Ram Chandra vs The State

Dharam Veer, J.—This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 19.04.1997 passed by the Second Additional Sessions Judge, Nainital in S.T. No. 369 of 1994, State v. Ram Chandra, thereby convicting and sentencing the appellant/accused under Sections 376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) for seven years'' R.I. and further convicting and sentencing him u/s 366 IPC for five years'' R.I. Both the sentences were directed to run concurrently. Co-accused Munna Singh was acquitted for the offence punishable u/s 363/366/368 IPC.

Heard learned Counsel for the parties and perused the entire material available on record.

In brief, the prosecution case is that complainant Jaswant Singh (P.W.2) lodged an FIR on 18.5.1992 stating therein that the aunt (Mausi) of the appellant/accused was married in complainant''s village due to which the appellant/accused used to visit his village and also in complainant''s house and he also used to talk to the complainant''s daughter. Sometime the appellant also came in the absence of complainant in his house. In the evening of 16.5.1992, complainant''s daughter Sheshlawati had gone from the house. For the whole night the complainant searched for his daughter and on the next day morning, Mahesh Singh (PW3) and Kanhai Singh informed the complainant that they had seen his daughter while going with the appellant on his bicycle and co-accused Munna was also accompanying them. It was also stated that his daughter has been enticed away by the appellant/accused and co-accused and the age of his daughter is 131/2 years. With the same averments, the FIR Ex.Ka-1 was lodged on 18.5.92 at 11:25 AM at PS Nanakmata. On the basis of this FIR, Chik FIR was prepared by C/C Laxman Chand, i.e. Ex.Ka.9. The necessary entry was also made in the G.D., the carbon copy of which is Ex.Ka-10. Investigation of this case was entrusted to P.W.4 S.I. Anwar Ali. The victim was recovered on 18.5.92 itself and the recovery memo Ex.Ka-2 was prepared. The victim was given in the supurdgi of her relatives and Supurdginama Ex.Ka-3 was prepared. Victim was medically examined on 19.5.1992 at 2:30 PM by PW5 Dr. Smt. Hem Lata and medical report Ex.Ka-11 and supplementary report Ex.Ka-12 and Ka-13 as well as the x-ray report Ex.Ka-14 were prepared. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-4 and also the site plan of the place of recovery of victim, i.e. Ex.Ka-5. The IO also took the underwear of the appellant/accused as well as the Petticoat of the victim into his possession and Fards Ex.Ka-6 and Ka-7 respectively were prepared. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused and co-accused Munna Singh (acquitted by trial court) u/s 363/366/376 IPC, i.e. Ex.Ka.8.

Learned Munsif Magistrate, Khatima committed the case to the court of Sessions on 02.12.1994 after giving necessary copies to the appellant/accused and co-accused as required u/s 207 Cr.P.C. The case was transferred to the Second Additional Sessions Judge by the Sessions Judge for disposal according to law.

On 06.12.1995, learned II Additional Sessions Judge, Nainital framed the charge against the appellant/accused u/s 363/366/368/376 IPC and against the co-accused Munna Singh under Sections 363/366/368 IPC, which was read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.

To prove its case, the prosecution has examined P.W.1 Shesshila Devi, victim, PW2 Jaswant Singh, complainant, PW3 Mahesh Singh, who informed the complainant about the victim, PW4 SI Anwar Ali, IO of the case and PW5 Smt. Hem Lata, who medically examined the victim.

Thereafter, the statement of the appellant/ accused and co-accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, no oral or documentary evidence was produced in defence.

After appreciating the evidence on record and hearing learned Counsel for the parties, the learned Second Additional Sessions Judge, Nainital vide judgment and order dated 19.04.1997 has convicted and sentenced the appellant/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred.

Before further discussion, it is pertinent to mention the medical report Ex.Ka-11 of victim Sheeshlata who was examined on 19.5.1992 at 2:30 PM by PW5 Dr. Hem Leta, which is as under:

Pubic and axillary hairs are present, soft scant and brownish black in colour. Breasts are well developed, labia majora and minora are developed. Hymen rpt and posterior old, healed tear extending upto the forchette. Vagina admits two fingers easily not painful. No abnormal discharge is present. There are no signs of injury on the private parts and other parts of the body. No any types of stains seen over the undergarments and other parts of the body including private parts. Vaginal smear slide taken and sent to pathologist of this hospital for determination of spermatozoa. Girl sent to Supd. Distt. Hospital Pilibhit for x-ray of wrist and elbow joint for determination of her age through CP No. 249 Km. Manju.

After that the same medical officer, on the basis of vaginal smear report Ex.Ka-13 and x-ray report Ex.Ka-14, prepared the supplementary medical report Ex.Ka-12 which reads as under:

I. Vaginal smear slide examination report dated 20.5.92 reveals the followings

No spermatozoa seen epithetical cells seen, large number of bacteria seen.

II. X-ray dated 20.5.1992

Skiagram right elbow AP- All the epiphysis around the elbow joint are fused with their corresponding bones.

Skiagram right wrist AP- The epiphysis of the distal end of radius and ulna bone are not fused with their corresponding bones.

