JUDGMENT
K.S. Lodha, J.
1. Two appellants Kishania and Sanwaria alias Hans Raj have filed this appeal against their conviction and sentences passed by the learned Sessions Judge, Churu, vide his judgment dates May 4, 1985. They have been convicted under Section 376(2) and sentences to 10 years’ rigorous imprisonment and a fine of Rs. 2000/- each, in default of payment of fine, to further undergo six months’ rigourous imprisonment each. They have further been convicted under Section 447, IPC and sentenced to three months’ simple imprisonment each.
2. The prosecution story may be briefly stated here. Kumari Sayara, alleged to be 15 years of age, is daughter of Malaram. It is alleged that on June 25, 1984, at about 3.00 p.m. when she was in her field, both the accused Kishania and Sanwara came there and forcibly raped her. While she was being so raped, her brother Prahlad aged 13 years and her maternal uncle Ramu Ram aged about 35 years, happened to pass by that site and on her hue and cry, they climbed up the hillock and saw that accused Sanwara was holding the hands of Kumari Sayara and Kishania was having intercourse with her. They accosted the accused persons, whereupon both of them ran away. The story goes further that when they brought Kumari Sayara to her house, she nariated the story to her mother. Her father was not present there at that time. Therefore, her brother Bhanwara was sent to call him. He arrived 2 days later and then, on Feb. 28, 1982, the First Information Report was lodged at the Police Station, Ratan Nagar at about 6.15 p.m. On this report, the police took up the investigation. The girl was got medically examined, so also the accused, who was arrested. Site was inspected and the other investigations were carried out. On conclusion of the investigation, challan was put up and both the accused persons were committed to the court of Sessions. Charges under Sections 447 and 376, read with Section 114, IPC were framed against the accused. They denied the charges and claimed to be tried. The prosecution examined 11 witnesses and produced a number of documents. The accused were examined. They maintained their denial and stated that they had wrongly been implicated. It was stated by Sanwara that Kumari Sayara was a girl of easy virtues and therefore, her parents were finding it difficult to arrange for her marriage. They wanted to give her in ‘Nata’ to accused Sanwara and had tried to bring force upon him to agree to it, but as his father, mother and his wife (he was already married) were not agreeable he could not take Sayara in ‘Nata’. This annoyed Sayara and her parents and, he has falsely been implicated in this case and Kishania also stated that he has been falsely implicated as he happens to be ‘Dharam Bhai’ of Sanwara. He further states that Sayara was a girl of doubtful character. However, no evidence in defence has been produced. After considering the material on record, the learned Sessions Judge has convicted and sentenced the accused, as aforesaid.
3. I have heard learned Counsel for the appellants and the learned Public Prosecutor and have gone through the record.
4. Learned Counsel for the appellants has challenged the conviction of the appellants on a number of grounds, although emphasis has been laid on the question of age of the prosecutrix and the absence of her medical corroboration of her testimony regarding rape. He has also pointed out that the evidence of the witnesses is not only contradictory, but their conduct also appears to be wholly unnatural and suspicious. Thus, according to him, the guilt cannot be said to have been brought home to the accused, beyond reasonable doubt and the learned Sessions Judge was not justified in convicting them. On the other hand, learned Public Prosecutor has supported the judgment of the learned Sessions Judge with vehemence. His main emphasis is on the fact that the prosecutrix has been subjected to rape by two persons and therefore, even if her age is taken to be about 16 years, it cannot be deemed to be a case of consent. I have given my careful consideration to the rival contentions.
