JUDGMENT
Sunil Kumar Garg, J.
1. This appeal has been filed by the accused appellants against the judgment dated 30-3-96 and order dated 5-4-96 passed by the learned Special Judge, SC and ST (Prevention of Atrocities) Act Cases, Pratapgarh in Sessions Case No. 123/92 (22/86) by which he acquitted both the accused appellants Magania and Manna from the offence under Section 3(1) of the SC and ST (Prevention of Atrocities) Act, 1989, but convicted both the accused appellants for offences under Section 366 and 376 as follows :
Offence Sentence awarded
366 IPC 5 years' R.I. and a fine of Rs.
100/- in default to further
undergo 1 month's S.I.
376 IPC 7 years' R.I. and a fine of Rs.
100/- in default to further
undergo 1 month's S.I.
Both the sentences were
ordered to run concurrently
2. It may be stated here that initially accused Magania was not being represented by anybody, but thereafter, Mr. B. N. Kalla has filed power on his behalf and has argued the appeal. So far as accused Manna is concerned, this Courtwide order dated 19-1-2001 appointed Shri P. C. Solanki and amicus curiae who has argued the case on his behalf.
3. It may further be submitted that the accused Manna is in jail while accused Magania is on bail.
4. This appeal arises in the following circumstances :
(i) That on 25-10-85, P.W. 3 Kachru Meena filed a complaint Ex. P/3 before the Court of ACJM, Pratapgarh against the accused appellant Magania stating inter alia that on 22-10-85, he and his wife were at his well and Garba dance was going on in the village and his minor girl P.W. 11 Mst. Kali aged 14 years (hereinafter referred to as the Prosecutrix) went to see Garba Dance.
(ii) That on the next day P.W. 3 Kachru and his wife went to Arnod Market from Jahajpur and returned at about 3 p.m. in the evening, but P.W. 11 Prosecutrix was not found in the house and she was searched by him, but he could not trace her.
(iii) That he enquired from the villagers and upon that P.W. 16 Chaturbhuj alias Vardi Chand and one Bhagga Meena resident of Jahajpur informed that his daughter P.W. 11 prosecutrix was seen in the company of accused appellant Magania on previous night and accused appellant Magania had kidnapped P.W. 11 the prosecutrix,
(iv) It is further stated that in the complaint by P.W. 3 Kachru that on 24-10-85, he went to Police Station Pratapgarh, but no report was taken by the SHO P.W. 15 Mangi Lal Bargujar i.e. why he filed this complaint before the Court. (v) On the same day i.e. on 25-10-85, the learned ACJM sent the complaint Ex. P/3 to the SHO, Pratapgarh underFFtion 156(3) Cr. P.C. for the purpose of investigation and registration of the case.
(vi) On this report, P.W. 15 Mangi Lal Bargujar chalked out a FIR Ex. P/18 and investigation of the case was given to P.W. 13 Bakht Ram.
(vii) During investigation, P.W. 11 prosecutrix was recovered on 30-11-85.
(viii) During investigation P.W. 11 prosecutrix was got medically examined on 31-10-85 for the purpose of rape and for the purpose of ascertaining her age and the medical examination of the prosecutrix pertaining to rape is Ex. P/20 and pertaining to age is Ex. P/21.
(ix) The accused Magania was arrested on 7-12-85 through Fard Ex. P/13 and accused Manna on 7-1-86 through Ex. P. 16.
(x) After usual investigation, a challan was submitted against the accused appellants in the Court of ACJM. Thereafter the case was committed to the Court of Sessions Judge from where the case was transferred to Special Judge, SC and ST (Prevention of Atrocities) Act cases, Pratapgarh.
5. That the learned Special Judge framed charges against both the accused appellants for offences under Section 366, 376, IPC and 3(1) of the SC and ST (Prevention of Atrocities) Act, 1989. Both the accused appellants pleaded not guilty and claimed trial.
6. During trial, 22 witnesses have been produced by the prosecution and thereafter statements of accused under Section 313, Cr. P.C. were recorded and no evidence was led in defence by the accused appellants.
7. At the conclusion of the trial, the learned Special Judge vide his judgment dated 30-3-96 convicted the accused appellants for offences under Section 366 and 376, IPC but acquitted them for offence under Section 3(1) of the SC and ST (Prevention of Atrocities) Act, 1989 and sentenced them vide order dated 5-4-96 as stated above.
