IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 504 of 2001 (Old No.2164 of 1990) Chotey alias Dargahi & another …………….Appellant Versus The State …...……Respondent Dated: June 23, 2008 Sri Rajeev Sharma, learned counsel for the appellant no.1. Sri S.K. Mandal, learned counsel for the appellant no.2. Sri Harish Pujari, learned Addl. G.A. for the State/respondent HON. DHARAM VEER, J. This is a criminal appeal, preferred u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 27.11.1990 passed by IVth Additional Sessions Judge, Nainital in Sessions Trial No.260 of 1989, whereby the learned IVth Additional Sessions Judge has convicted the appellants-accused Chotey and Asgar under Section 366 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to three years R.I. Both the appellants-accused were further convicted under Section 376 I.P.C. and were sentenced to four years R.I. each. Both the sentences were directed to run concurrently. However, co- accused Smt. Parvin was acquitted of the charge framed against her. 2. I have heard Sri Rajeev Sharma, learned counsel for the appellant no. 1 and Sri S.K. Mandal, learned counsel for appellant no.2 as well as Sri Harish Pujari, learned Additional G.A. for the State/respondent and perused the entire material available on record. 3. In brief, the prosecution case is that on 13.07.1988, the father and mother of victim Km. Mehrulnisha had gone to forest for cutting grass and she was alone at her house and at the time of the incident, she was about 18 years old. When Ali Hussain, father of victim Km. Mehrulnisha came back, then he did not find his daughter at home. After that he started searching his daughter. Then, Jamil Ahmad and Sabir Sah met him and informed that at 9:00 A.M., they had seen Km. Mehrulnisha while standing with appellants/ accused Chottey and Asgar near Khudaganj. They also informed that when they asked from appellants/ accused that where they were taking Km. Mehrulnisha, then they told that her father Ali Hussain has received the injury in Pilibhit and her father has called her. With the same averments, the FIR was lodged by P.W.3 Ali Hussain on 15.07.1988, in Police Chowki, Majhola, that FIR is Ex.Ka-1. On the basis of this FIR, Chik FIR was prepared by Head Moharrir Raghuvir Narayan Gupta, that Chik FIR is Ex.Ka-7. The FIR of the incident was lodged in Police Chowki, Majhola on 15.07.1988 at 7:15 P.M. and the distance of the Police Chowki from the place of occurrence is about 3½ kilometers. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-8. The primary investigation of the case was entrusted to S.I. D.C. Goley. The victim Km. Mehrunisha was recovered by the police along with appellants-accused at Majhola on 21.07.1988 and the recovery memo was prepared, i.e. Ex.Ka.2. The victim was given in the Supurdagi of her father Ali Hussain on the same date of Supurdaginama was prepared by the Investigating Officer, i.e. Ex.Ka.3. Thereafter, victim Km. Mehrulnisha was sent for medical examination and she was medically examined by the lady doctor P.W.4. Smt. H.L. Pal, Upgraded P.H.C., Khatima on 21.07.1988 at 4:15 P.M. and she also prepared the medical report, that medical report is Ex.Ka.4. Victim Km. Mehrulnisha was also sent for the X-ray and after the X-ray, the supplementary report was prepared, the supplementary report is Ex.Ka.5. The Investigating Officer during the course of the investigation has prepared the site plan of the place of occurrence, that site plan is Ex.Ka.6. Later on, investigation was transferred to another Investigating Officer P.W.6 P.C. Pandey, who during the course of the investigation has recorded the statements of the witnesses and examined the relevant papers and after completing the investigation, he has submitted the charge sheet against the appellants-accused Chotey, Asgar and also against co-accused Smt. Parvin (who has been acquitted by the trial court) u/Ss. 363/366/376 I.P.C., that charge sheet is Ex.Ka.9. 