COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case. (1) CRIMINAL APPEAL No. 1210 of 2001 (Old No. 606 of 1987) Smt. Renu Tyagi W/o Harpal Singh. R/o 22 Virgirwali, P.S. Rajpru, Distt. Dehradun … Appellant Versus The State … Respondent WITH (2) CRIMINAL APPEAL No. 1211 of 2001 (Old No. 600 of 1987) 1. Mohan Lal 2. Ganga Prasad alias Titu ……… Appellants Versus The State …Respondent Counsel for appellants – Sri Lokendra Dobhal, learned counsel for the appellant (Smt. Renu Tyagi) in Crl. Appeal No. 1210/01 Sri Alok Singh, Sr. Advocate assisted by Sri D. Barthwal, learned counsel for the appellants (Mohan Lal & Ganga Prasad) in Crl. Appeal No. 1211/01 Counsel for respondent- Sri Harish Pujari, Addl. G.A. for the State Approved for reporting Not approved for reporting. Dated: March 14, 2008 (Dharam Veer, J.) IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPEAL No. 1210 of 2001 (Old No. 606 of 1987) Smt. Renu Tyagi W/o Harpal Singh, R/o 22 Virgirwali, P.S. Rajpru, Distt. Dehradun … Appellant Versus The State … Respondent (2) CRIMINAL APPEAL N o. 1211 of 2001 (Old No. 600 of 1987) 1. Mohan Lal S/o Sudani Ram, R/o 33 Virgirwali, P.S. Rajpur, District Dehradun 2. Ganga Prasad alias Titu, S/o Fair Chand, R/o Gandhi Nagar, near Chandpur, Yamuna Nagar Ambala ……….Appellants Versus The State … Respondent Dated: March 14, 2008 Counsel for appellants – Sri Lokendra Dobhal, learned counsel for the appellant (Smt. Renu Tyagi) in Crl. Appeal No. 1210/01 Sri Alok Singh, Sr. Advocate assisted by Sri D. Barthwal, learned counsel for the appellants (Mohan Lal & Ganga Prasad) in Crl. Appeal No.1211/01 Counsel for respondent- Sri Harish Pujari, Addl. G.A. for the State HON. DHARAM VEER, J. Both the appeals have been filed against the common judgment and order dated 20.02.1987 and the appellants of both the appeals are also related to the same incident, hence, both the appeals are being disposed of by this common judgment and order. 2. Both these appeals preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed by the appellants against one judgment and order dated 20.02.1987 passed by Additional Sessions Judge, Dehradun in Session Trial No. 21 of 1986, State Vs. Ganga Prasad alias Titu and others, whereby the learned Additional Sessions Judge, Dehradun has convicted the appellant Ganga Prasas alias Titu u/s 363, 366 and 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo R.I. for five years u/s 363 IPC, 5 years u/s 366 IPC and 7 years u/s 376 IPC. Appellants Mohan Lal and Renu Tyagi were convicted u/s 363 and 366 IPC and each of them was sentenced to undergo R.I. for 5 years u/s 363 IPC and 5 years u/s 366 IPC. The sentences of all the appellants were directed to run concurrently. 3. In brief, the prosecution story is that on 24.12.1985, one Smt. Saroj, mother of the prosecutrix Km. Luxmi lodged a F.I.R. Ex.Ka.3 in P.S. Rajpur, District Dehradun stating therein that her daughter Km. Laxmi was aged about 15 years and about two months back, appellants Smt. Renu Tyagi and Mohan had asked for marriage of her daughter with the appellant Titu alias Ganga Prasad, who is brother in law of the appellant Mohan. When she asked her husband in this regard, then he refused to marry his daughter and in the meanwhile, appellants were keep forcing her for the marriage of her daughter but she did not pay any heed to it. On 19.12.1985 at about 5:30 P.M. in the evening, the appellants in her absence and in absence of her husband, took away her daughter from her house by enticing her. She continued to search her daughter till the date of lodging of FIR and on that day, she came to know that her daughter was with Titu who is brother in law of appellant Mohan. The scriber of this report was Om Prakash, who is uncle of the prosecutrix Km. Laxmi. On the basis of this report, the Chik FIR was prepared by Head Moharrir Shakabul Hasan i.e. Ex.Ka-12. The entry was also made in the G.D., copy of the G.D. is Ex.Ka-13. This FIR was lodged on 24.12.1985 at 9:10 A.M. and the incident was said to have been taken place on 19.12.1985 at 05:30 P.M. The distance of the police station from the place of occurrence is one furlong. The case was registered u/s 363 and 366-A IPC. On the same day on 24.12.1985, the girl Km. Luxmi was recovered and was given in Supurdgi of her mother, the supurdginama is Ex.Ka-4. The prosecutrix was medically examined on 26.12.1985 