1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 93 of 2006 (Old No. 216 of 1997) 1. Rajan Ram S/O Shri Kishan Ram 2. Prem Ram S/O Kishan Ram R/O village khaita, patwari circle Naldhoora Tehsil-Tharali, District-Chamoli 3. Mohan Ram S/O Chholeram R/O Lamchoora patwari circle Jakhera Tehsil- Bageshwar, District-Almora 4. Dhram Ram S/O Shri Amar Ram R/O Village khaira, patwari circle, Naldhoora, District Chamoli ……............... Appellants Versus State of U.P(Now State of Uttarakhand) ……….Opposite party Shri N.S.Negi with Shri Dinesh Chauhan, Advocates, present for the appellants 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 29.01.19997passed by Sessions Judge Chamoli, in Sessions Trial No. 01 of 1994, whereby said court has convicted the appellant Rajan Ram under section 366 and section 376 of I.P.C.. On each count he has been sentenced to rigorous imprisonment for a period of seven years and also directed to pay fine of Rs. 2,000/-. 2 Appellants Prem Ram and Dhram Ram have been convicted under section 366 of Indian Penal Code 1986 (for short I.P.C read with section 114 of I.P.C. On each count they have been sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 2,000/-. Appellant Mohan Ram has convicted under section 368 of I.P.C., sentenced to rigorous imprisonment for a period of seven years and directed to pay fine of Rs. 2,000/- (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story, in brief, is that (PW2) Bhaguli Devi and PW3 Kalawati are residents of village Khaita, Patwari Circle- Naldhoora, Tehsil Tharali, District Chamoli. On 01.05.1993 at about 6.00p.m. The two had gone to spread the cowdung (compost fertilizer) in the fields in their village. However, they did not come back to their houses in the village. Their parents made search for them. On the next day i.e. 02.051993 Darban Singh, complainant (father of the Bhaguli Devi) was told by one Shyam Singh and Bhawan Singh that they had seen the two girls going with accused/appellant Rajan Ram and accused Harchand Ram (since deceased). The complainant was told that the four (two above named accused and two victims) were accompanies by appellants Prem Ram and Dhram Ram. It is stated in the First Information Report (exhibit A-1) which was lodged on 05th of June 1993 that he (complainant) could not lodge First 3 Information Report as he felt shy to disclose about the incident to the police. The police registered the crime against accused/appellant, at police outpost of Tharali of Police Station Karanprayag, relating to offences punishable under section 363, 366, 366A I.P.C against accused Harchand Ram (since deceased), appellants Rajan Ram, Prem Ram and Dhram Ram. Appellant Mohan Ram is maternal uncle of appellant Rajan Ram, whose name figured in investigation as it is said that victims stayed in a cowshed belonging to him. During investigation the two girls were recovered on 20th of June 1993. They were got medically examined on 21.06.1993 district Chamoli at Gopeshwar. Their statements were got recorded by Sub Divisional Magistrate. And thereafter the two girls were given in the custody of their parents on 24.06.1993 for which memorandum (exhibit A-2) was prepared . The investigation was conducted by PW7 Jaspal Singh. During investigation the two girls were got X-rayed for determination of their age. On X-ray age was of each of the victims was found to be around 14 years. The Investigating Officer after interrogating the witnesses, on completion investigation, submitted charge sheet (exhibit A-18) against accused /appellants Rajan Ram, Prem Ram, Dharam Ram, Mohan Ram and Harchand Ram (since deceased). (4) The Magistrate, on receipt of charge sheet, appears to have committed the case to the court of 4 Sessions for trial, after giving necessary copies as required under section 207 of Cr.P.C.. Learned Sessions Judge Chamoli, on 25.02.1994, after hearing the parties framed charge of offence punishable under section 376 of I.P.C against accused Rajan Ram. He further framed charge of offences punishable under section 363 and 366 I.P.C against accused Rajan Ram and Harchand Ram. He further framed separate charge of offence punishable under section 376 of I.P.C against Harchand Ram(since deceased). A separate charge was framed against accused Mohan Ram relating to offence punishable under section 368 of I.P.C. Also, charge in respect of offence punishable under section 366 I.P.C was framed against accused Prem Ram and Dhram Ram. All the accused pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Darban Singh complainant (father of the Bhaguli Devi) , PW2 Bhaguli Devi (minor victim), PW3 Kalawati Devi (another minor victim), PW4 Pushkar Singh (village Pradhan), PW5 Dr. Alka Punetha(Medical Officer, who medically examined the girls), PW6 Dr. S.N.Tewari (who prepared X-ray report) and PW7 Sub Inspector Jaspal Singh Panwar(Investigation Officer). Oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which all the accused pleaded that the accused/appellants (except accused Mohan Ram) and the two girls Bhaguli Devi and Kalawati Devi are residents of same village Khaita. Accused Mohan Ram 5 belongs to another village Lamchoora (District Almora) who is maternal uncle of the Rajan Ram. However, as to the other evidence all the accused pleaded that the same is false. They further stated that they have been falsely implicated. However, no oral evidence in defence was adduced. After hearing the parties the trial court found accused Rajan Ram guilty of charge of offences punishable under section 366 and 376 I.P.C.; accused Rajan Ram and Dhram Ram guilty to charge of offence punishable under section 366 I.P.C.; and accused Mohan Ram guilty of charge of offence punishable under section 368 I.P.C. After hearing them on sentence each one of the convicts is sentenced to rigorous imprisonment for a period of seven years and also directed to pay fine of Rs. 2,000/- on each count of which they were found guilty. In default of payment of fine, defaulter was directed to undergo further six months rigorous imprisonment. Aggrieved by said order judgment and order dated 29.01.1997 passed by learned Sessions Judge, Chamoli in Sessions Trial No. 1 of 1994, this appeal was filed before Allahabad High Court on 20th of February 1997 by the present appellant (Accused Harchand Ram had already died during trial and his case was abated) the appeal filed by the present appellants was admitted by the Allahabad High Court on 21.02.1997. The appeal is received by this court under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. 6 (5) Before further discussion this court thinks it just and proper and mention the medical examination report relating to the two girls, prepared by PW5 Dr. Alka Punetha. The report (exhibit A-5) which relates to Bhaguli Devi (PW2) discloses the findings of the medical officer Dr. Alka Punetha, (PW5) as under:- “ No matting of pubic hair. No staining of clothes. No injury of internal genitilea. Hymen diflorated.” (6) The Medical Officer opined that there was no sign of recent forceful sexual intercourse. Similar findings were given by PW5 Dr. Alka Punetha after examination Kalawati (PW3) after her examination on 21.06.1993 which reads as under:- “ No matting of pubic hair. No staining of clothes. No injury of internal genitilea. Hymen diflorated.” (7) As to Kalawati also to Medical Officer opined that there was no sign of recent forceful sexual intercourse. In respect of both the girls PW5 Dr. Alka Punetha referred them, for determination of their age to radiologist. (8) PW6 Dr. S.N.Tewari, who was Incharge 7 Radiologist in district hospital Chamoli at Gopeshwar on 22.06.1993, after X-ray, opined that Bhaguli Devi (PW2) was aged 13/15 years and Kalawati was aged 13/14 years. He prepared his X-ray reports (exhibit A-8 and A-7) in respect of Bhaguli Devi and Kalawati Devi respectively. (9) From the above reports of the radiologist, it has come on the record that the two girls were of the age of less than 16 years. The complainantPW1 Darwan Singh in his examination has also stated that his daughter Bhaguli Devi was aged 14 years, and Kalawati (daughter of Mahendra Singh) was aged 13 years. Though PW5 Dr. Alka Punetha in her reports (exhibit A-5) which pertains to Bhaguli Devi, and (exhibit A-6) which pertains to Kalawati Devi, has mention that the two has disclosed their age 19 years and 18 years respectively, but when the two girls Bhaguli and Kalawati appeared before the court to give their statements in the year 1995 they have disclosed their age 16 years and 15 years respectively. From the copies of the Family Register which are exhibit A-4 and A-3 it is evident, that date of birth of Bhaguli Devi is 29.07.1979 and that of Kalawati is 05.06.1980. (10) Having considered the report of the Incharge Radiologist read with the statement of complainant (father or the Bhaguli Devi) and the statements on oath given by the two girls, it is stablished on the record that they were less than 16 years of age, as such in view of 8 the sixth clause mentioned in section 375 I.P.C., their consent for sexual intercourse is irrelevant and any act of sexual intercourse committed against them constitutes rape. (11) PW2 Bhaguli Devi, the minor girl has stated that on 01.051993 she along with