HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.480 OF 2001 (OLD NO.808/1995) Mohammad Arif S/o Abdul Husain .……….. Appellant Versus State of Uttarakhand ..…….. Respondent Dated: February 18, 2010 Sri Rajendra Kotiyal, learned counsel for the appellant Sri M.A. Khan, learned Brief Holder for the State Hon’ble Dharam Veer, J. This criminal 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 16.5.1995 passed by Sessions Judge, Tehri Garhwal in S.T. No.24/1992, State Vs. Mohd. Arif & another, by which the accused/appellant Mohd. Arif was convicted under Section 363 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and was sentenced to three years’ R.I. He was further convicted u/s 366 IPC and was sentenced to three years R.I. Both the sentences were directed to run concurrently. 2. Heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution story is that Vijay Pal (PW1) lodged a FIR in the Police Station Kirtinagar stating therein that the appellant/accused alongwith one co-accused Mohd. Haneef enticed away her 2 daughter Km. Savitri, aged about 17 years, on 17.5.1992 at about 11 AM. With the same averments, the FIR was lodged on the same day at 02:30PM at P.S. Kirtinagar. That FIR is Ext.Ka-1. On the basis of FIR Ext.Ka-1, Chik FIR of the case was prepared by Head Mohirror Banmali Singh (PW4). Necessary entries were also made in the G.D., copy of which is Ext.Ka-4. The investigation of this case was entrusted to Sub Inspector Sri Khem Singh Adhikari. On 19.5.1992 victim Km. Savitri (PW2) reached to her house. Thereafter on 21.5.1992 at 03:30 PM she was medically been examined at Combined Hospital, Srinagar. The medical report is Ext.Ka-4. X-ray of the victim was also conducted; the X-ray report is Ext.Ka-6. During the course of investigation, the I.O. recorded the statements of the witnesses and also prepared the site-plan of the place of occurrence i.e. Ext.Ka-5. On completion of the investigation, the I.O. filed the charge sheet against the accused/appellant Mohd. Arif and the co-accused Mohd. Haneef u/Ss 363 and 366 IPC. 4. On receipt of the charge sheet, learned Chief Judicial Magistrate, Tehri Garhwal, committed the case to the court of Sessions on 9.7.1992, after giving necessary copies to the accused/appellant and the co- accused, as provided u/s 207 Cr.P.C. 5. On 22.7.1993, learned Sessions Judge, Tehri Garhwal framed the charge of offence punishable under Sections 363 and 366 IPC against the accused/appellant Mohd. Arif and the co-accused. The charge was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 3 6. In order to prove its case, the prosecution examined PW1 Vijay Lal, complainant of the case and father of the victim, PW2 Km. Savitri, victim, PW3 Nisha Devi, sister of the victim, PW4 Head Constable Banmali Singh, who prepared the Chik FIR of the case and also made necessary entries in the G.D., PW5 Sub Inspector Khem Singh Adhikari, Investigating Officer of the case and PW6 Constable Shiv Dayal, with whom the victim Km. Savitri was sent to Kirtinagar from Meerut. 7. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. In reply, he stated that he has been falsely implicated in the said case due to dispute of labour amount. However, he did not produce any oral or documentary evidence in his defence. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Tehri Garhwal vide his judgment and order dated 16.5.1995 convicted and sentenced the accused/appellant as stated above. Being aggrieved by the said judgment and order, the accused/appellant has preferred the present appeal. 9. Before any further discussion, it would be pertinent to mention the medical report of the victim Km. Savitri, who was medically examined on 21.5.1992 at 03:30 PM at Combined Hospital, Srinagar. Genuineness of this medical report is admitted by the defence counsel before the trial court. The medical report is Ext.Ka-2 which reads as under:- “Internal Examination :– 4 General condition fair pulse 80/mt B.P. 110/70 mm Hg Gdil – Normal External Examination – Breast normal External general – no injuries seen at valva, parenium vagina. On P/V Examination – Two finger introduced inside vagina without difficulty, its size normal, fornices clear, vaginal swab taken and smears prepared two slides and sent to pathologist Distt. Hospital, Pauri Garhwal for examination. Opinion – There is no evidence of recent sexual assault. However the vaginal smear sent for histopathological examination, Distt. Hosp. Pauri Garhwal.” 10. On 30.5.1992 X-ray of the victim Km. Savitri was also conducted. X-ray report is Ext.Ka-6 (Genuineness of this X-ray report was admitted by the defence counsel before the trial court), which reads as under:- “ (1) X-ray both wrist joint AP (2) X-ray both elbow joint AP Report (1) Distal end of radius, ulna is partial fused (2) Report – Head of radius andoleronon is completely fused So the age of girl is above 16 yrs and below 19 yrs that is about 18 yrs.” 11. To prove its case further, the prosecution examined PW1 Vijay Pal, father of the victim and complainant of the case. He has reiterated the averments made in the First Information Report and has 5 proved the FIR Ext.Ka-1 lodged by him in the police station. 12. PW2 is Km. Savitri, victim, who has stated that she was acquainted with the accused/appellant Mohd. Arif and co-accused Haneef. Two years ago they did repair work in her house and during that period her father had suffered injury and because of this the two accused used to visit her house to see her father. On 17.5.1992 at 11-11:30 AM she was alone in her house. Her father had gone to the shop and her mother was also not in house. Her sister had gone to see some procession. The accused/appellant and the co-accused came to her house and threatened her to come with them. Due to fear, she went to Dhundprayag with them. Then they sat her on bus and took her to Meerut. She stated that they had some Marwari’s address with them which they lost somewhere and then they made enquiry from the Rikshaw puller about that Marwari’s whereabouts. She stated that then she suspected about the motives of the accused/appellant and the co- accused. She went to G.R.P. Police Station and told the S.O. about the incident. She told the police that she was coming to Rishikesh to her sister’s house but by mistake she reached Meerut. Then the S.O. sent her back with a constable. On 18.5.1992 she reached Rishikesh at her sister’s place and on 19.5.1992 she reached Kirtinagar. She further stated that the S.O. came to her house and recorded her statement and then she was sent to doctor for medical examination. 