RESERVED JUDGMENT HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1536 OF 2001 (OLD NO.1926/1999) Arun Sethi ….. Appellant Versus State of Uttarakhand ….. Respondent Dated: December 8, 2009 Mr. Anurag Bisaria, learned counsel for the appellant Mr. Amit Bhatt, learned Addl. GA for the State Hon’ble 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 6.8.1999 passed by Sessions Judge, Udham Singh Nagar in S.T. No.53/98, State Vs. Arun Sethi, whereby the learned Sessions Judge convicted the accused/appellant u/s 366 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced him to undergo rigorous imprisonment for a period of six years with a fine of Rs.3,000/-. In default of payment of fine, one year’s imprisonment was further awarded. The accused/appellant was further convicted u/s 376 IPC and was sentenced to ten years’ R.I. with a fine of Rs.5,000/- and in default of payment of fine, one year’s additional imprisonment was also directed. Both the sentences were directed to run concurrently. It was also ordered that out of the fine, Rs.4,000/- shall be paid to the victim-Sonia. 2. Heard learned counsel for the parties and perused the entire material available on record. 2 3. In brief, the prosecution case is that on 19.10.1997 Vikas Chand lodged a report at P.S. Kotwali, Kashipur stating therein that his sister Sonia, aged about 17 years had gone to Santoshi Mata Temple on 10.10.1997 but has not returned back till today. He and his family tried to search her but all was in vain. He further stated that he has come to know that Arun Sethi (accused/appellant), by enticing his sister, has taken her away and in that conspiracy Subhash Sindhi and sister- in-law (BABHI) of Subhash, namely, Smt. Neelam Sindhi are also involved. With the same averments, the First Information Report was lodged at P.S. Kashipur, District Udham Singh Nagar by Vikas Chand, brother of the victim, on 19.10.1997 at 09:10 PM, that F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. of the case was prepared by Constable Clerk Vikram Singh, which is Ext.Ka-8. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-9. The investigation of this case was entrusted to Sub Inspector R.C. Sharma. On 22.11.1997 victim Km. Sonia alongwith the accused/appellant was recovered by the Police at Roadways Bus Stand, Kashipur. The recovery memo Ext.Ka-4 was prepared by the I.O. and the entries in this regard were made in the G.D., carbon copy of which is Ext.Ka-10. On 23.11.1997 at 01:30 PM, the victim was medically examined by PW4 Dr. Lili Khanna, Medical Officer, who prepared her medical report i.e. Ext.Ka-2. X- ray of the victim was also conducted and on the basis of X-ray report, supplementary report Ext.Ka-3 of the victim was prepared by the same medical officer. During the course of investigation, the I.O. recorded the statements of the witnesses; prepared the site-plan Ext.Ka-5 of the place from where the girl was recovered; and also recorded the statement of victim u/s 164 Cr.P.C. on 29.11.1997, which 3 is Ext.Ka-6. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellant u/Ss 363/366/376 IPC, that charge sheet is Ext.Ka-7. 4. On receipt of the charge sheet, learned Additional Chief Judicial Magistrate, Kashipur committed the case to the court of Sessions on 15.10.1998, after giving necessary copies to the accused/appellant as provided u/s 207 Cr.P.C. 5. On 5.12.1998, learned Sessions Judge, Udham Singh Nagar, Rudrapur framed the charge for the offence punishable u/Ss 363/366/376 IPC against the accused/appellant. The charge was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined PW1 Vikas Chand Gupta, brother of the victim and complainant of the case; PW2 Mahesh Chand Gupta, father of the victim; PW3 victim Km. Sonia; PW4 Dr. Lili Khanna, who medically examined the victim Km. Sonia and prepared the medical report Ext.Ka-2 and supplementary report Ext.Ka-3, P.W.5 S.I. Ramesh Chandra Sharma, Investigating Officer of the case and PW6 Head Constable Jagdish Chandra Tiwari. 7. After that 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. However, he did not produce any oral or documentary evidence in his defence. 4 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Sessions Judge, Udham Singh Nagar vide his judgment and order dated 6.8.1999 convicted and sentenced the accused/appellant as stated above. Against the said judgment and order, the accused/appellant has preferred this appeal. 9. Before any further discussion, it would be pertinent to mention the medical report of the victim Km. Sonia who was medically examined by PW4 Dr. Lili Khanna on 23.11.1997 at 01:30 PM and who prepared her medical report Ext.Ka-2, which is reproduced as under:- “Physical Examination:- A young girl of average built, height 154 cm, weight 50 Kg, teeth 16/16. Internal Examination:- External genitalia developed, pubic hairs developed, hymen shows old healed tears. Vagina is admitting two fingers easily. Girl is menstruating so slides from posterior fornix of vagina could not be made. Opinion:- (1) For age – she has been referred to superintendent for X-ray wrist and elbow joint. (2) Opinion regarding rape cannot be given as the girl used to sexual intercourse. (3) Girl is menstruating – she is not pregnant.” 