JUDGMENT
Arun Kumar Goel, J.
1. Appellant after having been found guilty under Sections 366 and 376, I.P.C. was convicted and sentenced to undergo following imprisonment :-
Sr. Offence. Sentence imposed
No.
1. Under Section 366, IPC Seven years simple imprisonment and fine
of Rs. 20,000/-. In default of payment of
fine the convict shall further undergo simple
imprisonment of one year.
2. Under Section 376, IPC Seven years simple imprisonment and fine of
Rs. 20,000/-. In default of payment of fine the
convict shall further undergo simple
imprisonment of one year.
2. He initially filed appeal through jail. He appeared in Court on 22-3- 2002 and made a prayer that he may be provided a defence counsel on Government/State expense. He made a prayer to engage Shri Anup Chitkara, Advocate to conduct his appeal. This prayer of the appellant was allowed and Shri Anup Chitkara was appointed as legal aid counsel.
3. Brief facts giving rise to this appeal are that the appellant along with another accused Mohammad Zakir was challaned for having committed offences under Sections 366, 376, 363, 109 read with Section 34, IPC. Case as set up by the prosecution was that on 18-11-2000, appellant kidnapped the prosecutrix (PW5), Ms. Bholu Devi from the custody of her parents without their Consent. Thereafter against the wishes of PW 5, she was taken to Bunga Sahib, Ludhiana and Delhi. While she was with the appellant, against her wish, appellant committed forcible sexual intercourse. This act was committed by the appellant alone.
4. In this background, after completion of investigation both the ‘accused persons were challanged before the Magistrate. After committal, both the accused were charge sheeted by the trial Court. It was alleged that on the aforesaid date at about 9/10 p.m. appellant kidnapped PW 5 from village Kotla Kalan and committed forcible sexual intercourse with PW 5. Thus, he was charge sheeted under Sections 366, 376, 363, read with Section 34, IPC. He pleaded not guilty to this charge and claimed trial. Similarly his other co-accused Mohammad Zakir was also charge sheeted along with the appellant that he along with appellant kidnapped the prosecutrix on the aforesaid date and time from Kotla Kalan from the custody of her guardian and she was taken to Bunga Sahib, Ludhiana and Delhi where she was subjected to illegal sex against her will and consent by the appellant and Mohammad Zakir abetted the commission of the offences aforesaid. Thus, he was charge sheeted under Section 109, IPC for abetment of the offences under Sections 366, 363, 376 read with Section 34, IPC. He also pleaded not guilty and claimed trial.
5. Prosecutrix examined as may as 11 witnesses. Thereafter, statements of the appellant as well as of his co-accused were recorded and on conclusion of trial. Mohammad Zakir was acquitted for want of evidence, whereas the appellant was convicted and sentenced as aforesaid. Respondent-State is not aggrieved by the acquittal of Mohammad Zakir.
6. When a reference is made to the evidence produced by the prosecution during the course of trial, statements of PW 5, PW 1 Manjit Singh, PW 2 Gurdeep Singh, brother of PW 5, besides that of the Investigating Officer (PW 9) and Dr. Sandhya Gargiya (PW 11) are relevant and material for determination of this appeal and the same shall be referred to hereinafter.
7. Before dealing with the evidence, it may be noted here that the occurrence is of the night of 18-11-2000, and F.I.R. is dated 24-11-2001. Place of occurrence is at a distance of about 18 Kms. from the Police Station. This is what emerges from Ext. PW2/ A, the F.I.R. It may also be noted here that initially the case was registered under Sections 363, 366, and 109, I.P.C. Thereafter, Sections 376 and 34, IPC were also added.
8. Another salient feature of this case is that an application was filed by the prosecution under Section 321, Cr.P.C. for withdrawal which was rejected by the trial Court on 15-5-2001. It was thereafter that the charge sheet was framed.
9. According to PW 1 Manjit Singh, he is related to Gurdeep Singh (PW 2) who is brother of the prosecutrix (PW 5). On 20-11-2000 Gurdeep Singh came to his village at Bhartgarh and informed that the appellant had kidnapped his sister. Both of them went in search of the prosecutrix to Ludhina and then to village Dhandala. They came across brother of the appellant at Dhandala and enquired about him (the appellant), who informed them that the appellant used to reside at Jalandhar. Thus, both of them went to Jalandhar, but he was not found there. Again, on 23-11-2000, they went to village Dhandala and met the accused Mohammad Zakir where they were told by the said accused that the appellant had gone to Delhi. Mohammad Zakir was brought to Police Station, Nalagarh and case was registered.
10. Then, the police went to Delhi, but the appellant was not traceable there also. It was learnt that he had gone to Faridabad and they both i.e. appellant as well as PW5 were recovered. After arrest, the appellant was brought to Nalagarh, Both the appellant as well as prosecutrix were found in a Bazar while they were walking there.
