IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1477 of 2001 (Old No. 1720/1995) Indrason & Ors. Versus .…. Appellants/Accused State …………… Respondent April 6, 2010 Mr. SS Chaudhary, Amicus Curiae for the appellants. Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 25.9.1995 passed by the 3rd Additional Sessions Judge, Nainital in Sessions Trial No. 318 of 1990, State of U.P. v. Indrason & Ors., whereby learned 3rd Additional Sessions Judge has convicted the accused appellants Indrason, Smt. Suriya Devi @ Surya Devi and Balinder Pal under Section 363 and 368 of Indian Penal Code, 1860 (for short, IPC) and sentenced each of them to undergo R.I. for two years each under Section 363 and 368 IPC. Both the sentences were directed to run concurrently. However, co-accused Baharan was acquitted by the trial court. 2. In brief, the prosecution case is that PW2 Rameshwar Dayal Mishra lodged an FIR in PS Kichcha on 15.4.1990 at 4.15 pm with the averments that on 8.4.1990 at about 7 am, her daughter Km. Archana Mishra (PW1) aged about 17 years had gone for giving the practical examination of Home Science in Government Girls Inter Collect. When she did not return to the house till 4 pm, then he started to search his daughter. At about 6 pm, PW5 Rajendra Prasad, PW6 Jagmohan and Chandra Bahadur Singh informed him that at about 8 am 2 in the morning they had seen his daughter Km. Archana at the roadways bus stand along with appellants accused i.e. Indrason, his wife Smt. Suriya Devi and his son Balinder Pal. When they asked, Indrason told him that that they were going to Purnagiri temple and his daughter Km. Archana was also going with them. Then the complainant gone to the house of Indrason. He was not at home. Next day, he along with Jagdish gone to Purnagiri Temple but could not get his daughter there. Before shifting to his new quarter, the complainant was living near the hut of Indrason. Accused appellants used to visit his house. They enticed her daughter and taken her away. He also searched his daughter in relations of Indrason and in his village Misroli but could not traced out his daughter. When he gone to the house of Puran, brother- in-law of Indrason in village Pachpera, then he came to know that appellants accused had came there and stayed there for two days and thereafter the accused appellants gone away along with his daughter and the co-accused Baharan (acquitted by the trial court). With these averments FIR Ex. Ka-1 was filed, on the basis of which chick FIR Ex. Ka-7 was prepared by Constable Clerk Ashar Alam. He also made the necessary entries in the GD, copy of which is Ex. Ka-8. Investigation of this case was entrusted to SI Vijendra Sharma (PW7). 3. Thereafter on 8.5.1990, PW2 Rameshwar Dayal Mishra moved an application Ex. Ka-2 before the Inspector In-charge, PS Kichcha stating therein that his daughter Km. Archana Mishra (PW1) had returned to his house on that day i.e. 8.5.1990 at 6.30 am. she was left by accused appellant Balinder at Bareilly. The girl was taken in possession by the police and recovery memo Ka-3 was prepared. Thereafter she was medically examined by PW4 Dr. Smt. RB Chauhan on the same day at 1 pm and 3 medical report Ex. Ka-6 was also prepared. She was x- rayed on the same day by PW3 Dr. DP Pandey, who also prepared the X-ray report Ex. Ka-5. Thereafter she was given in the supardagi of her father on the same day i.e. on 8.5.1990 and superdaginama is Ex. Ka-4. The I.O. during the course of investigation prepared the site plan Ex. Ka-9 of bus stand where Km. Archana was seen by PW5 Rajendra Prasad and PW6 Jagmohan. He also prepared the site plan Ex. Ka-10 of the residence of the complainant where the girl was living with him till the date of incident. The I.O. also prepared the site plan Ex. Ka-11 of the house where the complainant along with his daughter was living prior to shifting at new address i.e. before the month of November, 1989. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation filed the chargesheet Ex. Ka-13 against the accused appellants and the co-accused (acquitted by the trial court). 4. Learned Munsif Magistrate, Rudrapur after giving the necessary copies of the documents to the accused appellants and the co-accused, as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 14.12.1990. Learned Sessions Judge transferred the case to Assistant Sessions Judge and subsequently to Additional Sessions Judge for its disposal according to law. 5. On 6.8.1991, learned Assistant Sessions Judge, Nainital framed the charges against the accused appellants and the co-accused (acquitted by the trial court) under Section 368 IPC. On the same day, charges were also framed against the accused appellants under Section 363 & 366 IPC. Appellant accused Balinder Pal was also charged under Section 376 IPC on the same day. 4 The charges were read over and explained to each of accused appellants and the co-accused (acquitted by the trial court), who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Km. Archana Mishra, the victim; PW2 Rameshwar Dayal Mishra, the complainant; PW3 Dr. DP Pandey who prepared the X-ray report Ex. Ka-5; PW4 Dr. Smt. RB Chauhan, who medically examined the victim and prepared the medical report Ex. Ka-6; PW5 Rajendra Prasad; PW6 Jagmohan and PW7 SI Vijendra Sharma, the I.O. of the case. 7. Thereafter, statements of each of the accused appellants and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned 3rd Additional Sessions Judge, Haridwar vide his judgment and order dated 25.9.1995 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 25.9.1995, the convict appellants have preferred the present appeal. 