ORDER
Amaresh Kumar Singh, J.
1. Heard the learned counsel for :he appellants and the learned; Public Prosecutor.
2. This appeal is directed against the judgment dated 16th Sept. 95 passed by the learned Additional District and Sessions Judge, Ratanagarh (Churu) in Sessions Case No. 42/73 State v. Rakesh. By the aforesaid judgment the learned Additional District and Sessions Judge convicted the appellant Rakesh under Sections 366 and 376, I.P.C. and the appellant Vinod alias Vinodia under Section 366A, I.P.C. The accused persons were sentenced as mentioned below :-
(1) Accused Rakesh – (a) under Sections 376, I.P.C. Rigorous imprisonment for ten years and fine of Rs. 100/- and further rigorous imprisonment for three months for default in payment of fine.
(b) Under Section 366, I.P.C. – Rigorous imprisonment for seven years and fine of Rs. 100/- and further rigorous imprisonment for three months for default in payment of fine.
(2) Accused Vinod – Under Section 366A, I.P.C..-Rigorous imprisonment for seven years and fine of Rs. 100/- and further rigorous imprisonment for three months for default in payment of fine.
The sentence of imprisonment imposed on the appellant Rakesh under Sections 366 and 376. I.P.C. were ordered to run concurrently.
3. The facts of the case may be briefly stated as below :-
On 3rd Nov. 1992 at 4 p.m. Manakchand, aged 60 years, resident of Dungargarh Bhomasar Bas, lodged the First Information Report (Ex. P/ 8) at Police Station, Dungargarh. In the First Information Report (Ex.P/8), Manakchand stated that on 3rd Nov. 92, as usual lie started from his house at 5 a.m. for going to the temple of Shri Ramdeoji, where he worked as a Pujari. On that day at about 7 a.m. his younger daughter Ku. Premlata. went to the temple where he was working and asked him whether Bhatu had reached the temple, Bhatu was the elder daughter of Manakchand. According to the First Information Report when Manackchand inquired from his younger daughter Premlata as to what was the matter, he was told that about one hour ago Rakesh Harijan and one other boy went to the house (of Manakchand) and told Ku. Bhagwati that her father had fallen in the temple and received injuries on his head and, on receiving this information from Rakesh Ku. Bhagwati accompanied him and went away from the house. It was further mentioned in the F.I.R. (Ex. P/8) that Premlata informed the complainant Manakchand that when she told about the aforesaid incident to her mother, her mother asked her to go to the temple and find out what was the matter. It was further mentioned in the F.I.R. (Ex.P/8) that the complainant Manakchand made inquires about Rakesh, but he was not available at his house. Thereafter, he went to the Bus Station and there he was told by some persons that Rakesh, resident of Dungargarh and his relative Vinod resident of Sadulpur and a girl were seen at the Bus Stand, but thereafter, it could not be traced out where they went, in the First Information Report, the age of Bhatu alias Bhagwati was reported to be 16 years.
4. On the basis of the First Information Report (Ex. P/8), the police registered a case under Section 363, I.P.C. and started investigation. During investigation, Ku. Bhagwati was recorded by the police on 11th Nov. 92 at 6 p.m. The Assistant Sub Inspector of Police, who recovered her, prepared the recovery memo Ex. P/13. At the time of recovery, complainant. Manakchand and his younger brother Dharamchand were present. They recognised Bhatu alias Bhagwati. Usual investigation was conducted by the police and after investigation, the police submitted a charge sheet under Section 173, Cr. P.C. to the Court of learned Munsif and Judicial Magistrate, Dungargarh (Churu).
5. The learned Munsif and Judicial Magistrate., Ratangarh (Churn) committed the ease to the Court of learned Additional District, and Sessions Judge, Ratangarh.
6. The learned Additional District and Sessions Judge, Ratangarh framed charges under Sections 366 and 376, I.P.C. against the accused Rakesh and a charge under Section 366A, I.P.C. was framed against Vinod. Both the accused pleaded not guilty to the charges framed against, them.
7. The prosecution examined Ku. Premlata PW 1, Prem Prakash PW 2, Subi Devi PW 3, Smt. Lata PW 4, Dr. Bhanaram Bhandari PW 5, Dr. A.B.L. Mathur, PW 6 and Dr. K.L. Maru PW 7, Raghuvir Singh PW 8, Puraram PW 9, Jugal Kishore PW 10, Arsad Ali PW 11, Bhatu alias Bhagwati PW 12, and Banwari Lal PW 13 in support of the prosecution case.
8. Accused Rakesh and Vinod alias Vinodia were examined under Section 313, Cr.P.C. Himmat Singh DW 1 has been examined in defence.