at 1:30 P.M., the medical report is Ex.Ka-1. The investigation of the case was entrusted to the S.I. Siya Ram, P.W.6. During the investigation, he has recorded the statements of the prosecutrix, complainant and other witnesses and prepared a map from where the girl was recovered i.e. Ex.Ka-5. He has also prepared a map of the place of occurrence from where the girl has gone from her house i.e. Ex.Ka-7. He has also prepared the map Ex.Ka-8 showing the place from where the prosecutrix was taken by the appellants. After completing the investigation, he has submitted the charge sheet Ex.Ka-11 against the appellant Ganga Prasad alias Titu u/s 363/366- A/376 IPC and against the appellants Mohan and Renu Tyagi, the charge sheet was submitted u/s 363/366-A IPC. 4. ON 10.03.1986 Judicial Magistrate-I, Dehradun committed the case to the court of Sessions u/s 209 of Cr.P.C. after complying with the provisions of Section 207 of Cr.P.C. 5. The case was transferred by Sessions Judge, Dehradun to II Additional Sessions Judge, Dehradun for hearing and disposal according to law. 6. Against the appellant Ganga Prasad alias Titu, the charge was framed u/Ss 363/366/376 IPC and against the appellants Mohan and Renu Tyagi, charge was framed u/Ss 363/366 IPC by II Additional Sessions Judge, Dehradun on 03.07.1986. The charge was read over and explained to the appellants who pleaded not guilty and claimed to be tried. 7. The prosecution in order to prove its case examined P.W.1 Km. Luxmi, the prosecutrix, P.W.2 Dr. Iqbal Hassan, who conducted the x-ray of the prosecutrix Km. Luxmi, P.W.3 Dr. Smt. D.P. Goel, who has medically examined the prosecutrix, P.W.4 Om Prakash, scriber of the report and uncle of the prosecutrix, P.W.5 Ganga Ram and P.W.6, S.I., Siya Ram, I.O. of the case. 8. After that the statements of the appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to them in question from but they denied the allegations made against them and in defence, they have examined D.W.1 Smt. Saroj as a defence witness who is the mother of the prosecutrix and who has also lodged the FIR in the police station. 9. After appreciating the entire evidence on record, the learned Additional Sessions Judge, Dehradun vide his judgment and order dated 20.2.1987 has convicted the appellant Ganga Prasad alias Titu u/s 363, 366 and 376 IPC and sentenced him to undergo R.I. for five years u/s 363 IPC, 5 years u/s 366 IPC and 7 years u/s 376 IPC. Appellants Mohan Lal and Renu Tyagi were convicted u/s 363 and 366 IPC and each of them was sentenced to undergo R.I. for 5 years u/s 363 IPC and 5 years u/s 366 IPC. The sentences of all the appellants were directed to run concurrently. Feeling aggrieved by the said judgment and order dated 20.2.1987, the appellants have come up in appeal before this Court. 10. I have heard Sri Lokendra Dobhal, learned counsel for the appellant in Crl. Appeal No.1210/01 and Sri Alok Singh, Sr. Advocate assisted by Sri D.Barthwal, learned counsel for the appellants in Crl. Appeal No.1211/01 as well as Sri Harish Pujari, learned Addl. G.A. for the State/opposite party. 11. P.W.1 is the prosecutrix Km. Luxmi who has stated in her statement that about one year back, appellant Renu Tyagi and Mohan Lal had asked her mother for her marriage with Titu alias Ganga Prasad but her mother had refused to do so. Appellant Titu alias Ganga Prasad used to visit the house of appellant Mohan Lal and he was the brother in law of the appellant Mohan Lal. She has also stated that Titu had told her to accompany him and also told her that he will keep her in a comfortable condition. He had also assured her for the clothes and the ornaments. Then she had told him that she would not go without the consent of her mother and her Baba. Appellant Renu Tyagi had also told her so many times for going with the Titu. She has further stated that she used to call appellant Renu Tyagi ‘Aunty’ and on 19.12.1985 at about 5:30 P.M. in the evening, appellant Renu Tyagi came to her house. At that time, her mother and father were not at her house and only her younger sister Kumkum, who was dumb, was at home. She has further stated that appellant Renu Tyagi had asked to accompany her and she had also told her that in Dhakpatti, appellant Mohan and Titu were waiting for her and also told that they had come with ornaments and clothes for her. On her assurance, she had