IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of the Case. Criminal Appeal No. 228 of 2002 Date of decision : 20.06.2008 A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judge Date: 20.06.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 228 of 2002 Suraj Kumar @ Surya aged 28 years S/o Ganga Ram, R/o Village Bheertoli, Patwari Circle Harmani, Tehsil Tharali, District Chamoli ….Appellant Versus State ……Respondent Mr. Pankaj Purohit, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. Date of Judgment:- 20th June, 2008 Hon’ble J.C.S. Rawat, J. This is a criminal appeal preferred against the judgment and order dated 26.08.2002 passed by the learned Sessions Judge, Chamoli in S.T. No.27/1998 (State Vs. Suraj Kumar @ Surya), whereby the appellant was convicted sentenced as follows: (i) Rigorous imprisonment for the period of two years and fine of Rs.5000/- under Section 363 IPC. In default of payment of fine, the appellant shall further undergo imprisonment for a period of one year; (ii) Rigorous imprisonment for the period of five years and fine of Rs.10,000/- under Section 366 IPC. In default of payment of fine, the appellant shall further undergo imprisonment for a period of one year; and (iii) Rigorous imprisonment for the period of seven years and fine of Rs. 30,000/- under Section 376 IPC. In default of payment of fine, the appellant shall further undergo imprisonment for a period of two years. 2. The facts, in nutshell, are that on 27.09.1998 a written report was lodged by Pratap Ram PW1 (father of the prosecutrix) before the Patwari, Devol alleging therein that on 26.09.1998 at 5 p.m. he was not present at his home. His elder daughter-prosecturix aged 13 years was along in the house and appellant Suraj Kumar @ Surya came to his house and took away his daughter-victim. When the complainant reached home his younger daughter has informed him that she saw her elder sister(prosecutrix) going with the appellant. Thereafter, the complainant made a thorough search and it was informed that Suraj Kumar @ Surya took his daughter-victim with him. On the basis of the written report, a chick report was prepared and a case was registered against the appellant under section 363 & 366 IPC. On 01.10.1998 the victim was recovered from the house of the appellant. After completing the investigation, the Investigating Officer submitted the chargesheet before the court against the appellant. 3. After submission of chargesheet the appellant- accused was committed to the court of Sessions for trial and the trial court framed charges against the accused person. He denied the charges levelled against him and claimed his trial. 4. The prosecution in support of its case examined seven witnesses. Pratap Ram PW1 – the father of the prosecutrix is the complainant of this case. Chandan Ram PW2, who is the real brother and uncle of Pratap Ram PW1 and prosecutrix PW4 respectively has proved the recovery of victim from the house of the appellant. Dr. Mayank Upadhyaya PW3 is the Medical Officer, who conducted the medico-legal examination of the prosecutrix. The prosecution has adduced the evidence of the prosecutrix herself as PW4. Dr. Vinod Kumar PW5 has conducted the X-ray of prosecutrix for determination of age of the prosecutrix. Chandra Singh Rawat PW6 is the teacher who proved the date of birth of the victim. Ashok Nautiyal PW7 is the Investigating Officer of this case. 5. The accused person was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case. 6. The accused-appellant in the trial eventually was convicted and sentenced by the trial court as mentioned above. 7. In the statement recorded u/s 313 Cr.P.C., the accused-appellant denied all the averments made in the evidence and stated that he had been falsely implicated in this case. The accused-appellant had not adduced any defence evidence in support of his case. 8. The learned trial court after appreciating of the evidence found the appellant guilty of the offence and, convicted and sentenced the appellant as mentioned above. 9. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 10. The prosecution in support of its case examined the prosecutrix as PW4 who has stated in her deposition that she was a student of Class VIII and she was 14-15 years of age at the time of incident. On the date of incident her parents were not in the house. The appellant-accused came to her house and took her with him to walk outside. The appellant had taken her to his house where the appellant committed sexual intercourse with her in the night. When she started weeping while conducting the sexual intercourse forcibly, she was threatened by the appellant. She was again subjected to forcible sexual intercourse on the next day. The prosecution has also