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2001 DIGILAW 1939 (RAJ)

Balu Singh v. State of Rajasthan

2001-12-14

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal has been filed by the accused - appellants against the judgment and order dated 16.2.1985 passed by the learned Addl. Sessions Judge, Rajsamand in Sessions Case Nos. 50/81 and 13/82 by which he acquitted one accused - Khem Chand for the offence under sections. 366 Indian Penal Code, but convicted and sentenced the present accused-appellants in the following manner : Name of accused- appellants Convicted under section Sentence awarded 1. Balu Singh 376 IPC Five years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo one year imprisonment. 366 IPC Three years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo one year imprisonment. 342 IPC One year RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo six months imprisonment. 2. Fateh Singh 376 IPC Seven years RI and to pay fine of Rs. 5,000/-, in default of payment of fine, to further undergo one year imprisonment. 366/109 IPC Three years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months imprisonment. 3. Sunderlal 376 IPC Five years RI and to pay fine of Rs. 2,000/-, in default of payment of fine, to further undergo one year imprisonment. 366/109 IPC Three years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months imprisonment. 4. Bansidas 366/109 IPC Five years RI and to pay fine of Rs. 3,000/-, in default of payment of fine, to further undergo 11/2 years imprisonment. 5. Heera Singh 366/109 IPC Three years RI and to pay fine of Rs. 2,000/-, in default of payment of fine, to further undergo one year imprisonment. 6. Roop Dass 366 IPC Three years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months imprisonment. 7. Sunder Bai @ Tulsi 366/109 IPC Two years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months imprisonment. 2. 6. Roop Dass 366 IPC Three years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months imprisonment. 7. Sunder Bai @ Tulsi 366/109 IPC Two years RI and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months imprisonment. 2. It arises in the following circumstances : On 23.5.1981, PW-5 Lal Singh lodged a written complaint Ex.P/3 before the Court of Judicial Magistrate First Class, Rajsamand against some accused persons stating inter alia that on 2.5.1981, his daughter Sita (PW-9) aged 15 years (hereinafter referred to as the prosecutrix) was coming from her in-laws' house and on the way after alighting from the Bus at village Sakroda, she went to the house of Mohan Singh. It was further stated in the complaint that on 3.5.1981, Mohan Singh requested accused - appellant - Balu Singh to take the prosecutrix PW-9 Sita and leave her at village Khakhliya belonging to the complainant PW-5 Lal Singh, but accused-appellant-Balu Singh instead of taking prosecutrix PW-9 Sita to the house of the complainant, took her to Udaipur and stayed there in the house of accused-appellant-Bansidas and at that time, prosecutrix PW-9 Sita raised some objections, but she was told by them that her father was also there and she would be taken before him. It was further stated in the complaint that accused-appellants-Fateh Singh and Sunderlal and Khem Singh and Panjumal also joined the company of the accused-appellants-Balu & Banshidas and one house was taken on rent for accused-appellant-Balu. It was further stated in the complaint that all accused persons, named above, committed rape with the prosecutrix PW-9 Sita and when on 9.5.1981, prosecutrix PW-9 Sita did not reach the house of the complainant PW-5 Lal Singh, on 10.5.1981, he went to Sakroda, where he was informed that prosecutrix PW-9 Sita was taken away by the accused persons. It was further stated in the complaint that on 20.5.1981 he came to know that accused persons, named above, abducted/kidnapped his daughter prosecutrix PW-9 Sita and on 20.5.1981, he was also informed by his daughter prosecutrix PW-9 Sita about the whole incident that had taken place with her. It was further stated in the complaint that thereafter, on 20.5.1981, he went to Banswara in connection with official work and, therefore, this complaint was filed on 23.5.1981. It was further stated in the complaint that thereafter, on 20.5.1981, he went to Banswara in connection with official work and, therefore, this complaint was filed on 23.5.1981. The said complaint was sent by the learned Judicial Magistrate, First Class, Rajsamand under sections 156(3) Criminal Procedure Code to the Police Station Rajsamand, where a case for the offence under sections. 363, 376, 342, 379 IPC was registered and investigation was started. During investigation, prosecutrix PW-9 Sita was got medically ex- amined by PW-4 Dr. Naveen Sharma and PW-9 Dr. Dharmendra and the doctors opined that the age of the prosecutrix PW-9 Sita on the date of occurrence was 15 to 17 years and for that Ex.P/1 may be referred to. After usual investigation, police submitted two challan, one against accused-appellant-Balu Singh and another against rest accused per- sons and both were consolidated by the learned trial Judge. On 5.7.1982, the learned Addl. Sessions Judge, Rajsamand framed the charges against the accused-appellants in the following manner: Name of accused-appellants Charges framed 1. Balu Singh 366, 342 376 IPC 2. Bansidas 366 IPC 3. Fateh Singh 366, 376 IPC 4. Sunderlal 366, 376 IPC 5. Heera Singh 366 IPC 6. Roop Dass 368 IPC 7. Sunder Bai @ Tulsi 366 IPC During the course of trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused under sections 313 Criminal Procedure Code were recorded. After conclusion of trial, the learned Addl. Sessions Judge, Rajsamand through his judgment and order dated 16.2.1985 acquitted one accused-Khem Singh for the offence under sections. 