9. After hearing the arguments of both the parties, the learned Additional District and Sessions Judge convicted the accused under Sesions 366 and 376, I.P.C. and Vinod alias Vinodia under Section 366A, I.P.C. and imposed the sentences on them as mentioned above.
10. The learned counsel for the appellants has submitted that Ku. Bhatu alias Bhagwati was a major girl and she had willingly accompanied the accused Rakesh with the object of marrying him and a marriage had taken place between the accused Rakesh and Ku. Bhagwati and in view of these facts the allegation that she was kidnapped from the custody of her father and that rape was committed on her are false and the prosecution evidence is not reliable and the learned Additional District and Sessions Judge has committed an error by convicting and sentencing the accused Rakesh under Sections 366 and 376, I.P.C. and Vinod alias Vinodia under Section 366A, I.P.C. He has therefore, prayed that the appeal be allowed and both the appellants should be acquitted.
11. The Public Prosecutor has supported the judgment passed by the learned Additional District and Sessions Judge and submitted that the prosecutrix Ku. Bhagwati alias Bhatu was a minor below 18 years of age and she had been taken away from the custody of her parents by the accused persons by use of deceitful means and rape was committed on her, and therefore, the conviction as well as the sentence are justified and in accordance with law.
12. I have carefully considered the arguments of the learned counsel for the appellants and the learned Public Prosecutor. Out of 13 witnesses examined by the prosecution Ku. Premlata PW 1 is the younger daughter of the complainant Manakchand. She has been examined by the prosecution to prove that in her presence, the appellants went to the house of Manakchand and told Bhatu alias Bhagwati that her father (Manakchand) had fallen in front of the temple and received injuries and that he was calling her and being informed about the injuries to her father, Bhatu alias Bhagwati accompanied the accused persons and while she was going with the accused persons, she asked Premlata to bring her mother to the temple.
13. Prem Prakash PW 2 has been examined by the prosecution to prove that Ku. Bhagwati was seen in the company of Rakesh at the Bus Stand on the date of occurrence.
14. Smt. Subi Devi PW 3 is the mother of Bhagwati and Premlata and wife of Manakchand.
15. Dr. Smt. Lata Gupta PW 4 conducted the medical examination of Ku. Bhagwati on 11th Nov. 1992. She has proved the M.L.R. Ex.P/2.
16. Dr. Bhana Ram Bhandari PW 5 was the Chairman of the Board, which was constituted by the P.M.O. Ratangarh for the Medico Legal Examination of the prosecutrix. He has proved the M.L.R. Ex. P/2.
17. Dr. A.B.L. Mathur PW 6 conducted the Medico Legal Examination of the accused Rakesh on 12th Nov. 1992 and prepared the M.L.R. Ex. P/3.
18. Dr. K.L. Maru PW 7 is the Radiologist, in whose presence X-ray examination of pelvis, Rt wrist and elbow was done by Radiographer Shri B.N. Srivastava. Dr. Maru PW 7 examined the X-ray Plates and gave the report Ex.P/4. He has proved the Report Ex. P/4 as well as the x-ray Plates Ex.P/5, Ex.p/6 and Ex.P/7.
19. Raghuvir Singh PW 8 is the Police Officer, who recorded the FIR Ex. P/8 on 3rd Nov. 1982. He was the Station House Officer of the Police Station, he submitted the charge sheet under Section 173, Cr.P.C. after the completion of investigation.
20. Puraram PW 9 is the Head Master of Government Primary School No. 2, Dungargarh. He has proved the Certificate Ex. P/9, which was issued by him on the basis of the record of the School. According to him, the date of birth of Ku. Bhatu as mentioned in the School record was 5th March, 1979.
21. Jugal Kishore PW 10 is the Police Constable, who carried three sealed packets from the Police Station, Dungargarh to the F.S.L. Jaipur and delivered those packets at F.S.L. Jaipur on 5th Dec. 1992 in sealed condition. He has proved the Receipt Ex.P/10, which was given to him by the F.S.L. Jaipur. He has also proved the Letter Ex.P/1 J ,a copy of which was seen with the sealed packets.
22. Arsad Ali PW 11 is the Head Constable who was the Incharge of the Malkhana of the Police Station, Dungargarh. He has been examined by the prosecution to prove that the articles, which were taken by the Police Officer in his custody during investigation was deposited in the Malkhana in sealed condition and that they remained in the Malkhana of the Police Station in sealed condition till they were delivered to the Constable Jugal Kishore.
