JUDGMENT
Manmohan Sarin, J.
1. Appellant-Raju was prosecuted under Sections 363, 366 and 376 of the Indian Penal Code (IPC) and held guilty and convicted for the same vide judgment dated 28.7.1999. The learned Additional Sessions Judge after hearing the appellant on the point of sentence, sentenced the appellant-accused to three years rigorous imprisonment with a fine of Rs. 500/- and in default, two months rigorous imprisonment under Section 363, IPC, rigorous imprisonment of five years with a fine of Rs. 1,000/- for the offence punishable under Section 366, IPC, and in default, rigorous imprisonment of four months and seven years rigorous imprisonment with a fine of Rs. 1,000/- for the offence punishable under Section 376, IPC and in default of payment of fine, rigorous imprisonment for four months. All substantive sentences to run concurrently.
2. The appellant preferred an appeal against the sentences and conviction. Notice in the appeal was issued on 10.12.1999. The sentence of the appellant was suspended vide order dated 7.12.1999. It was further ordered that in case the appellant deposits the fine, he shall be released on bail on furnishing a personal bond in the sum of Rs. 10,000/- with one surety of the like amount. The appellant is stated to be on bail.
3. Before dealing with the pleas, urged by Mr. S.S. Sharma, Counsel for the appellant, the case of the prosecution, as set up, may be noticed:
(i) The appellant-accused was also a tenant in the same house at Braham Puri, where the prosecutrix was residing. On 30.5.1998, the appellant came to the spot, where Shaila Gupta, the prosecutrix, was washing clothes. The appellant, who was known to her, told her that her father had suffered a serious head injury at the hands of one Nawab and had called her at the police station, along with money. She, accordingly, lifted the box containing money and left her house with him. The appellant took her to the bus-stand, where they reached within half an hour by boarding a three-wheeler scooter, where three other persons were already present, besides them. From the bus stand, she was taken to Bareilly and kept there by the accused at the house of his sister. On the first night, she slept in the room with his sister. On the next day, Nar Singh and Ramesh, who were also in the three-wheeler scooter, came to Bareilly. Accused-Raju, Nar Singh and Ramesh consumed liquor. She was made to sleep with accused Raju. She was stripped naked and the accused had also removed her clothes. The appellant had sex with her against her will. Next day, when they were returning from Bareilly, they were apprehended. The accused took the money, which she had carried.
(ii) The prosecutrix gave her age as 14-15 years, at the time of incident, which was also so stated by the father of the prosecutrix. The medical examination of the prosecutrix by the Doctor revealed that hymen was intact. Dr. Sonal had opined that the hymen of girl can remain intact even after coitus, if the opening is patulous enough to complete penetration and the sexual act may be completed without rupture of hymen. Dr. Sonal also noted that the prosecutrix had neither complained nor given any history of sexual intercourse. Systemic examination was within normal limits. The local examination did not reveal any external injury. She was not sure whether the girl was subjected to sexual intercourse or not. Dr. Sonal also stated that she did not carry out a per-vaginal examination. It is not done, unless it is indicated and that too with the permission of the appellant/guardian. The Radiologist, Dr. S.C. Bhalla, found the bony age of the prosecutrix to be above 14 and less than 16 years. He deposed that it was correct that no exact age can be determined by ossification test.
4. The learned Additional Session Judge held that in the tradition bound society in India, a lady would be extremely reluctant to admit that any incident affecting her chastity had occurred. A victim of rape would not like to give publicity to the traumatic experience. The inherent bashfulness and feminine tendency to conceal the outrage of masculine sexual aggression are factors, which are relevant to improbabilise the hypothesis of false implication. Accordingly, discrepancies or contradictions, which have no material effect on the veracity of the prosecution case should not be allowed to throw out an otherwise reliable prosecution case.
The learned Additional Sessions Judge rejected appellant’s contention that if the margin of two years was applied, the prosecutrix age would come to about 18 years. The submission is devoid of merit since the time-limit itself gets adjusted in the range given.
5. The appellant had urged that there were material contradictions and inconsistencies in the statement of the prosecutrix, which render the same unreliable. In the examination-in-chief, she had deposed that one Itwari, accompanied the prosecutrix and the appellant to Bareilly. In cross-examination, it was stated that he accompanied to the bus stand and not to Bareilly. In the examination-in-chief, it was not mentioned that Nar Singh and Ramesh had come to Bareilly. Report lodged by her did not mention that she was induced to come out of the keeping of her father and of the house on inducement by the accused. In the statement of the prosecutrix’s father, it was mentioned that the prosecutrix had left taking her ear-rings, chain, pendant and cash, while the prosecutrix stated that she was only wearing the ear rings. Emphasis was also laid on the medical report, where no injury was found on the person and the hymen was found intact.
