JUDGMENT
Narendra Kumar Jain, J.
1. These two appeals are directed against the common judgment and order dated 19.12.2002 passed by the Additional Sessions Judge, (Fast Track) No. 1, Jhunjhunu, in Sessions Case No. 50/2002 (64/2001) (105/2000), therefore, both are being disposed of by this common order.
2. The trial court has convicted and sentenced the accused- appellants as
under:
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Accused Under Sections
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376 IPC 366 IPC 376 r/w 114 IPC
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Dinesh To undergo 5 To undergo 5
Kumar years RI and a years RI and a
fine of Rs. 1000/-; fine of Rs. 1000/-;
in default of in default of
payment of fine, payment of fine,
to further un- to further un-
dergo 1 month's dergo 1 month's
additional SI additional SI
Smt. Saroj To undergo 3
years RI and a
fine of Rs. 500/-;
in default of
payment of fine,
to further
undergo 15 days
additional SI
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3. Both the sentences were ordered to run concurrently.
4. Briefly stated the facts of the case are that on 6.7.1999 PW. 9 Ambika Prasad, father of prosecutrix PW-6 Meenu, lodged a written-report (Exhibit P.22) at Police Station Chirawa that his daughter Meenu, aged about 13 years, has been missing since the evening of 4th July, 1999. She was riding a cycle and is missing with cycle itself. He searched her in the village and at relations, but could not find her out. Subsequently, Meenu was recovered to PW.9 Ambika Prasad and thereafter on 7.7.1999. another written report (Exhibit P. 17) was lodged at Police Station Chirawa, wherein he stated that his daughter was riding a cycle at about 7.00 PM on 4.7.1999 but she did not return to his house. He made a search of her but of no avail; thereafter he lodged a report in this regard on 6.7.1999. Now, when they had reached at crossing of Pilani while searching Meenu, she was seen with Dinesh Sharma S/o Brijmohan Sharma and, soon after seeing them,’ the accused fled and Meenu came with them’. Meenu told them that Dinesh Sharma took her to Pilani where he committed rape with her.
5. On the basis of this report, the police registered F.I.R. No. 186/1999 (Exhibit P. 18) under Sections 363 and 376, IPC. Exhibit P. 19, the site-plan was also prepared. The underwear of prosecutrix Kumari Meenu was seized vide seizure memo (Exhibit P. 21); the accused Dinesh was arrested on 7.7.1999 itself vide arrest-memo (Exhibit P.11). Kumari Meenu was medically examined and her injury-report is Exhibit P.2.
6. After completion of investigation of the case, the police filed a challan against both the accused-appellants. The trial Court framed charge against accused Dinesh under Sections 366 and 376, IPC and against accused Smt. Saroj under Section 376 read with Section 114, IPC. Both the accused denied the charges and claimed trial.
7. In support of the charge, the prosecution examined both, oral and documentary evidence. The statements of accused-persons were recorded under Section 313, Cr.P.C., wherein accused Dinesh stated that a false case has been registered and the reason behind it is that his mother Vimla Devi had given Rs. 10,000/- to Smt. Leela on credit basis and, on demand of money, quarrel took place number of times in the two families and the present case has been lodged due to that enmity. He further stated that during the period 1.7.1999 to 5.7.1999 he had gone to Mahuwa to attend his grandmother Omwati, who was ill, and came at Chirawa on 6.7.1999.
8. Accused Smt. Saroj, in her statement Under Section 313, Cr.P.C, stated that the Police Station Pilani and Chirawa have implicated her falsely with the connivance of complainant. She has two school-going children; one daughter aged about 13 years and son aged about 7 years. Apart from her, her brother, sister-in-law (‘bhabhi’) and children are living in her house. His brother is driver and due to enmity with the police, the present case was falsely lodged against her. Menu never came to her house.
9. The trial Court, after considering all the evidence on the record, convicted and sentenced the accused-appellants, as mentioned above.
