 2001 (Old No. 1149/1995) Bharosha S/o Shri Kishna, R/o Village Bhatgaon, Patti Gongarh, District Tehri Garhwal. .…. Appellant/Accused Versus State of U.P. …………… Respondent July 20, 2009 Mr. Lokendra Dobhal, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 25.5.1995 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 17 of 1992, State v. Bharosa & Anr., whereby the learned Sessions Judge has convicted the appellant/accused Bharosa under Section 363, 366 and 376 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo three years’ R.I. under Section 363 IPC and three years’ R.I. under Section 366 IPC and ten years’ R.I. under Section 376 IPC. It was also directed that all the sentences shall run concurrently. Co-accused Smt. Magosi Devi was acquitted by the trial court for the charge under Sections 363/366 IPC. 2. In brief, the prosecution case is that on 25.6.1990 Smt. Magosi w/o Maggu has moved an application before SDM, Tehri, Pratap Nagar with the averments that Km. 2 Surma is the daughter of the complainant who was kidnapped before sometime by the appellant/accused Bharosa, for that incident the case is pending under Sections 363 and 366 IPC. She has further stated that on 23.6.1990, Smt. Magosi w/o Gotiyaru, Bhama w/o Shyamu and Shyamu s/o Shivu have kidnapped her daughter Km. Surma by enticing her and have taken her daughter to the appellant/accused Bharosa and this incident happened about 8 a.m. on that day when the complainant and her husband were not at home. On the basis of this application Ex. Ka-1, SDM, Tehri has passed an order to the Patwari Kshetra, Garwan Gaon to do the legal action after the investigation. On the basis of this FIR Ex. Ka-1, PW3 Singroof Singh, Patwari, Garwan Gaon has prepared the chick FIR Ex. Ka-2 on 26.6.1990. Necessary entry was also made by him in the GD. Copy of the GD is Ex. Ka-3. (In rural hilly areas of State of Uttarakhand, the Patwaris and certain revenue officials are 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 has prepared the site plan of the place of occurrence, that is Ex. Ka-4. Km. Surma was recovered from the house of the appellant/accused Bharosa on 7.6.1991 and fard of recovery Ex. Ka-5 was prepared. Km. Surma was given in the supardgi of Saukaru and Darshanoo on the same day i.e. on 7.6.1991 and the supardginama Ex. Ka-7 was prepared. During the course of investigation, the I.O. has recorded the statements of the witnesses and after completing the investigation he has filed the chargesheet against the appellant/accused and the co-accused (acquitted by the trial court). 3. Learned Chief Judicial Magistrate, after giving the necessary copies of the documents to the appellant- accused and the co-accused as prescribed under Section 3 207 Cr.P.C., committed the case to the Court of Sessions on 22.5.1992. 4. On 26.11.1993, learned Sessions Judge framed the charges against the appellant/accused Bharosa under Sections 363, 366 & 376 of IPC and the co-accused Magoshi under Sections 363 and 366 IPC. The charges were read over and explained to the appellant-accused and the co-accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW- 1 Matbari, PW-2 Magosi, the complainant and PW-3 Singroof Singh, Patwari and the I.O. of the case. 6. Thereafter, the statements of the appellant/accused Bharosa and co-accused Magosi (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the appellant/accused and the co-accused in question form, who denied the allegations made against them. However, they did not produce any documentary or oral evidence in the defence. 7. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned Sessions Judge, Tehri Garhwal vide his judgment and order dated 25.5.1995 convicted the appellant Bharosa under Sections 363, 366 & 376 IPC and sentenced to him as discussed above. Co-accused Magosi was acquitted for the charges under Sections 363/366 IPC. Against the aforesaid judgment and order dated 25.5.1995, the appellant/accused Bharosa has preferred the present appeal. 4 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. To prove its case, the prosecution has examined PW- 1 Matbari w/o appellant/accused Bharosa who has stated that she was married with the appellant/accused before 8 to 9 years and from the wedlock two children were born. Her younger sister’s name is Km. Surma. When the said incident has happened, she was in the parents house. Km. Surma was not married at that time. Appellant/accused Bharosa has taken Km. Surma to his house where Surma has given birth to a daughter. The daughter has died and after sometime her sister has also died. Her sister lived with appellant/accused Bharosa as a wife and since then she is in the house of her parents. Appellant/accused Bharosa has come to take her but she refused to go with him. In the cross-examination, she has stated that the age of her brother Heera is 15 years and Km. Surma is four years elder to Heera. 10. PW2 Magosi w/o Maggu is the complainant who has stated that Km. Surma and Matbari (PW1) are her daughters and appellant/accused Bharosa was married to Matbari (PW1) and two children were born from the wedlock. The appellant/accused Bharosa has taken Km. Surma with him by enticing her. At that time, she and her husband were not at home. PW1 Matbari was at home. She has come in the evening, then she was told that appellant/accused Bharosa has taken Km. Surma with him. Then she has gone to the house of Bharosa along with Patwari. Surma has met Patwari. Surma has given birth to a daughter. Surma was taken from the house by Magosi w/o Gotiyaru and Shyamu and they have taken Surma to the house of appellant/accused Bharosa. Before 5 this incident, one incident was also happened. She has also lodged the report of that incident. In the cross- examination, she has stated that she has five