IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 630 of 2001 (Old No. 157 of 1997) Pushkar Singh S/o Kishan Singh R/o Khetal Sanda Kham P.S. Khatima District Udham Singh Nagar ……….Appellant ( On Interim bail) Versus State of U.P. (now State of Uttarakhand) …………Respondent Ms. Reeta Saxena, Advocate, holding brief of Shri S.C. Bhatt, Advocate, present for the appellant. Shri M.A. Khan, Brief Holder, present for the state. Hon’ble Prafulla C. Pant, J. This appeal , preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against the judgment and order dated 31.01.1997, passed by Additional Sessions Judge/Special Judge, Nainital, in Sessions Trial No. 126 of 1992, whereby said court has convicted the accused/appellant Pushkar Singh under -2- sections 363, 366, 376 I.P.C and sentenced him rigorous imprisonment for a period of two years under sections 363 and 366 I.P.C., and further sentenced him rigorous imprisonment for a period of two years under section 376 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that Km. Leela Devi (P.W.3) is daughter of P.W.2 Khushal Singh. She was student of class VIII . A first information report (Ex. A1) was got lodged by P.W. 2 Khushal Singh stating that his daughter was aged 15 years. On 24.07.1991, she went to missing whereafter he (complainant) made search for her. On 29.07.1991, when the FIR (Ex. A1) was lodged, the complainant, suspected that his daughter was kidnapped by accused/appellant Pushkar Singh, son of Kishan Singh. On said report police registered crime no. 369 of 1991, relating to offences punishable under section 363, 366 IPC against accused/appellant Pushkar Singh. After the check report (Ex. A10) prepared by the police, and necessary entry (copyEx.A11) was made in -3- the general diary, investigation was taken up by Sub-Inspector Devendra Singh (P.W.7). On 22.11.1991, (after about five months) the police arrested accused Pushkar Singh near bus stand Khatima and recovered Leela Devi (P.W.3). She was taken to the Medical Officer (P.W.6) Dr. Hemlata Pal, who examined her on 19.12.1991 at 10:00 am., and prepared report (Ex. A6). The Medical Officer found hymen of the girl was absent, vagina admitted two fingers easily. Uterus normal in size. Labia, mazona and minora well developed. Breast were developed. There was no lactation. She also took two slides for pathology test, of the smear of the girl. She also referred the girl to the radiologist for determination of the age. P.W.4 Dr. S.R. Gupta, who was incharge radiologist has stated that after X-ray plates were prepared, he opined that age of the girl was between 16-18 years. He proved his report (Ex. A- 4). In said report he mentioned that the ulna and radius bones were under process of fusion. Dr. Hem Chandra Joshi has adduced the evidence that on receiving the slides for pathological test he found that dead spermotozoa and epiphyses cell were present in the smear . After completion of -4- investigation the Investigating Officer submitted charge sheet (Ex. A9) against the accused Pushkar Singh for his trial in respect of offences punishable under section 363, 366 and 376 IPC. 4. The Magistrate, on receipt of the charge sheet, appears to have committed the case to the court of Sessions for trial, after giving necessary copies to the accused as required under section 207 of Cr.P.C.. (Earlier Tehsil Khatima was part of District Nainital). Learned Additional Sessions Judge to whom the case appears to have been transferred, on 20.07.1993, after hearing the parties, framed charge of offences punishable under section 363, 366, 376 I.P.C,.to which accused Pushkar Singh pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Deewan Singh, aged 83 years (Grandfather of the girl),P.W.2 Khushal Singh, (father of the girl), P.W.3 Leela Devi (the victim), P.W.4 Dr. S.R. Gupta, P.W.5 Dr. Hem Chandra Joshi, P.W.6 Dr. Hemlata Pal,and P.W.6 Sub-Inspector Devendar Singh (Investigating Officer). Oral and documentary evidence was put to the accused in reply to which he alleged the evidence to be false. -5- However, no evidence in defence was given. The trial court after hearing the parties found accused Pushkar Singh guilty of charge of offences under section 366, 363, 376 I.P.C. After hearing on sentence, the trial court sentenced the convict to rigorous imprisonment for a period of two years under section 363/366 I.P.C., and further directed that the convict shall undergo rigorous imprisonment for a period of two years under section 376 I.P.C. Aggrieved by said judgment and order dated 31.01.1997, passed by Additional Sessions Judge/Special Judge, Nainital, in sessions trial no. 126 of 1992, this appeal was filed by the convict Pushkar Singh before Allahabad High Court on 11.02.1997, where it was admitted on 14.02.1997. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. 5. P.W. 1 Deewan Singh, grandfather of the girl has stated that age of the daughter was 15 years. She was student of class VIII when she went missing. P.W.2 Khushal Singh (Father of the girl) has stated that his daughter was aged 15 years and she used to live with her grandfather. It is further -6- stated by this witness on 23.07.1991,he got a information that Leela (P.W.3) was missing. Witness further stated that for six days he kept of making search for the girl and finally got lodged FIR (Ex. A1) on 29.07.1991, against Pushkar Singh. He has also stated that after five months of lodging FIR Pushkar Singh could be arrested and Leela was recovered. 6. P.W.3 Leela Devi is the girl who is said to have been kidnapped in the year 1991.She has stated that in the month of July, 1991, she was taken by her neighbour Pushkar Singh (appellant). She has further stated that appellant took her to Nepal where she lived with him for 5-6 months. She has further stated that she was subjected to sexual intercourse against her wishes. P.W. 3 Leela Devi has further stated that after 5-6 months, she was caught with Pushkar Singh and the police arrested Pushkar Singh and she was taken for medical examination. This witness has stated that her date of birth is 10.03.1976. In cross- examination P.W.3 Leela states that she had gone from Khatima with the appellant, in a bus. She has further stated that the bus was fully packed -7- with the passengers. She further states that she got down from the bus at Banbasa with Pushkar Singh,She also states that other passengers also got down at Banbasa. P.W.3 Leela further states that thereafter she went in a rikshaw with Pushkar Singh towards Nepal Border. She further states that she had no luggage with her and appellant Pushkar Singh had only one bed sheet and other clothes. The witness further narrates at the international border the police made checking. 7. It is strange that P.W.3 Leela did not think it proper to raise alarm further in the bus or at Banbasa. She did not even chose to disclose that she was being kidnapped/abducted by Pushkar Singh (appellant) to police who checked them at the border. It is pertinent to mention here that P.W.7 Devendra Singh (Investigating Officer) has mentioned that in her statement under section 161 Cr.P.C., Leela Devi had told her that she was in love with Pushkar Singh. She further told the Investigating Officer that she had gone to Nepal with Pushkar Singh and they lived there together like a married couple. P.W.3 Sub-Inspector Devendra Singh (Investigating Officer) has further -8- told that the girl disclosed her age to him 17 years. P.W.4 Dr. S.K. Gupta has also stated that in his opinion age of the girl was between 16-18 years. 8. In the above circumstances, it cannot be ruled out that P.W.3 Leela was aged more than 16 years on the date of incident and she was consenting party to the sexual intercourse committed with her by accused Pushkar Singh. Therefore, this Court is of the view that the trial court has erred in law in holding that the prosecution has proved beyond reasonable doubt that the accused is guilty of charge of offences punishable under section 366/376 I.P.C. The only offence found proved on the record is one punishable under section 363 I.P.C., against the accused/appellant Pushkar Singh. Accordingly, this appeal is partly allowed. The conviction and sentence recorded by the trial court against the accused/appellant Pushkar Singh in respect of charge of offences punishable under sections 366 and 376 I.P.C., are set aside. The accused/appellant Pushkar Singh is acquitted of charge of offences punishable under section 363, 366 and 376 IPC. However, the conviction of the accused/appellant -9- in respect of offence punishable under section 363 IPC is up-held. Considering the facts and circumstances of the case, the sentence awarded against the accused/appellant Pushkar Singh on said count (363 IPC) is reduced to the period already undergone during investigation/trial. He is on bail. He need not to surrender . The lower court record be sent back . (Prafulla C. Pant, J.) Dt. 26.07.2010 Parul