23. Smt. Bhatu alias Bhagwati PW 12 is the prosecutrix. She is the most important witness in the case.
24. Banwari Lai PW 13 is the Assistant Sub Inspector who conducted the investigation in the case.
25. The first submission made by the learned counsel for the accused-persons is that the prosecution evidence regarding the age of Bhagwati is not reliable and that in fact on 3-11-1992, which is the alleged date on which Bhagwati left her house, she was more than 18 years old, and therefore, the offences under Sections 366 and 366A, I.P.C. cannot be said to have been proved beyond reasonable doubt and the accused persons are therefore, entitled to be acquitted of the charges.
26. The learned Public Prosecutor has submitted that the entries of the school record and the result of medical examination conducted by a Board of Medical Experts is sufficient to prove that on the date of occurrence Bhagwati alias Bhatu was a minor.
27. I have carefully considered the evidence produced by the prosecution. Smt. Subi Devi PW 3, who is the mother of Bhagwati, could not remember the date of birth of her daughter Bhagwati. in cross-examination she has stated that her eldest son is about 30 to 35 years of age and that several children were born to her after the birth of eldest son and the birth of Bhagwati. Out of those children two sons have expired and one daughter Pana, who was elder to Bhagwati is already married. She has however stated that she cannot tell what is the age of Bhagwati. In view of the admission made by Smt. Subi Devi PW 3, who is the mother of Bhagwati, it must be said that Smt. Subi Devi does not remember the date of birth of Bhagwati. Therefore, her statement regarding the age of Bhagwati should be deemed to be silent. Bhagwati’s father could not be examined during trial, because he had expired. Bhagwati PW 12 could not tell her age or date of birth. As such there is no direct evidence of the date of birth of Bhagwati alias Bhatu. The prosecution has however produced in evidence the School Certificate Ex.P/9 issued by the Head Master of the School, where Bhagwati, daughter of Manak Chand Saini had studied. According to this Certificate the date of birth of Bhagwati has entered in the school record is 2nd August, 8 5. The Certificate Ex.P/9 has been proved by Shri Pura Ram, who has stated on oath that on 9th Nov. 92 he was the Head Master of the Gov. Primary School No. 2, Dungargarh, Shri Pura Ram has deposed on the basis of the school record that Bhagwati had taken admission in the school on 2nd August, 85 and that according to the school record, her date of birth was 5th March, 1979. In cross-examination, Shri Pura Ram PW 9 has stated that the register, which contains the record of the date of birth was signed by the senior officers from time to time and that in this register no page has been replaced or tampered with and that the register was maintained regularly. The statement of Pura Ram PW 9 has not been shaken in the cross-examination. It must therefore, be held that his statement that in the school record the date of birth of Bhagwati is recorded as 2nd March, 85, is reliable and his evidence about the entires of the date of birth in the school record is relevant under Section 35 of the Evidence Act. It may however be pointed out that the original application form which was submitted at the time of admission of Bhagwati in (he school has not been produced and the prosecution has not cared to prove that the person, who stated before the school authorities that the date of birth of Bhagwati was 2nd March, 85 had any special means of knowledge about the date of birth of Bhagwati. in these circumstances, the evidence of Pura Ram PW 9, though relevant, cannot be said to be sufficient to prove beyond reasonable doubt that the date of birth of Bhagwati is 2nd August, 1985.
28. The prosecution has also produced the medical evidence about the age of Bhagwati. Dr. Bhana Ram Bhandari PW 5 was a member of the Medical Board, which was constituted for the medical examination of Bhagwati. He has given evidence to the effect that the secondary sex characteristics were developed and apparently she appears to be around 15 to 16 years of age.
29. Dr. K. L. Maru PW 7 has given evidence to the effect that in his presence the Radiographer Shri B.N. Srivastava had prepared the X-ray plates of Pel vis, writs and elbow and by examining those X-ray plates, he had prepared the report Ex. P/4 and according to that report , the age of Bhagwati was between 17 to 18 years. Dr. K.L. Maru PW 7 has proved the report Ex.P/4 as well as the X-ray Plates Ex. P/5, Ex. P/6 and Ex. P/7. In cross-examination Dr. K.L. Maru PW 7 has deposed that his opinion about the age of is based on radiological examination and there can be error that the margin of 2 to 3 years on either side. It is further admitted by him that the fusion of radious bone had started but fusion was not fully complete.
30. According to Dr. Bhana Ram Bandari PW 5 the secondary sex characteristic found at the time of examination were as given below :-
Axillary and pubic hairs were present, breast was developed and well built. Hymen was slightly cared.
