1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 10 of 2010 Radheshyam Sharma S/o Adalat Sharma R/o Village Betiya P.S. Chotlwa District Betiya Bihar ….......Appellant (In Jail) Versus State of Uttarakhand ……….Respondent Shri C.K.Sharma, Advocate, ( Amicus Curiae), present for the appellant Shri B.S.Parihar, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal, got sent through Superintendent, District Jail, Almora, filed by accused Radheshyam Sharma, is directed against the judgment and order dated 06.03.2010, passed 2 by Sessions Judge, Almora, in Sessions Trial No. 32 of 2009, whereby said court has convicted the accused/appellant Radheshyam Sharma under section 363, 366 and 376 of I.P.C. He has been sentenced to rigorous imprisonment for a period of three years and directed to pay fine of ` 1,000/- under section 363 of I.P.C., and rigorous imprisonment for a period of five years and directed to pay fine of ` 1,000/- under section 366 of I.P.C., and rigorous imprisonment for a period of seven years and directed to pay fine of ` 5,000/- 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 PW2 Mohd Jan Salmani lodged First Information Report (Ex A-2) stating that his minor daughter Rizwana (PW1) was kidnapped by accused/appellant Radheshyam Sharma, and for eight months he took her to various places, and ultimately left in a pregnant condition at Moradabad. On the basis of said report Crime 3 No. 270 of 2009 was registered at Police Station Someshwar, relating to offences punishable under section 363, 366 and 376 of I.P.C., against accused Radheshyam Sharma. The crime was investigated by PW7 Sub Inspector R.C. Makholiya who got the girl medically examined. PW3 Dr. Savita Hyanki examined the girl on 18.05.2009, and found that she was carrying 28 weeks foetus. PW4 Dr. Chandra Mohan Singh, Radiologist, on the basis of the radiological tests opined in his report that the girl was aged 17 years. After interrogating the witnesses, and on completion of investigation, the Investigating Officer submitted charge sheet (Ex-A10) against the accused Radheshyam Sharma for his trial in respect of offences punishable under section 363, 366 and 376 of I.P.C. (4) The Chief Judicial Magistrate, Almora, took the cognizance in the matter and committed the case to the court of Sessions for trial. Learned Sessions Judge, Almora, after hearing the parties, framed charge of offences punishable under section 363, 366 and 376 of I.P.C., against the 4 accused Radheshyam Sharma, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Rizwana (victim), PW2 Mohd Jan Salmani (complainant), PW3 Dr. Savita Hyanki (Gynecologist) , PW4 Dr. Chandra Mohan Singh (Radiologist) , PW5 Constable Daya Shankar, PW6 Sub Inspector Sad Ram, and PW7 Sub Inspector R.C.Makholiya (Investigating Officer). Oral and documentary evidence was put to the accused, under section 313 Cr.P.C., in reply to which he admitted that before the incident he used to work in Kausani. He further told that it was Rizwana, who asked him to get married with her. Accused Radheshyam Sharma in his reply under section 313 of Cr.P.C., furhter told that he (Radheshyam Sharma) and Rizwana got married in a temple whereafter, they went to Punjab. However, he denied that he committed rape with the girl or kidnapped her. No evidence in defence was adduced. (5) Before further discussions, it is relevant to discuss here what is the age of the girl said to 5 have been kidnapped by the accused. PW1 Rizwana in her statement in the year 2009, told the court that she was aged 17 years. That being so, her age in the year 2008, at the time of incident was 16 years. PW4 Dr. Chandra Mohan Singh , the radiologist, has also opined that on the basis of the X-ray reports, age of the girl was found to be 17 years in the year 2009. As such, this court on assessment of the evidence on record found that on 06.08.2008, when the girl is said to have kidnapped/abducted, she was aged 16 years, and when she came back to her home after eight months, she was aged 17 years. In the circumstances, it is clear that her consent for sexual intercourse is relevant consideration as she had completed age of 16 years. But she being below age of 18 years, her consent for being taken away for marriage, is irrelevant. PW1 Rizwana has stated that she was enticed away by accused on 06.08.2008. She has also stated that she stayed with the accused for a night in Tharali, thereafter she lived in Chipkariya, Nepal for two months. Thereafter, she lived in Babu Pasoni, Bihar, where she lived in ancestral house 6 of the accused after her marriage with him. PW1 Rizwana further states that thereafter she lived for about five months in Ropar, Punjab with the accused. She has stated that accused established sexual relations with her against her wishes. She has further stated that she got pregnant. PW1 Rizwana further states that she was left at Moradabad by the accused in April 2009, whereafter she returned back to her home. From her statement itself it appears that she never raised any hue and cry, either in Nepal or in Bihar, or in Punjab for about eight months, as such, it cannot be ruled out that she was a consent party to the sexual relation with the acccused Radheshyam Sharma. She herself has admitted that accused got married to her in Betiya, Bihar. Accused Radheshyam Sharma has also admitted in his statement under section 313 of Cr.P.C., that she got married to Rizwana for which she herself had suggested. (6) Section 375 of Indian Penal Code defines 'rape'. First clause says the sexual intercourse with a woman against her will is rape. The sixth 7 clause in section 375 provides that the sexual intercourse with a woman under the age of 16 years with or without her consent is rape. Since, in the present case as discussed above age of the girl, as stated by her, and also, by the medical officer (PW4), was over 16 years, as such, since she kept roaming with the accused for about eight months at various places, as such, it can be gathered that she was consenting party to the sexual relation with the accused. As such, it can not be said that sexual intercourse committed by the accused Radheshyam Sharma with the girl of age over 16 years, with her consent amounts to rape. Therefore, in the opinion of this court the trial court has erred in law in convicting and sentencing the accused Radheshyam Sharma under section 376 of I.P.C. (7) However, so far as the offence punishable under section 363 and 366 of I.P.C., are concerned, since the PW1 Rizwana was less than 18 years of age as such his consent has no relevance for the purposes of kidnapping or abduction with an object to marry her. PW2 8 Mohd Jan Salmani is the father and the guardian of the girl, and it is established that she was taken from his lawful guardianship by the accused without his consent, and induced her to marry him. In the circumstances, this court comes to the conclusion that the trial court has rightly after discussing the evidence found that prosecution has successfully proved charge of offences punishable under section 363 and 366 of I.P.C. (8) For the reasons as discussed above, this appeal deserves to be partly allowed to the extent of conviction and sentence is recorded by the trial court against the accused /appellant Radheshyam Sharma in respect of offence punishable under section 376 of I.P.C. He is acquitted of the charge of offence punishable under section 376 of I.P.C. However, the appeal so far as it relates to the conviction and sentence relating to offences punishable under section 363 and 366 of I.P.C., is hereby dismissed. The conviction and sentence recorded by the trial court, on those two counts (i.e. sections 363 and 366 of I.P.C.), is not 9 interfered with. The trial court has already directed that the sentences shall run concurrently. Let a copy of this judgment be sent to the Superintendent of the jail concerned for his information. Lower court record be sent back. (Prafulla C. Pant, J.) 08.12.2011 Nahid A.F.R