8. Aggrieved from the said judgment, this appeal has been filed by the accused appellants.
9. In this appeal, following submissions have been made on behalf of the accused appellants : The statement of P.W. 11 prosecutrix could not be believed as it does not inspire confidence and no case of rape is made out from her statement. Further more, it is a case of consent and, therefore, both the accused appellants should be acquitted of the charges levelled against them.
10. On the contrary, the learned P.P. has opposed the submission made by the learned counsel for the appellants and submits that the judgment and orders passed by the learned trial Judge do no call for interference.
11. I have heard both the parties.
12. Before proceeding further, medical evidence in respect of age as well as for rape should be discussed first.
13. For determination of age, conclusive evidence may be birth certificate and same is not available in the present case and thus, in the present case, medical evidence has to be seen in respect of age and it may be stated here that so far as medical evidence for the purpose of determination of age is concerned, that cannot be counted as conclusive evidence as it is based on estimation. Physical examination report of the prosecutrix is Ex. P/20 and the same has been proved by Dr. Chandra Jain, P.W. 20. This report shows that on the person of the prosecutrix no evidence of struggle was found. Pubic hair were partly developed. Breast was normal. So far as radiological age is concerned, P.W. 18 Dr. O. P. Tapdia has been produced who has proved the report Ex. P. 21. According to Dr. O. P. Tapdia, P.W. 18, the age of prosecutrix was between 18 to 19 years. It may further be submitted that as per medical examination of P.W. 11 Mst, Kali Ex. P/20, it appears that no sort of injury was found on the person of P.W. 11 Mst. Kali.
14. P.W. 11 the prosecutrlx was examined in the Court on 1-12-93 where she has stated her age to be 24 years. The incident took place on 23-10-85. In the present case there is no school certificate or age certificate, the doctor has opined the age between 18 to 19 years and breast was found normal. Looking to the facts and circumstances of the present case, it can conclusively be said that on the date of occurrence P.W. 11 Mst. Kali was near about 18 years of age. It may be stated here that the Court has come to this conclusion keeping in mind that margin of error in age ascertained by radiological examination is 2 years on either side. Thus, it is held that the age of prosecutrix was near about 18 years on the date of occurrence. In other words she was not minor on the date of occurrence.
15. In this case Ex. P/3 complaint was filed by P.W. 3 Kachru on 25-10-85 in the Court of ACJM from where it was sent to the SHO, Pratapgarh, P.W. 3 Kachru is the father of the Prosecutrix. He states that after the incident and after the search, her daughter Mst. Kali was found in Gandher Ki Radi after 8 to 10 days and P.W. 10 Arjun and P.W. 5 Deva brought P.W. 11 Mst. Kali and handed over to him and at the place where P.W. 11 Mst. Kali was found, both the accused appellants were not there. In cross-examination, he admits the following facts :
(i) That before lodging the complaint Ex. P/3, he did not go to the Police Station.
(ii) That in the report Ex. P/3, he also mentioned the name of accused Manna, but he cannot say as to why his name is not found.
(iii) That the accused appellant Magania is his brother’s son.
16. From the statement of P.W. 3 Kachru, it appears that two persons P.W. 10 Arjun and P.W. 5 Deva were with him when P.W. 11 Mst. Kali was recovered from Gandher Ki Radi. Both P.W. 5 Deva and P.W. 10 Arjun have been declared hostile and do not support the statement of P.W. 3 Kachru. From the complaint Ex. P/3 it further appears that he was told by P.W. 16 Chaturbhuj alias Vardi Chand and Bhagga that P.W. 11 Mst. Kali was seen in the company of accused appellant Magnia. Bhagga has not been produced and P.W. 16 Chaturbhuj has been declared hostile.
17. In this case, the crucial statement is of P.W. 11 Mst. Kali. In her examination in chief she has stated that on the date of occurrence, sister of accused appellant Magnia asked her to go to her house and thereafter she went there and found both the accused appellants there. She further stated that both the accused appellants took her to Radi and both were armed with swords and she was kept in Radi for three days where they committed rape. Thereafter she was taken to Sideria and on next day, she was kept near Road and thereafter her father P.W. 3 Kachru and P.W. 10 Chaturbhuj came and report was lodged. In the cross-examination, P.W. 11 Mst. Kali was admitted following facts :
(i) That she has stated in her police statement Ex. D/l that both the accused appellants were having swords in their hands, but Police statement Ex. D/l does not cover this aspect of her statement.
