IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1492 of 2001 (Old No. 1650 of 1995) Kamal Kishor @ Babu, S/o Pratap Singh, R/o Tibari, P.S. Ranipur, District Haridwar …………Appellant Versus State .…………Opposite Party Mr. Vivek Shukla with Mr. Bhuwnesh Joshi, Advocates for the appellant. Mr. H.C. Pujari, Additional Government Advocate for the State. Along with Criminal Appeal No. 1962 of 2001 (Old No. 1505 of 1995) Mobin, S/o Shabbir Khan, R/o Mohalla Teliyana, P.S. Jwalapur, District Haridwar …………Appellant Versus State .………… Opposite Party Mr. Rajendra Singh with Mr. Pramod Tiwari, Advocates for the appellant. Mr. H.C. Pujari, Additional Government Advocate for the State. 2 Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Oral- Hon’ble Prafulla C. Pant, J.] Both these appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are directed against the judgment and order dated 20.09.1995, passed by learned Ist Additional Sessions Judge, Haridwar, in Sessions Trial No. 11 of 1991, whereby accused / appellant Kamal Kishor @ Babu and accused / appellant Mobin have been convicted under Section 376 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts has been sentenced to imprisonment for life. (2) Heard learned counsel for the parties and perused the trial court’s record. (3) Prosecution story, in brief, is that Ms. Asha (PW-2) and Ms. Kavita (PW-3) are real sisters. Jagmohan (PW-1) is their stepfather and Smt. Mahadevi (PW-9) is their mother. On 02.03.1990 Jagmohan (PW-1) lodged a First Information Report (Ext.A-1) with Police Station Ranipur (BHEL), Haridwar, stating that on 01.03.1990 at about 9.00 A.M. both the sisters left for their school but did not return till 4.30 P.M.. On this, complainant and his wife made enquires here and there. They came to know that accused / appellant Babu used to talk 3 to Kavita (PW-3). Jagmohan (PW-1) alleged in the report that accused / appellant Babu has eloped Asha and Kavita. Complainant further stated in his report (Ext.A-1) that the two girls were minor- Asha aged 14 years and Kavita aged 16 years. On the basis of this report, Crime No. 51 of 1990 was registered at Police Station Ranipur (BHEL), Haridwar, relating to offences punishable under Sections 363 and 366 I.P.C. against accused / appellant Babu. Senior Sub Inspector Surendra Singh Yadav (PW-10) investigated the crime. It appears that during investigation on 14.03.1990, Constable Nepal Singh (PW-8), posted in Mainpuri, heard at Bus Stop cries of a girl. When he tried to see as to who is crying and why, he saw Kavita (PW-3) who told him that accused / appellant Kamal Kishor @ Babu has eloped her. She further told to the Policeman that she was subjected to rape. She further told that accused / appellant Babu wanted to sell her for Rs.3,000/-. Constable Nepal Singh (PW-8), who had no knowledge of the First Information Report lodged earlier by Jagmohan (PW-1), took the accused / appellant Babu and lodged a Report in Kotwali Manipuri relating to offences punishable under Sections 363, 366, 376, 372 I.P.C. against accused / appellant Kamal Kishor @ Babu and one Amar Singh and Kala Devi, who were with him. Thereafter, on 06.04.1990, the Investigating Officer Surendra 4 Singh Yadav recovered Asha (PW-2) from the house of one Hasina in Jwalapur (District Haridwar). Ms. Asha (PW-2) told the Investigating Officer that she was eloped by accused / appellant Mobin and he intends to take her away from Jwalapur. She also told that she was subjected to rape by accused / appellant Mobin. After the recovery of two girls, they were medically examined. Dr. Deepa Sharma (PW-4) medically examined Ms. Asha (PW-2) and prepared report (Ext.A-3). However, the Medical Officer could not give any opinion as to the commission of rape on the girl. After radiological test on the basis of the supplementary report received by her, she stated that Ms. Asha was aged 18 years (major). Dr. Indra Sarabhai (PW-5) medically examined Kavita (PW-3) and prepared report (Ext.A-5). She also recorded that no opinion as to rape could be given on the girl. After receiving the report of the radiologist, the Medical Officer (Dr. Indra Sarabhai) opined that Kavita was aged between 18 and 19 years. After interrogating the witnesses and on completion of investigation, the Investigating Officer submitted charge sheet (Ext.A- 15) against accused / appellant Kamal Kishor @ Babu, accused / appellant Mobin and two others, namely, Amar