5. As urged by the learned Counsel for the appellants, the first and the foremost question for consideration in this case is the age of Kumari Sayara. Kumari Sayara has stated her age as 15 years in her statement before the Court. He mother Smt. Bhali (PW 10) has stated Sayara’s age as 14 years. It may be observed that Sayara has been examined on November 26, 1984, whereas Bhali has been examined on January 5, 1985. Her father Malaram (PW 1), who was examined on November 26, 1984 has stated her age to be 14 years and thus, it is clear that all the three are not consistent. Not only this, no birth certificate or any certificate of school where he age may have been recorded, has been produced. Again, in the cross-examination Malaram has stated that his eldest son Bhanwara is 18 years of age, but he does not remember the year of his birth Further, he states that Sayara was born in S.Y. 2027 and that after Sayara, his son Prahlad, who is 12 years of age was born in S.Y. 2029. It would, thus, appear that Samvat stated by Malaram about the birth of his children are just by approximation and cannot be taken ft r certain because although he states the Samwat of the birth of Sayara and Prahlad, he was unable to state the Samvat Year of birth of his first son Bhanwara. When the first question about the date of birth of Bhanwara was put, he was taken unaware bat later go conscious and started giving the Samwat Years of the birth of Sayara and Prahlad. Prahlad, who was later examined as PW 3 on the next day, has stated his age to be 13 years, whereas his father has stated it to be 12 years. Therefore, no definite opinion can be framed about the exact age of Sayara on the basis of this oral evidence. Then, what is left is the medical evidence. Ex PW 8 Dr. Purshottam who had performed the X-Ray and Ossification test of Sayara, has stated her age to be between 14 and 16 years i.e. she was above 14 and below 16 years on the date of her examination According to the X-ray report prepared by him, epiphysis for the lower end of radius have appeared but not fused and epiphysis of lower end of ulna have appeared but not fused, and it was on the basis of this that he came to the conslusion that she was above 14 years, but below 16 years of age In his statement before the court, he was stated that as the epiphysis of the lower end of unla and radius had not fused, he was of the opinion that she was below 16 year of age because this fusion starts at the age of 16 and is completed by the age of 18. However, in the cross-examination, he further stated that the poverty of the girls taking c inferior food etc. may affect the course of fusion and bones and this may delay the fusion by one year. He further states that Kumari Sayara was from a poor family although if he does not remember about the nature of develonment of her body. This clearly goes to show that the age stated by Dr. Purshottam cannot be taken to be unquestionable or inflexible. According to him also, fusion can be delayed, by a year or so. Therefore, when he says that the fusion starts from the age of 16 and completes at the age of 18, it may be possible that it may start at the age of 17 and may complete on attaining the age of 19, in a girl who comes from a poor family. When Kumari Sayara admittedly comes from a poor family, as stated by Dr. Purshottam, this possibility cannot be overruled. Further, it is by now well established that the ossification test, although is quite reliable, but may not be fool proof and infallible. In this connection, the following observations from Jhala’s Medical jurisprudence may usefully be quoted:
An X-Ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate, the correct number of years and days he has lived. Hence, the opinion of a medical expert based on such test cannot be regarded to be conclusive, particularly when the difference in the approximate age stated by him and the one fixed by Section 363 I.P. Code is not wide.
Too much reliance should not be placed on tables given in books on Medical Jurisprudence and Toxicology showing the age in years of the appearance and fusion of some epiphysis as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development and that owing to the variation in climatic, hereditary and other factors affecting the people of the different provinces of India it cannot be reasonably expected to formulate a uniform standard for the determination of the age of union of epiphysis for the whole of India.
So also is the opinion of Modi in his Medicial Jurisprudence. As already stated above, in the present case, there is no direct documentary or oral reliable evidence about the age of Kumari Sayara and when the Medical evidence is, thus, flexible, it cannot be accepted for certain and beyond reasonable doubt that Kumari Sayara was below 16 years of age and in my opinion the prosecution has failed of establish this important, aspect of the matter.
6. Then, comes the question whether in the circumstances of the case, the possibility of the girl being a consenting party, being above 16 years of age, can be ruled out or the incident, as alleged by the prosecution can be accepted without any reasonable doubt. In this connection, learned Counsel for the appellants has referred to a number of circumstances, which, I shall presently consider one by one.