adduced the evidence of father of the victim – Pratap Ram PW1, who has stated in his evidence that on the date of incident i.e. 26.09.1998, when he returned to his house at about 6 pm, he found that his daughter(prosecutrix) was not there. He was informed by his younger daughter Lalita that she saw her elder sister (prosecutrix) going with the appellant near Gwaldam Bridge. Thereafter, the father of the prosecutrix lodged the report before the police against the accused- appellant. The prosecution also adduced the evidence of Chandan Ram PW2 who is the real brother and uncle of Pratap Ram PW1 and the prosecutrix PW4 respectively. He has stated in his evidence that on the date of incident when he reached home after finishing his work, he came to know that his niece (prosecutrix) had been taken away by the appellant-accused. He went in search of prosecutrix and on 29.09.1998 he saw the prosecutrix sitting in the courtyard of the appellant’s house. Thereafter, 01.10.1998 he alongwith his brother Pratap Ram PW1 and Patwari visited the house of appellant and recovered the prosecutrix from there. 11. The learned counsel for the appellant contended that the prosecution has given different dates of birth of the prosecutrix during the course of investigation and during the trial, which creates a doubt about the actual date of birth of the prosecutrix. It was further contended that the victim was more than 16 years of age on the date of incident; she was a consenting party; Chandan Ram PW2 has admitted that the village of the accused was 25 kms away from the house of the victim; and the victim did not make any hue and cry or sought any help during the journey from her house to the appellant’s house. 12. The first question which crops-up for decision is the date of birth of the prosecutrix. The incident took place on 26.09.1998 at about 6 pm. According to the FIR lodged by Pratap Ram PW1, the prosecutrix was aged about 13 years at the time of incident and when Pratap Ram PW1 appeared in the witness box as PW1, he has stated that the patwari had asked him about the copy of the Pariwar Register and he provided the same to the Patwari. He has admitted that the year of birth of the prosecutrix was shown as ‘1983’ in the Pariwar Register. He has admitted that the prosecutrix was born in the year 1983. Pratap Ram PW1 was confronted with the date of birth shown in the School Leaving Certificate as 18.6.1985 with the averment of Pariwar Register. He has categorically stated that he could not explain the inconsistency in between the two. Thus, there are two dates of birth of the prosecutrix. The father of the victim has mentioned in the FIR that his daughter-prosecutrix was aged about 13 years, whereas during the course of evidence he has stated that the prosecutrix was born in the year 1983. The prosecution has also adduced the evidence of Chandra Singh Rawat PW6, the Headmaster of the School who issued a School Leaving Certificate of the prosecutrix in which the date of birth of the prosecutrix has been shown as “18.06.1985”. Thus, the prosecution has given three different dates of birth of the prosecutrix at different places. It is also pertinent to mention here that when the prosecutrix herself appeared before the court for evidence, she had stated that her age was 18 years as on 19.10.2000 when her evidence was recorded. Pratap Ram PW1, the father of the prosecutrix could not accurately tell the month of birth of the prosecutrix. The prosecutrix has herself stated in her evidence that she was 14-15 years of age on the date of the incident. Thus, there are different versions about the date of birth of the prosecutrix. Thus, the evidence of the father is not credible and cogent because if the date of birth of the prosecutrix is taken as ‘1983’, the age of the prosecutrix would be about 15 years & nine months at the time of incident. The prosecution also adduced the evidence of Dr. Vinod Kumar PW5, who conducted the X-ray of the prosecutrix for determination of her age. After conducting the ossification test, the medical officer had determined that the prosecutrix was 16 to 18 years of age on the date of the incident. The School Leaving Certificate cannot be relied upon as the father has himself stated that the prosecutrix was born in the year 1983. The evidence of the father himself falsifies the date given in the School Leaving Certificate. The learned counsel for the State contended that even if the statement of the father is taken into consideration, the age of the prosecutrix would be just three months below from 16 years. I have gone through the evidence on record with the help of the learned counsel for the parties. It is revealed from the record that the father has not exactly stated the date of