children at present. Along with Km. Surma she has got six children. The eldest daughter is 32 years’ old. Her name is Purna. After that she has given birth to another daughter Matbari (PW1). She is 27 years’ old at present. After that she has given birth to a male child Surjan Lal. His age is 25 years. After that she has given birth to Shanti who is 22 years’ old and after that she has given birth to Surma. Thereafter she has stated that Surma is three years’ younger to Shanti. She has further stated that she has filed a case against the appellant/accused Bharosa twice and he was sent to jail twice. First case has been finished and this is the second case. 11. PW-3 Singroof Singh, the I.O. of the case has stated that on 25.6.1990, he was posted as Patwari, Garwan Gaon. On that day he has received the application Ex. Ka- 1 from the court of SDM. On the basis of this application, he has registered a case on 26.6.1990 and prepared the chick FIR Ex. Ka-2. The necessary entries were also made in the GD, copy of which is Ex. Ka-3. He has prepared the site plan of the place of occurrence, that is Ex. Ka-4. On 7.6.1991, Km. Surma was recovered from the house of the appellant/accused. He has prepared a fard Ex. Ka-5. Co- accused Magosi (acquitted by the trial court) was arrested and for the arrest, the fard Ex. Ka-6 was prepared. Km. Surma was given in the supardgi of Saukaru and Darshanoo and the supardginama Ex. Ka-7 was prepared. During the course of investigation, he has recorded the statements of the witnesses and after completing the investigation, the chargesheet was filed against the appellant/accused Bharosa and the co-accused Magosi (acquitted by the trial court). 6 12. In the cross-examination, PW3 Singroof Singh has stated that Km. Surma was not medically examined because before sometime of the recovery, she has given birth to a daughter. After some days, he came to know that Km. Surma has died. Before this case, another case was also registered on 3.6.1990 against the appellant/accused. He does not know whether the appellant/accused was acquitted in this or not. 13. Thereafter, the statements of the appellant/accused Bharosa and the co-accused Magosi (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the appellant/accused and the co-accused in question form, who denied the allegations made against them. However, they did not produce any documentary or oral evidence in the defence. 14. Learned Counsel for the appellant/accused submitted that the victim was a major on the date of the incident and she was a consented party. Hence, no offence is made out against the appellant/accused under Sections 363, 366 and 376 IPC. I find substance in the argument of the learned Counsel for the appellant/accused due to the following reasons: (i) That as per the statement of PW1 Matbari, sister of the victim and the wife of the appellant/accused, Km. Surma was four years elder to Heera, her younger brother. Heera is 15 years’ old. That proves that Km. Surma was 19 years old at the time of incident. The same statement has been given by PW2 Magosi, the complainant and mother of Km. Surma who has stated that her daughter Shanti was 22 years 7 old and Surma was three years younger to Shanti. Hence, as per the statement of PW2, Km. Surma was about 19 years’ old. (ii) That as per the statement of PW1 Matbari and PW2 Magosi, who are sister and mother of victim respectively, Km. Surma was 19 years’ old at the time of the incident and she was a major. (iii) That as per the evidence, Smt. Magosi w/o Gotiyaru, Bhama w/o Shyamu and Shyamu s/o Shivu have taken Km. Surma on 23.6.1990 at 8 a.m. by enticing her and they brought her to the appellant/accused Bharosa. Thereafter Km. Surma was recovered from the house of the appellant/accused on 7.6.1991 having a daughter of 15 days, which also shows that she lived with the appellant/accused for about one year in a densely populated village and where she has not complained to anybody that the appellant/accused has taken her by enticing her and she has given birth to a child also. This conduct of Km. Surma shows that she is a consented party and she has lived with the appellant/accused for about one year with her own consent as a wife and she has given birth to a child also. (iv) That after the recovery of Km. Surma, no medical examination was conducted by the medical officer and she was not taken for the medical examination, which also does not corroborate the prosecution story. (v) It has also come in the evidence that after the recovery Km. Surma and her newly born daughter have died as after the recovery she was given in the supardgi of Saukaru and 8 Darshanoo and the supardgars are not related to the appellant/accused. 15. From the evidence discussed above, it reveals that the victim Km. Surma was a major and was about 19 years of age on the date of incident i.e. 23.6.1990 and she has lived with the appellant/accused with her own consent for about one year. Hence, prosecution has not proved the case for the charge levelled against him under Sections 363, 366 and 376 IPC. Therefore, the impugned judgment and order of the trial court is not correct and justified. 16. For the reasons recorded above, the appellant/accused is entitled to the benefit of doubt. Accordingly, the appeal is allowed. The judgment and order dated 25.5.1995 passed by the Sessions Judge, Tehri Garhwal in Sessions Trial No. 17 of 1992 convicting the appellant Bharosa under Sections 363, 366 and 376 IPC is hereby quashed and the sentence of three years’ R.I. under Section 363, three years’ R.I. under Section 366 and ten years’ R.I. under Section 376 is set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled. Sureties are discharged. 17. Let the lower court record be sent back. (Dharam Veer, J.) 20.7.2009 PRABODH