6. The learned Additional Sessions Judge held that no inherent infirmity or mutually inconsistent facts were brought out. There was no past evidence of any enmity. The discrepancies pointed out were held to be not material and normal discrepancies from which no criminal case is free. The learned Additional Sessions Judge held that these errors could be due to lapse of time and due to mental disposition or shock or horror. He held that irrespective of the discrepancies regarding the number of persons present in the three-wheeler scooter or accompanying the prosecutrix, the offence of kidnapping had been committed by the accused, when he induced the prosecutrix to leave the house on the representation that she was being called by her father, who had suffered injuries. He held that only with the intention to project herself as a chaste girl, the prosecutrix might have introduced the facts concerning the presence of some persons in three-wheeler. He held that the circumstances in which prosecutrix left the house, boarded a three-wheeler scooter, reached bus stand, boarded a bus and went to Bareilly and had taken away cash and ornaments from the house are at best suggestive of her willful association with the accused in the escapade. At best, she was a consenting party. However, in view of the age, being 14-16 years i.e., less than 18 years; law presumes a total mental incapacity to consent. A minor girl is not competent to give her consent to some one to take her out of the keeping of lawful guardianship of her parents. Law protects young persons, female of less than 18 years. Such a person would satisfy the necessary ingredients for commission of the offence of kidnapping under Section 363 and since it was for being seduced to illicit intercourse Section 366 would get attracted.
7. Mr. S.S. Sharma, learned Counsel for the appellant, has assailed the impugned judgment, submitting that the learned Additional Sessions Judge has gone too far in his perception of credibility of witness to be assessed by applying his theory of human psychology and behavioral probabilities. He submits that while on one hand, the inherent bashfulness and feminine tendency to conceal the outrage have been brought into play, material omissions, discrepancies and contradictions are sought to be held as mere trivial matters of details and not necessary for constituting the ingredients of kidnapping and rape. The contradictions are sought to be explained as an attempt to project herself as a chaste girl, by claiming the presence of some persons in the three-wheeler and at Bareilly. Mr. Sharma has taken me through the statements of the prosecutrix, her father and the medical evidence, as recorded.
8. I have considered the omissions, contradictions and inconsistencies, as pointed out by Mr. Sharma. He contended that the prosecutrix could be 18 years old, based on the ossification report. This is devoid of merit. Based on the ossification report, her age, as determined, is above 14 and less than 16 years. The submission of Mr. Ravinder Dudeja is that once the report itself gives the upper and lower limit, the margin would get adjusted within that limit. Accordingly, she would still be a minor, incapable of giving consent. Apart from the ossification report, she herself has given her age as 14-15 years and her father had also similarly deposed. There is no challenge or any suggestion given contrary to that in cross-examination. Once the prosecutrix is held to be incapable of giving consent, as required by law, then the accused having induced her out of the house by representation or taking her out, out of the keeping of her parents, would be without consent and constitute the offences of kidnapping, punishable under Section 363, IPC and if for seducing for illicit intercourse under Section 366, IPC. It would not be of any consequence that she was a willing party to the same.
9. Leaving apart the contradictions and omissions, with regard to persons in the three-wheeler or those accompanying her to Bareilly, from the evidence, it is clear that the prosecutrix left with the accused and as per her own version, took the money box for going to the police station. Strangely, she boards a three-wheeler and reaches the bus-stand instead. She did not even enquire from the accused as to why they were boarding a three-wheeler scooter. She also admits that there were many persons at the bus-stand, when appellant Raju went to purchase the ticket, she was standing alone at the bus stand. She did not raise any voice or hue or cry or tell any of the persons that accused was taking her away to Bareilly forcibly. Thereafter, based on her own statement, they stayed at the house of appellant’s/accused’s sister. She had also been given clothes by her. The accused, it is stated, slept with her only once, she did not raise any alarm as her mouth is claimed to have been gagged. She complained to appellant’s sister about the act but she did not mention this fact before the Magistrate. Further, the factum of leaving the house with the cash box but as per her father with ear rings, chain and pendant are suggestive of a willing escapade. Moreover, the medical evidence, as noted, has shown that the hymen was intact. No external injury was detected or noticed. The prosecutrix had given no history of sexual intercourse. Dr. Sonal opined, “I am not sure whether the girl was subjected to sexual intercourse or not.” Neither the clothes of the prosecutrix were seized nor the vaginal smear taken. Dr. Sonal also had not carried out the per-vaginal examination to find out if the girl was virgin or not. The aforesaid circumstances do cast a shadow of doubt on the allegations of rape.
