JUDGMENT
Sharma, J.
1. This criminal appeal Under Section 374 Cr.P.C. by appellant Vishnu Kumar arises out of the judgment and order dated 27.9.2000 passed by the Additional Sessions Judge No. 1, Sikar, thereby holding the appellant guilty of having committed offence under Sections 363, 366 and 376 IPC and accordingly convicting and sentencing him as mentioned below :
Under Section 363 IPC
Rigorous imprisonment
for 3 years with a fine of Rs. 100/- in default thereof, to further undergo
simple imprisonment for one month.
Under Section 366 IPC
Rigorous imprisonment
for 5 years with a fine of Rs. 200A in default thereof, to further undergo
simple imprisonment for two months.
Under Section 376 IPC
Rigorous imprisonment
for 7 years with a fine of Rs. 500/- in default thereof, to further undergo simple
imprisonment for five months.
The sentences were ordered to run concurrently.
2. The facts giving rise to the present appeal are summarised as here below :
PW.7 Ram Swaroop, lodged a written report, Ex.P.9 at Police Station, Kotwali, Sikar on 17.9.1995 at 10.15 AM with regard to an incident alleged to have taken place on 16.9.1995 at about 5-6 PM. In the report, the complainant alleged that appellant Vishnu Kumar has taken away his niece Kumari Sunita Soni, aged about 15 years, by
coaxing and beguiling her. It was stated in the report that despite best efforts she could not be traced.
3. On the above report, police registered a case vide FIR, Ex.P.10 and proceeded with the investigation. In the course of investigation, the police recorded the statements of various witnesses. The police recovered Kumari Sunita and got her medically examined to ascertain her age and to find out whether rape was committed on her, and collected reports Ex.P. 1 in respect of her medical examination for rape and Ex.P.2 in respect of her age, as also the X-ray report of M.L.C., Ex.P.20. The statement of the victim girl under Section 164 Cr.P.C. was also recorded. The accused was arrested on 23.9.95 vide memo Ex.P.4 and he was also subjected to medical examination, the report of which is Ex.P.3. After completion of usual investigation, the police submitted a challan against the accused appellant for offence under Sections 365, 366 and 376 IPC in the court of Judicial Magistrate, Sikar. The learned Magistrate having found the offence exclusively triable by a court of Sessions, committed the case to the court of Sessions. The learned Sessions Judge transferred the case to the court of Additional Sessions Judge No. 1, Sikar for trial.
4. After hearing counsel for both the sides and on the basis of evidence and material collected during investigation, the learned trial court framed charges against the appellants under Sections 363, 366 and 376 IPC. The appellant denied the charges and claimed trial. In the course of trial, the prosecution examined as many as 19 witnesses and exhibited some documents to prove its case. Thereafter the accused was examined under Section 313 Cr.P.C. In his explanation, the accused stated that the prosecution witnesses and the prosecutrix have levelled false allegations. He stated that the prosecutrix had gone with him at her own free will and that she was a major girl. The accused also examined two witnesses in his defence, namely DE. 1 Ajeet Singh and DW.2 Tejpal.
5. At the conclusion of trial, the learned trial Court found the prosecution case, as alleged, proved and held the accused appellant guilty of having committed offence under Sections 363, 366 and 376 IPC and accordingly convicted and sentenced him as stated above. Hence the present appeal.
6. I have heard learned counsel for the parties and have gone through the judgment under appeal and the evidence and material on record.
7. From a perusal of the judgment under appeal, it appears that in the opinion of the trial court the testimony of the prosecutrix was trust-worthy, reliable and worthy of credence and her testimony inspired confidence wile arriving at a finding of guilt against the appellant.
8. It is well settled that in the cases involving sexual assault, the court must deal with such cases with utmost sensitivity and should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statements of the prosecutrix, which are not of fatal nature, to throw out an otherwise reliable prosecution case. Likewise, it is also settled proposition that a prosecutrix complaining of having been a victim of offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principles of probabilities just as the testimony of any other witness. In this view of the settled position, the question which emerges for consideration is as to whether in the facts and circumstances of the case and in the light of the evidence, oral as well as documentary and on a consideration of broader probabilities of the case, the testimony of the prosecutrix can be held to be reliable, trust-worthy, credible and inspiring confidence so as to hold the appellant guilty for the offences charged with?
