IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1178 OF 2001 (OLD NO.1543 of 1997) Chandra Pal alias Kallu S/o Rup Ram R/o Village Janglat Colony Himmatpur, P.S. Ramnagar, District Nainital State of Uttarakhand Versus ……… Appellant .……… Respondent Dated: June 14, 2010 Mr. Lalit Sharma, learned counsel for the appellant Mr. Amit Bhatt, Additional Government Advocate 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 26.8.1997 passed by Second Additional Sessions Judge, Nainital in S.T. No.189A of 1993, State Vs. Chandrapal alias Kallu, whereby the learned Second Addl. Sessions Judge convicted the appellant/accused Chandra Pal under Section 363 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of five years. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that Chandan Singh Tadiyal lodged a report at Police Station Ramnagar stating therein that he had lodged 2 missing report of his niece on 5.2.1992. Since then he and others were searching his niece at nearby places. Then he came to know from Pooran Singh and Gopal Dutt that the appellant/accused Chandra Pal and co- accused Prem Nanhe have enticed away his niece. They had seen the victim with the accused persons on 4.2.1992 at 2 PM at Halduwa Barrier and that she was being taken by them (accused persons) towards Muradabad. With the same averments, Chandan Singh lodged the First Information Report at P.S. Ramnagar on 13.2.1992. That F.I.R. is Ext.Ka-1. On 19.2.1992, the girl was recovered along with co-accused Prem Singh from Railway Station Hempur, a recovery memo thereof was prepared, which is Ext.Ka-2. She was given in the supardgi of his father through supardginama Ext.Ka-3. On the same day i.e. 19.2.1992 at 1:10 PM, the victim was medically examined by P.W.4 Dr. Geeta Sharma, who after the medical examination, prepared the medical report Ext.Ka-4. Supplementary report of the victim was also prepared by the same medical officer, i.e. Ext.Ka-5. During the course of investigation, the I.O. recorded the statement of the witnesses and on completion of investigation, charge sheet was filed against the appellant/accused Chandra Pal and co-accused Prem Nanhe. 4. After receiving the charge sheet, learned Munsif Magistrate, Kashipur committed the case to the court of Sessions on 24.5.1993, after giving necessary copies to the appellant/accused and the co-accused, as provided u/s 207 Cr.P.C. 3 5. It seems from record that the case was transferred to Additional Sessions Judge for hearing and disposal according to law. 6. On 12.1.1995, learned Second Additional Sessions Judge, Nainital framed the charge of offence punishable under Sections 363, 366 and 376 of IPC against the appellant/accused and the co-accused. The charge was read over and explained to the appellant/accused and co-accused, who pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has examined PW1 Chandan Singh, complainant of the case, PW2 Pooran Singh, PW3 Km. Durga, victim and PW4 Smt. Geeta Sharma, Medical Officer, who medically examined the victim and prepared the medical report Ext.Ka-4 and supplementary report Ext.Ka-5. 8. Thereafter the statements of the appellant/accused and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to them in question form, who have denied the allegations made against them. However, they have not filed any oral or documentary evidence in defence. 9. After appreciating the entire evidence on record and hearing learned counsel for the parties, learned Second Addl. Sessions Judge, Nainital vide his judgment and order dated 26.8.1997 convicted and sentenced the appellant/accused as mentioned above. Against the said judgment and order dated 26.8.1997, 4 the appellant/accused has preferred the present appeal. 10. Before further discussion, it is pertinent to mention here the medical report Ext.Ka-2 of Km. Durga who was examined on 19.2.1992 at 1:10 PM by Dr. Geeta Sharma (PW4), which reads as under: - “There is no mark of injury on anywhere in body. Patient refused P/v examination. Advised X-ray elbow and wrist joint for confirmation of age.” 11. Supplementary report Ext.Ka-5 of the victim Km. Durga was also prepared by the same medical officer, which reads as under:- “Local Exam – 2 small scratches present on right side of thigh. P/v examination – Hymen torn, vagina easily admitting two fingers, slight tenderness. Opinion – Age will be confirmed after x-ray. P/v examination shows probably coitus had been done. Slide of vaginal swab and clothes are kept for examination.” 12. To prove the medical report, the prosecution has examined PW4 Dr. Geeta Sharma, who has stated that on 19.2.1992 she was posted as Medical Officer at Combined Hospital, Ramnagar. On that day at 1:10 PM she medically examined victim Km. Durga. For age determination of Km. Durga, x-ray was advised to her. 5 She proved the medical report Ext.Ka-4 and supplementary report Ext.Ka-5. In the cross- examination, she stated that the x-ray report of the victim was prepared by Dr. P.K. Saxena and according to x-ray report, the girl was more than 17 years of age. 13. To prove its further, the prosecution has examined P.W.1 Chandan Singh, who has reiterated the version of the First Information Report. He has proved the report Ext.Ka-1. 14. PW2 Pooran Singh has stated that the appellant/accused Chandra Pal and co-accused Prem and Km. Durga were known to him prior to the said incident. On 4.2.1992, he and Gopal Dutt resident of his village had gone to Kashipur in the morning due to some personal work. While returning, when their bus reached at Halduwa Barrier, he saw the victim Km. Durga accompanied by the appellant/accused Chandra Pal and co-accused Prem, who were boarding on the bus which was going towards Muradabad. He stated that this incident was happened at 2 PM. Thereafter he went to Ramnagar and after staying there at night he went to Ranikhet. On 12.2.1992, he returned to his Village Himmatpur and then he came to know that Km. Durga is missing since 4.2.1992. Then he told the above-said incident to the family members of Km. Durga. In the cross-examination, he stated that in the bus he had seen the victim Km. Durga with the accused persons and except them he had not seen anyone who was known to him. 15. PW3 Km. Durga stated that the appellant/accused Chandra Pal and co-accused Prem 6 were known to her. They used to live in her village prior to the said incident. She