IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 238 of 2002 Basant Ram S/o Sri Dev Ram, R/o Village Naya Gaon, Pachoriya, Chakarpur, P.S. Khatima, Distt. Udham Singh Nagar. .…. Appellant/Accused Versus State of Uttaranchal …………… Respondent March 23, 2009 Mr. Prem Kaushal, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 5.9.2002 passed by the Additional Sessions Judge, Fast Track Court, Pithoragarh in Sessions Trial No. 21 of 2000, State v. Basant Ram, whereby the learned Additional Sessions Judge has convicted the appellant-Basant Ram under Section 366 and 376 of Indian Penal Code, 1860 (for short, I.P.C.) and sentenced him to undergo three years’ R.I. under Section 366 I.P.C. and three years’ R.I. under Section 376 I.P.C. It was also directed that both the sentences shall run concurrently. 2. In brief, the prosecution case is that PW-2 Ramesh Ram has lodged an FIR in the police station Kotwali, Pithoragarh on 28.4.2000 at 7.25 AM with the averments that on 20.4.2000 at 10 AM appellant-accused Basant Ram has taken his daughter Kumari Vimla (PW-1) aged about 13 years from his house by enticing her. On the 2 third day of the said incident, the complainant Ramesh Ram came to know that the appellant-accused had taken his daughter to Chakarpur by enticing her. Then the complainant reached at the house of the appellant- accused on 23.4.2000 where he came to know that his daughter Kumari Vimla has been kept inside a locked room and he was not allowed to meet his daughter. The appellant-accused threatened him for his life and asked him to go away from there. 3. With aforesaid averments the FIR Ex. Ka-1 was lodged by the PW-2 Ramesh Ram, the father of the victim. On the basis of this report, the chick FIR was prepared by the Head Moharrir Laxmi Dutt Bhatt. The chick FIR is Ex. Ka-4. Necessary entry was also made in the GD. Carbon copy of the GD is Ex. Ka-5. The investigation of this case was entrusted to S.I. Ashok Kumar Arora (PW-5), who during the course of investigation has recovered the victim Kumari Vimla on 2.5.2000 and prepared the fard Ex. Ka- 7. The victim was medically examined by the Medical Officer, Dr. Bharti Rana (PW-4), who prepared the medical report Ex. Ka-2. X-Ray report is Ex. Ka-3. During the course of investigation the I.O. has inspected the place of occurrence and prepared the site plan Ex. Ka-6. The I.O. also prepared the site plan of the place from where the victim was recovered. That site plan is Ex. Ka-8. During the course of investigation, statement of the witnesses were recorded by the I.O. and after completing the investigation, he has filed the chargesheet against the appellant-accused under Section 363, 376 & 368-A of I.P.C. The said chargesheet is Ex. Ka-9. 4. Learned Chief Judicial Magistrate, after giving the necessary copies of the documents to the appellant- accused as prescribed under Section 207 Cr.P.C., 3 committed the case to the Court of Sessions on 9.6.2000. Learned Sessions Judge transferred the case to the Additional Sessions Judge, Fast Track Court, Pithoragarh for its trial according to law. 5. Learned Additional Sessions Judge framed the charges against the appellant-accused under Section 363, 366 & 376 of I.P.C. The charges were read over and explained to the appellant-accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined PW-1 Kumari Vimla, the victim; PW-2 Ramesh Ram, father of the victim; PW-3 Shakuntala Devi, mother of the victim; PW-4 Dr. Bharti Rana, who has medically examined the victim and PW-5 S.I. Ashok Kumar Arora, the I.O. of the case. 7. Thereafter, the statement of the appellant-accused Basant Ram was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to the appellant in question form, who denied the allegations made against him. However, the appellant did not produce any documentary or oral evidence in the defence. 8. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned Additional Sessions Judge, F.T.C., Pithoragarh vide his judgment and order dated 5.9.2002 convicted the appellant Basant Ram under Section 366 & 376 of I.P.C. and sentenced to him as discussed above. Against the aforesaid judgment and order dated 5.9.2002, the appellant-accused has preferred the present appeal. 4 9. I have heard Mr. Prem Kaushal, learned Counsel for the appellant and Mr. M.A. Khan, learned Brief Holder for the State and have carefully perused the entire material available on the record. 