11. It may be noted here that so far the appellant and prosecutrix bring together is concerned, it was neither disputed during the trial nor at the time of hearing of appeal. Rather it is admitted case of the appellant not only in his suggestions to the prosecution witnesses but also in his statement under Section 313, Cr.P.C. that PW 5 was with him. However, his case is that the prosecutrix went with him of her own free will and violation. Plea of having kidnapped the prosecutrix against her wish from the custody of her lawful guardian was specifically denied. Similarly, the prosecutrix having been subjected to sexual intercourse against her wish, was also denied. Rather it was stated that she was a consenting party. Besides this, age of the prosecutrix is proved to the hilt to be 22 years and there is overwhelming evidence to that effect which will be clear from the facts detailed hereinafter. In these circumstances, evidence on this aspect will be referred to briefly hereinafter.
12. PW 2 Gurdeep Singh is the brother of the prosecutrix, Per him, appellant was employed by him for a month when he left the job. This was one month prior to the date of incident i.e. 18-11-2000. He kidnapped the prosecutrix who is illiterate. In search of his sister, witness went to Dhandala. At Dhandala brother of the appellant was found and informed that Mohammad Laddu had gone to Jalandhar where also the witness went. The appellant was not found there. When again they came to Dhandala, they came across co-accused Mohammad Zakir, who informed that both i.e. the appellant as well as the prosecutrix had gone to Delhi. In this background on 23-11-2000, report was lodged at Police Station. Nalagarh. Thereafter police went to Delhi, but the appellant was not found there. Then they went to Faridabad where the appellant along with the prosecutrix was found. On identification by this witness, the appellant was arrested and his sister was handed over to him. According to him, appellant had kidnapped his sister without participation of any other person. He further stated that Mohamad Zakir took active part in the kidnapping of his sister. He admits in cross examination that the appellant while in his employment used to live in the pump house in the fields. He denied the suggestion on behalf of the defence that he saw his sister along with the appellant prior to the incident also or she was beaten by the witness. However, he admitted, that his sister was major, but denied the suggestion that she had voluntarily gone with the appellant with a view to marry him. It has come in the statement of PW 2 as well as PW 9 that they made an attempt to search the appellant at Tukaram Gate, Delhi.
13. PW 5 is the prosecutrix. As already noted, her age is 22 years as given in her statement. Besides this, in Ext. PW/9/D is a certificate issued by the Panchayat concerned regarding date of birth of the prosecutrix as per provisions of Registration of Deaths and Births Act, 1969. Date of birth of the prosecutrix is 10-10-1978. Similarly, in the extract of Parivar Register. Ext. PW 9/E, her date of birth is shown as 10-10-1978. When a reference is made to the statement of the prosecutrix, prima facie no case is made out either of abduction or of her having been subjected to sexual intercourse against her wish. According to her, she had gone to the fields at night time to answer the call of nature on the fateful day from where she was taken by the appellant at that point of time. She was unable to state whether accused Mohammad Zakir met them. She states that 2/3 persons and the appellant took her to some place. Thereafter the appellant is stated to have committed sexual intercourse against her wish and consent 2/3 times in a day. None else committed such act with her. She was brought back to Nalagarh by her brother and investigating agency. She denied having been got medically examined by the medical officer. She was declared hostile and then was allowed to be cross examined by the Public Prosecutor. While being cross examined by the Public Prosecutor, she stated that the appellant met her on 18-11-2000 and held out that he would commit suicide in case she did not accompany him (the appellant) and in such a situation, the witness will be responsible for his death. Thus, she was forced to go along with the appellant. She further stated that she cannot state that the appellant took her to Ludhina, village Dhandala where Mohammad Zakir, co-accused met them and from there she was taken to Delhi with the help of said co-accused. She admitted that she was kept in a Jhungi (thatched hut) and was subjected to sexual intercourse against her wish. She stated that she does not know to have been taken to medical officer for her medical examination. She could not identify the clothes as she was not in a conscious position. From the sealed parcel that was opened in the Court, the prosecutrix could not identify her clothes. In cross examination on behalf of the appellant, she admitted that he was earlier employed by PW 1 and thereafter he was engaged on their tractor. She also stated that a room was given to the appellant in the pump house in their fields. She admits that she used to go pump house between 8 and 9 pm. but denied that she used to have talk with the appellant at night time. Voluntarily stated that she used to go to filed which was near the pump house after 2/3 days. She has further stated that she was visiting the pump house at night time along with her relative and never went alone. PW 5 also stated that she cannot state whether she went in vehicle from Kotla Kalan as she was unconscious. She had gone on record that she brought one suit along with her. She was unable to state as to how appellant took her forcibly from the village. But admitted that she did not raise any notice when the appellant was taking her. While in the company of the appellant she never complained about this incident to anyone. No bus service was available in village Kotla Kalan during night time. Bus service was available during night time from a place Bharatgarh and Pajehra. At the time of her recovery, according to PW 5, she was at the residential house of a relative of the appellant where she was sitting with this relative.
