Malkeet Singh vs State Of Uttarakhand

Lok Pal Singh, J

1) This criminal appeal is received from jail through the Superintendent, Sub Jail, Haldwani, District Nainital and is directed against the judgment and order dated 16.05.2013, passed by learned II Addl. Sessions Judge, Rudrapur, District Udham Singh Nagar, in Sessions trial no.280 of 2011, whereby appellant Malkeet Singh was convicted under Section 366 of IPC and was sentenced to undergo rigorous imprisonment for a period of four years along with a fine of Rs.1,000/-. In default of payment of fine, the convict was directed to undergo additional imprisonment of one month.

2) Heard learned counsel for the parties and perused the entire evidence on record.

3) Prosecution story, in brief, is that PW2 (mother of the prosecutrix), submitted a report (Ext. A-3) at R.O.P. Gularbhoj, P.S. Gadarpur, District Udham Singh Nagar, on 24.07.2011, at 09:30 A.M., stating therein that on 21.07.2011, at about 03:00 P.M., accused Malkeet Singh resident of same village enticed away her minor daughter. Brother of the accused Hoshiyar Singh, Jogendra Singh s/o Kishan Singh and Inder Singh s/o Bela Singh, all residents of same village, helped the accused in said act. Sister-in-law of the prosecutrix is an eyewitness to said incident. Her daughter also took Rs.16,500/- with her.

4) On the basis of said report, chik FIR (Ext. A-6) was lodged against the accused persons in respect of offences punishable under Sections 363, 366 of IPC. The Investigating Officer started the investigation and prepared site plan (Ext. A-8); recovered the victim and prepared recovery memo (Ext. A-1) and site plan (Ext. A-9) of the place of recovery. The I.O. arrested the accused persons and prepared arrest memos (Ext. A-10) thereof. The medical examination report of the victim was exhibited as Ext. A-4 and supplementary report as Ext. A-5. X-ray report and X-ray plate were also exhibited as (Ext A-12) and Material Exhibit 1. The I.O. got recorded the statement of the victim under Section 164 of Cr.P.C., and also recorded the statements of the witnesses. After completion of investigation, charge sheet (Ext A-11) was filed against the accused persons, including the accused-appellant for his trial in respect of offences punishable under Sections 363, 366 and 376 of IPC.

5) The case was committed to the court of Sessions for trial. Charges were framed against the accused Malkeet Singh under Sections 363, 366 and 376 of IPC. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 proxecutrix (name withheld), PW2 [complainant / mother of the victim], PW3 Dr. Parul Goyal (Medical Officer), PW4 H.C. Mahendra Singh (witness to recovery of victim), PW5 Constable Neema Rawat, PW6 Constable Hari Om, PW7 S.I. Bhagat Singh (I.O.) and PW8 Dr. Lalit Singh Tolia (Radiologist). DW1 Pyare Lal was produced as defence witness. In reply to questions posed under Section 313 of Cr.P.C., the accused replied that he has been falsely implicated in the crime and the case against him is false. The trial court, after hearing the prosecution and the defence, found the accused guilty of the charge of offence punishable under Section 366 of IPC and sentenced him accordingly. However, he was acquitted of the charge of offence punishable under Sections 363 and 376 of IPC.

6) PW1 stated on oath that accused enticed her away by threatening her to commit suicide by consuming poison and on the pretext of implicating her and her family members for such act. Co-accused Inder Singh, Jogendra Singh and Hoshiyar Singh also joined them from Gularbhoj railway station. They took the victim to different places and solemnized bogus marriage of the victim with accused Malkeet Singh in a Gurudwara at Alwar, Rajasthan. Thereafter, accused Malkeet Singh and co-assused Hoshiyar Singh committed rape on the victim. On 30.07.2011 the accused persons were arrested by the police and the victim was recovered from Baria Daulatpur Railway station. In her statement recorded under Section 164 Cr.P.C., the prosecutrix stated that she is aged 16 years. She proved her statement recorded under Section 164 Cr.P.C.

7) PW2 reiterated the averments made in the FIR lodged by her. In her cross-examination, PW2 stated that she had three sons and one girl and her eldest son is 28 years old, other children had a difference of two years each.