366 Indian Penal Code, but convicted and sentenced the present accused-appellants in the manner as indicated above. Aggrieved from the said judgment and order dated 16.2.1985 passed by the learned Addl. Sessions Judge, Rajsamand, this appeal has been filed by the present accused-appellants. 3. 366 Indian Penal Code, but convicted and sentenced the present accused-appellants in the manner as indicated above. Aggrieved from the said judgment and order dated 16.2.1985 passed by the learned Addl. Sessions Judge, Rajsamand, this appeal has been filed by the present accused-appellants. 3. In this appeal, the following submissions have been raised by the learned counsel appearing for the accused-appellants : (1) That learned trial Judge has erred in law in not appreciating that there was deliberate delay in filing the complaint as the incident as alleged by the complainant PW-5 Lal Singh took place on 3.5.1981 and PW-5 Lal Singh has himself admitted that on 10.5.1981 he came to know that accused-appellant-Balu Singh had taken away his daughter prosecutrix PW-9 Sita, but the complaint was filed on 23.5.1985 and thus, this delay is fatal to the prosecution case. (2) That learned trial Judge has erred in holding that prosecutrix PW-9 Sita is minor as the doctors opined that on the date of occurrence her estimated age was 15 to 17 years, in which there can be margin of two years on either side and therefore, from this point of view also the age of the prosecutrix PW-9 Sita should have been determined near about 18 years. (3) That a bare perusal of the evidence led by the prosecution itself goes to show that the prosecutrix PW-9 Sita had left her house on her own accord and since she was a major girl, therefore, she was consenting party and in these circumstances, the findings of the learned trial Judge that accused-appellants-Balu Singh, Fateh Singh and Sunderlal committed rape with her are per- verse and erroneousone and the same are liable to be set aside. (4) That similarly, the findings of conviction for abduction and kidnapping are also erroneous one and the same are liable to be set aside. Hence, it was prayed that this appeal be allowed and the impugned judgment and order passed by the learned Addl. Sessions Judge, Rajsamand be set aside and the accused-appellants be acquitted of the charges framed against them. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Rajsamand. 5. I have heard the learned counsel for the accused-appellants and the learned Public Prosecutor and gone through the record of the case. 6. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Rajsamand. 5. I have heard the learned counsel for the accused-appellants and the learned Public Prosecutor and gone through the record of the case. 6. Before proceeding further, the age of the prosecutrix PW-9 Sita has to be determined. 7. The learned trial Judge has come to the conclusion that the age of the prosecutrix PW-9 Sita on the date of occurrence was below 18 years in all respects. The question is whether these findings of the learned trial Judge are correct one or not. 8. In the present case, no school or birth certificate has been produced and, therefore, conclusion has to be based on all the facts and circumstances including the medical examination of the prosecutrix PW-9 Sita. 9. There is also no dispute on the point that prosecutrix PW-9 Sita is a married lady and she was married to one Bhopal Singh. 10. In the complaint Ex.P/3, PW-5 Lal Singh, father of the prosecutrix PW-9 Sita, has mentioned her age as 15 years. 11. PW-4 Dr. Naveen has stated that radiological age of the prosecutrix PW-9 Sita, which has been determined by him, is 15 to 17 years and he has proved the report Ex.P/1. Similarly, PW-7 Dharmendra, who was Medical Jurist, after seeing other aspects, has come to the conclusion that the age of the prosecutrix PW-9 Sita was 15 to 17 years. Thus, from medical point of view, the age of the prosecutrix PW-9 Sita on the date of occurrence was 15 to 17 years. 12. It may be stated here that conclusive evidence of the girl's age may be the birth certificate, if it is not available, then in conjunction with such oral testimony as may be available. Not only this, the question of age of the prosecutrix in cases under sections. 366, 370 & 376 IPC is always of importance. 13. In Jaya Mala v. Home Secretary, Government of Jammu & Kashmir, AIR 1982 SC 1297 , it has been held by the Hon'ble Supreme Court that the margin of error in age ascertained by radiological examination is two years on either side. 14. It may be stated here that the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. 14. It may be stated here that the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where the Court gropes in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. 