IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.386 OF 2001 (OLD NO.1634 OF 1997) Ram Krishna Ji Dravane S/o Sri Krishna Ji Dravane R/o Lingamaido P.S. Karanja, District Verdha At present R/o Vikram Rola Nagar, District Verdha (Maharashtra) ……… Appellant Versus State of U.P. (State of Uttarakhand) .……… Respondent Dated: January 3, 2011 Sri Vikas Pandey, Amicus Curiae for the appellant Sri T.C. Agarwal, Addl. GA, present for the State Hon’ble Prafulla C. Pant, J. (Oral) This appeal, preferred u/s 374 of The Code of Criminal Procedure, 1973 (for short, Cr.P.C.), is directed against the judgment and order dated 24.7.1997 passed by Additional Sessions Judge (E.C. Act), Dehradun, in Sessions Trial No.17/1996, whereby the said court has convicted the appellant Ram Krishna Ji Dravane under Section 366 of The Indian Penal Code, 1860 (for short, IPC) and sentenced him to rigorous imprisonment for a period of three years and also directed him to pay fine of ` 1,000/-. In default of payment of fine, the convict/appellant has been further directed to undergo two months’ rigorous imprisonment. 2 2. Heard Sri Vikas Pandey, learned amicus curiae for the appellant and Sri T.C. Agarwal, learned Addl. GA for the State. 3. Prosecution story, in brief, is that accused/appellant Ramesh Krishna Ji Dravane was posted in the Field Ambulance Department of Indian Army, at Dehradun. He used to stay with his family in a rented accommodation in Mohalla Mehuwala Mafi in the house of complainant Mehmoob Hasan (PW2). In the same house, Jahingir Hasan (father of PW1 Kesar Jahan) also used to live with his family. On 7.8.1995 at about 4 PM, PW1 Keshar Jahan took ` 100/- from her house and went to market to take books for her. But she did not return. PW2 Mehmoob Hasan (uncle of PW1 Keshar Jahan) and other relatives made search for her but in vain. Later it was found that from the same day accused/appellant Ram Krishna Ji Dravane was also missing from his house. On enquiry, PW3 Mohd. Sultan told that he saw on 7.8.1995 at 6 PM accused/appellant going with PW1 Keshar Jahan. On 9.8.1995, PW2 Mehmoob Hasan lodged first information report (Exhibit A-1) at Police Station Clementown, which was registered as Crime No.257/1995, relating to offences punishable under Sections 363, 366 IPC, against accused/appellant Ramesh Krishna Ji Dravane. Investigation was taken by PW5 Sub Inspector Swaroop Singh Tyagi. During investigation, the girl was recovered on 29.9.1995. Her statement was got recorded u/s 164 of Cr.P.C. After interrogating witnesses and on completion of investigation, the Investigating Officer submitted charge sheet. In the medical report, PW7 Dr. C.P. Singh opined that no opinion as to rape could be given. 3 4. The Magistrate, on receipt of charge sheet (Exhibit A-7), after giving necessary copies to the accused as required u/s 207 Cr.P.C, committed the case to the court of Sessions for trial. 5. Learned trial court, after hearing the parties, framed charge of offences punishable u/s 363, 366 and 376 IPC against the accused Ramesh Krishna Ji Dravane, who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Km. Keshar Jahan, PW2 the complainant Mehmoob Hasan, PW3 Mohd. Sultan, PW4 Subedar Chandra Pal Singh, PW5 Sub Inspector Swaroop Singh Tyagi (Investigating Officer), PW6 Sangeeta Jha, PW7 Dr. C.P. Singh and PW8 Constable Mohan Singh. 6. Oral and documentary evidence were put to the accused u/s 313 Cr.P.C., after examination of CW1 Dr. B.C. Ramola, CW2 Smt. Akbari and CW3 Mohd. Jahid. The accused/appellant admitted in his reply u/s 313 Cr.P.C. that he used to live in the house of uncle of Keshar Jahan as a tenant. However, rest of the allegations were denied by him. In defence, DW1 Smt. Sita Ramesh, DW2 Radha Charan Verma and DW3 L.K. Tomar were got examined. 