10. Reference may be invited to the decision of the Supreme Court in State of Rajasthan v. Noore Khanreported at . This was a case, where the accused was sentenced under Section 376, IPC for a term of seven years with a fine of Rs. 2,000/- and simple imprisonment of one year and nine months in default of payment of fine. The prosecutrix was aged 15 years and was washing clothes on a water pump, near to her hutment. The accused forcibly took her to a nearby structure and raped her. The prosecutrix offered resistance, but the accused gagged her and having raped her, went away to another village. The prosecutrix reached back her home and informed a woman and her father and a report was lodged with the police. On medical examination, the hymen was found ruptured in multiple radial tears edges of which showed healing at most places and mild tenderness. Sexual intercourse with the prosecutrix, as per the medical opinion was committed 5 to 7 days before. The age of the prosecutrix was determined as 15 years based on ossification report. The Trial Judge convicted the accused. The High Court in appeal reversed the order and acquitted the accused holding that while the factum of sexual intercourse with the prosecutrix was proved, but the absence of injuries on the person of the prosecutrix was a material fact for excluding the possibility of prosecutrix having been a consenting party.
11. The Supreme Court reversed the judgment of the High Court and held that, “there was no rule of law that the testimony of the prosecutrix cannot be a acted upon without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness. The Court also held that the absence of injuries should not have weighed with the High Court to infer consent on the part of the prosecutrix. The delay in lodging of the FIR was sufficiently explained. The injuries, which the prosecutrix suffered or might have suffered in defending herself or offering resistance could be bruises, which heal up in two to three days. As noted, the Supreme Court reversed the judgment of the High Court and held that accused/respondent guilty of the offence charged. Coming to the question of sentence, the Supreme Court held as under:
“Now remains the question of sentence. The incident is of the year 1993. The accused was taken into custody by the police on 3.11.1993. He was not allowed bail. During the trial as also during the hearing of the appeal by the High Court he remained in jail. It is only on 11.10.1995 when the High Court acquitted him of the charge that he was released from jail. Thus he had remained in jail for a little less than two years. Taking into consideration the period of remission for which he would have been entitled and the time which has elapsed from the date of commission of the offence, we are of the opinion that the accused-respondent need not now be sent to jail. It would meet the end of justice if he is sentenced to undergo imprisonment for the period already undergone by him and to a fine of Rs. 2,000/- with further simple imprisonment of one year and nine months in default of payment of fine a passed by the Trial Court. The appellant is allowed time till 1st May, 2000 for payment of fine. The accused-respondent is on bail. The bail bonds shall stand discharged on payment of fine, as directed. Ordered accordingly.”
12. In the present case, as discussed in paras 6 to 9 hereinbefore and for the reasons stated therein, this appears to be the case of a willing escapade. It is only on account of the prosecutrix being of 14-15 years of age that she had been held to be incapable of giving consent for the offences under Sections 363 and 366, IPC. As regards the offence of 376, IPC, the facts and circumstances noted as also the medical evidence as recorded, does cast a shadow of a doubt, however, not sufficient for disbelieving prosecution version and giving benefit of doubt.
13.The incident is of 30th May, 1998 and the appellant-accused after prosecution, was in judicial custody and in prison since 4th June, 1998 up to 4.12.99 i.e. for aperiod of one year and six months. He has earned a remission of three months and 20 days. Considering the period of remission, the accused would have been entitled to on the entire sentence and the rime having already elapsed from the date of incident and sentence undergone and the circumstances as noted earlier and following the ratio of Supreme Court in State of Rajasthan v. Noore Khan (supra), I am of the view, that it would meet the ends of justice, while maintaining the conviction, the accused is sentenced to undergo imprisonment for the period already undergone by him and directed to pay the fine as imposed by the Additional Sessions Judge, if not already done, and if in default, to undergo further imprisonment as directed by the Additional Sessions Judge.
14.The appeal is disposed of with the above directions with the sentence on the accused being confined to imprisonment already undergone and the accused paying the fine, as imposed, failing which the term of imprisonment, in default, as directed by the Sessions Judge would apply. The bail bond shall stand discharged upon payment of fine, as directed.