JUDGMENT
S.L. Jain, J.
1. This appeal is filed by appellant Lakhan Lal challenging the legality and correctness of the judgment and order dated 15-5-2001, passed by Additional Sessions Judge, Khandwa whereby the appellant has been convicted for the offences punishable under Sections 376(1), 366 and 506, Part II of Indian Penal Code and sentenced to R. I. for ten years and fine of Rs. 1,000.00, R.I. for five years with fine of Rs. 300.00 and R. I. for one year with fine of Rs. 100.00, respectively. All the above sentences of imprisonment were directed to run concurrently.
2. The prosecution story unfolded during the trial is that in the intervening night of 7th and 8th April, 2000 prosecutrix Swati was sleeping in her house. Her parents and siblings were also sleeping in the house. At about 3 a.m. appellant armed with an axe entered the house of prosecutrix. He collected her wearing apparels and caught hold of her hand and took her with him. He gave threat to the prosecutrix that if she will shout, she will be done to death. He took her from village Kuntha to village Jamthi on foot. From village Jamthi they boarded in a truck and reached Deshgaon. Appellant went on giving threats to the prosecutrix. From Deshgaon appellant took Swati in a truck to Khargaon where he talked to his wife Tara Bai alias Guddi and informed her that he will marry Swati. On the same day in the evening the appellant took Swati to Kasrawad and at Kasrawad he kept Swati at his Mausa’s house for about 8 days and committed rape on her. Thereafter, the appellant took Swati from Kasrawad to Theebgaon where he kept the prosecutrix at the house of his sister. The appellant committed rape on prosecutrix several times. Thereafter he took the prosecutrix from Theebgaon to Khargaon and kept in a hut outside the township for about 8 days. Here also appellant committed rape on prosecutrix several times.
3. Meanwhile, father of the prosecutrix Champa Lal (PW-4) lodged report at Police Station Piplod, to the effect that his daughter is not traceable at Theebgaon.
4. When Swati saw Devram, father-in-law of the appellant at Khargon she requested him to inform her father regarding her whereabouts. Devram (PW-5) went to Kumtha and informed parents of the prosecutrix regarding the presence of prosecutrix at Khargon. When father of the prosecutrix Champa Lal in the company of Devram reached Khargon, he found Swati living with the appellant. On seeing Champalal, the appellant ran away. Champalal brought the prosecutrix with him and produced her at police station, Piplod, crime was registered at police station, Piplod, on 1-5-2000 as per Ex. P-9.
5. Prosecutrix was medically examined by Dr. Smt. Abha Jain (PW-1), who did not find any injury mark on the person of the prosecutrix. She reported that no definite opinion can be given regarding rape on the prosecutrix. Lady doctor collected vaginal smears, recovered light green petticoat from the person of the prosecutrix and cut her pubic hair which were packed and sealed and the packet was handed over to the concerned constable. Ex. P-2 is the report of Dr. Smt. Abha Jain. Dr. B. K. Maheshwari (P-7) after ossification test opined that the age of the prosecutrix may be between 15 to 16 years. Ex. P-8 is the report of Dr. Maheshwari.
6. On completion of investigation, a challan was filed against the appellant for the offences punishable under Sections 376(1) and 506 (Part II), I.P.C., charges for which were framed against the appellant who abjured the guilt.
7. On the evidence led by the prosecution, the trial Court concluded that the prosecution succeeded in bringing home the guilt against the appellant and convicted and sentenced him, as indicated above.
8. I have heard Shri Prabhakar Singh, learned counsel appearing for the appellant and Ku. Mamta Billore, Panel lawyer for the State and gone through the record of the case.
9. Learned counsel for the appellant submitted that the conviction recorded by the trial Judge is illegal and incorrect. Ku. Mamta Billore, Panel Lawyer, on the other hand, supported the impugned judgment.
10. Swati (PW-3) has stated that on the date of incident, she was sleeping in her house. Appellant entered her room from the backside of the house. He picked up her wearing apparels and pressed her mouth. The appellant took her to Village Jamathi on foot. At village Jamathi, they boarded in a truck and went to Deshgaon at 2 a.m. At Deshgaon they boarded on another truck and reached Khargon. At Khargon appellant took her to the house of his father-in-law. The wife of the appellant inquired from him as to why he has brought the prosecutrix. The appellant told her that he will keep Swati as his wife. Thereafter, the appellant took her to village Kasrawad where he kept her in the house of his relative for 8 days. During all these 8 days, appellant committed rape on her. Then he took her to village Theebgaon, where she was kept for 8 days and there also appellant committed rape on her a number of times. Again, the appellant took her to Khargaon. At Khargaon she was kept in a hut for a period of about 8 days. At Khargaon she found the father-in-law of the appellant selling Kulfi. He requested the said father-in-law to inform her parents about her presence at Khargaon. The father-in-law of the appellant came to Khargaon along with Champalal. When the appellant saw Champalal, he ran away. Her father brought her to Piplod and produced her at police station.