15. When this being the position and when doctors have opined that the age of the prosecutrix PW-9 Sita was between 15 to 17 years, therefore, her age, if margin of error is two years on either side, can be above 17 years and therefore, from every point of view, her age can be concluded or assessed near about 18 years and thus, she cannot be regarded as minor girl. 16. Thus, the findings of the learned Addl. Sessions Judge that prosecutrix PW-9 Sita was minor or below 18 years of age cannot be sustained and the same are liable to be set aside. 17. Before proceeding further, it may be stated here that if a girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen, she could be kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. 18. Since in such cases the best evidence is of prosecutrix herself, first her statement has to be seen. 19. Before examining the statement of the prosecutrix PW-9 Sita, some- thing should be said about legal aspect with respect to appreciation of evidence of prosecutrix and the same can be summarised in the following manner: 1. That the main evidence in all such cases is that of victim herself. 2. That corroboration of the testimony of the prosecutrix in rape case is not required as a rule of law. But, corroboration should ordinarily be required in the case of a woman having attained majority and who is habitual to sexual intercourse and is found in a compromising position, as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self-preservation or when the probabilities factor is found to be out of time. 3. That corroboration may be by facts and circumstances. 4. That the injury on the person of the victim, especially her private parts, had corroborative value. 3. That corroboration may be by facts and circumstances. 4. That the injury on the person of the victim, especially her private parts, had corroborative value. 5. That if the evidence of the victim does not suffer from any basic infirmity and the probabilities factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. 20. In State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 , the Hon'ble Supreme Court has held that the testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.Burden of proof 21. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 22. If the victim is unwilling to yield to sexual intercourse, she is expected to receive injuries on her person. The absence of injuries on the body of the prosecutrix, generally, gives rise to an inference that she was consenting party to coitus. Where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. The absence of injuries on the body of the prosecutrix, generally, gives rise to an inference that she was consenting party to coitus. Where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. The absence of injuries either on the accused or on the prosecutrix shows that the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. 23. In the light of the above legal position, the statement of the prosecutrix PW-9 Sita and other evidence is being examined. 24. PW-1 Pema is the witness produced by the prosecution, who has stated in his statement recorded in Court that he saw the prosecutrix PW-9 Sita with some persons near the Bus Stand and where he found that she was sitting happily. 25. PW-2 Bheru Singh is the brother of the prosecutrix PW-9 Sita and he has admitted that he had come to know on 6.5.1981 that accused-appellant - Balu 1 Singh had taken his sister. Thus, from the statement of PW-2 Bheru Singh, it appears that the fact that prosecutrix PW-9 Sita was in the company of the accused-appellant - Balu Singh was known to complainant party. 26. PW-3 Narainlal is another witness of Udaipur, who has stated that accused-appellant-Balu Singh stayed in his house and one girl was with him. Thus, from the statement of PW-3 Narainlal, it appears that both were living together happily. 27. PW-5 Lal Singh is the father of the prosecutrix PW-9 Sita and lodger of the complaint Ex.P/3. He has admitted that on 20.5.1981, when he was going to Bus Stand in Udaipur, he found prosecutrix PW- 9 Sita in Bapu Bazar and accused-appellant-Balu Singh and some other accused-appellants were with her and at that time, prosecutrix PW- 9 Sita, after leaving the accused persons, came to him and told him the whole incident. This witness has further admitted that on 10.5.1981 at Sakroda, he had come to know that accused-appellant-Balu Singh had kidnapped his daughter prosecutrix PW-9 Sita. This witness has further admitted that on 10.5.1981 at Sakroda, he had come to know that accused-appellant-Balu Singh had kidnapped his daughter prosecutrix PW-9 Sita. Thus, from the statement of PW-5 Lal Singh, it is also very much clear that the fact that prosecutrix PW-9 Sita was taken away by the accused-appellant-Balu was made known to him on 10.5.1981, though his son PW-2 Bheru Singh had admitted that this fact was known to them on 6.5.1981. 28. PW-6 Kesar Singh is another witness produced by the prosecution, who was Manager of one Dharamshala and he has stated that on 3.5.1981 accused- appellant-Balu with one girl stayed in his Dharamshala and they stayed in room No. 22 and they stayed upto 4.5.1981 and he has proved the register Ex.P/4. He has further stated that the girl, who was with the accused-appellant-Balu, did not make any complaint. Thus, from the statement of PW-6 Kesar Singh, it is very much clear that both lived together in the Dharamshala at Udaipur. 