31. The learned counsel for the accused persons has submitted that so far as the oral evidence of Bhagwati PW 12 and Subi Devi PW 3 is concerned, they have not given any evidence worth the name regarding the age of Bhagwati. Regarding the evidence of Pura Ram PW 9, the learned counsel for the accused-persons has submitted that the statement of Pura Ram is founded on the school record and since the basis on which entries in the school record were made has not been proved, the probative value of the entries of the school record is not very high. The learned counsel for the accused persons has stated that the opinion expressed by Dr. Bhana Ram Bhandari is founded on secondary sex characteristics and in the facts and circumstances of the case, that opinion is not sufficient to prove that Bhagwati was below 18 years of age on the date of her examination. Regarding the evidence of Dr. K.L. Maru PW 7, the learned counsel for the accused has submitted that Dr. Maru PW 7 has himself admitted that there can be a margin of 2 to 3 years on either side and therefore, the statement of Dr. Maru PW 7 is not sufficient to prove beyond reasonable doubt that Bhagwati was below 18 years of age on the date of her medical examination and X-ray plates.
32. I have carefully considered the evidence and the arguments advanced by the learned counsel for the accused. In my opinion, the argument advanced by the learned counsel for the accused in this behalf is well founded and the prosecution evidence is not sufficient to prove beyond reasonable doubt that Bhagwati alias Bhati was less than 18 years of age on the date of alleged occurrence. The charge of kidnapping-under Section 366 and 366A, I.P.C. cannot be said to be established beyond reasonable doubt.
33. As regards the charge of rape against the accused Rakesh, the learned counsel for the accused has submitted that the evidence produced by the prosecution is not sufficient to prove that Bhagwati was subjected to rape. The learned counsel for the accused has also relied on the statement of Himmat Singh D.W. 1, who is an advocate and a Notary practising at Sri Ganganagar and who had attested the affidavit.
34. It is well established that in a criminal prosecution, the prosecution must stand on its own legs. The proper course therefore, is to scrutinise the prosecution evidence to find out whether the prosecution evidence is sufficient to prove the charge of rape against the accused Rakesh.
35. Smt. Bhatu alias Bhagwati PW 12 was examined in the Court of learned Additional District and Sessions Judge, Ratangarh on 18th April, 1995. In her statement she has given the name of Girdhari as her husband, and therefore,’ she has been described as Smt. Bhati alias Bhagwati.
36. Smt. Bhatu alias Bhagwati has given statement to the effect that about two and a half years ago, she was inside the house of her father who. had gone to the temple of Sri Ramdeoji, where he used to work as Pujari and painter. The time was 6-7 a.m. and she was cleaning the “Bakhal” as well as the lane and her younger sister Prem was also present there. At that time, both the accused persons went to her father’s house and the accused Rakesh told that her father had fallen and asked her to go and look after him Smt. Bhagwati PW 12 has added that she asked Premlata to go inside the house and inform her mother and she herself proceeded towards the temple and both the accused accompanied her. The temple was situated in the market and while she was going towards the temple, the accused told her that her father was not in the temple, but he was at the bus stand. She, therefore, went to the bus stand, but did not find his father there. She made inquiries from the accused where her father was and the accused told that her father was at “Ghoomchakkar”. She, then went to “Ghomchakkar”, but her father was not available there and the accused then told that her father was at the railway station and that if she wanted to meet her father, she would have to go to the railway station. Smt. Bhagwati PW 12 further stated that she went to the railway station with the accused persons and at the railway station, the accused persons started threatening her and asked her to accompany them if she wanted to meet her father and threatened to kill her in event of her refusal. She, was thereafter, taken by the accused to the railway station, Biga and there she was made to board in the compartment of the train. It is further stated by Smt. Bhagwati that accused took her to Rajgarh and at Rajgarh she was taken to a house in which a woman was present. She gave a beating and forced her to put on Sari and Blouse in place of suit, which she was putting on. After that she was taken to Bhadra by a bus and at Bhadra she was taken inside a house and in that house Rakesh forcibly committed sexual intercourse with her. Smt. Bhagwati ‘PW 12 proceeded to state that from Bhadra she was taken to Rajgarh. At that time the other accused (Vinod alias Vinodia) was not accompanying the accused Rakesh as he had dropped at Dungargarh” and that from Bhadra a woman had accompanied Rakesh to Rajgarh and at Rajgarh two women, one who belong to Rajgarh and other, who belong to Bhadra took he. Taranagar and Rakesh remained at Rajgarh and from Taranagar she was taken to Adsar and there Mahendra, Nauratan and one or two other persons told that the police was coming. After that she-was taken to Sardarsahar and from Sardarsahar she was taken to Bhadra and from Bhadra, she was taken to Anoopgarh and from Anoopgarh she was taken to Ganganagar. In Ganganagar the accused Rakesh w as present and he again committed rape on her. It is also stated by Bhagwati PW 12 that at Ganganagar she was taken to some place which she cannot describe and she was asked to put her signatures and when she refused to put the signatures, her thumb impressions were forcibly affixed on a paper on which something was written. After that she was again taken to Ganganagar in the same house, where she was kept earlier and there she was forced to stand with Rakesh and photographs were taken in a temple. It is further stated by Smt. Bhagwati PW 12 that she was taken to a village near Loharu and in that village the accused Rakesh committed sexual intercourse with her by use of force and in that village the police accompanied by her father and uncle reached and recovered her and prepared the recovery memo Ex.P/13. Smt. Bhagwati PW 12 has further stated that after her recovery, she was given in the custody of her father and she signed the memo Ex.P/14. The accused Rakesh was arrested by the police at the time of recovery. Regarding her date of birth Bhatu alias Bhagwati PW 12 stated that she does not remember her date of birth and that she had studied in school up to 2nd or 3rd class.