Kalawati was taken by Harchand Ram (since deceased) and Rajan Ram (accused/appellant no.1), on pretext that they all would enjoy “ KAFAL” (a fruit in jungle in the hills which get ripened during summer season). The girl further told that from the jungle, the two were taken to the house of Mohan Ram in another village which lies in district Almora, situated at a distance of 12 k.m from village Khaita. There the four lived in a cowshed. PW2 Bhaguli Devi has stated that there almost everyday Rajan Ram (accused/appellant) committed rape on her. PW3 Kalawati has also made similar allegation against accused Harchand Ram (since deceased). The Forensic Science Laboratory report dated 05.11.1993 regarding presence of semen and spermatozoa on the clothes of the two girls discloses positive findings, and corroborated by the testimony of the above two witnesses. It has been further stated that Mohan Ram asked the two accused namely Rajan Ram and Harchand Ram to leave the place as the police was in search of them. Thereafter, according to PW2 Bhaguli Devi they left house of Mohan Ram but intercepted by the police, who produced them before 9 the Magistrate and got their examination done in the hospital. The testimony of PW2 Bhaguli Devi is natural trust worthy and leave no room of doubt as to commission of rape by the accused Rajan Ram as against her. (12) However, this court does not find sufficient evidence on record to convict accused/appellants Prem Ram and Dhram Ram, in respect of offence punishable under section 366 I.P.C. Only this much is stated by PW1 Darwan Singh complainant that he was told by one Shyam Singh that the two girls were being taken away by Harchand Ram, Rajan Ram, Prem Ram and Dhram Ram. But neither Shyam Singh nor Bhawan Singh are produced to state Prem Ram and Dhram Ram had accompanied accused Rajan Ram and Harchand Ram. PW2 Bhaguli Devi had mentioned names of accused/appellants Prem Ram and Dhram Ram that they met the four (Rajan Ram, Harchand Ram, Bhaguli and Kalawati) and asked them to go ahead, but it is not clear if accused/appellant Prem ram and Dhram Ram had any knowledge of Rajan Ram is taking Bhaguli Devi to commit rape on her, or accused Harchand Ram was going to commit rape on Kalawati. That being so, merely for the reason that accused/appellants Dhram Ram and Prem Ram met the above four (Rajan Ram, Harchand Ram, Bhaguli and Kalawati) , it can not be said to have been proved beyond reasonable doubt that they (accused/appellant, Prem Ram and Dharam Ram) 10 have committed offence punishable under section 366 I.P.C. (13) So far as accused Mohan Ram is conserned, it is true that PW2 Bhaguli Devi and PW3 Kalawati Devi have proved on the record that accused Rajan Ram and accused Harchand Ram took them to house of Mohan Ram (maternal uncle of Rajan Ram)where they stayed in a cowshed. But it is not proved on the record tha the Mohan Ram had knowledge or complicity with Rajan Ram and Harchand Ram in commission of abduction or rape by them. No doubt he did provide shelter to the four to stay in his cowshed, but they itself does not mean that he had knowledge of the fact that the girls are abducted by the two accused or that they are being subjected to rape. Apart from this, it is relevant to mention here, that it has come in the statement of PW2 Bhaguli Devi that they only used to come to stay in the night, in the cowshed, and remained jungle during the day time. Therefore, it can not be said that Mohan Ram had concealed them or kept them in confinement. As such it can not be said that Mohan Ram has committed offence punishable under section 368 I.P.C. (14) For the reasons as discussed above, this court finds that while the appeal of accused/appellants Prem Ram, Dhram Ram and Mohan Ram deserves to be allowed, the appeal of accused/appellant Rajan Ram is liable to be rejected. Accordingly, the appeal of 11 accused/appellants Prem Ram, Dhram Ram and Mohan Ram is allowed. Conviction and sentence recorded against them by the trial court in respect of offences punishable under section 366 and 368 I.P.C., is hereby set aside. They are on bail, they need not to surrender. The appeal of accused /appellant Rajan Ram is dismissed. Conviction and sentence recorded by the trial court in respect of offences punishable under section 366 and 376 I.P.C., is affirmed. Both the sentences awarded against Mohan Ram shall run concurrently. He is on bail, his bail is cancelled. The Registry is directed to send back the lower court record to make accused/appellant Rajan Ram to serve out the remaining part of the sentence, affirmed by this court. (Prafulla C. Pant, J.) Dt.20.07.2010 N.P