birth of the prosecutrix. He was only assessing the date and time of the birth of the prosecutrix according to his fused memories. In such a situation, the testimony of Pratap Ram PW1, who is not firm about the date of birth of the prosecutrix, cannot be taken into account while calculating the days and months by mathematical exactitude. If there is a yawning gap, say something between 13 years to 16 years and there is a self- contradictory evidence of the father, the other evidence adduced by the prosecution itself conflict with the medical evidence and entry made in the School Leaving Certificate. The prosecution evidence with regard to the date of birth of the prosecutrix creates a doubt. Therefore, the benefit of uncertainty with regard to the age of the prosecutrix should go in favour of the accused-appellant. When the victim appeared before the Court for evidence on 19.10.2000, she stated her age as 18 years. Thus, undoubtedly she was above 16 years of age on the date of incident. X-ray report of the prosecutrix also indicates that she was aged about 16 to 18 years at the time of incident. There is a narrow margin between 2-3 months according to the evidence of PW1-the father of the victim and that narrow margin on the basis of unsatisfactory evidence cannot be taken in the mathematical niceties to calculate the age of the prosecutrix. Thus, it is evident that the prosecutrix has completed 16 years of age on the date of incident and the evidence of the prosecution to that extent of being below 16 years is not credible and cogent. 13. Now, the next question for consideration is whether the prosecutrix was a consenting party for sexual intercourse or not. It emerges from the prosecution evidence that the parents of the prosecutrix were not in the house when she left her house and went with the accused-appellant. When the accused-appellant approached the prosecutrix she followed him without any allurement to an unknown place. It also emerges from the evidence that the prosecutrix or her parents were not known to the accused-appellant prior to the date of incident. It also emerges that the appellant who was unknown to them came to the house of prosecutrix and asked her to come with him. It has also come in the evidence that Lalita, younger sister of the prosecutrix saw her sister (victim) in the company of appellant on the way to Gwaldam Bridge and there was no interaction between the two sisters when they met on the way. If the prosecutrix was being taken forcibly by the appellant, she would have asked her younger sister, who could help to get her sister scot-free from the clutches of the appellant. It is also in the evidence of Chandan Ram PW2 that the village of accused-appellant is 25 kms away from the village of the prosecutrix. The prosecutrix has herself admitted in the evidence that she went to the house of the accused on foot. She further stated that there were 4-5 villages in between her village and the village of the appellant. The accused-appellant was going ahead her on the way to his village. Thus, it is apparent from the evidence of the prosecutrix that she was following the appellant and she did not complain to anybody on the way. They also boarded a bus and she did not seek help of any person while travelling in the bus. It is also evident from the evidence of Chandan Ram PW2 that on 29.9.1998 he went to the village of the appellant in search of the prosecutrix, where he saw her niece (prosecutrix) sitting in the courtyard of appellant’s house, but she did not bother to go to her house. It is also revealed from the medical evidence that the prosecutrix was habitual to sexual intercourse and there was no injury on her external or private parts. On perusal of the entire evidence leads to take me an inference that the prosecutrix was a consenting party to the act committed by the accused-appellant. Section 363 of the IPC is aggravated form of Section 366 of the IPC. There is no evidence of any allurement or enticing the prosecutrix or of any ingredients of Section 366 IPC while taking her from her house for the purpose of committing sexual intercourse. 14. In view of the foregoing discussion, I am of view that it would not be safe to convict the appellant on such evidence. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellant. I find that the learned trial court has erred in convicting the sentencing the appellant. Hence, the appeal is allowed. The conviction and sentences awarded by the trial court against the appellant are set aside. The appellant is acquitted of the charge levelled against him. His bail bonds are cancelled and sureties discharged. 15. Let the lower court record be sent back to the court concerned. (J.C.S. Rawat, J.) Dated 20.06.2008 LSR / VK