10. Supplementary report Ext.Ka-3 of the victim is also necessary to reproduce here, which reads as under:- (i) X-ray patient wrist joint (A.P. view) – show complete fusion of all epiphysis around the wrist joint. (ii) X-ray right elbow joint (A.P. view) – shows complete fusion of all epiphysis around the wrist joint. 5 Opinion:- According to above findings girl is above 18 years of age. 11. To prove the above-noted reports the prosecution examined PW4 Dr. Lili Khanna, Medical Officer, who has proved the reports Ext.Ka-2 and Ka-3. 12. To prove its further, the prosecution examined PW1 Vikas Chand, who has stated that on 10.10.1997 at about 10-10:30 AM his sister had gone to temple but then his sister did not come back from the temple. He searched his sister in the nearby places but all was in vain. After one week he came to know that the accused/appellant Arun Sethi has taken his sister away by enticing her. Then on 19.10.1997 he lodged the report Ext.Ka-1 in the police station. In the cross-examination, he has stated that on the date of incident his sister was studying in BA IInd Year. 13. PW2 is Mahesh Chand Gupta who has supported the contents of the F.I.R. and the statement of PW1 Vikash Chand. 14. PW3 is victim Km. Sonia, who has stated that on the date of incident i.e. on 10.10.1997 at about 11:30 AM she had told in her house that she is going to Santoshi Mata Temple but she had gone to Kashipur bus stand alone where the accused/appellant had met her. She further stated that the accused/appellant had called her in the bus stand. From the bus stand she alongwith the accused/appellant went to Delhi where he stayed her in a hotel at Sadar Bazar and forcibly committed rape with her. Thereafter he took her to Ludhinana, there also the accused/appellant committed rape upon her. Then he took her to Hamirpur at Himachal Pradesh where she 6 stayed in a Dharamshala for 10-12 days. There the accused/appellant married with her against her will and also committed bad work with her. She further stated that there the accused/appellant also took her some photographs forcibly. Thereafter the accused/appellant took her to his house at Saharanpur where again he committed bad work with her. Then from Saharnpur the appellant/accused took her to Kashipur. When they reached at Kashipur roadways bus stand then the police caught them. In the cross-examination, she has stated that on the date of incident i.e. on 10.10.1997 she was studying in BA IInd Year. She further stated that one or two day prior to the said incident, the appellant had given her a telephone call and had asked to reach at roadways bus stand. On that day, she had not gone to the temple. She had gone to roadways bus stand on the pretext of going temple. **eqyfte us eq>s jksMost ij vkus ds fy, Qksu fd;k FkkA eqyfte us eq>ls jksMost ij vkus ds fy, ,d&nks fnu igys Qksu fd;k FkkA eSa ml fnu lUrks"kh ekrk ds efUnj ugha x;hA eSaus lUrks"kh ekrk ds efUnj tkus dk cgkuk ekWa o HkkHkh ls fd;k FkkA** In para-22, she has stated that her husband’s name is Manoj Garg. She has admitted that she had gone to Dhampur from Kashipur, then to Delhi from Dhampur, then to Ludhiana from Delhi and then to Hamirpur, Himachal Pradesh by bus and she has not raised any hue or cry or made any complaint while traveling. **esjs ifr dk uke eukst xxZ gSA ;g dguk lgh gS fd dk’khiqj ls /kkeiqj] /kkeiqj ls fnYyh] fnYyh ls yqf/k;kuk vkSj gehjiqj fgekpy izns’k ls xkM+h o cl ls x;h eSaus dksbZ f’kdk;r o 'kksj ugha epk;k--**” 15. PW5 Ramesh Chandra Sharma is the Investigating Officer of the case who has stated that on 19.10.1997 he was posted as S.S.I. at P.S. Kashipur and 7 on that day the investigation of the case was entrusted to him. During the course of investigation, he recorded the statement of the witnesses. On 22.11.1997 at 04:30 PM victim Km. Sonia was recovered from the roadways bus stand, Kashipur. He prepared the recovery memo Ext.Ka-4 on the spot and also prepared the site-plan Ext.Ka-5 of the place of the recovery of the girl. On 29.11.1997 he recorded the statement of the victim u/s 164 Cr.P.C., which is Ext.Ka-6. On completion of the investigation, he submitted the charge sheet (Ext.Ka-7) against the accused/appellant. He further stated that the Chik F.I.R. Ext.Ka-8 of the case is prepared by Const. Clerk Vikram Singh. 16. PW6 is Head Constable Jagdish Chandra Tiwari, who has stated that on 19.10.1997 he was posted as Head Mohirror at P.S. Kashipur. He has further stated that the Chik F.I.R. of the case is prepared by Const. Clerk Vikram Singh and the necessary entries were also made by him in the G.D. He has proved the Chik F.I.R. Ext.Ka-8 and carbon copy of G.D. Ext.Ka-9. 17. After that 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. However, in defence, he did not produce any oral or documentary evidence. 