Opinion- The age of the girl is between 16-18 years.

II- She is habitual to sexual intercourse but there are no signs of recent intercourse seen.

To prove the medical reports, the prosecution has examined PW5 Dr. Smt. Hemlata who has proved the medical report Ex.Ka-11 and supplementary report Ex.Ka-12 prepared by her.

To further prove its case, the prosecution has examined PW1 Smt. Sheeshlawati who stated that the appellant/accused was known to her and Jaswant Singh is her father and before marriage she was living with her father. Appellant/accused used to visit her house. She also stated that on one day the appellant/accused came and told her that he would marry her and after that he took her with him. The appellant bought her in his village Mohammadpur Muriya where she stayed in the house of Munna Singh for one day and at that place, the appellant/accused committed rape with her. On the next day, she had gone to village Chandpur along with the appellant/accused. From there she was again brought back at village Mohammadpur Muriya. On the next day, she was caught along with the appellant/accused Ram Chandra at Nanak Sagar Colony. In the cross-examination, she stated that she had gone along with the appellant/accused on a bicycle. Whenever the appellant/accused used to come in the house, she used to talk with him. Further, when she had gone from the house, her mother, father, brother and sister were present. She further stated that the village Mohammadpur Muriya is at a distance of about 15-16 kilometers from her village and on the way, there were villages and Abadi and the persons were also roaming around. Up to when she stayed with the appellant/accused, she had neither complained to anyone nor she made any noise.

PW2 Jaswant Singh who has reiterated the version of the FIR in his statement in chief and also proved the FIR Ex.Ka-1 lodged by him. He further stated that the documents Ex.Ka-2 and Ka-3 were written in the police station.

PW3 Mahesh Singh who has stated that on 17.5.1992 he saw the appellant/accused while taking the victim Sheeshla on a bicycle and on the next day he informed about the same to the father of victim.

PW4 SI Anwar Ali, IO of the case who proved the Fards Ex.Ka-2 about recovery of victim; site plan of the place of occurrence Ex.Ka-4 and site plan of place of recovery Ex.Ka-5; Fards regarding recovery of underwear of the appellant/accused as well as recovery of petticoat of the victim Ex.Ka-6 and Ka-7 respectively. During investigation he recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet Ex.Ka-8. Chik Fir of this case was prepared by C/C Laxman Ram i.e. Ex.Ka-9 and entry was also made in the GD, i.e. Ex.Ka-10.

Thereafter, the statement of the appellant/ accused and co-accused was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against them. However, no oral or documentary evidence was produced in defence.

Km. Geeta Parihar, learned amicus curiae for the appellant/accused argued that the prosecution has not proved the case against the appellant/accused beyond reasonable doubt. I find substance in this argument for the following reasons:

A. That the victim was known to the appellant/accused before the said incident as the appellant used to visit her house and she also used to have talks with him. On 16.5.1992, the victim had gone with the appellant/accused and at that time her mother, father, brother and sister were present. She remained with the appellant till 18.5.1992 till they were caught by the police. During that period, she had gone from her own village Salmatta to village Mohammadpur Muriya which is about at a distance of about 15-16 kilometers and on the way, there were villages and Abadi and the persons were also roaming around. Even she had also gone to village Chandpur from the village Mohammadpur Muriya which is at a distance of about 40 kilometers and she also stayed there with the appellant/accused and on the way also there was Abadi and several people had met with her and later she came back to village Mohammadpur Muriya. She herself has stated that up to when she stayed with the appellant/accused, she had neither complained to anyone nor she made any noise and she remained with the appellant/accused for two days even when she traveled with the appellant on bicycle and she also traveled several miles but she did not made any noise nor she complained about it to anyone. This conduct of the victim itself shows that she is a consented party and she had gone with the appellant/accused with her own consent.

B. That as per the medical evidence i.e. supplementary medical report Ex.Ka-12, the medical officer has opined that the age of the girl is between 16-18 years and she is habitual to sexual intercourse and even no signs of recent intercourse were seen. Even it has come in the supplementary report Ex.Ka-12 that no spermatozoa was seen. It is now a well-settled law that with regard to the age opined, two years age margin can be given on either side. Applying this formula, if two years'' age margin is given on the higher side, in that case, definitely the victim was more than 18 years of age i.e. 18-20 years on the date of incident and as such she was major on that day. As such, it cannot be said that the victim was minor on the date of incident.

Thus, in light of the facts and circumstances of the case, the prosecution has failed to prove its case against the appellant/ accused beyond reasonable doubt for the offence punishable u/s 376/366 IPC, rather it is proved that she had gone with the appellant/accused as per her own wishes and as such, the appellant is liable to be extended the benefit of doubt.

For the reasons recorded above, the appeal is allowed. The judgment and order dated 19.04.1997 passed by the Second Addl. Sessions Judge, Nainital in S.T. No. 369/1994, State v. Ram Chandra, is set aside. The conviction and sentence as awarded against the appellant/accused, which has been discussed above, is also hereby set aside. Appellant/accused is on bail. He need not surrender unless wanted in any other case. His bail bonds are cancelled and sureties are discharged.