Tejpal @ Kallua v. State of U.P (Now State of Uttarakhand)

this appeal for last three dates. Therefore, heard Ms. Anjali Noliyal, Advocate/Amicus Curiae for the appellant, and Shri Vinod Sharma, Deputy Advocate General, for the State, and perused the lower court record. (3) Prosecution story, in brief, is that PW3 Smt. Sarvesh (the girl said to have been abducted and raped) was in her house when on 13.08.1993, at

8.00 p.m., she was enticed away by accused/appellant Tejpal @ Kallua with the help of his cousin sister (daughter of Prem Sukh) with intention to compel her for marriage. PW1 Purushottam (father of the Sarvesh Kumari) lodged First Information Report (Ex A-1) after a period of four days on 18.08.1993, against the accused Kallua (Tejpal) on the basis of which Crime No. 720 of 3 1993 was registered at the police station relating to offences punishable under section 363 and 366 of I.P.C. During investigation, it was revealed that the girl was kept for two days in a sugar cane field by the accused/appellant Tejpal @ Kallua with the help of co-accused Prem Sukh, and one Thakur Das. Thereafter, she was taken two different places but recovered on 26.09.1993, alongwith the accused/appellant Tejpal @ Kallua. After interrogating the victim and witnesses, a charge sheet (Ex A-12) was filed against the accused Tejpal @ Kallua, for his trial in respect of offences punishable under section 363, 366 and 376 of I.P.C., and supplementary charge sheet appears to have filed against the accused Thakur Das and Prem Sukh, for their trial in respect of aforesaid offences. (4) The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused as required under section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned Additional Sessions Judge Nainital, on 05.07.1995, after hearing the parties framed charge of offences punishable under section 363, 366 and 376 of I.P.C., against all the accused namely Tejpal @ Kallua, 4 Prem Sukh and Thakur Das. All of them pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Purushottam (informant and father of the victim), PW2 Khan Chandra, PW3 Smt. Sarvesh (the girl said to have been kidnapped) and PW4 Harish Chandra (declared hostile). The trial court put oral and documentary evidence to the accused under section 313 of Cr.P.C., in reply to which they pleaded that the evidence adduced against them was false. However, no evidence in defence was adduced. After hearing the parties, the trial court found that the charge of offences punishable under section 366 and 376 I.P.C., is proved only as against Tejpal @ Kallua and convicted him accordingly. As against the other accused namely Prem Sukh and Thakur Das, the trial court found the charge is not proved beyond reasonable doubt, and they were acquitted of the charge. After hearing on sentence the convict (Tejpal) was sentenced to rigorous imprisonment for a period of four years under section 366 of I.P.C, and rigorous imprisonment for a period of five years under section 376 of I.P.C. Aggrieved by said judgment and order dated 17.02.1999, passed by IInd Additional Sessions Judge Nainital, Camp 5 Haldwani, in Sessions Trial No. 232 of 1994, this appeal was filed by the convict before Allahabad High Court from where the same is received under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (5) PW3 Smt. Sarvesh ( the girl said to have been abducted in raped) is the star eyewitness of this case. She has stated in her examination in Chief that she was raped not only by accused Tejpal @ Kallua, but also by accused Thakur Das and Prem Sukh. She has further stated that she was kidnapped by the aforesaid accused after she was called out of her house by the daughter of Prem Sukh. It is pertinent to mentioned here that Prem Sukh is none other then the uncle of accused/appellant Tejpal @ Kallua. From her statement it further appears that she was kept in a sugarcane field for two days and thereafter she was taken to Sherkot and Narayanpur and other places. She was recovered after a period of one and half months. (6) The trial court has believed her statement only as against the present accused/appellant Tejpal @ Kallua and her statement is disbelieved as against 6 the accused Prem Sukh and Thakur Das, and it was held that charge found not proved that she was either abducted and raped by them. What is the most important in this case is that the medical report prepared after recovery of the victim which is Annexure-3 on the record shows that hymen of the girl was intact. That being so, the story of commission of rape for several days appears highly doubtful. The radiological examination report that the supplementary medical report (Ex-A6) prepared after radiological examination shows that the girl was aged 18 years, as such, the statement of (PW3) and her father (PW1 Purushottam) that she was 14 years old appears to be incorrect. (7) Apart from the fact, that from medical report the statement of the girl is not corroborated, there is yet another fact on record which shows that the girl was neither abducted nor raped as suggested by the prosecution. Said fact is that the girl (PW3) has admitted in her examination that she took ` 4,000/- at the time she left her father's house in the night, when she was called by Prem Sukh's daughter in connection with easing out on the field. This fact of taking ` 4,000/- by the girl with her in the night, 7 when she was purportedly going for easing out suggests that she was acquainted with the accused/appellant Tejpal @ Kallua, and she wanted to go with him from her house. As such, in the opinion of this Court, it cannot be said as held by the trial court that the prosecution has proved charge as against the accused/appellant Tejpal @ Kallua relating to offences punishable under section 366 and 376 of I.P.C., beyond reasonable doubt. Accordingly, his conviction and sentence recorded by the trial court is liable to be set aside. (8) Therefore, the appeal is allowed. Impugned judgment and order dated 17.02.1999, passed by IInd Additional Sessions Judge Nainital, Camp Haldwani, in Sessions Trial No. 232 of 1994, is hereby set aside. Accused/appellant Tejpal @ Kallua is acquitted of the charge of offences punishable under section 366 and 376 of I.P.C. He need not to surrender. Lower court record be sent back to the trial court alongwith the copy of this judgment. Dt.27.08.2012 N.P (Prafulla C. Pant, J.)