10. Before further discussion, it would be pertinent to mention here the medical report Ex. Ka-2, which was prepared on 2.5.2000 at 1.30 PM by the Medical Officer Dr. Bharti Rana, PW-4 at the time of the medical examination of the victim Kumari Vimla, PW-1 and the same is reproduced as under: “A young girl of average built about (5.2”) Teeth – 14/12 wt. – 40 kg. Breast – well developed. Examination of private parts: Axillary public heir – well developed. There is no external mark of injury over her body. Axillary & pubic heir are well developed, black in colour, breast nipple, areola – well developed. Labia, major, minors well developed. –No discharge. P/S- Two vaginal smear made from Post & Fx. P/2- Hymen lax. Vagina patulous admitting two fingers (Middle & Index) easily, uterus – Hypoplastic, Ar, Sirum, Mobile, Fx-clear, Cx-healthy. N/o LMP – 10 days back. (1) Two vaginal smear sent to pathology B.D. Pandey hosp. Pith. For detection of spermatozoa on 2.5.2000. (2) Km. Vimal sent to B.D.P. Hospital, Pith. For X- Ray wrist & elbow joint for detection of her age by radiologist on 2.5.2000.” 11. The victim PW-1 Kumari Vimal thereafter got X-Rayed by the radiologist as per the advice of PW-4 Dr. Bharti Rana so that her age may be ascertained. Her X-Ray report Ex. Ka-3 is reproduced as under: “All epiphysis at elbow joint are fused. Lower end of radius & ulna epiphysis are about to fusion. Opinion – (1) She is habitual for sexual intercourse. 5 (2) Age- According to radiologist the age of girl is about 17 years.” 12. To prove the medical report Ex. Ka-2 and X-Ray report Ex. Ka-3, the prosecution has examined PW-4 Dr. Bharti Rana who has stated that on 2.5.2000 she was posted as Medical Officer, District Female Hospital, Pithoragarh. On that day, Kumari Vimla, daughter of Ramesh Ram was examined by her at 1.30 PM and she prepared the medical report Ex. Ka-2 and X-Ray report Ex. Ka-3. In the cross-examination, she has stated that two years’ margin on both sides is possible regarding whatever opinion she has given about the age of Kumari Vimla, the victim. 13. To further prove its case, the prosecution has examined PW-1 Kumari Vimla, the victim, who has stated that the appellant-accused is brother-in-law (devar) of his aunt (bua) and is the resident of Chakarpur, Distt. Udham Singh Nagar and he was known to her prior to the said incident as he used to visit her house. On 20.4.2000 at 12 PM, her father was not at the house. Appellant-accused came to her house and forcefully took her to his house at Chakarpur where he committed rape with her. She lived with him for 10-11 days. She has further stated that the appellant-accused took her to so many places and raped her. She had gone to bus stand, Pithoragarh and from there she had gone to Chakarpur by bus along with the appellant-accused. They have gone from house to Pithoragarh by a rented jeep and other passengers were also in the jeep. There were number of passengers at the bus stand. Many passengers were also travelling by the same bus. The bus stopped at Loha Ghat, Champawat, Tanakpur etc. She has further stated that on feet, half an hour is required to reach the bus stand from her house. She has also stated that the appellant-accused had come 6 to her house two days’ prior to the said incident and the appellant-accused slept in her house in a separate room. Before the said incident, she had also visited the village Chakarpur, where she stayed for 7-8 days and she had also gone to the house of the appellant-accused. She has also stated that the appellant-accused got her photographed at Khatima. 14. PW-2 Ramesh Ram has stated that on 20.4.2000, he had gone to Kanali Chhina for work and his mother and wife were at his house. On 21.4.2000, his wife came to him and informed him that the appellant-accused Basant Ram has taken her daughter Kumari Vimla by enticing her. Thereafter he returned to his house on the same day and searched his daughter, who could not be traced out. On 23.4.2000, he came to know that the appellant- accused and her daughter Kumari Vimla were in Chakarpur. Same day, he reached at the house of the appellant-accused at Chakarpur. On 2.5.2000, her daughter was recovered from Ancholi along with the appellant-accused. The statement of this witness was recorded in the trial court on 24.1.2001 and in the cross- examination, this witness has stated that Kumari Vimla is his eldest daughter and there are two other children younger than Kumari Vimla. His marriage was solemnized 25 years before and PW-1 Kumari Vimla born after two years of his marriage. He has also stated that his daughter Kumari Vimla had visited the house of the appellant- accused two-three times before the said incident took place. 