9. Before proceeding further, I shall first deal with the important and vital question as to what was the age of the prosecutrix at the time of commission of offence, inasmuch as it is more significant and plays vital role. The trial court on the
basis of medical and school record has arrived at a conclusion that the age of the prosecutrix was 17 years and 10 months at the time of commission of offence. To appreciating the finding, I would like to refer the relevant evidence.
10. To establish the age of the prosecutrix, the prosecution has produced both documentary as well as oral evidence. The oral evidence consists of PW.6 Sanwari Devi, PW.7 Sunita (prosecutrix), PW.8 Ram Swaroop and PW.9 Sita Ram. The documentary evidence consists of X-ray report, Ex.P.20 and X-ray plates Ex.P.21 to P.23. PW.6 Sanwari Devi, mother of the prosecutrix has stated the age of her daughter Sunita as 15-16 years. However, on being confronted, she could not state the age or her other children. PW.7 Sunita herself has stated her age as 15 years at the time of commission of offence. PW.8 Ram Swaroop, uncle of the prosecutrix has stated only to the extent that at the time when accused Vishnu took away Sunita, her age was 15 years. PW.9 Sita Ram who is none other but the father of the prosecutrix has stated that Sunita was aged 15 years at the time of commission of offence. He could neither state the date of birth of Sunita nor could he state the dates of birth or the age of his other children. From the evidence of these four prosecution witnesses, it become evidence that whatever they have stated as regards age of the prosecutrix is based merely on surmises and conjectures. Thus, the evidence of prosecutrix, her parents and uncle is not worthy of credence and inspire no confidence.
11. Coming to the medical evidence, it appears PW.15 Dr. B.K. Soni, X-rayed various parts of the body of prosecutrix to enable him to ascertain her age. On the basis of report Ex.P.20 and the X-ray plates Ex.P.21 to 23, the doctor has stated the age of the prosecutrix between 15 and 17 years. Similarly, PW.1 Dr. G.R. Tanwar along with Dr. Miss Nirmala Mittal, who has examined the prosecutrix to find out whether rape was committed on her, has stated that in his opinion the age of the prosecutrix was 16 years as has been mentioned in the report Ex.P.2 prepared by him.
12. It appears from the record that the prosecution has withheld the material documentary evidence viz., the school record. One Ajeet Singh, Teacher in Smt. Gulabdevi Beedawat Primary School, Sikar was examined in defence as DW.1. This witness has specifically stated that the father of the prosecutrix obtained transfer certificate of the prosecutrix on 20.8.95. A perusal of Scholar Register, Ex.D.22 makes it clear that there appears endorsement to the effect that TC was issued to Shri Sita Ram Soni, father of Km. Sunita on his submitting an affidavit. It also appears that father of the prosecutrix submitted an application, Ex.D. 23 seeking admission for his daughter Sunita. He enclosed with the application form, the T.C., Ex.D.24 and the progress report Ex.P.25 issued by the previous school. In all these documents, viz., the Scholars Register, Ex.D.22, application for admission, Ex.D.23 and T.C. Ex.D.24 the age of Kumari Sunita has been mentioned as 11.11.1997. Thus, evidently, on the basis of date of birth entered in the school record, the age of the prosecutrix, at the time of commission of offence was 17 years and 10 months.
13. Now I shall deal with the first question as to the testimony of the prosecutrix, whether credible and trust worthy, keeping in view the law propounded by the Apex Court in series of judgments that a prosecutrix complaining of having been a victim of offence of rape is not an accomplice and that there is no rule that her testimony cannot be acted without corroboration in material particulars.
14. To start with, it would be profitable to refer the statements of relevant prosecution witnesses including the prosecutrix herself so as to arrive at a just conclusion.
