IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 389 of 2001 (Old No. 1685 / 1997) Lal Singh S/o Bankey Lal Simariya R/o Village Ram Jiwanpur, Police Station Bajpur, District Nainital. (Now District Udham Singh Nagar). ...…………. Appellant Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondent Mr. Kailash Joshi, Advocate, present for the appellant. Mr. M.A. Khan, Brief Holder, present for respondent State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 22.08.1997, passed by III Addl. Sessions Judge, Nainital, in Sessions Trial No. 310 of 1994, whereby said court has convicted accused / appellant Lal Singh under Section 363, 366 and 376 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). He has been sentenced to rigorous imprisonment for a period of four years and fine of Rs. 1,000/- under Section 363 of 2 I.P.C., rigorous imprisonment for the period of five years and fine of Rs. 1,000/- under Section 366 of I.P.C., and rigorous imprisonment for a period of seven years and also fine of Rs. 1,000/- under Section 376 of I.P.C. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 24.03.1994, at about 04:00 A.M., accused / appellant Lal Singh enticed away P.W. 2 Maya, aged 16 years, from her village Ramjivanpur, police station Bazpur, with intention to have sexual intercourse with her. After kidnapping the girl, she was kept concealed and confined by the accused / appellant between the period 24.03.1994 to 06.04.1994 in Moradabad and Delhi. During this period, accused / appellant Lal Singh committed rape on Maya. P.W. 3 Sipahi Lal (complainant) father of the victim, was told by his neighbours P.W. 1 Ramesh Singh and one Babu Ram that they had seen accused / appellant Lal Singh taking Maya with him. A first information report (Ext. A –1) was lodged by P.W. 3 Sipahi Lal at police station Bazpur, on 25.03.1994, at 18:15 hours, which was registered as Crime No. 69 of 1994, relating to offences punishable under Section 363, 366 of I.P.C. against accused Lal Singh and one Ram Avtar. P.W. 6 Sub Inspector D.P. Singh investigated the crime. On 3 06.04.1994, at about 10:30 A.M., near Doraha barrier, Bazpur, accused / appellant Lal Singh was caught with P.W. 2 Maya. The Investigating Officer sent Maya for medical examination to Community Health Center Bazpur, where at about 03:00 P.M. (on 06.04.1994), P.W. 5 Dr. B. Verma medically examined the girl, and prepared medical report (Ext. A –4). She did not find any internal or external injury on private parts of the girl. The girl was thereafter given in the custody of her father. After interrogating the witnesses, and on completion of investigation, the Investigating Officer submitted charge sheet (Ext. A –9) against the accused Lal Singh, for his trial in respect of offences punishable under Section 363, 366 and 376 of I.P.C. 4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned III Addl. Sessions Judge, Nainital, to whom the case was transferred, after hearing the parties, framed charge of offences punishable under Section 363, 366, 368 and 376 of I.P.C. against accused Lal Singh, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Ramesh Singh (declared hostile); P.W. 2 Maya (the victim); P.W. 3 Sipahi Lal (complainant); P.W. 4 Ram Singh; P.W. 5 Dr. B. Verma (who medically examined the victim), and P.W. 6 Sub Inspector D.P. Singh 4 (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which the accused pleaded that evidence adduced against him is false. However, no evidence in defence was given. After hearing the parties, the trial court found accused / appellant Lal Singh guilty of charge of offences punishable under Section 363, 366 and 376 of I.P.C. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of four years and fine of Rs. 1,000/- under Section 363 of I.P.C. He was further sentenced to rigorous imprisonment for a period of five years and fine of Rs. 1,000/- under Section 366 of I.P.C., and rigorous imprisonment for a period of seven years and also fine of Rs. 1,000/- under Section 376 of I.P.C. Accused Lal Singh stood acquitted of charge of offence punishable under Section 368 of I.P.C. Aggrieved by said judgment and order dated 22.08.1997, passed by III Addl. Sessions Judge, Nainital, in Sessions Trial No. 310 of 1994, the convict preferred this appeal before the Allahabad High Court on 30th of September 1997 (Earlier Bazpur was part of District Nainital). The appeal was admitted by the Allahabad High Court on 01.10.1997. The appeal is received by this Court under Section 35 of the U.P. Re- organization Act (Central Act No. 29 of 2000), for its disposal. 