11. Champa Lal (PW-4) who is the father of the prosecutrix has stated that in the relevant night, the prosecutrix was sleeping in the house. At about 3 a.m., when he got up he did not find Swati in the room. The appellant was living opposite his house. He called appellant also, but he was not at his home. Therefore, he lodged a report alleging that his daughter is missing. After about 17 days of the departure of his daughter, father-in-law of the appellant came to him and informed him that his daughter is at Khargaon along with appellant. Then he along with father-in-law of accused went to Khargaon, where the appellant and Swati were traced in a hut. He brought his daughter with him and produced her at the police station, Piplod. Prosecutrix informed him that she was abducted by the appellant and was subjected to sexual assault.
12. The first essential, to be established for the offence under Section 366 of the I.P.C. is that the accused kidnapped or abducted a woman. To constitute the offence of kidnapping, it must be proved that the girl kidnapped is under 18 years of age and the burden remains on the prosecutrix to prove it. In order to prove the age of the prosecutrix Swati, the prosecutrix has relied on the evidence of Dr. Abha Jain and Dr. B. K. Maheshwari (PW-7). Dr. Abha Jain has stated that approximate age of the prosecutrix was recorded by her in her report Ex. P-1. In this report, the age of the prosecutrix is shown to be about 18 years. Dr. Smt. Abha Jain has stated that this approximate age which she recorded in the information given by prosecutrix herself. Thus, according to the prosecutrix herself, her age was 18 years at the time of incident.
13. Dr. B. K. Maheshwari (PW-7), has stated that prosecutrix was referred to him for determination of her age. He took the X-ray of her both the arms and found that her radius and ulna bones were fused completely at elbow, therefore, the age of the victim was above 14 years but lower end of epilepsies of lower bones were not fused completely, therefore, her age was below 18 1/2 years. Ex. P-8(a) is the report of Dr. Maheshwari. In this report, he opined that the age of Swati is between 15 to 16 years.
14. There are apparent contradictions in the report of Dr. Maheshwari. He has clearly mentioned in his report that the age of the victim is below 18 1/2 years. He has not clarified as to why she cannot be above 18 years and why it is between 15 to 16 years. Even if we take the report of Dr. Maheshwari on its face value and conclude that the age of the prosecutrix according to the report of Dr. Maheshwari was 16 years. Dr. Maheshwari herself has admitted that in determining the age on the basis of ossification test variation of 2 years ‘+’ or ‘–‘ is possible. If we keep this margin of 2 years in view the age of the prosecutrix can be 18 years. From the evidence of radiologist about the fusion of bones it appears to be probable that the age of the prosecutrix was above 18 years, on the basis of the report of radiologist. Only inference that is possible is that Swati was more than 18 years of age. The benefit of doubt, if any, should go to the accused. Therefore, it could not be held that Swati was under the age of 18 years on the date of incident.
15. Prosecutrix has stated that in the relevant night when she was sleeping in her room and her parents and siblings were sleeping in other room, the appellant entered her house from the backside and forcibly took her with him. The evidence of prosecutrix does not inspires confidence. The prosecutrix has stated that the doors of her house in the rear side was broken and therefore, it was not possible to close it. Normally a grown up girl will not sleep in a house the doors of which cannot be closed in the night. The fact that the door of the rear room of the house of the prosecutrix was damaged and there was free access to her room does not find place in the case diary statement of the prosecutrix. If the prosecutrix was not willing to go with the appellant her conduct would have been to raise alarm and inform her parents who were in the adjacent room regarding the entry of the appellant in her room but no such alarm was raised. The prosecutrix has stated that the appellant was armed with an axe and he gave her threat. Therefore, she cannot raise alarm. The witnesses has stated that the appellant collected her wearing apparels. While the appellant was engaged in collecting the wearing apparels she could have raised the cry. The fact that the prosecutrix did not raise cry and went along with her wearings suggests that she went with the appellant out of own free will.
16. The prosecutrix has admitted that at about 6.00 a.m. at village Jamthi they boarded a truck and reached Deshgaon at 2 p.m. Thereafter, at Deshgaon, they boarded another truck and reached Khargaon in the evening. The prosecutrix has admitted that the driver and cleaner were present in both the trucks. If she would not have been a consenting party her natural conduct would have been to inform the driver and cleaner of the truck that she is being kidnapped or abducted by the appellant. The prosecutrix has further admitted that at Khargaon they dropped at a place where number of persons were present but she did not inform about her kidnapping or abduction to those persons.