Singh and Kala Devi, for their trial in respect of offences punishable under Sections 363, 366, 376, 372, 373 I.P.C.. 5 (4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C, appears to have committed the case to the court of sessions for trial. The trial was transferred to the court of Additional Sessions Judge, Haridwar. After hearing the parties, learned Additional Sessions Judge, on 06.07.1992 framed charge of offences punishable under Sections 363, 366-A, 376 and 372 I.P.C. against accused / appellant Kamal Kishor @ Babu. He framed separate charge of offences punishable under Sections 363, 366-A and 376 I.P.C. against accused / appellant Mobin. A separate charge was framed against Amar Singh and Kalawati in respect of offence punishable under Section 373 I.P.C.. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Jagmohan (complainant); PW-2 Ms. Asha; PW-3 Ms. Kavita; PW-4 Dr. Deepa Sharma; PW-5 Dr. Indra Sarabhai; PW-6 Dr. Vipin Kumar Premi, radiologist; PW-7 Constable Ganga Charan; PW-8 Constable Nepal Singh; PW-9 Smt. Mahadevi (mother of the two girls); and PW-10 Senior Sub Inspector Surendra Singh Yadav, the Investigating Officer. Oral and documentary evidence was put to the accused, in reply to which accused / appellant Mobin alleged the same to be false. However, he admitted that he was friend of accused / appellant Kamal Kishor @ Babu. Accused / appellant Kamal 6 Kishor @ Babu in his reply under Section 313 Cr.P.C. admitted that he was known to Kavita. He further admitted that he was friend of accused / appellant Mobin. He further admitted that the two girls and accused used to live in the same locality. As to the rest of the evidence, he has alleged the same to be false. Remaining two accused Amar Singh and Kala Devi also alleged that the evidence adduced against them is false. However, no evidence was adduced in defence. The trial court after hearing the parties found that the two girls were major. It further found that the two accused / appellants, namely, Kamal Kishor @ Babu and Mobin had eloped Kavita and Asha respectively under the promise that they would marry them and committed rape on them. The trial court did not find charge of offence punishable under Section 373 I.P.C. proved against accused Amar Singh and Kalawati and acquitted them of said charge. The trial court further found that since the girls were major, charge of offences punishable under Sections 363 and 366-A are also not made out and the accused were acquitted of said charge. No charge is said to have been proved as against accused / appellant Kamal Kishor @ Babu relating to offence punishable under Section 372 I.P.C.. However, both the accused (Kamal Kishor @ Babu and Mobin) were found guilty of charge of offence punishable under Section 376 I.P.C.. After hearing 7 the parties, the trial court sentenced each of the convicts, namely, Kamal Kishor @ Babu and Mobin to imprisonment for life. Aggrieved by said judgment and order dated 20.09.1995, passed by learned Ist Additional Sessions Judge, Haridwar, in Sessions Trial No. 11 of 1991, these two appeals were filed by the convicts before Allahabad High Court, from where the same are received by transfer under Section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000), for disposal. (5) Before further discussions, we think it just and proper to discuss the relevant medical evidence on record. PW-6 Dr. Vipin Kumar Premi, radiologist, has stated that he got X- rayed wrist of Ms. Asha (PW-2) on 20.04.1990, and that of Ms. Kavita on 05.05.1990. In both the girls, he found that radius & ulna bones had already fused. The radiologist opined that after the examination Ms. Asha was found aged 18 years while Ms. Kavita was found aged above 18 years. The radiologist’s report is (Ext.A-7) on the record and the one pertaining to Ms. Kavita is (Ext.A-8), which is attached with the X-ray film. PW-4 Dr. Deepa Sharma, who examined Ms. Asha (PW-2) on 20.04.1990 and prepared report (Ext.A-3) has recorded in her report that no mark of injury was found on the person of the girl. Hymen was found ruptured, vagina admitting one finger. She has opined that no opinion as to rape 8 could be given. PW-5 Dr. Indra Sarabhai, who examined Ms. Kavita (PW-3) prepared a report (Ext.A-5) on 05.05.1990 and found that vagina admitting two fingers with difficulty. No injury on the thighs and vulva was present. Hymen was found torned with well-healed edges. This