14. On an over all examination of the statement of the prosecutrix , I am satisfied that the prosecutrix was evasive to most of the replies. In this background, filing of the application to withdraw under Section 321, Cr.P.C. assumes significance. It is a different matter that such a prayer was declined.
15. PW 11 is Dr. Sandhya Gargiya who had examined the prosecutrix on 26-11-2000. She proved the medico-legal certificate issued by her Ext. PW 11/B which was in her hand and she had signed the same. Exts. P1 to P4 were garments of the prosecutrix which she was wearing at the time of medical examination. In cross-examination she stated that the prosecutrix was not known to her personally at the time of medical examination and she was not shown to her in the Court.
16. PW 9 is the Investigating Officer. According to him, on 24-11-2000, investigation of this case was entrusted to him. He along with the complainant went to Delhi with a view to trace the appellant as well as the prosecutrix. On 25-11 -2000 after reaching Delhi, an attempt was made to search them. Being unsuccessful, they went to Faridabad where they were found in Padam Colony. Both were identified by PW 2 and thus PW 5 was recovered from the custody of the appellant and memo Ext.PW-1/A was prepared at that time. Appellant as well as Mohammad Zakir both were arrested. Information regarding their arrest was given to their relation vide Ext. PW-2/B. From Faridabad, they were brought to Nalagarh. Exts. P-1 to P3 were the clothes worn by the prosecutrix at the time of arrest. He also got the appellant examined from Dr. A.K. Sethi (PW 10). After recording the statements of the witnesses during the investigation, both the accused persons were challaned.
17. This is in brief the relevant and material prosecution evidence. What emerges from this evidence is that the prosecutrix as per prosecution case was taken from lawful custody of her guardian on the fateful night and was further taken from place to place firstly from village Kotla Kalan to Jalandhar, then to village Dhandala, then to Delhi and thereafter to Faridabad. From the statement of PW 5, it is clearly made out that there was no injury or other compelling circumstances to suggest that she was forcibly taken by the appellant. Her statement is selective qua two aspects firstly her being taken from the field where she had gone to answer the call of the nature and secondly her having been subjected to forcible sexual intercourse against her wish by the appellant. These parts of the statement cannot be accepted.
18. According to prosecutrix when the appellant met her, he held out that in case the witness did not accompany him he will commit suicide. It was for this reason that she had accompanied the appellant. In case she was not well known and /or had any intimacy with the appellant whether he commits suicide or not, it would not make any different to her. In the ordinary course of things, she would have returned home and intimated her family members regarding what was held out by the appellant. She admits that she has four brothers and according to PW 2, he is married. Besides her brothers and one Bhabi there were her parents also. Ordinarily instead of falling pray to the threat extended by the appellant, she would have informed her family members .
19. It has come in her cross examination that at the time of night when she and the appellant left Kotla Kalan, there was no bus available only from Kotla Kalan and it was available only from Bharatgarh and Panjehra. At that odd hour of night, some distance appears to have been covered on foot. Thereafter she is evasive and has tried to evade the answers. When questioned either on behalf of the prosecution or on behalf of defence, how she went, she has tried to evade the answer.
20. In case she was not a consenting party, she would have raised hue and cry while travelling along with the appellant. She admits that she was kept in the house of his relation by the appellant when she was recovered. She could have narrated the incident to such relative. Going from place to place that too in different transport systems. clearly suggests that it was not under any threat or otherwise against her wish that she accompanied, the appellant. This clearly negatives the prosecution story. Another reason to discard the prosecution story is that on her own showing, PW 5 had gone to answer the call of nature at night time in the fields on 18-11 -2000 when she is alleged to have been taken forcibly by the appellant. There is positive evidence that she had taken one suit with her. From this it can be safely inferred that she in fact accompanied the appellant of her free will and volition. It hardly needs to be classified that when a lady goes to answer the call of nature at odd hours of the night, she would not take a suit with her. Regarding threat having been extended by the appellant, the matter has already been dealt with Even if this stand of the prosecution is accepted, death of the appellant would have been of no significance in case she had nothing to do with the appellant.
21. Over all conduct of the prosecutrix is not above board so as to hold the appellant guilty of having taken her from the lawful custody or to have committed the sexual intercourse against her wish.