37. Smt. Bhagwati PW 12 admitted that she did not receive any injury on her body or on the private parts at the time of commission of rape on her. Regarding Rakesh and Vinod, she admitted in cross-examination that both of them residents of Dungargarh and that their house is in front of her father’s house She was shown the photographs Ex.P/2, Rx.D/3 and Ex.D/4 and she admitted that in these photographs she standing with the accused Rakesh. She was asked whether she raised any hue and cry at the bus station and other places when she was taken to Rajgarh. Bhadra.-Anoopgarh, Ganganagar and Adsar and other places and whether she had made complaint to any person that she was being taken against her will and in reply she stated that she did not raise any hue and cry, nor made any complaint, because she was terrified. She was further asked whether she has tried to resist the commission of sexual intercourse against her. She answered that she had resisted and that she had wept and asked the accused not to commit the act, but the accused dosed her mouth with her hand and did not allow to speak.
38. I have carefully gone through the evidence of Bhatu alias Bhagwati PW 12. She is the main witness in the case and there is nothing in her cross-examination to show that her statement is concocted with or is in any manner open to any doubts.
39. The story given by Bhagwati PW 12 is supported by the statement of Ku. Premlata PW 1 who has deposed that on the date of occurrence at about 6-7 a.m. her sister (Bhagwati) was cleaning the house and at that time Rakesh and Vinod went to the house and told that their father had fallen in front of the temple and had received injuries and that he was calling her. Premata PW 1 has stated that Bhagwati asked her to go in the house and bring mother and saying that she was going to the temple where her father was, Bhagwati went towards the temple along with the accused persons. Premalata PW 1 has further added that she and her mother went to the temple and her father told that Bhagwati had not reached the temple. It is also stated that by Premlata PW 1 that her father had not received any injury and that in spite of search her sister Bhagwati could not be traced out and a report was lodged by her father at the Police Station. It is also stated by Premlata PW 1 that site plan Ex. P/1 was prepared in his presence and she has signed it Premlata PW 1 has been examined at length. There is nothing in her cross-examination to dis-credit her testimony.
40. Subi Devi PW 3 is the mother of prosecutrix Bhagwati PW 12. Her statement is to the effect that on the date of occurrence at about 6-7 a.m. Bhagwati and Premlata both were cleaning outside the house and the younger sister Premlata went to the Kitchen where she was preparing tea and told that father had fallen on the ground and further told that two boys had come and Bhatu alias Bhagwati went away with them. Subi Devi PW 3 has further added that she immediately went to the temple, where her husband was siting and asked him whether he had received any injury and whether Bhagwati had reached there and he told that Bhagwati had not reached there. Subi Devi PW 3 has further added that she told her husband that two boys had visited her house and gave an information that he (Manakchand) had fallen and therefore. Bhagwati had accompanied those two boys. Smt. Subi Devi 3 has been examined at some length. In her cross-examination, she has stated that she cannot tell the age of Smt. Bhatu alias Bhagwati. Regarding accused persons she has stated that the accused persons were never visited her house before the date of occurrence. There is absolutely nothing in the statement of Subi Devi PW 3 to infer that her statement is false and doubtful.
41. Manakchand, the father of the prosecutrix could not be examined in the court of learned Additional District and Sessions Judge, because he had expired.