15. PW.4 Naveeh Soni, younger brother of the father of prosecutrix has stated that he was informed on 17.9.95 at about 1-2 AM while he was at Jaipur that accused appellant has kidnapped Kumari Sunita. He searched for her in Jaipur and then came to Sikar on the next day. According to him, he was informed by the police that accused has taken her away to Patna. He also came to know about the telephone numbers of
Patna. He along with PW.5 Satya Narain, went to Patna and with the help of police, succeeded in tracing the girl on 19.9.95 at about 8.30 PM. According to him, she was found in the house of Ram Krishna @ Ramu, cousin brother of accused. He then stated that the prosecutrix disclosed about the commission of rape on her by the accused appellant.
16. PW.5 Satya Narayan, uncle of father of the Public Prosecutor, who had accompanied PW.4 Naveen to Patna has stated similar to what was stated by PW.4 Naveen.
17. PW.6 Sanwari Devi, mother of the prosecutrix has stated in her statement that Pinki @ Sunita went along with her friend Neeru in the evening at about 4.00 PM to get some articles replaced from the market. When Pinki left for market, she was wearing, locket, necklace and ear-rings and also had with her Rs. 2/2.5 thousands. When Pinki did not return till 6-7 PM, the witness asked Neeru as to where Pinki was. In turn, Neeru replied that she had left Pinki in the market.
18. PW.7 Pinki @ Sunita, the prosecutrix has stated in her statement that on 16.9.95 at about 5.5.30 PM her friend Neeru came to her house and requested her to accompany and on her request, she left for market along with Neeru, as Neeru had to make some purchases. According to her, she changed the dress, informed her mother and left the house. At that time, she was wearing a chain, ear rings and a ring. She had Rs. 2/2.5 thousand in her purse. They arranged for a auto-rickshaw, in which accused was already sitting. She then stated that accused gave her a piece of sweet (peda) and after consuming it, she became unconscious. When she regained consciousness at about 9.00 PM, she found herself in a bus proceeding to Jaipur. She and accused alighted from the bus and immediately thereafter, they boarded a bus proceeding to Delhi. In Delhi, the accused hired an auto- rickshaw and they went to a hotel, and stayed in the hotel, where the accused committed rape on her. She further stated that they left the hotel, reached railway station and reached Patna by train. In Patna, they stayed in the house of some relative of the accused, from where the police recovered her. In cross examination, the witness has admitted that it is wrong to say that she went to market for getting some articles replaced. She stated that when she regained consciousness he found that but was full of passengers and she did not raise an alarm, nor did she disclosed to the Conductor of the Bus who was collecting money from the passengers. She further stated in her cross examination that the hostel in Delhi where they stayed was at a very long distance and they covered this distance by auto-rickshaw. She admitted that she did not disclose the fact of her kidnapping even to the driver of auto-rickshaw. According to her, there were thousands of persons at the Bus-stand, Delhi, but she did not disclose anything to any one since she was frightened. She further admitted that she remained along in the Hotel at Delhi for 3-4 hours when the accused left Hotel to purchase cloths for her. She admitted that the police personnels were present on every crossing and at the station. According to her admission, she did not lodge any protest to any one despite having several opportunities to do so. Lastly, the witness stated that she did not sustain any injury either in the course of intercourse or in the course of her resistence. The prosecutrix has admitted that she knew the accused prior to the incident.
19. PW.8 Ram Swaroop, uncle of the prosecutrix (brother of father of prosecutrix) has stated that on 16.9.95 at about 7-7.30 PM he received telephonic information that Pinki has not yet returned home after she left the house at 5 PM. He certified the loding of report and his signatures on the report.
20. PW.9 Sita Ram, father of the prosecutrix has stated that on 16.9.95 at about 7.00 PM while he was at his shop, he received telephonic message that Pinki has not yet returned home after she left the house with her friend Neeru. On enquiry, Neeru, informed that she had left Sunita in the market. The witness further stated that on the day of incident, he had gone to his house in the after-noon for taking lunch. At that
time Neeru had come there and Sunita talked Neeru and made programme to visit market. According to him, on enquiry it was found that accused has taken her away and that she had ornaments and cash of Rs. 2-2.5 thousands with her.
