JUDGMENT
I.S. Tiwana, J.
1. These two appeals (Cr.A. Nos. 610-SB of 1985 and 109-SB of 1986) are being disposed of through this common judgment as these concededly arise out of the same incident. The two appellants have been convicted Under Sections 376/366 read with Section 34, Penal Code, and have been sentenced to ten years rigorous imprisonment and fine of Rs. 200/- each.
2. The prosecution version as disclosed by Chamba Ram PW 9, father of Sumitra, prosscutrix (PW 7), vide his statement Ex.PJ to the police was that on 5th May, 1985 when he after irrigating his fields surrounding his dhani (farm house) came back at about 9.00 p.m. he found that his daughter Sumitra, aged about 14 years, was not there in the house. He also found that she had actually left the house with Rs. 4,000/- in cash and some gold ornaments weighing about 3 tolas. This statement he made on 9th May, 1985, at about 5.30 p. m. at Police Station Fatehabad though the above noted incident had taken place sometime near about 8.00 p.m. on 5th May, 1985. The explanation offered by him for not informing the police earlier was that he was trying to find out the whereabouts of Sumitra. Ultimately suspecting that she had been kidnapped by Kali Ram, appellant, in connivance with Rajinder and Bahadur Ram he thought it proper to make that repot. On the basis of this statement, formal FIR Ex.PJ was recorded On the morning of 16th May, 1985, Sumitra PW 7 was produced before S.I. Tara Chand PW. 10 by her aunt namely Lakshmi Bai PW 8. He recorded her statement Under Section 161, Cr.P.C. Since this statement disclosed that Sumitra had been raped by the two appellants a number of times during the days she was with them, i.e. from 5th May. 1985 to 16th May, 1985, a case Under Section 376, read with sec 34,1PC, also came into being. He also made an application (Ex.PC/2) on the same very day, i.e., 16th May, 1985, for the medico-legal examination of Sumitra. In this application all that he mentioned was that she had been subjected to rape by Kali Ram, appellant. No such specific allegation was levelled against Om Parkash therein. She was subjected to medico-legal examination on that very day, i.e., on 16th May, 1985 and though Dr. Geeta Chaudhary PW 2 found certain injuries on her person yet she nowhere opined that Sumitra had been subjected to intercourse. On the next day, i.e. 17th May. 1985, the Sub Inspector produced Sumitra before Shri B.S. Rawat (PW 1), Sub Divisional Magistrate 1st Class, Fatehabad, for purposes of recording her statement (Ex.PB), Under Section 164, Cr.P.C. As per this statement, it was at about 8.00 p.m. that she had gone out of the house to pick cotton sticks from a heap lying nearby. Both the appellants who were concealing themselves behind that heap caught hold of her and after threatening her with a knife and a pistol she was made to smell something which made her lose her consciousness. She maintained that though she tried to raise a noise at that time but her mouth was gagged Later she was subjected to rape on the way. She, however, could not tell the place or places to which she was subsequently taken by the appellants, as for most of the time she remained in a state of semi-consciousness on account of the administration of certain sedatives or intoxicants. It was only during the night intervening 15th and 16th May, 1985 that she found a chance to slip away from the clutches of Kali Ram as Om Parkash was not present there at that moment. She then ran to her place of residence, she firstly came to the house of her aunt, i.e. Lakshmi Bai PW 8 to whom she narrated the entire occurrence. The latter then produced her before S.I. Tara Chand, PW 10 As a result of the further investigation that followed, the two appellants were sent up for trial with the result as already indicated in the opening part of the judgment,
3. Appellants’ plea Under Section 313. Cr.P.C, was of inocence an false implication,
4. One of the material findings recorded by the trial Court, and not assailed by the State Counsel, is that at the time of incident, I.e., on 5th May. 1985. Sumitra was more than 18 years of age.
5. Mr. Bali, the learned senior advocate for, the appellant, now urges with some amount of vehemence that the trial court completely misdirected itself in weighing the evidence led by the prosecution and placing firm reliance on the solitary statement of Sumitra PW 7 for recording a conclusion that she had been subjected to intercourse against her will. The learned Counsel maintains that the facts and circumstances of the case clearly indicate that it was a case of consent on the part of the prosecutrix and, thus, no offence is made out against the appellants. Having given my thoughtful consideration to the entire matter in the light of the evidence on record I am of the opinion that the contention of the learned Counsel merits acceptance.
6. As has been indicated earlier, for holding the appellants guilty, the trial court has primarily relied upon the statement of Sumitra PW 7. This statement, however, does not impress me at all, and to my mind, does not merit acceptance as such. During the course of her cross-examination, she made the following admissions which lend support to the stand of the learned Counsel for the appellants:
I did not state before the Magistrate as well as before the police in my statement that I used to feel pain at the time when the accused persons raped me and that they had always given me threat before committing sexual intercourse. I had stated in my statement Ex.PB and in my statement before the police Ex.DA that the accused persons kept on administering intoxicating pills during the days they kept me with them (Confronted with Ex.PB and DA wherein it is not so recorded)….I had stated before the Magistrate in statement PB and before the police in statement Ex.DA that the accused persons used to commit sexual intercourse with me against my will (Confronted with the statement Ex.PB and DA wherein it is not so recorded). I have also stated in Ex.PB and Ex. DA that when I resisted the sexual intercourse the accused persons had inflicted injuries (Confronted with Ex.PB and Ex.DA wherein it is not so recorded)…I cannot say if I had travelled by rail or road during the days 1 was kept by the accused persons….The accused persons had kept on changing the cities and villages but I cannot (give) the names thereof. I cannot tell the mode of conveyance adopted by the accused persons’ for taking me from city to city and village to village. I was made,to travel in the state of intoxication and unconsciousness after making me smell intoxicating object.
In the light of this statement and that of her father Chamba Ram PW 9, the following facts stand established beyond any doubt:
(i) She left the house on 5th May, 1985, at about 8.00 p.m. of her own accord.
(ii) At that time she carried with her Rs. 4,000/- in cash and gold ornaments weighing 3 tolas (Though at the time of making statement in Court, Chamba Ram tried to go back on this part of his statement (Ex.PJ) probably on realising the implications of the same, yet this aspect of the matter, to my mind, stands firmly established when he was duly confronted with this portion of his statement in Ex.PJ).
(iii) The presence of the two appellants near the heap of cotton sticks could only be the result of a prior arrangement. Otherwise it looks too much to be believed that right at the moment when the prosecutrix had gone to the heap of cotton sticks, the appellants suddenly appeared there, This is more so when it is to be kept in mind that during the days of occurrence, the prosecutrix was living in a farm house in the fields with no abadi or house of the appellants nearby.
(iv) The father of the prosecutrix was irrigating the fields at a distance of about 1 1/2 Killas from his house and the younger brother and the sister of the prosecutrix were in the house, yet none of them heard any noise or raula raised by the prosecutrix in case she was forcibly lifted from there. I do not believe her version that she was either gagged or made unconscious in the manner suggested by her.
(v) She had been moving about with the appellants from place to place, and as admitted by her, from city to city and from village to village. I again disbelieve her that she made all those journeys in a state of semi-consciousness on account of the administration of any sedatives as maintained by her.
(vi) In her earlier statements, i.e., Ex.DA and PB, she did not state that she was subjected to sexual intercurse against her will (She has duly been confronted with those statements as quoted above).
7. It is, thus, firmly established that Sumitra, prosecutrix, was a willing party to the whole affair and she being above 18 years of age, no offence is made out against the appellants. Therefore, the judgment under appeal is set aside and the appellants are acquitted of the charges levelled against them.