5 5) Before further discussion this Court thinks it just and proper to mention about the medical report (Ext. A –4), prepared by P.W. 5 Dr. B. Verma, after examination of person of P.W. 2 Maya, on 06.04.1994, at about 03:00 P.M. The said Medical Officer in her report (Ext. A –4) has mentioned that she did not find any injuries on private parts of the girl. Hymen was found ruptured. Vaginal orfice admitted two fingers easily. Vaginal smear was taken for being sent to Pathologist for semen examination. She further observed that the breast of the girl was fully developed. For determination of age, she advised X-ray. P.W. 5 Dr. B. Verma has also proved the report (Ext. A –5) prepared by the Pathologist Dr. T.P. Sharma. In said report the Pathologist has observed that on examination of semen, neither dead nor alive spermatozoa were found. The same witness (P.W. 5 Dr. B. Verma) further proved report (Ext. A –6) prepared by the Radiologist Dr. V.K. Saxena. The X-ray report (Ext. A –6) shows that the Radiologist has observed that the age of the girl was about 16 years. 6) At this stage, it is relevant to mention here that sexual intercourse with a girl under the age of 16 years whether with her consent or without her consent, is rape, as provided in Clause Sixth of Section 375 of I.P.C. In the present case, the Medical Officer has disclosed the age of the girl as 16 years. In other words, it can be said that the Medical Officer was of the 6 view that the girl could be couple of months less or more than 16 years. P.W. 5 Dr. B. Verma in her cross- examination has stated that there was no rape committed on the girl. She has further observed that fusion of elbow joint and that of radius and ulna can be at the age of 19 years also. In these circumstances, from the evidence of the Medical Officer, it cannot be ruled out that actual age of P.W. 2 Maya was over 16 years, on the date of incident. 7) Now, this Court has to see whether sexual intercourse, if any, was committed by the accused / appellant Lal Singh with P.W. 2 Maya with her consent, or not. P.W. 2 Maya has stated in her examination-in- chief that she was subjected to rape by accused / appellant Lal Singh at Moradabad. However, it is strange that she never raised any alarm while being taken by the accused Lal Singh to Moradabad and thereafter from Moradabad to Delhi, or in her journey from Delhi to Bazpur. She has admitted that from Moradabad to Delhi she had gone in a bus. Had she not been a consenting party, she could have easily raised alarm atleast in the bus that she was being taken by the accused against her wishes. She has admitted having stayed at Moradabad for five days in a house and for some four days in Delhi. There also it appears that she did not think it proper to raise alarm or to tell anyone that she is kidnapped or being subjected to rape by the accused. The circumstances of the case does not rule 7 out the possibility that the girl was a consenting party to the sexual intercourse, if any, with the accused / appellant Lal Singh. 8) In the above circumstances, having re-assessed the evidence on record, this Court is of the view that it cannot be said that charge of offences punishable under Section 363, 366 and 376 of I.P.C. are proved as against accused / appellant Lal Singh beyond reasonable doubt. He is entitled to the benefit of reasonable doubt in the present case. 9) Therefore, the appeal is allowed. The impugned judgment and order dated 22.08.1997, passed by III Addl. Sessions Judge, Nainital, in Sessions Trial No. 310 of 1994, is set aside. The accused / appellant Lal Singh is acquitted of the charge of offences punishable under Section 363, 366 and 376 of I.P.C. He is on bail. He need not to surrender. His bail bonds are cancelled and sureties discharged. Registry is directed to send the lower court record back to the trial court. (Prafulla C. Pant, J.) [[ Dt. August 11, 2010. H. Negi