7. The first and the foremost contention put-forward by the learned Counsel for the appellants is that in this case the First Information Report has been lodged after considerable delay and the delay has not been satisfactorily explained He submits that the accident had taken place at 3.00 p.m. on Feb. 25, 1982, but the First Information Report was lodged after three days oh February 28, 1982 at about 6.30 p.m. The delays is sought to be explained on the ground that Kumari Sayara’s father was not at home on that day and had to be called through his son Bhanwaria and it was after his arrival that some deliberations whether or not to make the report were carried out and then the report was lodged. The explanation on the face of it, does not appear to be satisfactory. Even if it is accepted that the report could not have been made before Mala Ram was called and he reached the house, the fact as to when Malaram came to his house after this incident, is clouded in mystery and each witness has given different version in this regard. Mala Ram states that his son Bhanwaria had come to call him on that very evening, i.e. evening of Feb. 25, 1982 and he came to the village along with him on the next day early in the morning. To be precise, the words may be reed
esjs ikl esjk yM+dk fnu fNis igqpk Fkk A mlh jkr ds rM+dk ds ge iSny gekjs xkWo vk x;s A dj.khlj eS ‘kke dks igqapk A eS vkSj esjk yM+dk igqapk A fQj jkr dks k.kh es jgk A 28 rkjh[k dks pyk Fkk A rhu fnu ckn ?kVuk ds ckn Fkkus es vk;k Fkk A
This goes to show that although Mala Ram had reached the village in the morning on 26th, but he wanted to hide this fact by saying that in the night they stayed in the ‘Dhani’ and reached the village in the evening of 26th. Even if this statement is accepted, there is no explanation why the report was not filed on 26th itself when he had reached the ‘Dhani’ or atleast on 27th Feb., 1982 when he reached the village on the night of 26th Feb., 1982. Not only this, the statement of Malaram in this respect is directly contradicted by Smt. Sayara herself, who says that her father had reached the village on the next morning itself, i.e. the morning of 26th. If that is so, the delay between the morning of 26th Feb to the evening of 28th Feb., 1982 remains unexplained. PW 10 Mst. Bhali on the other hand states that her husband had come to the village two days after the incident. Thus, she gives a version altogether inconsistent with that of Malaram and Kumari Sayara. This goes to show that sufficient time was taken by the First Informant and the members of his family in making out a story implicating the accused, otherwise there was no ground for delaying the matter. Even if it is taken into account that in matters relating to rape, the people, specially from the village community, are averse in making any report to the police, but for that they shuold not be expected to take such a long time, if at all the matter is to be reported to the police. This unexplained delay, rather the delay which is sought to be explained by divergent versions goes to show that the time was utilised for making out a story which may not, be true and correct story about the incident. Therefore, this delay gives rise to a very strong inference against the prosecution.
8. Then, it is very important to note that although Kumari Sayara alleges that the two accused had forcibly raped her in the field, but the medical evidence does not at all corroborate her in as much as no injury was found on any part of her body, not even on her private parts. On the other hand, what has been found by the Doctor is there were old tears on the hymen I of Kumari Sayara and she was habituated to sexual intercourse. Kumari Sayara is an unmarried girl and the fact that her hymen had old tears and she was accustomed to sexual intercourse shows that she was a girl of easy virtues and scant reliance can be placed upon her statement unless it inspires complete confidence and is corroborated by direct or circumstantial evidence and in this connection, reference may be made to the following observations of their Lordships in Ram Murti v. State of Haryana
The prosecutrix has made several divergent statements. Keeping in view the medical evidence which shows that the prosecutrix had been used to sexual intercourse, in order to accept her statement that she was compelled threatened or otherwise induced to go with the appellant, there should, in our opinion, be corroboration of some material particular from some independent source and her bare statement cannot be considered sufficient to sustain the appellant’s conviction.
Again, it is important to note that although Kumari Sayara states that the two accused had forcibly intercoursed with her, she does not state that as a matter of fact, she put up any resistance, which is expected of a girl of her age. She admits that no injury was caused to her. She further admits that the accused did not beat her. She also admits that the accused were not armed, and in these circumstances, it is difficult to believe that if Kishania and Sanwara had tried to overpower her and subject her to sexual intercourse without her consent, she would not put up any resistance and no injury would be caused to her body. It has been observed in Amli v. The State 1983 Raj. Cr. Cases 213.
Both the accused persons are aged about 19, whereas the age of the prosecutrix is about 27 years, or 30 years as stated by her. The circumstances that she did not raise alarm and that she sustained no injury, go to point out that in the entire affair, she was a willing party. In any case, the circumstances reasonably lend one into doubt in the truth of the prosecution case and in that view of the matter, both the accused persons, in my opinion are entitled to the benefit of doubt.