4. After receiving the charge sheet, the learned Munsif Magistrate, Ist Class, Khatima has committed the case to the court of Sessions on 26.07.1989 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 5. The learned Sessions Judge has transferred the case to the IVth Additional Sessions Judge for hearing and disposal according to law. 6. On 16.10.1989, the IVth Additional Sessions Judge, Nainital framed the charge against the appellants-accused Chotey and Ashrar u/s 366/376 IPC. The charge was read over and explained to the appellants who pleaded not guilty and claimed to be tried. The charge was also framed against co-accused Smt. Parvin (who was acquitted by the trial court) u/s 366 I.P.C. The charge was also read over and explained to her who also pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Zamil Ahmad, uncle of prosecutrix, P.W.2 Km. Mehrulnisha, victim, P.W.3 Ali Hussain, complainant and father of the prosecutrix, P.W.4 Dr. Smt. H.L. Pal, who has medically examined the prosecutrix, P.W.5 Constable C.P. Hari Om and P.W.6. S.I., P.C. Pandey, Investigating Officer of the case. 8. Thereafter, the statements of the appellants- accused Chotey and Ashrar and another co-accused Smt. Parvin were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form. They have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned IVth Additional Sessions Judge, Nainital vide his judgment and order dated 27.11.1990 has convicted the appellants-accused Chotey and Asgar under Section 366 I.P.C. and sentenced each of them to three years R.I. The appellants-accused were further convicted under Section 376 I.P.C. and were sentenced to four years R.I. each. Both the sentences were directed to run concurrently. However, co-accused Smt. Parvin was acquitted of the charge framed against her. Feeling aggrieved by the said judgment and order dated 27.11.1990, the appellants have preferred the present appeal. 10. Before further discussion, it is pertinent to mention the injuries found in the injury report (Ex.Ka-4) on the person of victim Km. Mehrulnisha who was examined on 27.07.1988 at 4:15 P.M. by Lady Medical Officer, Upgraded P.H.C., Khatima, Nainital. The lady doctor on medical examination found as follows:- 1. Axillary & public hairs are developed, black & thick. 2. Breasts are well developed. 3. Labia majora & minora are developed. Hymen old, left lateral tear present, vagina admits two fingers easily, uterus normal size. There is no abnormal discharge present, no foreign body found in side the vagina, no bleeding seen. 4. Km. Mehrunisha’s vaginal smear slide made & sent to pathologist upgraded P.H.C. Khatima, Nainital for determination of spermatozoa. 5. Km. Mehrunisha was sent to Superintendent District Hospital, Pilibhit for X-ray of the wrist & elbow joint for determination of her age through Km. Manju C.P.No.249 & Km. Malti C.P.No. 799. 6. There are no sign of any type of stains & marks of injury seen on the private parts & other parts of the body. No stains on the undergarments. P.W.4 Dr. H.L. Pal also prepared the supplementary medical report in respect of victim Km. Mehrulnisha (Ext.Ka.5) who was examined on 03.08.1988 at 6:15 P.M. The doctor on further medical examination found as follows: - Pathology Report No.2/88 dated 22.7.1988 No Spermatozoa seen. Large number of bacteria & epithelial cells seen. X-ray report No. 1276 dated 23.7.1988 1. X-ray right elbow joint – All epiphysis fused 2. X-ray right wrist joint – Epiphysis of lower end of radium & ulna are under process of fusion covered with their respective diaphysis. The doctor also opined that the victim Km. Mehrulnisha is habitual to sexual intercourse, but there are no signs of recent intercourse present. She further opined that her age is in between 16-18 years. 11. To prove its case, the prosecution has examined P.W.1 Zamil Ahmad, who has stated that victim Km. Mehrunisha is his niece (daughter of his sister). The said incident was said to be taken place about 2 years back at about 9:00 A.M. He along with Sabir was in the husk machine at Khuda Ganj. Then he saw that victim Km. Mehrunisha was standing along with appellants-accused Chottey and Asgar at bus station. He asked where they were going then appellants-accused replied that the father of Km. Mehrunisha had received the injury at Pilibhit and due to this reason, they were going to Pilibhit. When he reached at his house, then Ali Hussain met him while searching his daughter. Then, he told Ali Hussain that he saw his daughter along with appellants-accused Chotey and Asgar in the Bus Station. Thereafter, he along with Sabir Sah and Ali Hussain had gone for the search of Km. Mehrunisha. 