IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No.50 of 2001 (Old No.3034/1998) State of Uttarakhand … Appellant Versus Jiwan & others … Respondents Mr. Hari Om Bhakuni, Brief Holder for the State/appellant Mr. C.K. Sharma, amicus curiae for the respondents Dated: August 3, 2011 Hon’ble Servesh Kumar Gupta, J. The government criminal appeal has been preferred against the judgment and order of learned Additional Sessions Judge, Dehradun dated 21.8.1998 wherein the accused/ respondents Som was acquitted from the charge of Section 368 IPC and at the same time, accused Jiwan and Kallu @ Dharmendra were acquitted from the charges of Sections 452/ 323/363/366/368 and 376 IPC. Feeling aggrieved, the government has preferred this appeal. Re-appreciating the facts and evidence of the case as exists on the lower court record, it is worthwhile to read first information report which was lodged on 22.5.1996 at 8:25 PM. This was lodged by Smt. Beena W/o Ramesh Thapa against two accused persons Jiwan and Kallu with the allegations that on 14.5.1996, Jiwan whose parentage and address was not known to her, came along with his friend Kallu to her residence and knocked the door. On opening the same, both the accused persons uttered some indecent words about her daughter Km. Reema and threatened and after extending threat, they left the place. They again came on 15.5.1996 at about 7 AM at her residence and began to beat her. She suffered the injuries. On 16.5.1994 when Km. Reema went to 2 fetch the milk, she was forcibly abducted putting her on a Vikram (a mini public transport vehicle). They took Km. Reema with them. She was kept confined in the house of one Sri Som at 23 Park Road, Laxman Chowk, Dehradun, where she was raped several times. Anyhow Km. Reema got herself rid from the clutches of the accused persons and returned to her home on 20.5.1996. She narrated the entire incident to her mother but since she was under disposition, so she could not go to the police station forthwith for lodging an FIR and the same could be lodged by Smt. Beena taking her daughter Km. Reema with her on dated 22.5.1996, as stated above. On 23.5.1996, Km. Reema was medically examined in the government hospital and the following observation has been reported by the doctor in her report: - “No marks of external injury was found on the body of the girl. Her breasts were well developed. Pubic hairs developed. Auxillary hairs not present. Vagina admits two fingers. Hymen torn. Uterus of normal size. L.M.P. 3 days before according to her statement.” The Doctor could not ascertain whether the girl was subjected to the rape because of her being habitual to sexual intercourse. As per determination of supplementary report, her age was assessed as 13-14 years and the vaginal smear report was found negative. After investigation, the chargesheet was submitted against the accused Jiwan and Kallu besides the other accused Som and Smt. Magdi. Smt. Magdi is the mother of accused Som. During trial she died so the case was abated against her. This way only three accused, Jiwan, Kallu and 3 Som were tried by the court below and the trial resulted in the acquittal, as above. Having heard the learned brief holder for State and learned amicus curiae for the respondents, this Court has looked into the oral testimony besides the medical report and other relevant papers. At the outset, it is relevant to mention that Km. Reema and her mother Smt. Beena did not know the accused Kallu pre-hand. It has only been said that Jiwan hails from the village wherefrom the informant and prosecutrix come. On appreciation and careful scrutiny of the evidence, it is the matter of concern that the prosecutrix remained confined for five days at the residence of accused Som in a room but she did not raise any alarm in this long span of time while it has been stated by her that in the nearby vicinity the construction work was going on and the mason/labourers were doing the work of construction through out the day. Besides when she was allegedly abducted by the accused Jiwan and Kallu, it was 8 AM of the morning in the month of May in city Dehradun. This much time in the extreme summers makes the road busy and full of persons but by that time too, she did not raise any alarm so that to invite the attention of the passersby. This conduct of the prosecutrix creates a suspicion in the truthfulness of the story of abduction. Yet another important aspect of this case is that when Km. Reema did not return after fetching the milk on the relevant date and time and before 16.5.1996, the accused Kallu and Jiwan had threatened Smt. Beena and uttered filthy words to the dignity of Km. Reema, she could anticipate the abduction of her daughter by the accused persons but remained silent continuously for six days, i.e. from the morning of 16.5.1996 to the evening of 22.5.1996 and even when her daughter returned to home on 20.5.1996, then also she did not lodge 4 any report forthwith, while it has been stated in the evidence that Smt. Beena has a young earning son. It has also been stated in the evidence that Km. Reema had been engaged to be wedded with someone in near future and her prospective in- laws house was not far from the residence of Smt. Beena. Besides this, she has a close contact having sister but she did not take the assistance of anyone to lodge the first information report for the alleged incident either immediate after of the incident or even immediate after of the return of Km. Reema to home. In the medical examination the doctor has opined that she is long habitual of sexual intercourse, vaginal smear report was found to be negative. On x-ray of her bones, her medical age was assessed reaching 14 years. It is a settled principle of law that medical age can vary up to two years on either side. In the present case as the circumstances disclose, this medical age can be assessed two years higher than estimated by the doctor. This way she should not be less than 16 years. The learned trial court has also marked that there are 2-3 other persons having the name Dharmendra in the same area as well as at Park Road. There are other persons having the name Som along with the same fathers’ name. So, this all goes to the conclusion that the prosecution could not prove the case beyond all reasonable doubt for the offence wherefor the accused persons have been charged. This court do not feel any material irregularity or inconsistency in appreciation of the evidence, as has been done by the trial court. So, the appeal is bereft of merit and liable to be dismissed. The appeal is dismissed accordingly. (Servesh Kumar Gupta, J.) August 3, 2011 Rajeev Dang