13. PW3 Nisha is the sister of the victim, who has stated that on 17.5.1992 at 10 or 11 AM she has gone to see the procession. Her sister Savitri was alone in the 6 house. She stated that Bihari labourers Mohd. Arif and Haneef were lived in her vicinity. They had repaired her house, therefore, they were known to her. When she came to her house, then she came to know that she was seen going towards the market with two Bihari labourers. 14. PW4 is Head Constable Banmali Singh, who has stated that on 17.5.1992 he was posted at Police Station Kirtinagar. On the basis of report Ext.Ka-1, he had prepared the Chik FIR (Ext.Ka-3) of the case. Necessary entries were also made by him in the G.D., copy of which is Ext.Ka-4. 15. PW5 Sub Inspector Khem Singh Adhikari is the Investigating Officer of the case, who has stated that on 17.5.1992 he was posted as Sub Inspector at Police Station Kirtinagar. On that day, the investigation of this case was entrusted to him. During the course of investigation, he recorded the statements of the witnesses, inspected the place of occurrence and prepared the site-plan Ext.Ka-5. He further stated that on 19.5.1992 he went to Rishikesh, Haridwar, Roorkee and then to GRP, Meerut. There he came to know that the victim Km. Savitri had come to police station on 17.5.1992 and then she was been sent to Kirtinagar. On 20.5.1992, he arrested the accused persons and recorded the recorded the statement of the witnesses. On 21.5.1992 he recorded the statement of Km. Savitri and thereafter she was sent to doctor for medical examination. On 22.5.1992 her statement was recorded u/s 164 Cr.P.C. On completion of the investigation, he filed the charge sheet against the accused persons. 7 16. PW6 Constable Shiv Dayal has stated that on 18.5.1992 he was posted at G.R.P. Meerut. On that day Sri K.C. Sharma, S.I. had directed him to leave Km. Savitri in her house. On this, he went with the victim and reached Rishikesh in the evening. At that time no bus was available for Kirtinagar. On girl’s disclosure of her sister Laxmi’s address at Munikireti, he brought her there and he too stayed there. Next day in the morning he took the girl to Kirtinagar and left her with her parents. 17. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him. In reply, he stated that he has been falsely implicated in the said case due to dispute of labour amount. However, he did not produce any oral or documentary evidence in his defence. 18. Sri Rajendra Kotiyal, learned counsel for the accused/appellant Mohd. Arif has argued that the prosecution has not proved the case beyond reasonable doubt against the accused/appellant. I find force in the argument advanced by learned counsel for the accused/appellant due to following reasons:- (i) That there is only evidence against the accused/appellant and that is of PW2 Km. Savitri herself. Other witnesses viz. PW1 Vijay Lal and PW3 Nisha Devi are only the hearsay witnesses. Further, PW4 Constable Banmali Singh, PW5 Khem Singh Adhikari and PW6 Shiv Dayal are the formal witness. 8 (ii) It has come in the statement of Km. Savitri that she was acquainted with the accused/appellant Mohd. Arif and one co-accused Haneef. She has stated that on the date of incident at 11-11:30 AM the accused/appellant and the co-accused came to her house and threatened her to come with them. Due to fear, she went to Dhundprayag from Kirtinagar with them, which is about one kilometer. Then they sat her on bus and took her to Meerut. During the entire journey she travelled a distance of about 200 kms. by bus and also passed through different stations viz. Kirtinagar, Devprayag, Rishikesh, Haridwar, Roorkee and Muzaffarnagar but it has nowhere stated by her in her evidence that she raised any hue and cry even while passing through the number of places. It is also required to appreciate here that she in her statement has stated that on suspicion about the motives of the accused/appellant she went to G.R.P. Police Station and told the S.O. that she was coming to Rishikesh to her sister’s house but by mistake she reached Meerut. This statement of Km. Savitri 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. (iii) According to the X-ray report, the victim Km. Savitri was more than 16 years and below 19 years, that is she was 18 years on the date 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 9 given on the higher side then the victim was 20 years old on the date of incident, i.e. on the date of incident she was major. (iv) It has nowhere come in the statement of Km. Savitri that she was kidnapped or abducted with intent to marry any person against her will or in order that she may be forced or seduced to illicit intercourse. 19. Considering the entire evidence on record and hearing learned counsel for the parties, I am of the considered opinion that the prosecution miserably failed to establish the charge under Sections 363 and 366 IPC against the accused/appellant Mohd. Arif. It has been proved that the prosecutrix Km. Savitri was major on the date of incident. She was the consenting party and she had gone with the accused/appellant on her consent. She was not compelled to marry any person against her will and was also not forced or seduced to illicit intercourse against her will. As such, the learned trial court erred in holding the appellant/accused guilty and convicting him under the aforesaid sections 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. 20. Accordingly, the appeal is allowed. The judgment and order dated 16.5.1995 passed by Sessions Judge, Tehri Garhwal in S.T. No.24/1992, State Vs. Mohd. Arif & another, is hereby set aside against the appellant Mohd. Arif only. Consequently, the conviction and sentence imposed against the appellant 10 Mohd. Arif by the trial court, which has been discussed above, is also set aside. 21. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 18.02.2010 RG