12. P.W.2 Km. Mehrunisha, victim of the case, who has stated that on the date of incident, which was taken place about two years before, at that time she was living in village Zamor along with her mother and father. In the morning, her mother and father had gone to the forest for cutting grass and she was along in her house. In the morning, appellant-accused Chotey had come to her house and told her that her father has received injury at Pilibhit and he called her. Then, she had gone along with appellant- accused Chotey. When she reached at Khuda Ganj, then accused-appellant Asgar met her. At that time, they were waiting for bus and at Khuda Ganj her maternal uncle Zamil along with Sabir also met her. Zamil asked her that where they were going, then appellant-accused Chotey told him that father of Km. Mehrunisha (Ali Hussain) had received the injury at Pilibhit and for this reason, they were going to Pilibhit. From Khuda Ganj to Pilibhit, she started to move towards Pilibhit along with appellants-accused Chotey and Asgar. In the way, they came down from bus at Halkari and had gone in the house of appellant- accused Chotey. She had gone to farmhouse where appellants-accused Chotey and Asgar were working. From there she had gone to Lucknow by train along with appellants-accused Chotey and Asgar. In the way, wife of Chotey namely Smt. Parvin had also gone with them. In Lucknow, she had stayed with appellants-accused for 3-4 days and in Lucknow appellants-accused Chotey and Asgar had committed rape with her. After that she had come to Majhola along with appellants-accused Chotey and Asgar where she was recovered by police along with appellants- accused Chotey, Asgar & Smt. Parvin, and she was given in the Supurdagi of her father and appellants-accused were arrested by police. Thereafter, she was medically examined by the Medical Officer and X-ray of her hand was also conducted. In the cross examination, she has also stated that appellants-accused Chotey had come to her house after about one hour of her parent’s departure from house towards forest. She has further stated that from Zamor to Khud Ganj, she has gone along with appellants-accused on foot and half an hour time was taken by her on foot for traveling from Zamor to Khuda Ganj. From Khuda Ganj to Halkari, she traveled by bus. She reached Halkari about 2-3 P.M. and in Halkari, numbers of people were there and in Halkari she had not complained anybody about the said incident. She stayed in Halkari for one night and ladies were also living in Halkari but she had not complained any lady about the said incident. The appellants-accused took her from Halkari to Lucknow. From Pilibhit station to Lucknow, she had gone along with appellants-accused by train. From Halkari to Pilibhit she had gone by bus and in the bus station number of people were present. 13. P.W.3 is Ali Hussain, who has stated that Km. Mehrunisha was his daughter. On the date of the incident, Km. Mehrunisha was living with him and that incident was happened about two years back. He and his wife had gone to forest for cutting grass and his daughter Km. Mehrunisha was at home. When they came back after taking grass from forest, they found that Mehrunisha was not at hom. Then they tried to search her. When he was searching his daughter then Zamil Ahmad and Sabir Sah met him. They told him that Mehrunisha had gone to Pilibhit along with appellants- accused Chotey and Asgar. They have stated that they have seen her at Khuda Ganj going along with appellants-accused Chotey and Asgar. They have also told him that the appellants-accused had told him that he (Ali Hussain) had received injury. After that he also tried to search his daughter. Thereafter, he lodged the report. The report was written by Ajay Kumar Singh on his dictation, that report is Ex.Ka.1. After give days of lodging the report, victim Km. Mehrunisha was recovered at Khatima Road, Majhola along with appellants-accused Chotey, Asgar and co-accused Smt. Parvin. Recovery memo of Km. Mehrunisha was prepared by police, that is Ex.Ka.2 and Supurdginama was also prepared and Km. Mehrunisha was given in his Supurdagi, Supurdginama is Ex.Ka.3. 14. P.W.4 Dr. Smt. H.L. Pal, Medical Officer Primary Health Center, Khatima, who has stated that on 21.07.1988 she was posted in Lady Hospital, Primary Health Center, Khatima as Lady Medical Officer. On that day at 4:15 P.M., Km. Mehrunisha, daughter of Ali Hussain R/o Zamor, who was brought by Constable C.P.No.249 Km. Manju and C.P. No.799 Malti, was examined by her and she prepared a report at the time of examination, that report is Ex.Ka.4. For the determination of the age, X-ray was also advised. X-ray of the victim was conducted in the District Hospital, Pilibhit, the X-ray plate is Ex.1. On the basis of X-ray report, she prepared the supplementary report, that is Ex.Ka.5. On the basis of this report, she opined that victim is between 16-18 years of the age. In the cross examination, she has stated that per the Modi’s Medical Jurisprudence & Toxicology, variation of age of three years is possible and she also agreed to it. She has further submitted that the age of the victim may be about 19 years. 