Medical Officer has also opined that no opinion as to rape could be given. (6) Though PW-1 Jagmohan, complainant, who is step father of the two girls (Asha and Kavita) has stated that the girls were minor but in his cross examination he admits that since 1975 when he got married to Mahadevi, the girls were living with him and at that time they were aged 2-3 years. This statement on the part of this witness read with medical evidence makes this Court believe that the two girls were major. As such, we are in agreement with the trial court that the two girls were major. Now, we have to see whether Kavita (PW-3) was raped by accused / appellant Kamal Kishor @ Babu, and Asha (PW-2) was raped by accused / appellant Mobin or not. (7) According to PW-1 Jagmohan (complainant), on 01.03.1990, the two girls left their home at 9.00 A.M. for the school but they did not return by 4.30 P.M.. On making enquires, he came to know that Kamal Kishor @ Babu, who had acquaintance with 9 Kavita had eloped the girls. PW-9 Mahadevi, mother of the two girls, has also stated that Asha and Kavita were taken by accused / appellants Mobin and Babu respectively, when the girls were on their way to school. This witness has further stated that Asha was recovered from the house of Hasina with Mobin. PW-8 Constable Nepal Singh has stated that on 14.03.1990 Ms. Kavita was recovered while she was with accused / appellant Kamal Kishor @ Babu and two others, namely, Amar Singh and Kamla Devi. But evidence of these witnesses does not throw any light as to the commission of rape by the accused / appellants on the two girls. (8) The stars and most important witnesses are PW-2 Asha and PW-3 Kavita, who have made their statements before the trial court that they were subjected to rape by accused / appellant Mobin and accused / appellant Kamal Kishor @ Babu respectively, after promising them that they would get married to the girls. The statements of these witnesses is not corroborated by the medical evidence. Apart from this, what is significant to be noted in this case is that the two girls (who are major) have gone with the accused / appellants on 01.03.1990 while they were on their way to school. PW-2 Asha has stated that she knew accused / appellants from the date prior to the incident. When the accused / appellants took the two girls, it 10 is nowhere stated either by Asha (PW-2) or by Kavita (PW-3) that accused had threatened the two. PW-3 Kavita has stated that she went with Babu on a bicycle and her sister (Asha) went with Mobin on his bicycle. She further told that both went first to Jwalapur and thereafter accused / appellant Babu took Kavita to Mainpuri. Strangely, the two major girls, who are real sisters, never made any effort either to get down from the bicycle or to cry for help before they were recovered long after 01.03.1990. As such, having reassessed the entire evidence on record, we are of the view that in the present case it cannot be said that the prosecution has successfully proved the charge of offence punishable under Section 376 I.P.C. either against accused / appellant Kamal Kishor @ Babu or against accused / appellant Mobin, beyond reasonable doubt. If the statements of the two girls are accepted that for several days sexual intercourse was committed on them by accused / appellants, the medical evidence prepared by PW-4 Dr. Deepa Sharma and PW-5 Dr. Indra Sarabhai should have corroborated this fact. (9) For the reasons as discussed above, we are of the view that the accused / appellant Kamal Kishor @ Babu and accused / appellant Mobin are entitled to the benefit of reasonable doubt, as the charge relating to offence punishable under Section 376 11 I.P.C. does not appear to have been proved beyond reasonable doubt. Therefore, both these appeals deserve to be allowed. The appeals are allowed. Impugned judgment and order dated 20.09.1995, passed by Ist Additional Sessions Judge, Haridwar, in Sessions Trial No. 11 of 1991, is set aside so far as it relates to conviction and sentence of the accused / appellant Kamal Kishor @ Babu and Mobin in respect of offence punishable under Section 376 I.P.C.. The accused / appellant Kamal Kishor @ Babu and accused / appellant Mobin are acquitted of charge of offence punishable under Section 376 I.P.C.. They are on bail. They need not to surrender. Lower Court Record be sent back to the trial court. (B.S. Verma, J.) (Prafulla C. Pant, J.) 14.07.2009 NS