15. PW-3 Shakuntala Devi, whose statement got recorded on 24.1.2001, has stated in her deposition that around nine months back, the appellant-accused had come to her house and Kumari Vimla (PW-1) was there at 7 the house and her husband had gone to Kanali Chhina. When she came back to her house at 4 PM, the appellant- accused and her daughter, both were not there. Then she enquired about them and came to know that the appellant-accused had took her daughter to Chakarpur. She passed on this information to her husband. Then her husband went to Chakarpur. Her daughter Kumari Vimla returned to her house after 10-12 days of the said incident and that she was caught by the police at Ancholi. In the cross-examination, she has stated that her marriage took place 25 years ago and Kumari Vimla born after two years of her marriage. 16. PW-5 is the S.I. Ashok Kumar Arora who has investigated the crime. This witness has stated in his deposition that on the basis of the report Ex. Ka-1, the chick FIR Ex. Ka-4 was prepared by Head Constable Laxmi Dutt Bhatt. Necessary entry was made in the GD. Carbon copy of the GD is Ex. Ka-5. Investigation of this case was entrusted to him. He has further stated that during the course of investigation, he prepared the site plan of the place of occurrence which is Ex. Ka-6. The victim was recovered on 2.5.2000 from Ancholi and appellant-accused was got arrested. Thereafter he prepared the fard Ex. Ka-7. He also prepared the site plan of the place from where the victim was recovered. That site plan is Ex. Ka-8. Kumari Vimla was medically examined on 2.5.2000. During the course of investigation he has also recorded the statement of the witnesses and after completing the investigation, he filed the chargesheet against the appellant-accused. That chargesheet is Ex. Ka-9. 17. Thereafter, the statement of the appellant-accused Basant Ram was recorded under Section 313 of Cr.P.C. 8 The oral and documentary evidence were put to the appellant in question form, who denied the allegations made against him. However, the appellant did not produce any documentary or oral evidence in the defence. 18. Learned Counsel for the appellant-accused argued that on the basis of the evidence discussed above, no case under Section 366 & 376 I.P.C. is made out against the appellant-accused inasmuch as the appellant-accused and Kumari Vimla, both were the consented parties and Kumari Vimla, who was a major on the date of the incident, accompanied the appellant-accused to village Chakarpur as per her own wish. I find force in the argument of the learned Counsel for the appellant- accused for the following reasons: (i) That as per the opinion of the Medical Officer, Dr. Bharti Ran (PW-4) who medically examined the victim Kumari Vimla, which is based on the X-Ray report Ex. Ka-3, the age of the victim is about 17 years. PW-4 Dr. Bharti Rana has also stated that there might be two years’ variation on either side in the age of Kumari Vimla. In view of this, if the variation of two years is added to the higher side, the age of the victim is calculated as 19 years and this fact stands further corroborated by the statement of the parents of the victim i.e. PW-2, Ramesh Ram and PW-3 Shakuntala Devi. Each of them has stated in their deposition, which was recorded on 24.1.2001, that they got married 25 years ago and the victim, Kumari Vimla (PW-1) born after two years of their marriage. Therefore, in view of the above statement of PW-2 Ramesh Ram and PW-3 Shakuntala Devi, the age of Kumari Vimla can safely be inferred as 22 9 years. As such, in view of the evidence discussed supra, Kumari Vimla was major and was more than 18 years of age on the date of the said incident. (ii) That as per the statement of the victim Kumari Vimla, PW-1, the appellant-accused had come to her house two days prior to the said incident and was also living in her house. Kumari Vimla went to the Pithoragarh bus stand on feet, which has taken nearly half an hour. They first travelled by jeep in which a number of other passengers were also travelling. They also journeyed from Pithoragarh to Chakarpur by bus via Loha Ghat, Champawat and Tanakpur. In this way, they travelled around 130 kms by jeep and bus and so many other passengers were present at the bus stand as well as in the jeep and bus. But she did not raise any alarm nor made any complaint to anybody in the bus or jeep and remained with the appellant- accused for 10-11 days. She also got photographed at Khatima which is a densely populated municipal city. All these facts and circumstances make it abundantly clear that Kumari Vimla was the