18. Sri Anurag Bisaria, learned counsel for the accused/appellant has argued that the victim Km. Sonia was the consenting party in the said incident and she was even major at the time of incident and the prosecution has not proved the case beyond reasonable doubt against the 8 accused/appellant as. I find substance in the arguments advanced by learned counsel for the accused/appellant due to following reasons:- (i) The victim Km. Sonia has herself admitted in her deposition that on the pretext of going temple she had gone to roadways bus stand. From there she alongwith the accused/appellant went to Delhi where she stayed in a hotel. Then they went to Ludhiana and from Ludhina she alongwith the accused/appellant went to Hamirpur, Himachal Pradesh where both of them stayed in a Dharamshala for about 10-12 days. Thereafter they came to Saharanpur and then from Saharanur they were going to Rudrapur but at Kashipur bus stand the police caught them. Thus, during the aforesaid period Km. Sonia travelled with the accused/appellant from Kashipur – Delhi – Ludhiana - Hamirpur (H.P.) –Saharanpur- Kashipur i.e. about 1100 Kilometers and in this way passed through densely populated areas. Even on the bus by which both of them travelled and in the hotel and Dharamshala where they stayed so many people were present but she did not made any hue or cry neither did she complaint about it to anybody. It is also required to appreciate here that the victim has stated in her statement that the accused/appellant committed rape with her but even after that she went on going to different places with the accused/appellant. It has nowhere stated in her evidence that she raised any hue and cry while passing through the number of cities. This conduct of victim Sonia shows that she was the 9 consenting party and she had gone with the accused/appellant Arun Sethi on her consent. (ii) As per the evidence the victim went from house on 10.10.1997 and she recovered with the accused/appellant on 22.11.1997 at Kashipur i.e. for about one month and ten days she lived with the accused/appellant at different places but she never tried to run away from the clutches of the accused/appellant at any point of time. This fact also shows that she was the consenting party. (iii) The medical officer who physically examined the victim Km. Sonia after the said incident has opined that “opinion regarding rape cannot be given as the girl is used to sexual intercourse”. Further on the basis of X-ray of the victim, the medical officer came to the conclusion that girl is above 18 years of age. Thus, it is proved that the girl was major on the date of incident. 19. In support of his arguments, learned counsel for the accused/appellant has placed reliance on a judgment rendered by the Hon’ble Supreme Court in the case of “Narayan Alias Naran v. State of Rajasthan” reported in (2007) 6 SCC 465. Paras 11, 13, 15, 16 and 17 of this judgment are relevant to mention here, which are as follows:- “11. In the cross-examination the prosecutrix (PW 3) stated that she boarded the trolley at about 5 o’clock in the evening and by 7 o’clock they reached Singhpur Village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the 10 tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ext. P-5) she stated that the accused committed rape on her thrice by in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not stated that she offered any resistance though she was physically very strong. Medical report (Ext. P-1) says that there were no injuries on the body of the prosecutrix (PW 3). There were no injuries on her private part. It is ultimately opined that “no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse”. In the circumstances, is it possible to believe that the prosecutrix (PW 3) has been subjected to rape twice by the accused as alleged? In the first information report (Ext. P-5) it is stated that the prosecutrix (PW 3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW 3) was driving the tractor from Singhpur to Bharkiya crossing through a number of villages. It is not stated by the prosecutrix (PW 3) that she made any attempt to get down from the tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily. 13. In the circumstances, we are of the considered opinion that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 376 IPC. 15. For all the aforesaid reasons, we hold that the prosecution failed to establish the charges framed against the appellant for the offences punishable under Sections 376 and 392 IPC. The conviction as well as sentences imposed upon the appellant for the offences punishable 11 under Sections 376 and 392 IPC are accordingly set aside. 16. The appeal is allowed”. 20. 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 u/s 366 and 376 IPC against the accused/appellant Arun Sethi. It has been proved that the prosecutrix Sonia was major on the date of incident. She had gone with the accused/appellant on her consent and the sexual intercourse committed by the accused/appellant with her was also with her own consent. 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. 21. For the reasons recorded above, the appeal is allowed. The judgment and order dated 6.8.1999 passed by Sessions Judge, Udham Singh Nagar in S.T. No.53/98, State Vs. Arun Sethi, is hereby set aside. Consequently, the conviction and sentence as directed by the court below, which has been discussed above, is also set aside. The appellant is on bail. He needs not to surrender unless wanted in any other case. 22. Let the lower court record be sent back. (Dharam Veer, J.) 08.12.2009 RG