(1.) This appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 16.10.2003 passed by Addl. Sessions Judge/3rd F.T.C., Haridwar, District Haridwar in Sessions Trial No. 91 of 1998 'State vs. Smt. Shashibala and another', whereby accused/ appellant Bittu @ Manoj @ Naveen has been convicted under Section 366 of the Indian Penal Code, 1860 (for short I.P.C.) and has been sentenced to undergo rigorous imprisonment for four years with fine of Rs. 2,000/- and in default of payment of fine, rigorous imprisonment for four months has been awarded. The accused/appellant has been acquitted by the trial Court for the offence under Section 376 I.P.C. and by the same judgment, the co-accused Smt. Shashibala has also been acquitted for the charges levelled against her.
(2.) Heard learned counsel for the parties and perused the Lower Court's Record.
(3.) The facts, leading to filing of appeal, are that on 01.11.1996 at about 3:40 p.m., PW-1 Gyan Chandra-father of Km. Sangeeta (alleged victim) submitted a written report before the Station House Officer, Police Station, Kankhal, District Haridwar with the assertion that in the morning of 30.10.1996 his daughter Km. Sangeeta, aged about 17 years; studying in Class-X, had gone to Girls College, Satikund, Kankhal for study. When she did not return till the evening, having had failed in her search, he reported missing report on the same day at the Police Station. On making inquiry, he came to know that accused Bittu @ Manoj S/o Vakil Chand, resident of Shivpuri Colony, Jagjeetpur, by enticing his daughter had abducted her. He reported that accused Shashibala, sister of accused Bittu is also involved in the abduction. On the basis of said report, Chick F.I.R. (Ext. A-8) was prepared on 01.11.1996 at 3:40 p.m. against the accused/appellant and one Smt. Shashibala in connection with crime no. 173/1996 under Section 363/366 I.P.C. and entry was made in the General Diary. Investigation of the case was entrusted to PW-7 Sub Inspector N.C. Jauhari, who during investigation recorded statements of the witnesses and after making spot inspection prepared site plan (Ext. A-5). During investigation, the Investigating Officer, on 23.07.1997, recovered Km. Sangeeta from the possession of the accused/appellant and prepared recovery memo Ext.A-4. The abducted girl was handed over in the possession of her father and memo in this regard was prepared which is Ext. A-5 on record. The Investigating Officer also prepared site plan (Ext. A-6)-the place from where the girl was recovered. On 24.07.1997 at 2:15 p.m., medical examination of Km. Sangeeta was conducted by PW3 Dr. Arti Dhaundiyal, Medical Officer, Female Hospital, Haridwar. In the medical examination report (Ext. A-2) the doctor reported that her breast was well developed, pubic and auxiliary hairs were well developed, there was no mark of injury seen in her private parts. Hymen was torn, old healed tags of hymen were present. Vagina admitted two fingers easily. Uterus was normal. Vaginal smear was taken and slide made for examination for detecting of living or dead human spermatozoa. The doctor advised for X-ray of her wrist, elbow and knee joints for confirmation of her age. In the supplementary medical examination (Ext. A-3) the doctor reported that no definite opinion, that rape has been committed, could be given. Further, age of the lady was more than 18 years. X-ray report of the Radiologist is Ext. A-5 on the record. Statement of the girl under Section 164 Cr.P.C. was recorded. After the matter was investigated upon, it culminated into filing of charge sheet against the accused/appellant Bittu @ Manoj as well as the co-accused Smt. Shashibala under Section 363,366 and 376 I.P.C. Learned Addl. Sessions Judge/2nd F.T.C., Haridwar, after hearing the parties, on 02.07.2001 framed the charge of offence punishable under Section 363, 366 and 376 I.P.C. against the appellant/accused Bittu @ Manoj. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried.;