10. The learned Counsel for the accused-appellant Dinesh Kumar contended that he has not committed any offence as he was out of Village Chirawa during the period from 1.7.1999 to 5.7.1999. He has falsely been implicated by the complainant-party due to the reason stated by him in his statement under Section 313, Cr.P.C. It is further contended that the learned trial Court has wrongly recorded a finding that Meenu was below 16 years of age. There is no basis for recording such a finding by the trial Court. It is contended that, as per the school record of Meenu, her date of birth was 30.7.1990 and from this date her age comes to 9 years only whereas her father has stated her age to be 13 years, medical-report shows her age to be 14 to 16 years, the trial Court has recorded a finding that she was in between 13 to 15 years. It is contended that the finding of the trial Court is neither based on school record nor evidence of parents nor on medical-report, and the same is based on surmises and conjectures. In alternative, it is contended that from the statement of Meenu herself it is clear that she went at her own with accused Dinesh and she was a consenting party. Meenu remained with accused from 4.7.1999 to 6.7.1999 continuously for 3 days and she did not raise any alarm, but on 6.7.1999 her parents saw her and took her with them; the present case was falsely registered against him. He, therefore, contended that the finding of the trial Court is absolutely illegal and contrary to the record and the same is liable to be set-aside by this Court.
11. Shri S.S. Sunda, the learned Counsel for the accused Smt. Saroj, contended that name of Saroj was not mentioned in written- report (Exhibit P-17) and she has falsely been implicated in the case by the police of Chirawa due to the enmity with her brother, who is driver. It is contended that admittedly the prosecutrix was recovered on 6.7.1999 and she remained with her parents in the night and narrated entire incident to them; thereafter the written-report (Exhibit P.17) was lodged on 7.7.1999, but name of accused Smt. Saroj was not mentioned in the said written-report. He further contended that in the police proceedings it is mentioned that Meenu was also present along with her father at the time of lodging the written-report (Exhibit P. 17) and it bears the signature of Ambika Prasad as well as Meenu, both. He also referred the statement of prosecutrix recorded under Section 161, Cr.P.C. (Exhibit D-l) and she was confronted with her statement recorded by the police during her examination before the trial Court, which is available at Page 7 of her statement and a perusal thereof goes to show that all these allegations, as stated by her in her examination-in-chief, were not mentioned in Exhibit D-1 and this is a case wherein the prosecutrix PW-6 Meenu made improvement in her statement before trial Court. He contended that there is no other evidence in the case against appellant Smt. Saroj except the statement of Meenu which is contrary to her own statement recorded under Section 161, Cr.P.C, (Exhibit D-l), as well as written report (Exhibit P.17), which was lodged by PW. 9 Ambika Prasad along with PW.6 Meenu.
12. The learned Counsel for accused Smt. Saroj further contended that from the statement of PW.10 Ram Kumar, the Investigating Officer, it is clear that the contents of Exhibit P. 17 were read-over by him to PW.9, wherein name of accused Smt. Saroj was not mentioned. During the cross-examination, a suggestion was also put to PW. 10-the investigating Officer, about enmity of brother of Smt. Saroj with the police. He also referred the statement of accused Saroj recorded under Section 313, Cr.P.C, wherein she specifically stated that she has falsely been implicated in the case. He, therefore, contended that there is no iota of evidence against her and the trial court has wrongly convicted the accused Smt. Saroj and the judgment passed by the trial Court is liable to be set-aside.
13. The learned Public Prosecutor supported the judgment of the trial Court and contended that there is no merit in any of the appeals and the same are liable to be dismissed.
14. I have considered the rival submissions of the learned Counsel for both the parties and minutely scanned the impugned judgment as well as the record of the trial Court.
15. The undisputed facts are that initially Exhibit P.22, a written-report, was lodged on 6.7.1999 by PW-9 Ambika Prasad Sharma about missing of her daughter Meenu (PW. 6). PW. 9 Ambika Prasad and PW. 7 Smt. Leela, both, went to Pilani in search of their daughter where they saw Meenu with accused Dinesh and, on seeing them, accused fled and they brought Meenu with them at Chirawa. The entire incident was narrated by Meenu to her parents, as she remained with them for the whole night, and on the next date i.e. 7.7.1999, the written-report (Exhibit P.17) was lodged by PW-9 Ambika Prasad along with PW-6 Meenu. In Exhibit P. 17, a reference was also given of earlier report (Exhibit P.22) lodged on 6.7.1999. Exhibit P-17 bears the signature of PW.9 as well as PW-6 both. The name of Dinesh Kumar was mentioned in the written-report Exhibit P-17, but name of Smt. Saroj was not mentioned.