21. PW. 10 Lal Chand, uncle of the prosecutrix has stated that on 16.9.95 at about 7.30 PM he was telephonicaily informed by his Bhabhi that Pinki (Sunita) was not at home and she had left for market along with her friend Neeru. He then sent his nephew Mukesh to the house of Neeru to find out as to where was Sunita. Neeru stated that Sunita was not at her house. On enquiry, one kanhaiya Lal, friend of his younger brother informed that he had seen Vishnu and Pinki travelling in a auto-rickshaw.
22. PW.14 Kishore Saxena was, at the relevant time, working as receptionist in Hotel Ashoka Delux, Karole Bagh, New Delhi, where the accused and the prosecutrix alleged to have stayed. This witness was examined to prove the stay of accused and the prosecutrix in that hotel.
23. PW.14 Sagarmal has stated that accused had requested for hiring his Car for the purpose of carrying a girl of Soni community, to which he refused.
24. PW.15 Dr. B.K. Soni, as already discussed above, took X-ray (Ex.P.20 to P.23) of various parts of the body of prosecutrix for the purpose of ascertaining her age. Likewise, PW.1 Dr. G.R. Tanwar, one of the members of Medical Board had examined the prosecutrix and prepared the report Ex.P. 1.
25. PW.16 Nanu Ram, Assistant Sub Inspector went to Delhi along with the accused appellant and the accused pointed out the hotel where he and prosecutrix had stayed. The witness obtained a photo copy of the registered (Ex.P.15) regarding entry of their names.
26. PW. 17 Pratap Ram Meena, SHO visited Patna and recovered the prosecutrix and prepared seizure memo Ex.P.7 and handed over the prosecutrix to her uncle Naveen Soni vide memo Ex.P.6. The witness has certified that Ram Swaroop Soni had submitted a written report Ex.P.9, upon which a case vide FIR Ex.P.10 was registered.
27. The accused has also examined two witnesses in his defence, namely, DW. 1 Ajeet Singh and DW. 2 Tejpal. DW. 1 Ajeet Singh was examined to prove the age of the prosecutrix on the basis of school record. DW.2 Tejpal runs a Photo Studio in the name and style “Monalisa” at Amli Road, Sikar. This witness has stated that on 13.9.95 (3 days prior to the incident) Vishnu Bohra had visited his studio along with a girl for getting their photograph. Both had come at their sweet will and he had taken their joint photograph and they were willing to get their photograph.
28. On scrutiny of the prosecution evidence discussed above, the following important facts become evident:
(i) The version of the prosecutrix to the extent that on the day of incident, she left along with her friend Neeru, does not tally with the statement of her mother PW.6 Sanwari Devi. In other words, there is serious discrepency in the statements of the prosecutrix and her mother, regarding the purpose of visiting market;
(ii) The prosecutrix left the house of her parents in the evening of 16.9.95 and at that time she had ornaments and cash of Rs. 2000/- or 2500/- in her bag.
(iii) Accused appellant was known to her prior to the incident;
(iv) When she regained consciousness in the bus while travelling from Sikar to Jaipur, she, according to her own admission, did not raise any alarm;
(v) The prosecutrix did not raise any alarm even at Bus Stand, Jaipur and Delhi and at Patna Railway Station, despite the fact that large number of passengers were present there, as per her own admission;
(vi) The accused left Ashoka Delux Hotel, New Delhi and went to market for purchasing cloths for the prosecutrix and returned after 3-4 hours. During this long period of 3-4 hours, the prosecutrix was all alone in the Hotel, but still she did not disclose the fact of her kidnapping by the accused to any one, nor she tried to escape from there.
(vii) The prosecutrix own admission that despite several opportunities being available to her, she did not disclose the incident to any body.
(viii) The medical evidence is not suggestive of the fact that prosecutrix was subjected to forcible intercourse against her will, inasmuch no sign of any resistence or any injury was found on her person;
(ix) The statement of DW.2 Tejpal, Photographer that few days prior to the incident the accused and prosecutrix had come to his studio to get their photograph taken at their sweet will and own accord.