7. The trial court, after hearing the parties, found that though charge of offence punishable u/s 376 IPC is not proved against the accused/appellant but he was found guilty of charge of offence punishable u/s 366 IPC. After hearing on sentence, he was sentenced to rigorous imprisonment for a period of three years and was also directed to pay fine of ` 4 1,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of two months. Aggrieved by said judgment and order dated 24.7.1997 passed by Additional Sessions Judge (E.C. Act), Dehradun, in Sessions Trial No.17/1996, this appeal was preferred before Allahabad High Court by the convict on 19.9.1997 where it was admitted on 22.9.1997. The appeal is received by this Court u/s 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. 8. Before further discussion, I think it just and proper to mention the medical evidence on record. PW7 Dr. C.P. Singh has proved the report Exhibit A-8. In said report, the medical officer has mentioned that no opinion could be given regarding rape. After the report received from the radiologist, a supplementary report (Exhibit A-9) was prepared which shows that age of the girl was 16 years. As such, it is established on the record that the girl (Keshar Jahan), said to have been abducted, was minor on the day of incident. 9. PW1 Km. Keshar Jahan has stated that accused/appellant Ramesh Krishna Ji Dravane was tenant in the house of her uncle Ayub. She has further stated that she was acquainted with the accused/appellant. She has further stated that accused/appellant used to take her with his own children and wife. Later he used to say that he would get her (PW1) made an actor after taking her to Bombay. PW1 Keshar Jahan has further stated that she left her house on 7.8.1995 after taking ` 100/- from her house under the pretext that she had to buy books, and went with the accused/appellant in a taxi to Saharanpur, 5 from where he took her to Chattisgarh, and from there they went to Vardha, Maharashtra. She has also stated that accused made attempt to have illicit relation with her. After one month, when wife of accused/appellant Ramesh Krishna Ji Dravane came there, she told her that she has already sent a letter to her parents’ house. On this, on 27th, her uncle Mehmoob Hasan (PW2) along with police came there and took her (PW1) to Dehradun. The statement of the minor girl is natural and trustworthy. 10. PW2 Mehmoob Hasan has also corroborated the prosecution story as to how his niece (Keshar Jahan) left on 7.8.1995 her house and did not come back. He has also stated that he went with the police to Vardha, Maharashtra, and the victim was taken back to Dehradun. The statement of this witness corroborates the testimony given by PW1 Keshar Jahan. PW3 Mohd. Sultan also corroborated the prosecution story. 11. PW4 Subedar Chandra Pal Singh has stated that accused/appellant Ramesh Krishna Ji Dravane, who was working in 314 Field Ambulance Unit in Clementown, absented from duty w.e.f. 7.8.1995 17:30 Hrs. His statement further corroborates the fact that minor girl Keshar Jahan was eloped/abducted by the accused/appellant. 12. Having reassessed the entire evidence on record, this Court finds no illegality in the order passed by the trial court and the prosecution has sufficiently proved charge of offence punishable u/s 366 IPC against the accused/appellant Ramesh Chandra Ji Dravane. As far as charge of rape is concerned, the 6 trial court has acquitted the accused from said charge, and no appeal has been filed against the acquittal by the State. This court has no reason to interfere with the order of acquittal relating to said charge. 13. Learned amicus curiae for the accused/appellant submitted that the girl was a consenting party in going with accused/appellant and the accused/appellant has committed no offence. However, this Court is unable to accept the argument advanced on behalf of the appellant, as the consent of a minor girl for kidnapping or abduction, has no relevance. 14. For the reasons as discussed above, this Court finds no force in this appeal and the same is liable to be dismissed. Accordingly, the appeal is dismissed. The accused/appellant Ram Krishna Ji Dravane is on bail. His bail is cancelled. The Registry is directed to send lower court record back to make the accused/appellant Ram Krishna Ji Dravane serve out the sentence awarded by the trial court. ( Prafulla C. Pant, J .) 03.01.2011 Rajni