9. I have heard learned Amicus Curiae for the appellants and learned Addl. GA for the State and have carefully perused the materials available on the record. 5 10. Before further discussion, it is pertinent to mention the medical report of the victim Km. Archana (PW1), who was medically examined by PW4 Dr. Smt. RB Chauhan on 8.5.1990 at 1 pm and had prepared medical report Ex. Ka-6 and the same is reproduced below: “Ext. Exam—No injury seen. Breast fairly developed. Axillary and pubic hairs fairly developed. P/V—Vaginal smear taken and sent for spermatozoa exam for Pathologist Rudrapur Civil Hospital. Vagina admits two fingers tightly. No fresh tear seen. Girl sent for X-ray wrist & elbow (Rt.) for age. Conclusion—Possibility of rape cannot be ruled out on medical examination.” 11. To prove the aforesaid medical report, the prosecution has examined PW4 Dr. Smt. RB Chauhan, who has proved the same as Ex. Ka-6. In the cross- examination, she has stated that she could not say with certainty as to whether the rape was committed on the victim or not. She has further stated that she had not seen any external or internal injury on the body of Km. Archana. 12. Thereafter Km. Archana (PW1) was x-rayed by PW3 Dr. DP Pandey on 8.5.1990, who also prepared the X-ray report Ex. Ka-5, which is reproduced as below: “Fusion of lower end of Radius is not complete. Lower end of Ulna is also not completely fused. The age is about 17 (seventeen) years.” 6 13. To prove the aforesaid X-ray report, the prosecution has examined PW3 Dr. DP Pandey, who has proved the same as Ex. Ka-5. He has also proved the X-ray plate as Ex. 1. 14. To further prove its case, the prosecution has examined PW1 Km. Archana, who has stated that the accused appellants were known to her. Before that incident, she used to live in the sugar factory colony in Type E quarter near the hut of the accused appellant Indrason whose family was also living there in the hut. They were used to visit each other. Indrason was working in the sugar factory. At the time of incident she was living in the quarter no. D-168. Before the said incident, she and accused appellant Balinder used to write letters to each other. On 8.4.1990 at about 7 am, she had gone to appear in the practical examination of Home Science. Near the roadways bus stand, accused appellants met her where she came to know from her fellow girls that the said examination would not be held on that day. Accused appellants Balinder and Suriya Devi asked her to visit Purnagiri Temple as they were also going there. Then she had gone along with the accused appellants. PW5 Rajendra Singh and PW6 Jagmohan had seen her along with the accused appellants. From there she had gone to Rudrapur by a mini bus and thereafter to Gadarpur where they stayed in the night at the house of Suresh, a relative of the accused appellants. She had slept in the night along with the wife of Suresh. Next day, the accused appellants came along with her to Lucknow via Moradabad and thereafter to Devaria and then Pachpera. She stayed at Pachpera for two days. Thereafter accused appellants and the co-accused Baharan (acquitted by the trial court) had brought her to village Misroli. On 16.4.1990, accused appellant Indrason had gone from there. After 3-4 day, 7 accused appellant Balinder had committed rape on her. After 29-30 days of her going along with the accused appellants from Kichcha, Balinder and his friend brought her to Bareilly via Devaria and Lucknow. She was boarded alone in a bus by them at Bareilly. Thereafter they left from there. She reached her house at Kichcha at 6 am in the morning and narrated the incident to her parents. In her cross-examination, she has stated that on the date of incident she was a student of Class XII and her practical examination of Home Science was scheduled on that day. She has further stated that accused appellant Balinder was a student of Class IX on the date of incident. Both of them used to visit each other and also used to writ letters to each other. 15. PW2 Rameshwar Dayal Mishra has reiterated the version made by him in the FIR Ex. Ka-1. He has also proved the application moved by him on 8.5.1990 as Ex. Ka-2, recovery memo Ex. Ka-3 and supardginama Ex. Ka- 4. In the cross-examination, he has stated that before the said incident, he and accused appellants used to visit their houses. 16. PW5 Rajendra Prasad and PW6 Jagmohan have not supported the prosecution case and were declared hostile. 