gone with the Renu Tyagi. When she started from her house, then Ganga Ram, washer man had seen her while going with Renu Tyagi. She had gone along with Renu aunty at the place where Titu and Mohan had met her. They had shown her a bag and told her that in the bag, her ornaments and clothes were there and then she had gone with them. When she was going along with the Mohan and Titu, then Itwari, Dhannu and Jagannath had also seen them and in the Tiraha, electric light was there. Then they came near the ration shop but the shop was closed. Then they reached at Rajpur Road and at 7:15 P.M., a bus had come from Mussoorie which was going towards Dehradun. Then they reached Dehradun by bus and from Dehradun, they had reached Saharanpur by bus and from there, they went to railway station by Rickshaw. From there, all of them went to Jamuna Nagar by train and from Jamuna Nagar railway station, they had gone to a room by rickshaw and all of the appellants and the prosecutrix had stayed in that room. Then in the next day morning at 9:00 A.M., they took her to a temple. Then in the temple, she and the Ganga Prasad alias Titu had solemnized marriage as per the customs. Then they had again come to a room where they had stayed. On that night, all the appellants along with the prosecutrix had stayed on the same room. On the night of 21.12.1985, Mohan and Renu aunty had gone somewhere and she and Titu were remained in the room. Then Titu has committed sexual intercourse with her without her consent. On the next day, appellant Mohan and Renu aunty had come in the room and then she asked Renu aunty that she wants to go her home. On the night of 22nd, again Mohan and Renu aunty had gone somewhere and she along with the appellant Titu had stayed in a room and on that night also, appellant Titu had committed sexual intercourse with her without her consent. Next day morning, when the Renu aunty and Mohan had reached to the room, then she again asked them that she wants to go her home. The she had gone to the railway station along with these three appellants and from there, she had reached Saharanpur by train in the morning and from there, she had reached Dehradun by bus along with these three appellants. After reaching Dehradun, Renu aunty had gone somewhere else. Appellants Mohan and Titu had told her that after walking Sahastradhara on that day, they would go to her mother in the evening. Then they have gone to Sahastradhara and they walked in Sahastradhara and at about 3:00 P.M. in the day, when they reached near the bridge, then police had arrested them. She has stated that at the time of occurrence, her age was about 14 years. In the cross-examination, she has proved her signatures on Supurdginama Ex. 1 and had stated that on 24.12.1985, she was given in the Supurdgi of her mother. She has also stated that she was medically examined by the doctor in the hospital and her thumb impression was taken on the medical report i.e. Ex.2. In her cross-examnation, she has stated that her father was mentally disturbed. She has further stated that she had four brothers and sisters and her youngest brother was 2-2½ years old. She has also stated that she does not know the age of the priest who had solemnized her marriage. (eq>s ugha ekywe fd ftl iafMr us esjk fookg djk;k Fkk mldh D;k mez FkhA). She had admitted that her marriage was solemnized in a temple (“kknh esjh efUnj esa gqbZ FkhA). She has further stated that after the marriage, she had to return her home (;g “kknh gksus ds ckn eq>s fQj viuh ekW ds ikl ykSVdj vkuk FkkA). She had further stated that her mother had not told her that after marriage she had to come home (eq>s esjh ekW us ;g ugha crk;k Fkk fd “kknh gksus ds ckn ?kj ykSV dj vkuk gSA). She has further stated that when she was caught by the police, her uncle was there and from there, she was taken to police station and in the police station, her mother was called. She had further stated that she used to go for walk along with Renu Tyagi and on the date of the occurrence, Renu Tyagi had not disclosed where they were going. Only she has stated that they were going for walk. When she had come along with the Renu Tyagi, Mohan and Titu on the bus stand at Dehradun and when they took the bus of Saharanpur from Dehradun, then also she had not asked from the Renu Tyagi where they were going (tc eSa jsuw R;kxh eksgu vkSj VhVw jk;iqj cl vMMs ls nsgjknwu vk;s vkSj nsgjknwu ls lgkjuiqj dh cl esa cSBs rc Hkh eSaus muls ;g ugha iwNk fd ?kqekus dgkW ys tk jgs gksaA). She has further stated that before sitting on a bus, she had asked when she will come back then Renu Tyagi had told her that they will back after 3-4 days (cl esa cSBus ls igys iwNk Fkk fd dc rd okfil vk tkosaxs rc bUgksus dgk Fkk fd 3&4 fnu ykSV vkosaxsA). She has further stated that in Jamuna Nagar, where she was staying, that was a residential area and there were also some houses near about the place where she was staying. 