further stated that on the date of incident at about 10 AM, she had gone along with her mother and grandmother to take wood from the forest. A bundle of wood was prepared by 12 noon. Her mother asked her to keep this bundle on the road and came again to take another bundle. When she came on road along with the bundle of woods, she saw appellant/accused Chandra Pal and co-accused Prem, standing near a van. As soon as she reached on the road, appellant/accused Chandra Pal took off the bundle of woods from her hands and put it on the earth. Co-accused Prem shut her mouth and took her into van. They took her towards Halduwa by van. The van was driven by one Sardar, who was not known to her. They brought her in a hut near Halduwa where co- accused Prem committed rape upon her against her will. Thereafter at about 2 PM, they taken her to Muradabad from Halduwa by bus. They took her in the court at Muradabad where co-accused Prem took her photographs against her will. After leaving her and co- accused Prem, appellant/accused Chandra Pal came back. She further stated that co-accused took her to different places in different villages. During that period, co-accused Prem committed sexual intercourse with her number of times against her will. After 13-14 days, she was brought to railway station by co-accused Prem on foot. In the railway station, the police arrested co- accused Prem. She also got medically examined. In the cross-examination, she stated that she along with the accused persons waited for bus at Halduwa Barrier for about 10-15 minutes and so many other persons were also waiting for bus there. They and other persons boarded on bus. The bus was going towards 7 Muradabad and it was full of passengers. The bus had stopped at several places. They had reached Muradabad at 2 or 2:30 PM and had then gone to court. Appellant/accused Chandra Pal had gone from Muradabad the same day. Co- accused Prem took her in a room at Muradabad, that was in the residential area. She stayed there for one night. Thereafter, co- accused taken her to her sister’s house for one day. She along with the co- accused Prem had come at railway station on foot. 16. Thereafter the statements of the appellant/accused and the co-accused were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to them in question form, who have denied the allegations made against them. However, they have not filed any oral or documentary evidence in defence. 17. Learned counsel for the appellant-accused argued that the prosecution has not proved the case against the appellant/accused Chandra Pal beyond reasonable doubt. The victim Km. Durga had gone with the appellant-accused as per her own consent and she was major on the date of incident. I find substance in the argument of learned counsel for the appellant- accused for the following reasons: - a) That as per the statement of P.W.4 Dr. Geeta Sharma, victim Km. Durga was more than 17 years of age at the time of incident. It is a settled law that two years’ margin either on the upper side or lower side may be taken. Thus, if two years’ margin is given on the higher side then the 8 victim was more than 19 years of age, i.e. she was major on the date of incident. b) That as per the statement of PW2 Pooran Singh, on 4.2.1992 he had seen the victim Km. Durga along with the appellant/accused Chandra Pal and co-accused Prem on the bus which was going towards Muradabad and except them he had not seen anyone in that bus who was known to him. But even after knowing that the victim is going alone with the accused persons, he remained silent for eight days and on 12.2.1992, he informed about the same to the family members of the victim, which creates reasonable doubt on his statement. c) It has come in the statement of victim Km. Durga that at Halduwa Barrier she along with the appellant/accused and co-accused waited for bus for about 10-15 minutes. In the bus station, there were so many other people who were also waiting for bus. When the bus arrived, they and other people boarded on bus. She stated that the bus was full of passengers and it had stopped at number of places in between Muradabad and Halduwa Barrier. They had reached Muradabad at 2 or 2:30 PM and had then gone to court. Appellant/accused Chandra Pal had gone from Muradabad the same day. Co-accused Prem took her in a room at Muradabad, that was in the residential area. She stayed there for one night. Thereafter she along with the co-accused Prem had come at railway station on foot. During the entire journey, she travelled a distance of about 9 90 kilometers by bus and also passed through different stations as well as went to railway station on foot. According to her, she also stayed in a room which was situated in a residential area but it has nowhere stated by her that she ever raised any hue and cry while passing through the number of places or while staying in the room. In the court also, she did not made any attempt to run away. This statement of Km. Durga creates doubt on her conduct and shows that she was the consenting party and she had gone with the accused/appellant with her own consent. d) That there is either no allegation of rape or to outrage the modesty of Km. Durga against the present appellant. 18. Considering the entire evidence on record and hearing learned counsel for the parties, I am of the considered opinion that the prosecutrix Km. Durga was major on the date of incident. She was the consenting party and she had gone with the accused/appellant on her own consent. The prosecution has been failed to establish the charge under Section 363 IPC against the accused/appellant Chandra Pal. As such, the learned trial court erred in holding the appellant/accused guilty and convicting him under the aforesaid section 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. 19. Accordingly, the appeal is allowed. The judgment and order dated 26.8.1997 passed by Second 10 Additional Sessions Judge, Nainital in S.T. No.189A of 1993, State Vs. Chandrapal alias Kallu, is hereby set aside against the appellant Chandra Pal alias Kallu only. Consequently, the conviction and sentence of the appellant Chandra Pal alias Kallu, which has been discussed above, is also set aside. 20. A copy of this order along with the record shall be sent back to the trial court concerned for compliance forthwith. (Dharam Veer, J.) 14.06.2010 RG