JUDGMENT Hon’ble U.C. Dhyani, J. (Oral) The informant Chandra Mohan lodged a report (Ext. Ka-2) against accused persons, namely, Dhirendra Singh alias Dheeru and Girdhari Lal on 26.06.1999, at 4:00 p.m. in Patti Sitolsyun, Tehsil Pauri, District Pauri Garhwal, in respect of the offences punishable under Section 376 and 506 IPC. In the complaint (Ext. Ka-1), it was alleged that accused Dheeru committed rape with informant’s minor daughter. When the mother of the victim noticed that the victim was having enlarged belly, she enquired from her about the same. The victim disclosed the incident to her mother. Accused Girdhari Lal threatened the informant with dire consequences. Accused Dhirendra Singh, who committed rape with informant’s daughter, absconded. After the investigation, charge sheet was submitted against accused Dhirendra alias Dheeru in respect of offences punishable under Sections 376/506 IPC and against Girdhari Lal for the offence punishable under Section 506 IPC. The case was committed to the Court of Sessions. 2. When the trial began and prosecution opened it’s case, charge against the accused Dhirendra alias Dheeru were framed in respect of offences punishable under Sections 376/506 IPC and charge against accused Girdhari was framed in respect of offence punishable under Section 506 IPC. Accused persons pleaded not guilty and claimed trial. 3. Four witnesses, namely, PW 1 Chandra Mohan (father of the victim), PW 2 Kumari Sangeeta (victim), PW 3 Mansha Lal and PW 4 Dr. Smt. S. Uniyal (Medical Officer) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 Cr.P.C., in which they said that they were falsely implicated in the case. Accused Dhirendra said that he was implicated on account of enmity with the informant. Accused Girdhari Lal said accused Dhirendra had no occasion to be in the grinding mill. After considering the evidence on record, learned trial court convicted accused Dhirendra alias Dheeru of the offences punishable under Sections 376 and 506 IPC. He was sentenced to undergo rigorous imprisonment for a period of seven years and a fine of Rs. 5000/- with regard to offence punishable under Section 376 IPC. He was sentenced to undergo six months’ rigorous imprisonment along with a fine of Rs. 1000/- for the offence punishable under Section 506 IPC. He was sentenced to undergo rigorous imprisonment for a period of seven years and a fine of Rs. 5000/- with regard to offence punishable under Section 376 IPC. He was sentenced to undergo six months’ rigorous imprisonment along with a fine of Rs. 1000/- for the offence punishable under Section 506 IPC. Co-accused Girdhari Lal was held guilty for the offence punishable under Section 506 IPC and was sentenced to undergo six months’ rigorous imprisonment along with a fine of Rs. 1000/-. Aggrieved against the said conviction and sentence, present Criminal Appeal was preferred. 4. Prosecution led the evidence through PW 2 Km. Sangeeta (victim). In her examination-in-chief, she said that she knew accused persons, namely, Dheeru and Girdhari. Girdari has a grinding mill in his village for a very longtime. The victim was a student of class 7th in January, 1999. Then, she was aged about 15 years. She used to go to grinding mill for grinding of wheat. She went to the grinding mill on 2nd or 3rd January, 1999, at 2:00 p.m. Dhirendra alias Dheeru was present in the mill. He bolted the doors of the mill from inside. He had a knife in his hand. Accused Dhirendra alias Dheeru pressed the mouth of PW 2 and committed rape with her. Accused threatened her with dire consequences, if PW 2 dared to disclose the incident to anybody. PW 2 left for her home thereafter. She did not disclose the incident to anybody. When her belly got enlarged, she told about the same to her mother. On being enquired by her mother, PW 2 disclosed that accused Dhirendra committed rape with her. When the same was informed to PW 2’s father, he complained to Girdhari regarding the incident. Girdhari threatened to kill the entire family, if the informant dared to disclose the incident to anybody. PW 2 was taken to the Doctor for medical examination. PW 2 said that a girl child was begotten by her as a result of such sexual assault subsequently. In the cross-examination, she said that she has no other child. She did not have sex with anybody other than accused Dheeru. She was having menstruation when the accused committed rape with PW 2. Her vagina bled when the incident took place. She felt pain while walking. Her wearing apparels were stained with blood. In the cross-examination, she said that she has no other child. She did not have sex with anybody other than accused Dheeru. She was having menstruation when the accused committed rape with PW 2. Her vagina bled when the incident took place. She felt pain while walking. Her wearing apparels were stained with blood. A river was flowing in the vicinity of the place of occurrence. PW 2 declined the suggestion of learned defence counsel that when the accused refused to marry PW 2 only then a report was lodged against Dheeru. She started vomiting after three months of the incident. She also declined that she was aged 18 years, as on the date of incident. When PW 2’s father got ill then they (father and the victim on the one hand and the accused on the other) settled their disputes amicably. She also said that she wants to lead her life peacefully. In a way, she has forgiven the accused (Dheeru) for his misdeeds. She also refused the suggestion of the defence that she had intercourse with the accused Dheeru on her own volition. Nothing has come in the cross-examination of PW 2 so as to suggest that she was telling a lie. The evidence tendered by PW 2 inspires confidence. Her testimony is believable. Any prudent person will hold the testimony of PW 2 in good stead. Conviction against the accused Dhirendra sustained on the basis of testimony of PW 2 alone. 