42. There are the three witnesses, namely Bhagwati PW 12, Premlata PW 1 and Subi Devi PW 3 to prove the prosecution story that on the date of occurrence at about 6-7 a.m. Bhagwati and Premlata, both were doing the work of cleaning the house and at that time the accused persons went to them and Rakesh told Bhagwati that her father had fallen in front of the temple and he had received injuries and that he should be attended to quickly and on hearing the information about her father having received injuries. Bhagwati started from her father’s house to go to the temple and the accused accompanied her and that while she was going with the accused towards the temple, she asked her younger sister Premlata to bring mother to the temple where her father was reported to be lying after receiving the injuries. The prosecution story is fully supported by the evidence of Bhagwati PW 12 and Premlata PW 1 and Subi Devi PW 3. The evidence of these witnesses could not be shaken in the cross-examination and their statements clearly show that both the accused persons gave the false information about the injuries of Manakchand to Bhagwati and that by deceitful means induced her to start from her father’s house towards the temple and while she was going towards the temple, both the accused accompanied her.
43. The statement of Bhagwati PW 12 further shows that while she was going towards the temple in order to see her father, who was reported to have fallen on the ground and received injuries, both the accused were accompanying her and in the way they told her that her father was at the bus station, and therefore, she went to the bus station, but, at the bus stand her father was not found and then she was told by the accused that her father was at “Ghoomchakkar” and then she went to the “Ghoomchlakkar” in order to meet her father, but her father was not there. The accused then told her that her father was at the railway station and she went to the railway station and there the accused persons asked her to accompany them and there threatened to kill her in the event of her refusal and from the Dungargarh railway station she was forced to accompany the accused on foot to railway station, Biga, where putting under fear she was made to board the train and taken to Rajgarh and at Rajgarh she was taken to a house in which a woman was already present and she was forced to change her clothes and she was taken to Bhadra by bus and at Bhadra, inside a house the accused Rakesh committed rape-on her and from Bhadra she was taken to Rajgarh and from Rajgarh, two women one belong to Rajgarh and other belonging to Bhadra, took her to Taranagar and from Taranagar she was taken to Adsar and from Adsar she was taken to Sardarsahar and from Sardarsahar she was taken to Bhadra and from Bhadra she was taken to Anoopgarh and then taken to Ganganagar and at Ganganagar, Rakesh again committed rape on her and obtained her thumb impressions by use of force on a paper, on which something was written and that she was also forced to stand with Rakesh when photographs were taken in a temple and thereafter she was taken to a village near Loharu and there Rakesh again committed rape on her. The story given by Smt. Bhati alias Bhagwati PW 12 has not been shaken in the cross-examination. There is absolutely no reason’ to infer that the evidence given by Smt. Bhatu alias Bhagwati PW 12 is false or open to any , doubts. Her evidence clearly shows that she was made to accompany the accused persons by use of deceitful means and under coercion and that at least on three occasions, accused Rakesh committed rape on her.
44. On 11th Nov. 1992 Bhagwati PW 12 was medically examined by a Board constituted by the Principal, Medical Officer, Ratangarh for her medical examination. Dr. Smt. Lata Gupta PW 4 and Dr. Bhanaram PW 5 were the members of that Board. They have proved M.L.R. Examination Ex.P/2 and their testimony shows that the hymen was slightly torn and the age of the girl was between 15-16 years and there were no external injuries and slides of vaginal swab were prepared for expert examination. In Ex. P/2, the name of the girl, who was examined, is stated as Miss. Madhu D/o Manakchand, r/o Dungargarh Bhomasar Bas. According to the prosecution, the girl, who was medically examined on 11-11-1992 was Bhagwati PW 12, though her name was described as Madhu in the report Ex.P/2. The evidence of Dr. A.B.L. Mathur PW 6 is to the effect that he medically examined the accused Rakesh and prepared the M.L.R. Ex.P/3 and found that he was capable of sexual intercourse.
45. The learned counsel for the accused Rakesh has submitted that Bhagwati alias Bhatu was more than 18 years of age on the date of occurrence and therefore, she must be taken to be capable of knowing what was good and what was bad for her and that she accompanied the accused persons to several places and did not raise any hue and cry in order to attract the attention of others and no marks of injury were found on her. Therefore, it should be inferred that she voluntarily accompanied the accused Rakesh and that she submitted to sexual intercourse willingly and with her consent.
46. Reliance has been placed on the observations made in Shyam Sunder v. State of Rajasthan 1991 Cr LR (Raj) 555, Jugal alias Nathu v. State of Rajasthan 1981 Cr LR (Raj) 496, Pur Singh v. The State of Rajasthan 1983 Cr LR (Raj) 32, Munshi Ram v. State of Rajasthan 1983 Cr LR (Raj) 274, Wala v. State of Rajasthan 1982 OLR (Raj) 26, Rekha Ram v. State of Rajasthan 1990 Cr LR (Raj) 507, Noore Khan v. State of Rajasthan 1996 Cr LR (Raj) 29, Pappu alias Pat Ram v. State of Rajasthan 1996 Cr LR (Raj) 97, Mahaveer alias Krishna v. State of Rajasthan 1996 Cr LR (Raj) 127 and Lalita Prasad v. State of M.P. 1979 Cr LR (SC) 114 : 1979 Cri LJ 867.