16. The trial Court, in the impugned judgment, considered the question regarding the age of PW-6 Meenu on the date of occurrence i.e. 4.7.1999 and recorded a finding that she was 13 to 15 years of age on the date of incident. The trial Court considered Exhibit P.25 an application form for admission of Meenu in Class VII in Dalmia Girls Senior Secondary School, Chirawa; Exhibit P-26 is the Transfer Certificate of Meenu issued by the School; and the Photostat copies of these documents were kept on the record as Exhibit P-25 A and Exhibit P-26A. Exhibit P-27 and its Photostat copy Exhibit P. 26A. Exhibit P-27 and its Photostat copy Exhibit P-27A are the entry in the School Register wherein the date of birth of Meenu (PW. 6) is 30.7.1990. PW. 11 Smt. Pramodini Dube was called by the trial Court and she was examined. Exhibit P-25 A is the Photostat copy of the application form of admission duly signed by guardian of Meenu-Shri Gyarsilal Shastri (grandfather), wherein the date of birth of Meenu was mentioned as 31.1.1990. PW-9 Ambika Prasad, PW.7 Smt. Leela, the parents of Meenu, stated her age as 13 years. PW-6 Meenu herself stated her age as 16 years, when she was examined on 2.5.2002. PW-1 Dr. Ratan Singh stated her age in between 14 to 16 years. Exhibit P-2 is the medical report wherein her age has been shown as 14 to 16 years. There are three types of evidence with regard to the age of the prosecutrix. The school record shows her age to be about 9 years; the oral testimony of her parents and the prosecutrix show her age 13 years; the medical-report shows her age to be 14 to 16 years. The trial Court has recorded a finding that her age on the date of incident was in between 13 to 15 years. After considering the relevant evidence relating to age of the prosecutrix, I am of the view that finding of the trial Court in this regard is based on appreciation of evidence and there is no illegality in it and no interference is called for in this regard by this Court.
17. So far as case of accused Dinesh Kumar is concerned, it is clear that PW.6 Meenu specifically stated that she was riding her cycle. The accused Dinesh came on motorcycle and told her to go with him to learn to ride motorcycle. She refused, but he persuaded her very much and she went with the accused. Dinesh took her Pilani and shut in a room. The accused Dinesh went after locking the room. He came in the evening and committed forcible sexual intercourse with her. She resisted but she was given threatening by accused of dire consequences. She further stated that she was raped by accused Dinesh on the next day also. From the statement of PW.6 it appears that accused Dinesh took her away from Chirawa to Pilani and committed forcible sexual intercourse with her. Although, it appears from her statement that both, accused and prosecutrix, were walking in Pilani, and she did not raise alarm and this fact goes to show that the prosecutrix was a consenting party but, looking to the finding in respect of age of the prosecutrix, her consent become irrelevant. The commission of sexual intercourse by accused with prosecutrix is fully proved from the statement of PW.6 Meenu which is corroborated by her medical-report (Exhibit P.2) and statements of PW.1, PW. 7 and PW. 9.
18. The trial Court has considered the statements of the prosecutrix PW.6, PW.1 Dr. Ratan Singh, PW. 2 Dr. Smt. Kusumlata, PW. 7 Smt. Leela, PW. 9 Ambika Prasad and after discussing their evidence, in detail, recorded a finding of commission of offence under Sections 366 and 376, IPC, both, and I do not find any illegality in the said finding. The trial Court has rightly convicted the accused Dinesh for the offence under Sections 366 and 376, IPC, and, in my view, the judgment and order passed by the trial Court with regard to accused Dinesh is liable to be confirmed.