17. The prosecutrix has further stated that at Khargaon, the appellant took her near the house of her father-in-law where his wife Guddi came to answer the call of nature. The wife of the complainant was also resident of village Kuntha from where prosecutrix was kidnapped. Her natural conduct would have been to inform Guddi regarding her kidnapping but she did not inform her. The witnesses has also stated that appellant informed his wife that he will keep Swati as his wife. It is difficult to believe that Guddi did not raise any protest against her husband when he proposed to keep Swati as his wife. The prosecutrix has further stated that in the night, they boarded a truck at Khargaon and reached Kasrawad. The prosecutrix could have complained to the driver or cleaner of this truck also.
18. The prosecutrix has also admitted that at Khargaon, they lived with the relatives of Lakhan for 8 days and if the complainant would not have been a consenting party, her natural conduct would have been to complain to the inhabitants of that house. If the inhabitants of the house were relatives of the appellant, then she could have informed the other persons living in the neighbourhood. During all these 8 days, the complainant must have gone from the house, at least they would have gone to attend the call of nature. On all these occasions, the prosecutrix was at liberty to run away or raise the cry but she did not do so. This also suggest that the prosecutrix was with the appellant with her consent.
19. The prosecutrix has also admitted that after living at Kasrawad for 8 days, the appellant took her in a truck to village Theebgaon. Driver and the cleaner of this truck also were not informed about the kidnapping or abduction. Admittedly, the prosecutrix stayed at Theebgaon for about 8 days where she could have informed the persons who lived in the neighbourhood but the prosecutrix did not raise any cry. The explanation that the appellant remained with him throughout cannot be accepted. The appellant must have slept or must have gone to attend the call of nature during all these days. At any such moment, the prosecutrix could have raised the cry, run away or escape but no such attempt was made by her. Similarly, she was kept in a hut at Khargaon. The complainant admitted that many persons were living in the vicinity of the house where she was kept at Khargaon, even then no attempt was made by her either to raise alarm or to escape from there.
20. The prosecutrix has admitted that at Khargaon, she saw the father-in-law of the appellant selling kulfi. If the prosecutrix really wanted to escape from the clutches of the appellant, she could have requested father-in-law of the appellant at Khargaon itself to rescue her or at that moment she could have informed the persons in a township of Khargaon.
21. From the conduct of the prosecutrix, it appears that she left the lawful guardianship wilfully and went along with the appellant of her own accord and out of her free will. There is no proof of promise or persuasion, inducement or allurement from the accused.
22. Learned counsel for the State next submitted that when the age of the girl was below 18 years her consent is meaningless. Even if the age of the prosecutrix is accepted to be below 18 years, she was sufficiently grown up girl and was at the age of discretion. Where the girl left her home on her own accord and went with the accused, it cannot not be said to be kidnapping. Mere passive consent on the part of the appellant by giving shelter to a girl who had come on her own accord does not amount to kidnapping or abduction. When accused has not done anything at all to take her and conduct of the prosecutrix suggests that she was determined to leave her parental home and it was only when her father reached to take her, she had to come back with him, is sufficient to hold that the accused is not guilty of kidnapping or abduction.
23. Thus, there is sufficient evidence to establish that the age of the prosecutrix was above 18 years. Even if it was on the border line, there is sufficient evidence to establish that she attained the age of discretion. Where a prosecutrix at the age of discretion leaves her parental home and the appellant simply facilitates her in fulfilment of her desire, it cannot be said to be an act of kidnapping or abduction.
24. The prosecutrix was more than 18 years of age. She left her parental home with her wearing apparels and did not seek any help from drivers or cleaners of different trucks in which she travelled or from the inhabitants of the houses in which she was kept or the persons of the neighbourhood of those houses, she did not struggle or raise any alarm, the irresistible conclusion would be that she was a willing party and her evidence to the contrary cannot be said to be reliable.
25. Thus, where the evidence of the prosecutrix found unreliable, the prosecution could not establish that the age of the girl was below 18 years, no satisfactory evidence is available as to the allegation of kidnapping or abduction of the prosecutrix, the conviction recorded by the trial Court for offence punishable under Section 366 cannot be sustained.
26. So far as the offence of rape is concerned, Dr. Smt. Abha Jain has stated that no different opinion can be given regarding the rape on the prosecutrix. In the above discussion, it has been found that the prosecutrix left her house at her own accord out of her free will and was in the company of the appellant with her consent it can well be said for the purpose of sexual intercourse also that she was a consenting party. Therefore, the conviction under Section 376, I.P.C. also cannot be sustained. In the circumstances of the case, and in the light of the above discussion, conviction under Section 506 (Part II), I.P.C. also cannot be sustained.
27. For the reasons aforesaid, I do not agree with the conclusion recorded by the trial Court that the offences charged against the appellant are proved. The appeal is therefore, allowed. Conviction of the appellant and sentences awarded to him by the trial Court are hereby set aside and the appellant is acquitted of the charges levelled against him. The appellant be released forthwith, if not required in any other case.