47. The learned Public Prosecutor has placed reliance on the observations made by the Hon’ble Supreme Court in State of Punjab v. Gurmit Singh AIR 1996 SC 1393 : 1996 Cri LJ 1728.
48. The question whether any sexual intercourse was committed on the person of the prosecutrix and whether such committal of sexual intercourse was against her will or without consent or in the very nature of the things question of fact. Since the facts of two cases are seldom identical, the inference drawn in one case cannot be applied blindly to the facts of another case. However, the principles applied by Courts for the purpose of appreciating direct or circumstantial evidence, are relevant and illuminating if those principles can be legitimately applied to the case in hand.
49. In the instant case the most important witness produced by the prosecution is Bhagwati alias Bhatu P.W. 12 (who was unmarried on the date of alleged occurrence). Smt. Premlata P.W. 1 is the younger sister of Bhagwati P.W. 12 and Smt. Subi Devi P.W. 31 is the mother of Bhagwati. Both of them have corroborated the statement of Bhagwati P.W. 12 so far as the circumstances in which she was persuaded to leave her house on the pretext that her father was ill, are concerned.
50. In the case of Lalita Prasad v. State of M.P. 1979 Cr LR (SC) 114 : 1979 Cri LJ 867, the facts were different. In that case the prosecutrix had written three letters at a point of time when there was no question of kidnapping, abduction or rape and those three letters revealed that she was immensely in love with the appellant. She was betrothed to him and had almost accepted him as her husband. It was in view of the above circumstances that the Hon’ble Supreme Court held that in the background of the contents stated in those various letters it was difficult to believe that she was kidnapped or abducted under fear of causing hurt to her and it was further clear that she went with Lalita Prasad of her free will and with the consent of her mother, as her prospective marriage with Lalita was not liked by her brother Jagdish.
51. The facts of the case of Lalita Prasad v. Stale of M.P. (supra) were different from the facts of this case. Therefore, the accused cannot derive any advantage from the judgment given by the Hon’ble Supreme Court in the case of Lalita Prasad.
52. In the instant case there is nothing to show that there was any affinity, friendship or love between the prosecutrix and the accused Rakesh before the date on which she was persuaded to leave her house. The prosecutrix Bhagwati was “Mali” by caste and accused Rakesh was a member of the Scheduled Caste.
53. The crucial question to he decided in the case is whether the stalemen of Bhagwati is liable to be discarded or her statement should be believed to be true.
54. In State of Punjab v. Gurmit Singh AIR 1996 SC 1393 : 1996 Cri LJ 1728, the Hon’ble Supreme Court has pointed out that (at page 1734; of Cri LJ):
the Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour’ of her family. It is only after giving it a cool thoughts that a complaint of sexual offence is generally lodged.
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The criticism by the trial Court of the evidence of the prosecutric as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went home and narrated the occurrence to her mother is unjustified.
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in a tradition bound non permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred being conscious of the danger of being obstracized by the society or being looked down by the society. Her not informing the teachers or her friends at the . examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate to her teachers and others over-powered by as feeling of shame and her natural inclination would be to avoid talking about to any one, lest the family name and honour is brought into controversy.
For the purpose of evaluating the evidence of the victim the Hon’ble Supreme Court observed :-
The Courts must, while evaluating evidence, remain alive to the fact that in case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepencies in the statement of the prosecutrix should not, unless the discrepencies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency the conceal outrage of sexual aggression are factors which the Courts should not over look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not all accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her as if she were as accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra v. Chandraprakash Kewalchand Jain 1990 (1) SCC 550: AIR 1990 SC 658 : 1990 Cri LJ 889 Ahmadi, T. (as the Lord Chief Justice then was speaking for the Bench summarised the position in the following words:
A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in ‘ the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
We are in respectful agreement with the above exposition of law.
55. In the same judgment the Hon’ble Supreme Court has further pointed that no corroboration is necessary to rely upon ‘the testimony of the prosecutrix.