12. P.W.2 is Dr. Iqbal Hussain who has stated that on 27.12.1985, he was posted as Senior Radiologist in Doon Hospital. On that day, the prosecutrix was referred to her by a lady doctor. On that reference, x-ray of the prosecutrix Km. Laxmi Devi was conducted. The x-ray was conducted under his supervision. He has proved the x-ray plates Ex.3. 13. P.W.3 is Dr. Smt. D.P. Goel who has stated that on 26.12.1985, she was posted in the Women Hospital. On that day at 1:30 P.M., she had examined Km. Luxmi (Tuntun) D/o Sri Jugram. On her examination, she found the following facts:- General Examination:- 1. Breasts Developed 2. Axillary hairs developed 3. Pubic hairs developed 4. Height – 4’ 8.5” 5. Weight – 35 Kgms. No mark of injury on any part of body and private part. Per Vaginal Examination – Hymen torn old, no bleeding, vagina admits two fingers with difficulty. Uterus A/V normal size. F.X. clear. No bleeding. Vaginal smear taken fx sent for pathological test. The girl was sent for x-ray. The doctor also prepared a supplementary medical report Ex.Ka-2 in which the following facts were found:- X-ray wrist – The epiplysis of lower & ulna & radius are not fused. Right ankle – the epiplysis of lower ends of Tibia Fibula are not fused. Right elbow- The lateral epichondyle of humorous is fused while medical epichondyle is not fused. Pathology report – No spermatozoa seen in vaginal smear. 14. For the age of the girl, the doctor has stated that the age of the prosecutrix was in between 13-14 years. She has also stated that no opinion could be given about recent rape. It was also stated that she was used to sexual intercourse, as hymen was torn old. She has also proved the medical report i.e. Ex.Ka-1. She has also proved the supplementary report i.e. Ex.Ka-2. In the cross examination, she has stated that in her report, she had not written about the teeth of the prosecutrix Laxmi and she had forgotten to write this fact. She has further stated the numbers of teeth are also helpful for the determination of the age. 15. P.W.4 is the Om Prakash who is the uncle of the prosecutrix Luxmi. He has stated that on 19.12.1985 at about 5:30 P.M., her sister-in-law (Bhabhi) had come to him and then she told him that her daughter is not in the house from the evening. This fact she has told him at 9:00 P.M. in the night. Then he had told her sister in law that she might have gone to see the television and she may come after sometime. Next day morning, his sister in law had told him that the Laxmi had not come to the house and then he worried. He has stated that the age of Laxmi was about 14-15 years of old. Then he and his sister in law had informed in all the relatives. He has also stated that they searched for Laxmi for 4-5 days. After 5 days, his sister in law had told him that the Renu Tyagi, Mohan and Titu had taken her daughter. Then, a FIR was dictated by her sister in law to him and whatever she has dictated, he had written in the FIR and she has affixed her thumb impression on the report, i.e. Ex.Ka-3. After that, he has lodged this FIR in the police station. Then on the same day about 2:30-2:45 P.M., Luxmi was recovered and she was given in the supurdgi of her mother. He has proved the Supurdginama also i.e. Ex.Ka-4. In the cross- examination, he has stated that the father of the Laxmi was alive and he was living in Rajpur in his house and he was mentally disturbed. He has further stated that at the time of the occurrence, the mother and father of the Luxmi were taking care of the Luxmi. He has also stated that he has told the inspector that his brother was mentally disturbed and the prosecutrix was being maintained and looked after by his sister in law (Bhabhi) Saroj. 