(x) At the time when prosecutrix alleged to have left the house for market along with her friend Neeru, the accused appellant was already sitting in the auto-rickshaw, but the prosecutrix did not object his presence.
29. Thus, from the facts emerged from the evidence and material on record and which are enumerated in sub-paras (i) to (ix) it is too difficult for me to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her. It must, therefore, be concluded that the prosecutrix in the case is one on whose testimony no reliance can be placed. The conduct of the prosecutrix clearly reveals that she had gone voluntarily with the accused. In these circumstances, it can safely be inferred that the prosecutrix, who was more than 16 years of age had been surrendering herself before the accused appellant. In the case at hand, it stands proved from the evidence on record that the prosecutrix had intimacy with the appellant and both left their places together, lived together in Delhi and Patna till they were apprehended by the police. Resultantly it must be held that culpability of the appellant does not stand established and the trial court was not justified in recording conviction under Section 376 IPC against the appellant and he deserves to be acquitted of this charge.
30. Coming to the conviction of the appellant under Section 366 IPC, it has to be seen whether the prosecutrix was compelled by force or induced by any deceitful means to go from her house to another place with the intention specified in Section 366 IPC and then was subjected to intercourse against her will. The conduct of the prosecutrix throughout indicates that whatever happened, was with her consent. Having scanned the evidence on record, I do not find an iota of evidence to establish that prosecutrix was kidnapped with an intention that she would be compelled or was likely to be compelled to marry the appellant against her will or in order that she will be forced or seduced to illicit intercourse or that he was knowing that she was likely to be forced or seduced to illicit intercourse. Thus the conviction of the appellant under Section 366 is also not sustainable.
31. To establish the charge under Section 363 IPC, it is necessary that the girl, who was kidnapped from the lawful guardianship without the consent of her guardian is below the age of 18 years. From the evidence, in particular the documentary evidence led by the defence, discussed hereinabove, it has been established that the age of the prosecutrix was 17 years and 10 months at the time of Incident and thus she was below the age of 18 years. Thus it can be said that, the appellant took the prosecutrix away from the lawful guardianship without the consent of her guardian. In a case where girl is found to be below 18 years of age, the consent of the girl is
immaterial. I am fortified in my view by the following observations of the Apex Court
in State of Haryana v. Raja Ram (1) :
“…On a plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial. It is only the guardian’s consent which takes the case out of its purview. Nor it is necessary that the taking or enticing must be show to have been by means of force or fraud, persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardianship would be sufficient to attract the section.
is only the guardian’s consent which takes the case out of its purview. Nor it is necessary that the taking or enticing must be shown to have been by means of force or fraud, persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardianship would be sufficient to attract the section.
32. In this view of the matter, I am of the considered view that the finding of guilt under Section 363 IPC against the appellant arrived at by the trial court calls for no interference. The conviction of the appellant under Section 363 IPC, therefore, deserves to be maintained.
33. The only question that remain to be decided is as to whether the sentence awarded to the appellant by the trial court while convicting him for offence under Section 363 IPC, in the facts and circumstances of the case, is appropriate and if not, what sentence should be awarded so as to met the ends of justice. Considering the facts and circumstances of the, the acquittal of the appellant under Sections 366 IPC and 376 IPC and the fact that appellant has already undergone sentence for more than 1 years and 9 months, I am of the considered view that the ends of justice would be met if the appellant is sentenced to the term already undergone by him.
34. For the reasons aforesaid, the appeal is partly allowed. The conviction of the appellant under Sections 376 and 366 IPC and the sentences awarded thereunder are set aside and the appellant is acquitted of the above charges. His conviction under Section 363 IPC is maintained. However, while maintaining the order of the trial court so far it relates to imposition of fine of Rs. 100/- and the sentence to be undergone in default of payment of fine, the sentence of 3 years awarded to the appellant under Section 363 IPC is reduced to the period already undergone by him. The appellant is in jail and he be released forthwith, if the fine of Rs. 100/- is deposited by him and if not required in any other case.