IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.262 of 2001 (Old No.997 of 1993) Dinesh Lal …….….…. Appellant Versus The State …………… Respondent Dated: July 27, 2009 Sri R.C. Joshi, Adv. i/b Sri Rajendra Kotiyal, Adv. for the appellant Sri M.A. Khan, learned brief holder for the State/respondent HON. 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 18.05.1993 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.65 of 1991, State Vs. Dinesh Lal, whereby the learned Sessions Judge has convicted the appellant/accused under Section 363 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to two years’ R.I. However, the appellant/accused was acquitted for the offences punishable under Sections 366/376 IPC. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.3 Dayalu lodged an FIR stating therein that appellant- accused Dinesh Lal used to wander around his house so as to entice his daughter. He warned the appellant-accused not to wander towards his house 1-2 times. On 2 31.10.1990, the complainant’s daughter Km. Mamta had gone to school, however she did not come back home. In the meantime, Manik Lal and Rakesh Lal informed the complainant that they saw the appellant/accused near the school of victim. Then the complainant also searched his daughter but when he could not succeed, he lodged the report on 01.11.1990 at 12:30 P.M. at P.S. Srinagar (Garhwal), i.e. Ex.Ka-2. On the basis of this report, H.M. Indra Singh Bisht prepared the Chik FIR, i.e. Ex.Ka-5. He also made entry in the G.D., the copy of which is Ex.Ka-6. Investigation of this case was entrusted to S.I. Kshetra Singh, who recovered the victim Km. Mamta on 4.11.1990 behind the house of complainant and prepared the Fard, i.e. Ex.Ka-7. Victim Km. Mamta was medically been examined on 5.11.1990 at 6:30 P.M. and her medical report Ex.Ka-8 was prepared. X-ray report is Ex.Ka-1 and Pathology report is Ex.Ka-9. The final opinion given by the M.O. Govt. Hospital, Srinagar Garhwal regarding medical examination of victim is Ex.Ka.10. The I.O. also prepared the site plan of place of recovery of victim, i.e. Ex.Ka-4. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheet against the appellant/accused Dinesh Lal @ Lassi, i.e. Ex.Ka- 3. Formal proof of medical report Ex.Ka-8, Pathology report Ex.Ka-9 and report regarding final opinion of victim Ex.Ka-10 was dispensed with by the counsel for the accused. 4. Learned CJM, Pauri Garhwal committed the case to the court of Sessions on 1.10.1991 after giving necessary copies to the appellant/accused as required u/s 207 Cr.P.C. 5. Learned Sessions Judge, Pauri Garhwal framed the charges on 30.4.1992 against the appellant/accused u/s 363/366/376 IPC. The charges were read over and 3 explained to the appellant/accused who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Dr. D.K. Jain, who prepared the x-ray report, P.W.2 Km. Mamta, victim, P.W.3 Dayalu, complainant and father of victim and P.W.4 S.I. Puran Chandra Joshi, I.O. of the case. 7. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge, Pauri Garhwal vide judgment and order dated 18.05.1993 has convicted and sentenced the appellant/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 9. Before further discussion, it is pertinent to mention the final opinion given in medical report Ex.Ka-10 regarding the age of the victim Km. Mamta: - “Regarding Age- On clinical examination and radiological report, the age of Km. Mamta is about fifteen years.” 10. To prove its case, the prosecution has examined P.W.1 Dr. D.K. Jain, who has proved the X-ray report (Ex.Ka-1) prepared by him. In cross-examination, he stated that there were fusion of humerus medial and lateral epicondyle. He further stated that according to the Modi’s Jurisprudence, this fusion is done between 15 to 17 years. 4 11. P.W.2 is Km. Mamta, victim of the case, who has stated that appellant/accused, who belonged to her village, had enticed her. Her parents too did not raise objection in the matter. She further stated that on the date of incident, appellant/accused came to her school and assured her to keep her well and properly and he will do service. Then he took her to a village and kept there in an abandoned house for the night. On the next day, she was taken to Srikot from where she had gone in the appellant’s friend house. After that she along with the appellant/ accused had come to village of appellant/accused and stayed there in his house. When the parents of appellant/ accused asked him to leave her at her house, then on the next day she had come in back of her house along with the appellant/accused. In the meanwhile, the police came and then the appellant/accused ran away from there. The police also enquired from her and her x-ray and medical examination was also conducted. In cross-examination, she stated that on the date of incident, she reached her school and after putting her bag there, she had gone with the appellant/accused. Appellant-accused asked her to go with him on which she had gone with him. She further stated that while going to the school, appellant/accused talked with her for about 1-2 minutes, however he did not coerced her to go with him. She further stated that she had come to Srikot by bus along with the appellant/accused, however she did not make any complaint in this regard to anyone. 