5. PW 1 Chandramohan was the father of the victim, who said, among other things, that his daughter Sangeeta was aged 15 years when the incident took place in January, 1999. She was a student of class VII. The accused persons were the co-villagers. The accused Dheerendra committed rape with his daughter. The incident was narrated by PW 2 to PW 1 that when PW 2 went to the grinding mill, accused Dhirendra committed rape with her. PW 1 gave a report regarding the incident to SDM, Pauri and proved his complaint (Ext. Ka-1). He said that he did not disclose the month and day of the incident to Tehsildar. (This statement was given by PW 1 perhaps because the dispute was amicably settled by them outside the Court). PW 1 gave a report regarding the incident to SDM, Pauri and proved his complaint (Ext. Ka-1). He said that he did not disclose the month and day of the incident to Tehsildar. (This statement was given by PW 1 perhaps because the dispute was amicably settled by them outside the Court). Such compromise was not permitted within the scheme of Section 320 Cr.P.C. Even the same could not be permitted by the Court in view of the pronouncement of the Hon’ble Apex Court in Gian Singh v. State of Punjab and another (2013) 1 SCC (Cri) 160. 6. It is on account of this fact that the witness was declared hostile, but in the cross-examination, PW 1 again supported prosecution story. He was also cross-examined by learned defence counsel, in which he admitted that both the parties have settled their dispute out of Court amicably. 7. PW 3 Mansha Lal retired Tehsildar, Pauri, proved FIR (Ext. Ka-2) which was lodged on the basis of complaint (Ext. Ka-1). PW 3 also proved copy of entry in G.D. (Ext. Ka-3). He also took the statements of the victim and her father. PW 3 also proved site plan (Ext. Ka-4) and charge sheet (Ext. Ka-5) 8. PW 4 Dr. Smt. S.Uniyal was posted as medical officer in Shanti Prapanna Sharma Hospital, Rishikesh on 28.06.1999. PW 4 found signs of about 28 weeks’ pregnancy in the victim. She was referred to the radiologist for age verification. She proved her report (Ext. Ka-6). According to radiologist report (Ext. Ka-9), she was between 16 to 18 years of age. In the x-ray of elbow, all centers were found united to their bones. In the x-ray of wrist, the centers of lower ends of radius and ulna were partially united to the bones. All carpal bones were seen. Bases of all metacarpals were united to the bodies. PW 4 again gave the supplementary report (Ext. Ka-12) on the basis of radiological report and pathological report. PW 4 again opined that the victim was between 16 to 18 years of age [as on 02.07.1999, the day of medical examination]. Vaginal smear was negative for spermatozoa and gonococci. Single alive foetus of about 28 to 30 weeks was noticed. According to PW 4, no definite opinion about rape could be given. 9. PW 4 again opined that the victim was between 16 to 18 years of age [as on 02.07.1999, the day of medical examination]. Vaginal smear was negative for spermatozoa and gonococci. Single alive foetus of about 28 to 30 weeks was noticed. According to PW 4, no definite opinion about rape could be given. 9. As has been said above, the conviction against Dheeru alias Dhirendra Singh could sustain only on the basis of testimony of PW 2 (victim), was supported by PW 1, PW 3 and PW 4. PW 4 opined that she had a pregnancy of 28-30 weeks. According to report of the radiologist, the victim was between 16-18 years of age. It cannot be said by any stretch of imagination that it was a consent sex. Had it been sex by consent, the age of the victim would have been material, but in the instant case, it was not so. The rape was committed with the helpless girl when she went to the grinding mill of Dhirendra alias Dheeru, who bolted the doors of the mill from inside and sexually assaulted her on the point of a knife. The criminal assault committed by the accused was evident from the fact that the victim conceived and became pregnant. The innocent girl was not aware of the consequence of the crime committed by the accused. When her belly got enlarged then only she told about the same to her mother. She also delivered a girl child subsequently. In no case, it can be said that PW 2 falsely implicated the accused, for, had it been so, she would not have forgiven the accused-appellant Dheeru for his misdeeds. It has also come on record that an amicable settlement took place between the PW 1 and the accused Dheeru when PW 1 fell ill. That was the reason, PW 1 said that he did not disclose the month and day of the incident to Tehsildar. The intensity of the revenge mellowed down, when the accused Dhirendra tried to pacify PW 1. That was also the reason that PW 2 said obliquely that she does not want to take any action against the accused and wants to lead her life peacefully. 10. The intensity of the revenge mellowed down, when the accused Dhirendra tried to pacify PW 1. That was also the reason that PW 2 said obliquely that she does not want to take any action against the accused and wants to lead her life peacefully. 10. While offences punishable under Section 376 and 506 IPC were proved against Dheeru alias Dhirendra, the fact remains that the offence punishable under Section 506 IPC is proved against the accused-appellant Girdhari ? The basic ingredients of Section 503 IPC were not proved. It was not proved that Girdhari Lal threatened victim and her father with any injury with intent to cause alarm to victim/informant or to cause them to do any act which they (informant/victim) were not legally bound to do or to omit to do any act which the victim /informant were legally entitled to do as the means of avoiding the execution of such threats. In other words, the offence punishable under Section 506 IPC was not established against co-accused Girdhari Lal. 11. The criminal appeal against the judgment and order under Appeal is allowed in part. While the conviction and sentence awarded to accused-appellant Dheeru alias Dhirendra Singh by the trial Court is affirmed, the conviction and sentence awarded to co-accused Girdhari lal is hereby set aside. The bail bonds of accused-appellant Girdhari Lal are cancelled and sureties are discharged. He need not surrender. Bail of accused-appellant Dheeru alias Dhirendra is cancelled. He is directed to surrender before the Court below to serve out the sentence awarded by the trial court and as affirmed by this Court. 12. Let a copy of this Judgment along with lower court record be sent back to the Court below for causing appearance of the accused Dheeru alias Dhirendra to enable him to serve out the term of sentence.