56. In view of the principles laid down by the Hon’ble Supreme Court in State of Punjab v. Gurmit Singh (supra), I have carefully considered the evidence of Bhagwati P. W. 12. Her evidence appears to be quite natural and reliable. So far as her story regarding the circumstances in which she was made to leave the house of her father on the pretext that her father was ill is concerned, her story is anti-corroborated by her younger sister Premlata and mother Smt. Subi Devi. After carefully considering the evidence of Bhagwati P.W. 12, the evidence of Premlata P. W. 1 and the evidence of Smt. Subi Devi P.W. 3 I am of the opinion that the evidence of Bhagwati P.W. 12 is reliable and is not open to any doubt. It is true that Prem Prakash P.W. 2 has stated that she saw Bhagwati at the bus stand and when he inquired from her as to why she was rooming there, she did not reply.
57. Assuming that the statement of Prem Prakash P.W. 2 is correct, the fact that at the bus stand she did not say anything to Prem Prakash, does not mean that she had accompanied the accused Rakesh with a view to go with him for amorous relationship. The explanation given by Bhagwati regarding her presence at the bus stand is quite natural and reliable.
58. For the reasons mentioned above, I hold that the evidence of Smt. Bhagwati P.W. 12 is reliable and is sufficient to prove that sexual intercourse was committed on her person against her will and without her consent on several occasions by the accused Rakesh.
59. Himmat Singh D.W. 1 is an Advocate, who is practising as a Notary Public at Sri Ganganagar, he has proved the entries of Col. No. 5 of the register maintained by him. His evidence is to the effect that he had verified an affidavit of Madhu alias Bhagwati daughter of Manak Chand on 9th November, 92. This affidavit is Ex. D/6. Himmat Singh has proved is signatures at place A to B and the endorsement made in C to D on the affidavit Ex. D/6, which is an uncertified photostat copy of an affidavit, purporting to have been signed by Madhu alias Bhagwati. In cross-examination, Himmat Singh has clearly stated that the original affidavit was not shown to him and he does not know who is in possession of the original affidavit. It is further admitted by him that he did not know Madhu alias Bhagwati personally.
60. Since the original affidavit has not been produced in evidence, Ex. D/6 which is the uncertified photostat copy of the affidavit cannot be read in evidence and in any case the evidence of Himmat Singh D.W. 1 is not sufficient to prove that Madhu alias Bhagwati had admitted on oath the contents of Ex.D/1. The persons identified the lady, whose affidavit was verified by Himmat Singh have not been produced and in the absence of proof that the lady, whose affidavit was verified by Himmat Singh was none else but Bhagwati P.W. 12, it cannot be said to be proved to any extent that Ex. D/6 is the affidavit of Bhagwati P.W. 12. I, therefore, hold that Ex. D/6 is neither proved nor is relevant for the purpose of evaluating the evidence of Bhagwati P.W. 12. In other words, the accused cannot obtain any advantage from Ex. D/6 and the statement of Himmat Singh D.W. 1.
61. The learned counsel for the accused has also drawn my attention to the photographs Ex. D/2, Ex. D/3 and Ex. D/4. It is submitted by him that in these photographs Bhagwati P.W. 12 is shown standing by the side of the accused and both of them have put on garlands in the neck and therefore, it should be inferred that Bhagwati went with the accused Rakesh with a view to live with him as his wife and therefore, the sexual intercourse with her was according to her will and with her consent.
62. I am afraid. The submission made by the learned counsel for the accused cannot be accepted as correct. These three photographs Ex. D/2, Ex. D/3 and Ex. D/4 prove nothing more than this that in these photographs the accused Rakesh is shown standing near Bhagwati P.W. 12. These photographs are not sufficient to prove that Bhagwati P.W. 12 went with the accused to live with him as his wife or that she had given consent for sexual intercourse committed on her person by the accused Rakesh. In other words, these three photographs are not sufficient to discard the evidence of Bhagwati P.W. 12, and therefore, I do not find any ground in the submission that offence under Section 376 is not proved beyond reasonable doubt.
63. In view of the conclusions mentioned above, accused Rakesh is entitled to be acquitted of the charge under Section 366, IPC and the accused Vinod alias Vinodia is entitled to be acquitted of the charge under Section 366A, IPC. To that extent this criminal appeal is entitled to be allowed. The appeal of accused Rakesh against his conviction and sentence under Section 376, IPC deserves to he dismissed.
64. For the reasons mentioned above, the appeal is partly allowed. Conviction and sentence of Vinod alias Vinodia under Section 366A, IPC is hereby quashed and set aside. Accused Vinod alias Vinodia is on bail. His bail bonds are hereby cancelled. He need not surrender.. Conviction and sentence of accused Rakesh under Section 366, IPC is hereby quashed and set aside and he is acquitted of the charge under Section 366, IPC but his conviction as well as sentence under Section 376 is hereby affirmed and his appeal against his conviction under Section 376, IPC is hereby dismissed.