8) PW3 Dr. Manju Rawat, who conducted the medical examination of the victim, stated on oath that no mark of injury were seen externally at the time of examination. On internal examination she found no mark of injury at perineal, vulval and vaginal region. Hymen was found torn old. On vaginal examination, she found two fingers easily admitted into the vagina. Vaginal swab taken for presence of spermatozoa. In the supplementary report, after obtaining the pathology report, according to PW3, no spermatozoa was seen in the vaginal smear slides. According to PW3, no definite opinion regarding rape can be given. In the opinion of PW3, average radiological age is below 18 years and above 16 years.

9) PW4 H.C. Mahendra Singh Bisht is a formal witness. He is a member of the police party which arrested the accused persons and also a witness to recovery of the prosecutrix. PW5 Constable Neema Rawat is also a formal witness who took the victim to the hospital for getting her examined medically. PW6 Constable Hari Om is the scribe of the FIR. PW7 S.I. Bhagat Singh Bisht is the Investigation Officer of the case. PW8 Dr. Lalit Singh Tolia is the Rediologist.

10) In defence, accused examined DW1 Pyare Lal Verma, Gram Panchayat Vikas Adhikari, Gram Panchayat Roshanpur, Block Gadarpur, District Udham Singh Nagar, to prove age of the prosecutrix from the Parivar Register.

11) As stated earlier, there is no challenge to the findings of the trial Court and prosecution has accepted acquittal of the appellant under 363 and 376 of IPC.

12) Learned Amicus Curiae, appearing for the appellant, would argue that once the Court below has disbelieved major portion of testimony of PW1 and PW2, therefore, the appellant should be acquitted of the offence under Section 366 of IPC.

13) Learned Amicus Curiae would further argue that it is a clear case of consent between appellant and the prosecutrix. She submitted that the learned trial Judge has himself given the benefit of doubt to the appellant holding that the prosecutrix was a consenting party while acquitting the appellant from the charge under Section 376 and 363 of the IPC. She further submits that admittedly the appellant did not induce the prosecutrix for marriage and thus, the conviction of the appellant in this case was uncalled for, as such, the appellant deserved to be acquitted.

14) Thus, the question which falls for consideration of this Court is as to whether the prosecutrix was abducted to compel her to marry so as to uphold the guilt of the appellant for the offence under Section 366 of the I.P.C.

15) Having heard leaned Amicus Curiae and on perusal of the record, it can safely be concluded that the victim was in love with the appellant and both of them were in relationship. Medical report prepared by PW3 (Medical Officer) shows that the hymen was found torn old and there was no presence of spermatozoa in the vaginal smear slides. The victim readily went with the appellant and visited various places. Both of them solemnized marriage at a Gurudwara at Alwar and stayed there for ten days. The victim neither complained to anyone, nor did she raise any hue in cry while her stay at Alwar or while travelling to different places with the appellant. It appears to this Court that the victim was in love with the appellant and is ready and willing to marry him, but her family members were averse to said proposal. Due to this reason alone, she eloped with the appellant on her own volition. It has come on record that the sister-in-law of the victim witnessed the appellant and the victim going together on 21.07.2011, but the FIR was lodged three days after the incident, i.e. on 24.07.2011. It is quite surprising that when the appellant and the victim stayed for two days at nearby Kashipur Railway Station and other places, what prevented the family members not to search the missing girl and in lodging the FIR within time. Lastly, a perusal of the FIR would reveal that the victim at the time of leaving her house took Rs.16,500/- with her, which clearly reveals that she was mentally prepared to marry the appellant and was looking forward to lead matrimonial life with the appellant.

16) Taking into consideration antecedents of the appellant and the documents brought on record, in view of the Court, the prosecution has utterly failed to prove its case under Section 366 of IPC against the accused-appellant. Therefore, the impugned judgment and order is unsustainable in the eyes of law and is liable to be set aside.

17) Consequently, the criminal jail appeal is allowed. The conviction of appellant Malkeet Singh and sentence awarded against him under Section 366 of IPC is set aside. He is acquitted of the charge framed against him. Appellant is on bail. His bail bonds are cancelled and sureties stood discharged. He need not surrender.

18) Let a copy of this judgment be sent to the trial court forthwith for compliance. Lower court record be also sent back.