29. PW-8 Mahendra Singh, who was IO in that case, has admitted that accused-appellant-Balu Singh and the prosecutrix PW-9 Sita presented an application for marriage in the Collectorate. 30. The prosecutrix PW-9 Sita in her statement recorded in Court states that on the way Rama and Tulsi met her and they asked her that she should marry with the accused-appellant-Balu and, thereafter, she went to Udaipur through Kankroli and stayed in Sarai and the accused-appellant-Balu had sex with her. She has further stated that accused-appellant-Fateh Singh, Sunderlal and Balu Singh took her to the Court, where her thumb impressions were taken on paper and then, she was taken to Brahampuri and her thumb impressions were taken of the fact that she should marry with accused-appellant-Balu. She has further stated that accused- appellant-Fateh Singh also committed rape with her and similarly, accused-appellant-Sunderlal also committed rape with her. She has further stated that accused- appellant-Fateh Singh also committed rape with her and similarly, accused-appellant-Sunderlal also committed rape with her. The accused- appellant-Balu Singh also committed rape with her and he used to have sex with her daily and she used to sleep with him and she was kept in the room which was locked from outside and after 8 days, accused-appellant- Balu Singh ran away.In cross-examination, she admits the following facts : (1) That from Sakroda, she went on her own accord and from Sakroda upto Madri, she passed through jungle and from where, she reached crossing of Madri, where a truck came and they sat in the Truck and the truck stopped at Kankroli Bus Stand and she sat in the City Bus on her own accord. (2) That thereafter, she reached Udaipur and she was allowed to stay in one Sarai where accused-appellant-Balu Singh used to bring food. (3) That then she was kept in the house of accused-Banshidas. (4) That she used to remain alone in the day, but room was locked. (5) That thereafter, she was taken to Advocate and application Ex.D/2 bears her signatures. (6) That she put her signatures on Ex.D/2 in the Court. 31. The question that arises for consideration is whether in the above fact and circumstances, the findings of the learned trial Judge that prosecutrix PW-9 Sita was abducted and raped against her will are liable to be confirmed or not. 32. From perusing the statement of the prosecutrix PW-9 Sita and other evidence on record, it clearly appears that it is a case of consent. It does not appear that prosecutrix PW-9 Sita was in any manner forced to go with the accused-appellant-Balu. The fact that she had roamed from one place to another in the company of the accused-appellants especially in the company of accused- appellant-Balu goes to show that she was a consenting party. The fact that she stayed in Sarai in the company of accused-appellant-Balu Singh, where she did not make any complaint, also goes to show that she was a consenting party. The fact that she has put signatures on the application for marriage Ex.D/2 also shows that she was a consenting party. The fact that she stayed in Sarai in the company of accused-appellant-Balu Singh, where she did not make any complaint, also goes to show that she was a consenting party. The fact that she has put signatures on the application for marriage Ex.D/2 also shows that she was a consenting party. The fact that she was found in the company of accused-appellants in Udaipur in Bapu Bazar also goes to show that she was roaming in the company of the accused-appellants on her own accord. 33. Absence of injury on the person of prosecutrix PW-9 Sita especially on private part is yet another factor to negative the allegation of rape and to show that the accused-appellants had sexual intercourse with her with her consent. The medical evidence clearly discloses that prosecutrix PW-9 Sita does not appear to have put up any resistance to the alleged onslaught committed on her by the accused-appellants. From this, the only irresistible inference can be that she was a consenting party. 34. Apart from this, the statement of the prosecutrix PW-9 Sita does not appear to be reliable and trustworthy and does not inspire confidence and thus, no reliance can be placed on it. 35. Thus, looking to the entire facts and circumstances of the case, the only irresistible conclusion that can be drawn is that the prosecutrix PW-9 Sita was a consenting party and all the activities right from the beginning were going on with her tacit consent. 36. For the reasons stated above, the findings of the learned Addl. Sessions Judge that prosecutrix PW-9 Sita was forcibly abducted by the accused-appellants and thereafter, rape was committed on her cannot be sustained and the same are liable to be set aside and this appeal deserves to be allowed and the accused-appellants are entitled to acquittal. Accordingly, the appeal filed by the accused-appellants is allowed and the impugned judgment and order dated 16.2.1985 passed by the learned Addl. Sessions Judge, Rajsamand are set aside and the accused-appellants are acquitted of the charges framed against them. Since the accused-appellants are on bail they need not surrender and the bail bonds stand cancelled.Appeal allowed *******