15. P.W.5 Constable Hari Om, who has stated that he is posted in the Police Station, Khatima since 15.07.1988. At that time, Sri D.C. Goley, Sub Inspector was posted there. The primary investigation of the case was conducted by Sri D.C. Goley, Sub Inspector. He also stated that S.I. D.C. Goley had died. He has identified the signatures and handwriting of S.I. D.C. Goley S.I. D.C. Goley prepared the site plan of the place of occurrence regarding this crime, that site plan is Ex.Ka.6. He has also identified the signatures and handwriting of Raghuvir Narayan Gupta. The Chik F.I.R. was prepared by Reghuvir Narayan Gupta, that is Ex.Ka.7. On the basis of this, the entry was made in the G.D., carbon copy of the G.D. is Ex.Ka.8, which is on record. 16. P.W.6 is S.I. P.C. Pandey, Investigating Officer of the case, who has stated that in the year 1988, he was posted in P.S. Khatima as Sub-Inspector. The primary investigation of the case was entrusted to Sri D.C. Goley, who had died. After the transfer of Sri D.C. Goely from police station, the investigation of the case was entrusted to him. On 21.07.1988, Km. Mehrunisha was recovered along with appellants-accused Chotey, Asgar and co-accused Parvin (who has been acquitted by the trial court), the recovery memo was also prepared, i.e. Ex.Ka.2. Victim Km. Mehrunisha was given in the Supurdagi of her father Ali Hussain and Supurdaginama was also prepared on the spot, i.e. Ex.Ka.3. After completing the investigation he submitted the charge sheet against the accused persons, i.e. Ex.Ka.9. 17. Thereafter, the statements of the appellants Chotey and Ashrar and another co-accused Smt. Parvin were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form. They have denied the allegations made against them. However, they did not produce any oral or documentary evidence in their defence. 18. Sri Rajeev Sharma, learned counsel for appellant no.1 and Sri S.K. Mandal, learned counsel for appellant no.2, both have submitted that as per the above-said evidence, the prosecution has not proved its case against the appellants- accused Chotey & Asgar beyond reasonable doubt u/s 366 and 376 I.P.C. They further submitted that victim Km. Mehrunisha was 18 years of age at the time of the said incident as has been written in the F.I.R. lodged by her father, which is Ex.Ka.1. Besides this, P.W.4 Dr. Smt. H.L. Pal has also stated in her cross-examination that victim Km. Mehrunisha was about 19 years at the time of the said incident. They have further submitted that the girl Km. Mehrunisha had traveled with appellant-accused persons from Zamor to Khuda Ganj on foot and from Khuda Ganj to Halkari by bus, from Halkari to Pilibhit, also by a bus and from Pilibhit to Lucknow, by train. After that, she has also come back from Lucknow to Majhola by bus and train. In this way, she has traveled on one side for more than about 300 kilometers, and total about 600 kilometers for to and fro journey by bus and train. However, she had not complained to anybody about the said incident in the way either in the bus or in the train or in that place where she stayed along with the appellants-accused persons. 19. The above-said arguments advanced by learned counsel for the appellants bear force. From the evidence as discussed above, it is clear from the F.I.R. i.e. Ex.Ka.1, the girl Km. Mehrulnisha was about 18 years of age at the time of incident. Apart from this, P.W.4. Dr. Smt. H.L. Pal has also stated in his cross-examination that the victim Km. Mehrulnisha was about 19 years at the time of the incident and she was habitual of sexual intercourse and there were no signs of recent intercourse present. It is also clear from the above-said evidence that the victim Km. Mehrunisha had gone from her house on 13.07.1988 at about 9:00 A.M. and she had gone on foot from her house, which is also in the densely populated area of Zamor, but she had not complained to anybody that she was going with appellants- accused persons due to the reason that her father received injury at Pilibhit which proves that victim Km. Mehrunisha was a consented party. The