16. P.W.5 is Ganga Ram who has stated that in front of his house, Jugram’s house is there and he had not seen one year back appellants Renu Tyagi and Luxmi while going towards Dhakpatthi in the evening. He has also stated that on the evening on 19.12.1985, he was not at his residence. This witness has not supported the prosecution case and was declared hostile. 17. P.W.6 is the S.I. Siya Ram who has investigated the case. He has stated that from 24.12.1985 to 3.1.1986, he was posted as Sub-Inspector in P.S. Rajpur. The case was registered in the police station in his presence and the investigation was entrusted to him and he has started the investigation on 24.12.1985. He has recorded the statements of the witnesses and has recovered the prosecutrix Luxmi on the same day at 2:50 P.M. from Sahastradhara along with Titu and Mohan. He also recorded the statement of Luxmi on the same date and the appellants were arrested by him. He has prepared a map from where the prosecutrix was recovered i.e. Ex.Ka-5. He has further stated that he had not prepared any recovery memo of the recovery of the prosecutrix. The girl and the appellants were produced in the police station on 24.12.1985 at 5:50 P.M. The entry was made in the G.D., the copy of the G.D. is Ex.Ka-6. He has also prepared a map of the place of occurrence from where the girl has gone from her house i.e. Ex.Ka-7. He has also prepared the map Ex.Ka-8 showing the place from where the prosecutrix was taken by the appellants. The prosecutrix was sent for the medical examination and she was given in the supurdgi of her mother on 24.12.1985. After completing the investigation, he had filed the charge sheet i.e. Ex.Ka-11. On the basis of the FIR, a Chik FIR was prepared by the Head Constable Shabatul Hussain i.e. Ex.Ka-12. The entry was made in the G.D. on the same day and time, the copy of G.D. is Ex.Ka-13. 18. After that the statements of the appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to them in question form but they denied the allegations made against them. In defence, they also got examined D.W.1 Smt. Saroj, who is the mother of the prosecutrix and who lodged the FIR in the police station. 19. Appellant Ganga Prasad has denied the allegations made against him. In reply to question no.3, he stated that the age of prosecutrix Km. Luxmi at the time of marriage was 18 years. In reply to question no.5, he has stated that prosecutrix Luxmi was taken to Jamuna Nagar by Smt. Saroj. In reply to question no.10, he has stated that his marriage along with Luxmi was solemnized in Jamuna Nagar. In reply to question no.12, he has also stated that the Dehradun police along with Saroj and the prosecutrix Luxmi had arrested him in Jamuna Nagar. 20. Appellant Mohan Lal has also denied the allegations made against him. In reply to question no.4, he stated that the father of the prosecutrix was mentally disturbed. In reply to question no.22, he has stated that in the Yamuna Nagar, Smt. Saroj had gone along with her daughter Luxmi and from there, the Dehradun Police has taken her. 21. Appellant Renu Tyagi has also denied the allegations made against her. In reply to question no.5, she has stated that Km. Luxmi was taken to the Yamuna Nagar by her mother Saroj. In reply to question no.22, she has stated that the mother of the Luxmi had told her that the father of the Luxmi was mad and the uncle of the Luxmi wanted to sell her, hence she requested her to tell the name of some boy for the marriage of the Luxmi. Then she had given the proposal for the marriage of Ganga Ram. After that Saroj had taken Luxmi to Jamuna Nagar and had solemnized the marriage with the appellant Ganga Prasad alias Titu because she was afraid that in Dehradun, the uncle of the prosecutrix would not allow her marriage. 22. In the defence, the appellants have examined one witness D.W.1 Smt. Saroj, who is the mother of the prosecutrix Luxmi and who had lodged the FIR Ex.Ka-3. She had stated in her statement that she was the mother of the prosecutrix Luxmi and she had solemnized the marriage of the Luxmi according to hindu customs with her own consent and nobody has taken Luxmi from her house. The marriage was solemnized in the Jamuna Nagar and she had taken the Luxmi to Jamuna Nagar. Her husband was made and for this reason, she has not asked about her daughter’s marriage from her husband. The uncle of the prosecutrix wanted to sell the Luxmi somewhere else. After the marriage, the girl and the boy were not allowed