19. So far as accused Smt. Saroj is concerned, it is clear that Exhibit P-22, the initial report was lodged on 6.7.1999 about missing of Meenu and there was no question of mentioning name of any person in it. Prosecutrix PW-6 Meenu was recovered on 6.7.1999 and remained with PW-7 Smt. Leela and PW.9 Ambika Prasad, her parents, during the whole night and on the next day i.e. 7.7.1999 (Exhibit P. 17) the written report was lodged by PW.9 Ambika Prasad, who was accompanied by PW. 6 Meenu also. Exhibit P. 17 bears the signatures of PW.9 and PW.6, both, and they have admitted lodging of written-report Exhibit P. 17. The Investigating Officer Ram Kumar also proved contents of Exhibit P. 17. It is an admitted fact that name of accused Smt. Saroj was not mentioned in Exhibit P. 17, which was read over by PW. 10 to PW. 9. PW. 7 Smt. Leela and PW. 9 Ambika Prasad, in their statements before the trial Court, have admitted that Meenu narrated the entire incident to them in the night and only thereafter the report Exhibit P. 17 was lodged. The statement of the prosecutrix under Section 161, Cr.P.C. was recorded by Police Chirawa wherein she took the name of accused Smt. Saroj and PW.6 Meenu was confronted with her statement Exhibit D-1 during her statement before the trial Court and the statement of PW-6 Meenu in this regard is available at page 6 and 7 of her statement. A bare perusal of it will show that number of improvements have been made by her in her statement recorded before the trial Court. PW-6 Meenu could not fully corroborate her statement recorded under Section 161, Cr.P.C, in respect of accused Smt. Saroj. It is relevant to mentioned that the statement of Kumari Meenu was also recorded under Section 164, Cr.P.C, as stated by PW. 10 the Investigating Officer, but it is very surprising that neither the original statement nor certified copy thereof is available on the record and the same has not been proved and exhibited in the case. The concerned Magistrate, who recorded the statement, has also not been examined on behalf of the prosecution. However, the learned trial Court, not only referred, but reproduced her statement recorded under Section 164, Cr.P.C. at Page 16 of the impugned judgment. The original or certified copy of the statement recorded under Section 164 Cr.P.C, is not available, but in extra-papers of the trial Court file, a photo copy of the certified copy of the statement dated 9.8.1999 is available, which cannot be read in evidence as per the provisions of law and further that accused did not get an opportunity in this regard. The said statement was recorded after 32 days but it has not been proved by the concerned Judicial Magistrate, who recorded it and no cognizance can be taken of a Photostat copy of the certified copy of the statement. The trial Court wrongly referred and relied upon the statement of the prosecutrix recorded under Section 164, Cr.P.C. The trial Court has committed a serious illegality in relying upon such evidence which was not admissible in the eye of law. The trial Court has not considered the effect of non-mentioning of the name of accused Smt. Saroj in Exhibit P. 17 and contradictions in the statement of PW.6 Smt. Meenu with special reference to her statement Exhibit D-1, recorded under Section 161, Cr.P.C. The trial Court has not dealt with the statements of PW.7 Smt. Leela and PW.9 Ambika Prasad in respect of the fact that they admitted that Meenu had told them the entire incident took place with her from 4th to 6th of July, 1999, and only thereafter Exhibit P-17 the written report, was lodged and there in name of Saroj was not mentioned.
20. I have minutely scanned the judgment of the trial Court and I find that it has not discussed all these facts while recording the finding of conviction in respect of accused Smt. Saroj.
21. Apart from above, the statement of PW-6 Meenu is also not consistent in respect of accused Saroj. In her examination in chief she stated that Dinesh locked her and further that accused Saroj put a lock outside the room. She further says that Dinesh went after locking the room. It shows that she could not see the person who put lock on her room from outside and she has taken the names of Dinesh and Saroj both to lock her room. She has not mentioned as to how she saw Saroj putting lock outside the room.
22. It is also relevant to mention that Smt. Saroj specifically stated in her statement under Section 313, Cr.P.C, that she was residing in her house with her brother, ‘bhabhi’ (sister-in-law) and two children and she has been implicated falsely in the case because of enmity of his brother with the police.
23. There are number of material contradictions in the prosecution evidence including the statement of PW-6 Meenu in respect of accused Smt. Saroj and I am of the view that the prosecution has failed to prove the charge against the accused Smt. Saroj in the facts and circumstances of the present case beyond all reasonable doubts and she is entitled to get the benefit of doubts.
24. In view of above discussion and reasons, I find that there is no cogent and reliable evidence to connect the accused Saroj with the present incident and the learned trial Court, without considering the entire evidence on the record properly and only on the basis of some allegations in the statement of PW-6 Meenu, convicted the accused Smt. Saroj under Section 376 read with Section 114 of the IPC. In my view the judgment of the trial Court in respect of accused Smt. Saroj cannot be allowed to be sustained and the same is liable to be set-aside.
25. Consequently, the appeal of accused Dinesh Kumar is dismissed. The appeal of accused Smt. Saroj is allowed and the order of conviction and sentence passed by the trial Court against her is set aside. She is on bail and she needs not surrender. Her bail-bonds are discharged.