reasons, which prove that the victim Km. Mehrulnisha was consented party, are detailed as under:- (i) She had gone from her house on 13.07.1988 at about 9:00 A.M. from Village Jamor. The houses of other villagers were also situated nearby her house, but she had not informed anybody that she is going to Pilibhit along with appellants-accused to see her father where he has received injuries. (ii) As her parents had gone for cutting grass just before the said incident, it was not possible that her father could have received injury in Pilibhit and in a short duration of time, she had gone from her house. (iii) She has traveled from Zamor to Khuda Ganj on foot and from Khuda Ganj to Halkari also by bus. In Halkari, they stayed for one night and from Halkari to Pilibhit, they had gone by bus and from Pilibhit to Lucknow, they had gone by train. In the bus stations and railway stations, Km. Mehrunisha had met number of people but she had not complained anybody about the said incident. In this way, she had traveled for 300 kilometers on one side from Jamar to Majhola and further 300 kilometers back from Lucknow to Majhola, meaning thereby she traveled about 600 kilometers, but in this whole journey, she had not complained to anybody and she had gone along with the appellants- accused persons with her own consent as she was a major girl aged about more than 18 years. 20. From the above said discussion, the prosecution has failed to prove the offence punishable u/Ss. 366 and 376 I.P.C. against the appellants-accused persons. The above-said view also finds support from ajudgment rendered by the Hon’ble Supreme Court in the case of Narayan alias Naran v. State of Rajasthan reported in (2007) 6 SCC 465. The Hon’ble Supreme Court in paras 11, 12, 13 & 15 has held as under:- “11. In the cross-examination the prosecutrix (PW 3) stated that she boarded the trolley at about 5 o’clock in the evening and by 7 o’clock they reached Singpur Village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ext.P-5) she stated that the accused committed rape on her thrice but in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not state that she offered any resistance though she was physically very strong. Medical report (Ext.P-1) says that there were no injuries on the body of the prosecutrix (PW 3). There were no injuries on her private part. It is ultimately opined that “no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse”. In the circumstances, is it possible to believe that the prosecutrix (PW 3) has been subjected to rape twice by the accused as alleged? In the first information report (Ext.P-5) it is stated that the prosecutrix (PW 3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW 3) was driving the tractor from Singhpur to Bharkiya crossing through a number of villages. It is not stated by the prosecutrix (PW 3) that she made any attempt to get down from the tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily. 12. Yet another important aspect of the matter, in the first information report and as well as in her evidence the prosecutrix (PW 3) stated that she revealed the entire episode of committing rape on her by the accused to Smt. Tajkanwar (PW 6) in whose house in Akodiya Village she slept on the fateful night. She also state about the accused’s snatching of Rs. 1000 from her and also some jewellery. Smt. Tejkanwar (PW 6) in her evidence did not state that the prosecutrix (PW 3) narrated the incident of rape committed on her by the accused to her. The evidence of the prosecutrix (PW 3) if full of material contradictions. There is no corroboration whatsoever from any of the witnesses, more particularly in the evidence of Smt Tajkanwar (PW 6) who is a material witness. It is true, the evidence of the prosecutrix (PW 3) itself, if acceptable, is sufficient to establish the charge against the accused but her evidence is so artificial with cannot be accepted. 13. In the circumstances, we are of the considered opinion that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 376 IPC. 15. For all the aforesaid reasons, we hold that the prosecution failed to establish the charges framed against the appellant for the offences punishable under Sections 376 and 392 IPC. The conviction as well as sentences imposed upon the appellant for the offences punishable under Sections 376 and 392 IPC are accordingly set aside.” 21. In the present case, the girl has gone from the house on 13.07.1988 at 9:00 A.M., and the FIR of