22. It may also be observed here that in case the statement of the prosecutrix inspires confidence on examination then it can be made the basis for convicting the appellant, but it must lend credence and reliability. It needs no corroboration in case if it is found acceptable. Even otherwise corroboration is a rule of prudence and not of law. In each and every case particularly of rape and abduction etc. , corroboration is not necessarily required. Position of the prosecutrix is just like that of an injured person and she is not an accomplice. All these factors are lacking in this case so as to force this Court to accept the statement of PW 5.
23. In Dilip v. State of M.P. 2002 SCC (Cri) 592 : 2001 Cri LJ 4721, what was observed by the Supreme Court and is relevant for the purposes of present case was as under :-
14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing the truthfulness of the explanation offered by the prosecutrix that because of being overawed by the two accused persons, she was not able to resists, the fact remains that the “probabilities factor” operates against the prosecutrix . The gang rape is alleged to have been committed at about 2 p.m. in her own house situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix did raise a hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries also bleeding from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only not corroborated by the medical evidence, is rather belied thereby. The presence of bloodstains is not. confirmed by the Forensic Science Laboratory or by the doctors who examined the prosecutrix ¦: Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the Court. The learned counsel for the State relied on Section 114A of the Evidence Act, 1872 which provides that in a trial on charge under Section 376(2)(g), IPC on the prosecutrix stating that she was not a consenting party, the court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not be misunderstood as recording a finding that the prosecutrix was a willing party to the sexual intercourse by the accused persons. The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory. The defence has given suggestion in cross examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed.
24. To similar effect is the decision of Patna High Court reported in Sk. Ghughla v. State of Bihar (2002) 2 Crimes 76.
25. In Chintu alias Chint Ram v. State of H.P. (1997) 4 Crimes 343. It was held as under:-
10. It may not be out of place to mention that in the given situation and depending upon the facts of the case, the statement of prosecutrix is enough to convict the appellant if it otherwise inspires confidence in the natural course of things. In such a case no other evidence is required and the Court would not hesitate in convicting the accused on the basis of such statement of the prosecutrix. However, as observed here in this judgment no case is made out from the statement of PW 2 and other evidence does not support the case of the prosecution. Therefore, in taking in view that the age of the prosecutrix is more than 16 years I am supported by a judgment of the Hon’ble Apex Court reported in Lalta Prasad v. State of Madhya Pradesh AIR 1979 SC 1276 : 1979 Cri LJ 867 and a judgment of this Court reported in Paramjit Singh v. State of H.P. 1987 Cri LJ 1266. In the context of the opinion of the doctor as to the age of the person on radiological test, margin of error in age ascertained by such examination is two years on either side. In Jaya Mala v. Home Secretary, Government of Jammu and Kashmir AIR 1982 SC 1297 : 1982 Cri LJ 1777, it was so held and relevant, extract therefrom is to the following effect:
…However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side….
Applying the ratio of these judgments to the facts of the present case and giving benefit; of margin of error of two years, it would neither be safe to hold that the age of the prosecutrix on the date when she is stated to have been subjected to sexual intercourse is less than 16 years or that such sexual acts were performed against her will and consent. On the other hand, there is enough material to hold that the prosecutrix was moving of her own free will and volition without any inducement or promise of any sort on the prosecutrix. No other point has been urged by the learned counsel appearing for the parties, though learned Assistant Advocate General made a fervent appeal that it is a fit case for maintaining the conviction and sentence of the appellant on the materials on record. As discussed hereinabove this contention appears to have been raised for the sake of argument and the same is hereby rejected.
26. Faced with the aforesaid situation, learned Assistant Advocate General submitted that keeping in view the over all circumstances of this case, the impugned judgment deserves to be upheld. Per him, kidnapping as well as forcible sexual intercourse is clearly established from the prosecution evidence. In this behalf, he laid great emphasis on the statement of PWs 2, 5, 9 and 11. Evidence of all these witnesses has been discussed hereinabove. In the circumstances of this case and in the face of the evidence discussed hereinabove, this submission cannot be accepted. He further submitted that minor discrepancies here and there, did not destroy the basic fabric of the prosecution which stands proved to the hilt per him. This argument has been raised simply to be rejected in the face of the discussion made hereinabove as also on the basis of the circumstances briefly noted in the preceding paras. Prosecutrix was 22 years of age at the relevant time. She was used to sexual intercourse as is evident from the statement of the doctor (PW 11) who examined her. Be- sides, this, her statement neither inspires confidence nor is worthy of credence. As such this is not one of such cases where statement of the prosecutrix alone can be accepted and the accused person like the appellant can be convicted.
27. No other point is urged.
28. In view of the aforesaid discussion, this appeal is allowed and as a Consequence of it the impugned judgment is quashed and set aside and the appellant is acquitted of the offences under Sections 366 and 376, IPC. He is in jail. He be set at liberty forthwith unless required in any other case. Fine if deposited be refunded to the appellant.