12. P.W.3 is Dayalu, complainant and father of victim, who stated that on 31.10.1990, appellant/accused took his daughter from the village. He searched for his daughter but when he could not find her, then he lodged the report in the police station. In cross-examination, he 5 stated that before lodging the report, nobody had informed him that they saw the appellant/accused while enticing his daughter. Even nobody had seen the appellant /accused while taking his daughter with him. He further stated that his daughter had come after four days in the house. 13. P.W.4 is S.I. Puran Chandra, I.O. of the case, who stated that I.O. of this case S.I. Kshetra Singh was murdered by terrorists. He is well acquainted with his handwriting as he was posted along with him. Investigation of this case was done by S.I. Kshetra Singh and after his transfer, he conducted the investigation and filed the charge sheet against the appellant/accused, i.e. Ex.Ka-3. He also prepared the site plan of the recovery of the victim, i.e. Ex.Ka-4. Chik FIR of this case was prepared by H.C. Inder Singh, i.e. Ex.Ka-5. He also made entry in the G.D., copy of which is Ex.Ka-6. Recovery memo of victim Km. Mamta (Ex.Ka-7) was prepared by S.I. Kshetra Singh. In cross-examination, he stated that the victim in her statement u/s 161 Cr.P.C. stated that “vc ls djhc nks lky ls yLlh eq>s vdsys esa feyrk Fkk vkSj eq>ls I;kj dh ckrsa djrk FkkA mlls esjh tku igpku gks xbZ vkSj eSa mlls vdlj feyrh Fkh”. He further stated that about the age, he had not enquired from the school. 14. Thereafter, the statement of the appellant/ accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form, who denied the allegations made against him. 15. Sri R.C. Joshi, Adv. appearing on behalf of the appellant/accused argued that on the basis of the evidence produced by the prosecution, the offence punishable u/s 363 IPC is not made out against the 6 appellant-accused. I find substance in this argument due to the following reasons: - A. That P.W.1 Dr. D.K. Jain has stated in his statement about the victim that there were fusion of humerus medial and lateral epicondyle. He further stated that according to Modi’s Jurisprudence, this fusion are done between 15 to 17 years of age. On the basis of this report, the trial court came to the conclusion that the age of the victim at the time of incident was about 17 years. However, it is settled law that two years’ age margin on either side can be given. After adopting this proposition of law, if two years’ margin on higher side is given, then the victim was definitely was about 19 years of age i.e. more than 18 years and she was major on the date of incident. Thus, from the evidence of P.W.1 Dr. D.K. Jain as well as from the medical report, it reveals that the victim was major on the date of incident i.e. on 31.10.1990. B. That it has come in the evidence that victim Km. Mamta had love affairs with the appellant/accused and she had gone with the appellant/accused without any coercion and that too after putting her bag in the school. Even it has come in the evidence of P.W.4 S.I. Puran Chandra that victim has stated in her statement u/s 161 Cr.P.C. that she had love affairs with the appellant/accused prior to two years of the incident. It has also come in the evidence of P.W.3 Dayalu, complainant and father of victim, that appellant/accused used to wander around his house before the said incident. Even two love letters were also been filed, written by the victim to the appellant/accused which are on 7 record, which show that the victim was having love affairs with the appellant/accused. C. That the victim has stated that after her going with the appellant/accused, she remained with him for about five days i.e. from 31.10.1990 to 4.11.1990 in the densely populated areas. Even she had come to Srikot by Bus along with the appellant /accused where number of other people must be traveling in that Bus, however she did not make any hue and cry so as to save herself. This conduct of the victim clearly shows that she had gone from her house after putting her bag in the school along with the appellant/accused with her own consent as she was having love affairs with him. Even she remained with the appellant/accused for about five days i.e. from 31.10.1990 to 4.11.1990 and after five days, she came back to her house. The police also shown her recovery from the backside of her house. D. That the police has not recovered the victim from the possession of the appellant/accused, rather she was recovered from the backside of her own house after five days of incident. These facts and circumstances of the case clearly show that victim was a consented party and she was major i.e. more than 18 yeas on the date of incident. 16. Thus, as per the above-said discussion, offence punishable under Section 363 IPC is not made out against the appellant/accused. Therefore, the conviction and sentence as awarded by the trial court against the appellant/accused is not correct and justified and I do not 8 concur the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 17. For the reasons recorded above, the appeal is allowed. The judgment and order dated 18.05.1993 passed by Sessions Judge, Pauri Garhwal in Sessions Trial No.65/1991, State Vs. Dinesh Lal, is set aside. The conviction and sentence as awarded against the appellant/accused, as discussed above, is also hereby set aside. Appellant/accused is on bail. He needs not surrender unless required in any other case. His bail bonds are cancelled and sureties are discharged. 18. Let the record of the case be sent back. (Dharam Veer, J.) July 27, 2009 Rajeev Dang