(ii) That in Gandher Ki Radi, where she was kept for three days, grazers used to come there and officials of Forest Department were also there.
(iii) That she was not beaten by any of the accused appellants and she did not receive any injury while sexual intercourse was being done with her.
(iv) That she was kept near village Kherot. Many vehicles used to pass on that way,
(v) That in village Radi or village Sideria or Kherot, she did not tell anybody that she was kept forcibly by accused appellants and in that area which is about 9 to 10 kms. she, in the company of accused appellants, used to roam freely.
(vi) That when accused appellants committed rape, she received injuries.
18. In my opinion, looking to the above evidence, no case of kidnapping or rape can be held to be proved against the accused appellants for the following reasons :
(i) The Court is aware that normally delay in lodging the report does not damage the case of the prosecution in rape case, but in the present case, position is otherwise. P.W. 3 Kachru in his complaint Ex. P/3 has specifically stated that he went to the Police Station and when report was not taken by the SHO, Pratapgarh, he made a complaint Ex. P/3 on 25-10-85 though incident took place in intervening night of 22/23-10-1985. In his Court’s statement P.W. 3 Kachru has clearly stated that he did not go to the Police Station. Thus he has wrongly stated that he went to the Police Station. P.W. 15 Mangi Lal Bargujar who was SHO on that date in the Police Station, Pratapgarh has stated that P.W. 3 Kachru did not come to him before complaint Ex. P/3 was received by him. Further more, statement of P.W. 3 Kachru, does not get corroboration by medical evidence. This being the position, the delay in the present case becomes material one as P.W. 3 Kachru has not come with clean hands and has wrongly stated the version in his complaint Ex. P/3 that he went to the Police Station and thereafter he lodged the complaint.
(ii) As per complaint Ex. P/3 two persons P.W. 16 Chaturbhuj alias Vardi Chand and Bhaggatold P.W. 3 Kachru that P.W. 11 Mst. Kali was seen in the company of the accused appellant Magnia, but this fact has not been corroborated by the statement P,W. 16 Chaturbhuj, who has been declared hostile and Bhagga has not been produced.
(iii) From the statement of P.W. 3 Kachru, it appears that at the time when P.W. 11 Mst. Kali was recovered, P.W. 5 Deva and P.W. 10 Arjun were with him, but both have been declared hostile. This aspect also goes to show that the story as narrated by P.W. 11 Mst. Kali is not correct one.
(iv) From the statement of P.W.1 l Mst. Kali, is very clear that she did not receive any injury, but later on, she developed that she received injury. But later part of her statement is false one as it does not get corroboration from the medical evidence. The medical evidence shows that she did not receive any injury. The Court is aware that whenever resistance is offered, there must be some injury on the body of the victim but absence of injury on prosecutrix is not fatal in every case.
(v) In the present case P.W. 11 Mst. Kali has remained in the company of accused appellants for more than seven days and the medical evidence clearly disclose that the prosecutrix did not receive any injury, Thus, it can be presumed that P.W. 11 Mst. Kali did not put up any resistance at the time when she was being sexually assaulted.
(vi) The fact that she did not make any hue and cry when she was roaming in the Forest also goes to show that she was consenting party from the very beginning to the end. From this fact, irresistible inference which can be drawn is that P.W. 11 Mst. Kali was consenting party. If the story of P.W. 11 Mst. Kali is found true that she was forcibly. raped by the accused appellants for seven days, then she should have received some injuries on the breast, chest or thighs or other parts of the body and absence of these injuries in the present case is another factor to negative the allegations of rape and to say that the appellants had sexual intercourse with the prosecutrix with her tacit consent.
20. From the above discussions, statement of P.W. 11 Smt. Kali that she was kidnapped and thereafter raped by the accused appellants forcibly does not inspire confidence and the case of the prosecution for offences under Section 366 and 376, IPC cannot be held to be proved and the findings of learned Special Judge are liable to be set aside and the appeal filed by the accused appellants is liable to be allowed.
For the reasons mentioned above, the1 present Jail appeal filed by the accused appellants is allowed and judgment dated 30-3-96 and order dated 5-4-96 passed by the learned Special Judge, SC and ST (Prevention of Atrocities) Act cases, Pratapgarh are set aside and the appellants are acquitted of all the charges.
The accused Appellant Magania is on bail, he need not. surrender and his bail bonds are hereby cancelled. So far as accused Manna is concerned, he is in jail, he be released forthwith if not wanted in any other case.