It may be observed here that in that case even broken bangles were found at the spot, but that circumstances was not taken to be sufficient to show that the prosecutrix had put up resistance and it was observed that the bangles could have been broken, if they came in contact with some tagged object. It may, of course, be mentioned here that according to Ku.Sayara, she had raised hue and cry which attracted her maternal uncle Ramuram and her brother Prahlad. Prahlad and Ramuram have also stated so, but, from the conduct of Prahlad and Ramuram also it appears that either they did not see the incident or in any, case they are not coming forward with a true version. Prahlad states that on hearing the cry they climbed a hillock and saw that the accused Sanwara was holding the hands of Kumari Sayara and Ku. shania was lying on her top. Thereupon, they accosted them and ran towards them. They pursued them for some distance but came back, whereas Ramuram states that after they had accosted the accused and the accused ran, they did not pursue them at all. Thus, the two versions are directly contradictory to each other and show that the witnesses are not the witnesses of truth. Ramuram is a person aged about 35 years and if he had really seen the two accused in the manner alleged by him, it is impossible to believe that he would not have pursued the accused persons when he was accompanied by his nephew Prahlad and also when Dhani of the accused was not far away. The fact that Ramu Ram did not pursue the accused, makes his conduct most unnatural. The matter does not rest here. For the sake of argument, even if it is believed that he did not pursue the accused and remained with Kumari Sayara, yet he admits that thereafter he did not come to the ‘Dhani’ of the accused to rebuke them or to bring the matter to the notice of their parents. Ordinarily, having seen this incident, he would not have remained silent and must have tried to catch hold of the accused and complain to their parents. Further, he states that after the incident when he took Sayara to the Dhani, Sayara’s mother was not there. She came about 15-20 minutes later. He further states that he utilised these 15-20 minutes in filing pitchers from the ‘Kund’ and, thereafter, he went away to his own village and then returned to the ‘Dhani’ of Kumari Sayara. It was thereafter that Kumari Sayara’s brother Bhanwaria came there and he was sent to call Mala Ram. This conduct also appears to be unnatural because after such an incident, he would not have left Savara and her mother alone at home when the elder brother of Sayara had already left to call Mala Ram. The version given by Ramu Ram is again contradicted by Prahlad, who states that when after the incident they went to the home along with Kumari Sayara, Smt. Bhali was present there. He also admits that for 2-3 days after the incident, no one from their house had gone to reprimand the accused.
9. The evidence of Ramuram and Prahlad is further contradicted by Kumari Sayara herself in as much as when Ramuram says that he did not run after the accused at all and Prahlad says that he and Ramuram pursued them for some distance and came back. Kumari Sayara says that the accused, when accosted by Ramuram and Prahlad, ran in the same direction from which Ramuram and Prahlad came. If that was so, it should have been quite easy for these witnesses to get hold of the accused persons, but they did not either got hold of them nor tried to do so and, therefore, their conduct becomes further suspicious. Regarding the presence of Prahlad and Ramuram at the spot as alleged by them, one very important circumstance, which goes to make it highly doubtful is that Kumari Sayara, of course, states that the two accused had forcibly intercoursed with her but she does not state that one accused had caught hold of her and the other accused engaged himself in the act of intercourse, but these two witnesses Prahlad and Ramuram go a step further and say that when they reached the spot they saw that Sanwara was holding the hands of Sayara, while Kishania was engaged in the act of intercourse, Looking to all the circumstances, the evidence of these witnesses become highly doubtful. Coupled with it is fact that Kumari Sayara is a girl of easy virtues who had already lost her virginity much earlier, as according to the doctor, she had old tears on her hymen and she was accustomed to sexual intercourse. In these circumstances, the evidence of Kumari Sayara herself appears to be of shabby in nature and the corroboration sought to be brought before the court by evidence of Prahlad and Ramuram, which also, as already started above is contradictory and unnatural, the prosecution cannot be said to have been able to bring home the guilt of the accused persons beyond any reasonable doubt.
10. The contention of the learned Public Prosecutor that when two persons had had sexual intercourse with Kumari Sayara, the question of consent does not arise, but in my opinion merely because the rape is alleged against two accused persons, it cannot be taken for granted that it cannot be a consent. Further, what has been stated above is not that as a matter of fact, the sexual intercourse has been established and that it was a matter of consent. The conclusion to which, I have arrived at is that the prosecution has not been able to establish its case beyond reasonable doubt. The medical evidence does not show the real guilt of sexual intercourse and the matter only depends upon the testimony of the prosecutrix and the so called eye-witnesses. When the character and conduct of the prosecutrix as also the eye witnesses is not free from doubt, the prosecution story cannot be believed as it is and therefore, the accused are entitled to acquittal.
11. I, therefore, accept this appeal and set aside the conviction and sentences passed against the accused appellants and acquit them of the charges under Section 376(2) and 447, TPC. The accused persons are in custody. They shall be released forthwith if not required in other case.