17. PW7 SI Vijendra Singh, the I.O. of the case, has stated that on 15.4.1990, he was posted at PS Kichcha. Chick FIR Ex. Ka-7 was prepared by Constable Clerk Ashar Alam, who also made the necessary entries in the GD. Copy of GD is Ex. Ka-8. This witness has further stated that during the course of investigation, he had prepared the site plans Ex. Ka-9, Ka-10 and Ka-11 and recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka- 8 13 against the accused appellants and the co-accused (acquitted by the trial court). 18. Thereafter, statements of each of the accused appellants and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 19. Mr. SS Chaudhary, learned Amicus Curiae for the accused appellants argued that the on the basis of the evidence adduced by the prosecution as discussed above, the case against the accused appellants is not proved beyond reasonable doubt and the trial court has erred in convicting the accused appellants for the offence punishable under Section 363 and 368 IPC. I find substance in the argument of learned Amicus Curiae for the following reasons: (i) That the victim Km. Archana, PW1 had left her house on 8.4.1990 at 7 am on the pretext that she was going to appear in the practical examination of Home Science at Girls Inter College where she was studying in Class XII. But instead of going to her college, she went to the roadways bus stand and from there she along with the accused appellants went to Rudrapur and thereafter to Gadarpur, where she stayed in the night in the house of the a relative of accused appellants. Next day, she along with the accused appellants came to Lucknow via Moradaband and then to Devaria 9 and thereafter at Pachpera and Misroli. She returned to her house at Kichcha after one month i.e. on 8.5.1990 where she came via Devaria, Lucknow and Bareilly. In this way, she travelled nearly 1500 kilmetres by various modes of transport and crossed through busy and crowded places like bus stand and railway stations and densely populated cities like Rudrapur, Moradabad, Bareilly, Lucknow, Devaria, etc. But she never made any complaint to anybody against the accused appellants in this whole period. This conduct of the Km. Archana shows that she was a consenting party and had gone along with the accused appellants out of her own free will and consent and without any threat or enticement. (ii) That as per the medical report and FIR also, the age of victim Km. Archana at the time of incident was about 17 years. It is settled law that two years margin either on the upper side or lower side can be given. If two years margin on upper side is applied in this case, then her age is worked out as more than 18 years’ old and thus, she was major at the time of incident. (iii) That in the medical report Ex. Ka-6, it has been stated by the PW4 Dr. Smt. RB Chauhan that there was no mark of any injury over the body or the private parts of the victim Km. Archana. (iv) That the victim Km. Archana (PW1) has admitted in her deposition that she and accused appellant Balinder (son of other two appellants) used to meet each other in their respective houses. She has also admitted that they also used to write letters to each other. It indicates that she was having a love affair with 10 the accused appellant Balinder and had accompanied him and his parents i.e. the accused appellants from the bus stand, Kichcha out of her own free will and consent. (v) That the incident is alleged to have taken place on 8.4.1990 and the FIR could be lodged by PW2 Rameshwar Dayal Mishra, the father of the victim on 15.4.1990 i.e. after seven days of the said incident. Admittedly, he was very much present in his house on that day and also tried to search her and furthermore, he has stated that he was informed by PW5 Rajendra Prasad and PW6 Jagmohan on the very date of incident that they had seen his daughter along with the accused appellants at the roadways bus stand, but even then he lodged the FIR after seven days. This delay in lodging the FIR could not be explained by the prosecution by showing the sufficient cause and, therefore, this delay in lodging the FIR is also fatal to the case of prosecution. (vi) That co-accused Baharan was acquitted by the trial court. 20. Thus, in view of the facts and circumstances of the case, foregoing discussion of evidence and for the reasons record above, the Court is of the view that the prosecution has not proved its case against the accused appellants beyond reasonable doubt for the offence punishable under Section 363, 368 IPC and, therefore, the trial court erred in convicting and sentencing to the accused appellants. As such, the impugned judgment and order of the trial court is not correct and justified and the same is liable to be set aside. 11 21. In the result, the appeal is allowed. The judgment and order dated 25.9.1995 passed by the 3rd Additional Sessions Judge, Nainital in Sessions Trial No. 318 of 1990, State of U.P. v. Indrason & Ors. is hereby set aside. The conviction of the accused appellants under Section 363 and 368 IPC is hereby quashed and sentence awarded to each of them to undergo RI for two years each under Section 363 and 368 IPC is hereby also set aside. Appellants are on bail. Their bail bonds are cancelled. They need not surrender unless required in any other case. 22. Let the lower court record be also sent back. PRABODH (Dharam Veer, J.) 06.04.2010