Ratia Dhimar alias Rati Ram vs State of U.P.

B.K. Sharma, J.—This is an appeal against the judgment and order dated 3.4.1997 passed by Sri Ravi Narain, the then IIIrd Additional District Judge, Nainital in S.T. No. 152 of 1991, State v. Ratia Dhimar, whereby he convicted the accused-Appellant Ratia Dhimar alias Rati Ram of the offence u/s 366, I.P.C. and sentenced him to undergo R.I. for a period of five years and to pay a fine of Rs. 1,000 and in default thereof to suffer simple imprisonment for a period of six months, convicted him of the offence u/s 368, I.P.C. and sentenced him to undergo R.I. for a period of five years and to pay a fine of Rs. 1,000 and in default of payment of fine, to suffer simple imprisonment for a period of six months and further convicted him of the offence u/s 376, I.P.C. and sentenced him to undergo R.I. for a period of seven years and to pay a fine of Rs. 1,000 and in default of payment of fine, to suffer simple imprisonment for a period of six months. The substantive sentences were made to run concurrently.

The prosecutrix in this case is Km. Pappi, daughter of Jodha Singh, informant, resident of village Kaliyawala, Police Station Jaspur, district Nainital. The prosecution case was that the age of the prosecutrix on the date of occurrence was 14 years, that on 26.9.1989 Km.. Pappi was called by Smt. Paro, sister of the accused-Appellant Ratia Dhimar alias Rati Ram and taken to Suwawala, from where the accused-Appellant kidnapped her from the lawful guardianship of her father with intent that she may be forced to marry him against her will and took her to his own house at Hazira and kept her there and committed rape on her ; that from there he took her to village Angadpur and kept her there at the house of Pritam Singh and committed rape upon her, that from Angadpur, he took her to Bijnor and kept her there for 20-25 days. In the meantime, a written F.I.R. about the occurrence was lodged at the police station by her father, i.e., informant Jodha Singh on 28.9.1979 at 6.20 p.m. against the accused-Appellant. On this, a chik report was prepared and a case u/s 363/366, I.P.C. was registered against him.

The investigation of this case was made by Ram Saran Mishra, S.I.P.W. 6. During the course of investigation, he arrested the accused-Appellant from a Rasta on 16.10.1989 at 11.25 a.m. where he was taking the prosecutrix with him and recovered her also and prepared the necessary recovery memo. The prosecutrix was sent for medical examination and X-ray for test of age and finally charge-sheet was submitted against the accused-Appellant.

Km. Pappi was medically examined by the lady doctor Deepti Agarwal, Medical Officer-In-charge, Combined Hospital, Jaspur, District Nainital on 16.10.1989 at 3.10 p.m. Her observations were as follows :

O/I : No marks of injury seen on body surface.

Height : 4 feet 9 inches, Breast Wall developed.

Weight : 44 Kg. Auxiliary Hair : Brown.

Teeth : 8-7/8-7

Pubic Hair : Dark brown

Well grown.

Examination of private parts :

No marks of injury seen on private parts. Hymen replaced by old healed tags, vagina admits 2 fingers easily. Uterus normal size. Vaginal smear taken and sent for pathological examination.

Thereafter the prosecutrix was sent to Radiologist L.D. Bhatt Hospital, Kashipur, for X-ray of Rt. elbow and wrist joints and opinion for determination of age and referred to Pathologist, L.D. Bhatt Hospital Kashipur, for examination of vaginal smear slides for spermatozoa.

The X-ray report revealed that Epiphyscal ends of upper and lower end of Radius and ulna are completely fused. In the opinion of the lady doctor, the age of the prosecutrix was ascertained to be more than 18 years. The smear examination revealed no spermatozoa. The lady doctor could not give any definite opinion about rape, however, she opined that the girl is used to sexual intercourse.

Heard the Learned Counsel for the parties and gone through the record.

At the trial, the prosecution examined Km. Pappi prosecutrix as P.W. 1, Santosh Singh, P.W. 2 real brother of the Jodha Singh informant and Jogendra Singh P.W. 5. Rest of the evidence was formal in nature. No witness was examined in defence.

Now coming to the question of age of the prosecutrix. Her father did not enter the witness box being too old and having lost his eye sight Santosh Singh, brother of the informant Jodha Singh did not say anything on the point of age in his examination-in-chief though in his cross-examination, he stated that at the time of occurrence, the age of the prosecutrix was 14-15 years. He has not given the date, month or year of her birth. Km. Pappi P.W. 3 in her statement dated 15.2.1995 claimed that her age at that time as 19 years and that her age at the time of occurrence was 14 years. She also has not disclosed the date, month or year of her birth. Her mother did not enter the witness box to testify to her age. In the F.I.R. of this case, the informant has given her age as 16-17 years on the date of occurrence. In these circumstances, the oral evidence given by the above witnesses on the point of her age cannot be relied upon. The opinion about her age based on ossification test was that the prosecutrix was above 18 years of age on the date of occurrence. On the basis of this medical evidence, it is held that the age of the prosecutrix on the date of occurrence was above 18 years.