consented party who had gone with the appellant-accused on her own will. 19. Learned Counsel for the appellant placed his reliance on the judgment delivered by the Hon’ble Apex Court in the case of Narayan alia Naran v. State of Rajasthan reported in (2007) 6 SCC 465. Para 11, 12, 13, & 15 of this verdict are relevant and are reproduced as under: “11. In the cross-examination the prosecutrix (PW 3) stated that she boarded the trolley at about 5 o’clock in the evening and by 7 o’clock 10 they reached Singhpur Village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ext.P-5) she stated that the accused committed rape on her thrice but in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on kankar (rough way). She did not state that she offered any resistance though she was physically very strong. Medical report (Ext.P-1) says that there were no injuries on the body of the prosecutrix (PW 3). There were no injuries on her private part. It is ultimately opined that “no definite opinion can be given regarding rape, however, she is habitual to sexual intercourse”. In the circumstances, is it possible to believe that the prosecutrix (PW 3) has been subjected to rape twice by the accused as alleged? In the first information report (Ext.P-5) it is stated that the prosecutrix (PW 3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW 3) was driving the tractor from Singhpur to Bharkiya crossing through a number of villages. It is not stated by the prosecutrix (PW 3) that she made any attempt to get down from the tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily. 12. Yet another important aspect of the matter, in the first information report and as well as in her evidence the prosecutrix (PW 3) stated that she revealed the entire episode of committing rape on her by the accused to Smt Tejkanwar (PW 6) in whose house in Akodiya Village she slept on the fateful night. She also state about the accused’s snatching of Rs.1000 from her and also some jewellery. Smt Tejkanwar (PW 6) in her evidence did not state that the prosecutrix (PW 3) narrated the incident of rape committed on her by the accused to her. The evidence of the prosecutrix (PW 3) if full of material contradictions. There is no corroboration whatsoever from any of the witnesses, more particularly in the evidence of Smt Tejkanwar (PW 6) who is a material witness. It is true, the evidence of the prosecutrix (PW 3) itself, if acceptable, is 11 sufficient to establish the charge against the accused but her evidence is so artificial which cannot be accepted. 13. In the circumstances, we are of the considered opinion that the prosecution miserably failed to establish the charge against the appellant for the offence punishable under Section 376 IPC. 15. For all the aforesaid reasons, we hold that the prosecution failed to establish the charges framed against the appellant for the offences punishable under Sections 376 and 392 IPC. The conviction as well as sentences imposed upon the appellant for the offences punishable under Sections 376 and 392 IPC are accordingly set aside.” 20. Another fact which makes the prosecution story doubtful is that the incident was said to have taken place on 20.4.2000 at 10 AM and the FIR could be lodged on 28.4.2000 at 7.25 AM and the distance between the place of the occurrence and the concerned police station is 13 kms. This delay in lodging the FIR remains unexplained by the prosecution. Hence, this fact creates further doubt in the prosecution story. 21. From the above-narrated facts and circumstances of the case and the evidence available on the record and in view of the legal proposition propounded by the Hon’ble Apex Court (supra), the prosecution has miserably failed to prove its case against the appellant-accused beyond reasonable doubt and the appellant-accused is entitled to get the benefit of doubt. As such, the impugned judgment and order dated 5.9.2002 of the Trial Court is not correct and justified and is liable to be set aside. 22. In the result, the appeal is allowed. The judgment and order dated 5.9.2002 passed by the Additional Sessions Judge, Fast Track Court, Pithoragarh in Sessions 12 Trial No. 21 of 2000 convicting the appellant under Section 376 and 366 of I.P.C is hereby quashed and the sentence of three years’ R.I. awarded to the appellant under each of the aforesaid sections is set aside. The appellant is on bail. He need not surrender unless required in any other case. His bail bonds are cancelled. Sureties are discharged. 23. Let the lower court record be sent back. (Dharam Veer, J.) 23.3.2009 PRABODH