State of Uttaranchal Vs. Nayan Singh - Court Judgment

B.S. Verma, J. (Oral)

This appeal U/S 377 of the Criminal Procedure Code (in short Cr.P.C.) has been preferred by the State against the judgment and order dated 6-12-2003, passed by Sessions Judge, Pithoragarh, in Sessions Trial No. 7/2003, State Vs. Nayan Singh, whereby the accused/respondent Nayan Singh has been acquitted of the charges U/Ss 363, 366, 376 I.P.C.

According to prosecution story, on 19-1-2003 at about 2 p.m. accused/respondent Nayan Singh had kidnapped Km. Ishwari Bhatt from the lawful guardianship of her parents and carried her at different places and committed forcible rape upon her against her will. As per the prosecution case age of Km. Ishwari at the time of occurrence was 15 years.

The learned trial court after considering the evidence on record and hearing the counsel for the parties, came to the conclusion that the prosecution had failed to prove the charges levelled against the accused and accordingly acquitted the accused vide impugned judgment and order.

Feeling aggrieved the prosecution has preferred this Government Appeal.

I have heard learned Addl.G.A. on behalf of State and the learned Senior Advocate on behalf of the accused/respondent.

Learned Addl.G.A. has contended that the prosecutrix at the time of occurrence was below 16 years of age. Her date of birth as per certificate Ext. Ka.4 issued by the school where Km. Ishwari Bhatt was studying, is 2.4.1989 and according to this certificate her age at the time of occurrence comes to 14 years, and the learned trial court has committed a manifest error of law holding that the prosecution had failed to prove that the girl was below 16 years of age and the accused/respondent is liable to be convicted for the offences U/Ss 363, 366, 376 I.P.C.

On the other hand learned Senior Advocate appearing on behalf of the accused/respondent has submitted that the girl was above 16 years of age and she had love affairs with the accused and was consenting party and no offence was committed by the accused and the trial court was justified in acquitting the accused.

Having considered the submissions of the counsel for the parties, by a perusal of record it shows that in the written report lodged with the police station the age of the girl was mentioned as 15 years. The Medical Officer in the medical report, Ext. Ka.1, has mentioned that the radiological age of Km. Ishwari Bhatt was about 16 years. According to x-ray report of right wrist, radius and ulna epiphysis of corresponding bone was fused as per opinion of the dctor noted in it, the normal age of fusion is 18-19 years. In the pathological report it has been mentioned that sexual intercourse has been done but no spermatozoa was seen in both slider.

The prosecution also got examined P.W.3, Durga Dutt Bhatt, a teacher of Junior High School Kanda, where Km. Ishwari Bhatt was studying. This witness has proved certificate Ext. Ka.4 wherein the date of birth of Km. Ishwari Bhatt has been noted as 2.3.1989. P.W.2, Dharmanand Bhatt father of the prosecutrix in his on oath statement has stated the age of prosecutrix as 15 years at the time of incident, but this witness could not tell the date of birth of his daughter as per Pariwar Register. This witness although admitted that he had the horoscope of the prosecutrix but he did not file the same in evidence to prove her age for the reason best known to him.

P.W.1, Dr. Nirmala Punetha, in her statement on oath has stated that axillary hair of the girl were well developed, hymen posterally torn and vagina admitted two fingers easily. The pathological age of the girl was 16 years and in her opinion the girl was subjected to sexual intercourse. In the cross examination this witness has stated that the age of girl could not be 18 years and could be below 18 years. However she admitted this fact that there should be two years difference on either side of 16 years. This witness has also stated that she cannot tell about fusion and radiologist can tell about it. The Radiologist in the medical report Ext. Ka.1 has mentioned age of the girl as 16 years and he had found the ulna and radius of right wrist fused and had given opinion that the fusion comes at the age 18-19 years. Thus keeping in view the difference of two years from either side the age of the prosecutrix had rightly been held by the trial court above 16 years. The learned trial court also observed that according to written report the age of the girl was 15 years and as per school certificate her age was 14 years and the pathological age of the girl was above 16 years and where there are two assertions about the age its benefits would go to accused. The trial court had taken into consideration various case laws on this point and came to the conclusion that the benefit should go to the accused. The finding recorded by trial court on the point of age of the girl is perfectly justified and requires no interference.

The another aspect of the case which was taken into consideration by the trial court was that the girl had love affairs with the accused and a number of letters written by the accused to the girl have been brought on record and Km. Ishwari Bhatt in her statement on oath has admitted that these letters were written by the accused to her and these letters have been proved and exhibited as material Ext. Ka.5 to material Ext. Ka.23. The love letters written by the girl to the accused have also been proved as Ext. Kha.1 to Kha.10. Thus from the evidence on record, it has rightly been held by the trial court that the prosecutrix and the accused had fallen in love and were consenting party and the prosecutrix was more than 16 years of age at the time of incident and no offence U/Ss 363, 366 and 376 I.P.C. was proved against the accused beyond all reasonable doubts and he has rightly been acquitted by the trial court.

The appeal lacks merit and is dismissed.