The prosecutrix has narrated on oath the prosecution story as outlined above. On the point of her going from the house of her parents, there is no other direct evidence. On the point of her recovery, there is evidence given by Santosh Kumar, her paternal uncle P.W. 2, Jogendra Singh P.W. 5 and Ram Saran Mishra S.I.P.W. 6. Though the case of the accused-Appellant is one of total denial it is obvious that he did take Km. Pappi P.W. 1 with him and kept her with himself at different places and had sexual intercourse with her and that she was recovered on 16.10.1989 while going with the accused-Appellant on a Rasta in the day on 11.25 a.m. It is equally obvious that she went with the accused-Appellant out of her own volition and lived with him of her own will and that she was neither abducted by force nor by fraud nor there was any enticement involved. In her testimony, she had stated that she had worked with Paro sister of the accused-Appellant as she had done the work of planting paddy saplings, that 5 years ago, Paro called her and took her to Suwawal and there accused-Appellant met her and gave allurement of marriage to her and took her with himself. Before the I.O. she had stated that she had gone to the house of Balvir with her brother to take the payment of her wages. In the F.I.R. lodged by her father, the case is that she had taken with herself ornaments and cash also. These allegations themselves indicated that she has willingly eloped with the accused-Appellant with the intention of never returning to the house. In her cross-examination, she admitted having taken half tola of gold with her from her parent�s house. She claimed that Paro aforesaid had forced her to carry this gold with her. She stated that at that time, her mother was present at the house which she denied. There was no question of Paro compelling her to bring the gold. She did not make any such claim in her examination-in-chief. Her admission clearly shows that she has left the house with an intention never to come back. Then it has been elicited from her in her cross-examination that she was taken from Suwawala to Hazira. She claimed that nobody met them in the way. This claim cannot be believed. The claim has been made by her only to avoid the question as to why she did not make any complaint to the passers-by that she has been abducted. Then she stated that after stay at Hazira farm at the night, she was taken to Angadpur on cycle but on being put the question as to why she did not make any complaint to any person in the way, she said that this journey also she had performed in the night. She admitted that there were houses in the vicinity of the house in which she was made to stay at the night. She admitted that she did not make any complaint to anyone there. She admitted that from there, she was taken to Bijnor by bus in which there were other passengers also but she did not make any complaint to any person about her abduction. She admitted that she was neither threatened nor shown any weapon by the accused-Appellant. It is, thus clear that she was all along a consented party. Asked further, she stated that she had appeared before a Magistrate at Bijnor and that she did not make any complaint to that Magistrate also. She was also shown a document which was a photograph of the marriage agreement. She admitted that it contained her photograph, even though she stated that whatever was written in this document was not written with her consent. She testified that she and the accused-Appellant was caught by the police when they were going from Bijnor and that her younger paternal uncle was also accompanying the police at that time. She did not testify in her evidence at the trial that she made any complaint to her younger paternal uncle or to the I.O. that she has been abducted and raped by the accused-Appellant by force or by fraud. There was also no complaint made by her that she has been enticed away by the accused-Appellant. Santosh Singh P.W. 2 her younger paternal uncle testified about the recovery but he also did not say that the prosecutrix made any complaint to him or to the police against the accused-Appellant. Jogendra Singh P.W. 5, Anr. witness of recovery also did not testify to any such complaint by her. The I.O. Ram Saran Singh, P.W. 6 entered the witness box. He testified to the recovery but he also did not testify to any complaint by the prosecutrix to him against the accused-Appellant.

In view of the above discussion, it cannot be said that the offence u/s 366, I.P.C. has been made out against the accused-Appellant. Similarly, the offence u/s 376, I.P.C. also cannot be said to have been made out in this case. In view of the fact that the prosecutrix was a major and that she was entitled to give consent to sexual intercourse with her and it is plain from the evidence and circumstances that she was a consenting party to the sexual intercourse which the accused-Appellant had committed with her from time to time on different places. It will be material to note that in her statement before the I.O. u/s 161, Code of Criminal Procedure after the recovery, she did not say that she has been raped by the accused-Appellant. It cannot be doubted that they were living as man and woman all along this period.

The learned Additional Sessions Judge has convicted the accused-Appellant for the offence u/s 368, I.P.C. Apart from erring in appreciation of evidence on merits, he committed an error in trying the accused-Appellant for the offence u/s 368, I.P.C. The charge is supposed to be framed not against the abductor or kidnapper but against the 3rd person who kept the abducted or kidnapped girl with the requisite knowledge. The conviction for the offence u/s 368 cannot be sustained against the accused-Appellant.

For the reasons aforesaid, the appeal is allowed. The conviction of the accused-Appellant for the offences under Sections 366, 368 and 376, I.P.C. is set aside and he is acquitted of the same. He is in jail custody at present. Let him be released forthwith unless required in connection with some other case or crime.

Let a copy of this judgment be sent by the registry to the Additional Sessions Judge, concerned at once for immediate compliance. The compliance report be submitted to this Court by the Additional Sessions Judge, concerned within a fortnight from today. This appeal shall be listed before this Bench for orders along with the compliance report of the Additional Sessions Judge, concerned on 12.8.1999.