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2005 DIGILAW 210 (HP)

DILDAR SINGH @ BANTI v. STATE OF HIMACHAL PRADESH

2005-06-27

M.R.VERMA

body2005
JUDGMENT M.R. Verma, Judge. This appeal has been preferred by the appellant-accused (hereafter referred to as the accused) against the judgment dated 25.11.2004/27.11.2004 passed by the learned Presiding Officer, Fast Track Court, Hamirpur, whereby the accused has been convicted and Track Court, Hamirpur, whereby the accused has been convicted and sentenced as follows:- Sr. No. Penal Provision Sentence imposed. 1. Section 376, IPC Rigorous imprisonment for 7 years and fine Rs. 10,000/- and in default of payment of fine simple imprisonment for 1-1/2 year. 2. Section 363 IPC, Rigorous imprisonment for 4 years and fine Rs. 5000/- and in default of payment of fine simple imprisonment for one year. 3. Section 366 IPC. Rigorous imprisonment for 7 years and fine Rs. 5000/- and in default of payment of fine simple imprisonment for i-1/2 year. 4. Section 342 IPC. Rigorous imprisonment for six months and the fine Rs. 500/- and in default in payment of fine simple imprisonment for 1-1/2 months. 5. Section 506 IPC Rigorous imprisonment for 5 years and fine Rs. 2000/- and in default of payment of fine simple imprisonment for 1-1/4 year. 2. Case of the prosecution in brief is that on 27.4.2002, the prosecutrix (PW-1) was all alone in her house and during the day time proceeded to the jungle to bring fodder for her cattle. At 3 p.m., the accused, who was driving Jeep No. HP-02-2540 appeared on the scene, stopped the said vehicle, opened the window of the Jeep and forcibly dragged PW-1 inside the jeep. When she raised noise, her mouth was gagged and the vehicle was removed towards the jungle and stopped there. The prosecutrix was then taken to the back seat of the Jeep. Her Salwar was forcibly removed and she was twice subjected to rape by the accused. In the process of trying to save her, the prosecutrix sustained injuries on her right arm and right leg. The accused also threatened her that in the event of her making noise or getting out of the vehicle she would be done to death. When it was dark the accused removed the prosecutrix in the Jeep to a Sarai (Inn) at Kotla where she was confined for the night and also subjected rape by the accused. At 5 a.m. on the following morning the accused bolted the room from outside and went away in the Jeep. When it was dark the accused removed the prosecutrix in the Jeep to a Sarai (Inn) at Kotla where she was confined for the night and also subjected rape by the accused. At 5 a.m. on the following morning the accused bolted the room from outside and went away in the Jeep. Nobody responded to the knocking of the door and the noise created by the prosecutrix and, thus, she remained confined in the room for three/four hours when a woman, namely, Neelam Sharma (DW-1) on hearing her cries opened the door and took the prosecutrix out of the room. In the meanwhile, Surinder Kumar (PW-4), a co-villager of the prosecutrix while driving a Tractor, came on the spot. The prosecutrix narrated the incident to him. PW-4 got a lift for the prosecution in a jeep in which she came to Bijjar While she was at Bijjar so many people gathered there to whom she narrated the incident, who in turn informed her father Puran Chand (PW-2) which led PW-2 and one Roshan LaL to come on the spot. The prosecutrix narrated the incident to them and they proceeded to the Police Station to lodge the FIR. Thus, FIR Ex. PW-1/A came into being in Police Station, Barsar and the Investigation followed. The prosecutrix was initially medically examined in CHC Barsar by Dr. Avinash Sharma (PW-17) insofar as her general medical examination was concerned and the MLC issued by PW-17 about such general medical examination is Ex. PW-17/A. To enable further medical examination of the prosecutrix, she was taken to Zonal Hospital, Hamirpur where her gynecological examination was conducted by Dr. Madhu Kaushal (PW-6) who on such examination issued MLC Ex. PW-6/A. At the time of The examination, PW-6 preserved the wearing apparels, slides, swab and pubic hair of the prosecutrix and after sealing them handed over to the Police. On the request of the Police seeking clarificatory opinion, PW-6 had given final opinion Ex. PW-6/B. The skeleton age of the prosecutrix was also ascertained vide Ex. PW^6/B. During the course of the investigation, the aforesaid Jeep alongwith its papers and driving licence of the accused was taken in possession vide Memo Ex. PW-3/A and the cover of the back seat of the Jeep was also taken in possession vide Memo Ex. PW-3/B. The Investigating Agency also took in possession the documents Ex. PW-7/A and Ex. PW^6/B. During the course of the investigation, the aforesaid Jeep alongwith its papers and driving licence of the accused was taken in possession vide Memo Ex. PW-3/A and the cover of the back seat of the Jeep was also taken in possession vide Memo Ex. PW-3/B. The Investigating Agency also took in possession the documents Ex. PW-7/A and Ex. PW-8/A regarding age of the prosecutrix. On his arrest, the accused was got medically examined and the MLC issued by Dr. H.R. Kalia (PW-16) about such examination is Ex. PW-16/A. at the time of the medical examination of the accused his underwear was also preserved, sealed and handed over to the Police. The wearing apparels of the prosecutrix preserved at the time of her medical examination, as aforesaid, i.e., shirt Ex. P-2, Salwar Ex. P-3, Baniyan Ex. P-4, Duppatta Ex. P-1, her swab, slide and the pubic hair and underwear of the accused were sent for Chemical analysis and the report about the outcome of the Chemical Analysis is Ex. PA. On completion of the investigation, the concerned SHO submitted the charge sheet against the accused, who came to be tried by the Fast Track Court on a charge under Sections 363, 366, 342, 376 and 506, IPC. 3. To prove the charge against the accused, prosecution examined 18 witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he claimed to be innocent and that a false case had been foisted on him. He led defence and examined Neelam Sharma (DW-1) and Bali Ram (DW-2). 4. On appreciation of the material on record, the trial Court convicted and sentenced the accused as aforesaid. Being aggrieved, the accused has preferred the present appeal. 5.1 have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also perused the records. 6. 4. On appreciation of the material on record, the trial Court convicted and sentenced the accused as aforesaid. Being aggrieved, the accused has preferred the present appeal. 5.1 have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also perused the records. 6. The learned counsel for the accused assailed the impugned conviction and sentence on the following grounds: (I) that the prosecutrix is not proved below 18 years of age at the relevant time, therefore, heads of charge under Sections 363 and 366, IPC were not proved; (II) that the delay in lodging the FIR is not explained which renders the case of the prosecution highly suspicious; (III) that medical evidence does not support the version of the prosecutrix; and (IV) that in any case it was a case of consent as is clearly made out from the statements of Rajesh Kumar (PW-5), Nilam Sharma (DW-1) and Bali Ram (DW-2). GROUND NO.1 7. It is not in dispute that the date of birth of the prosecutrix is 28.2.1984 as given in the admission form Ex. PW-7/A and copy of the birth Register Ex. PW-8/A. It is case of the prosecution that the prosecutrix was kidnapped by the accused from the custody of her lawful guardian on 27.4.2002. As per the opinion about the skeleton age of the prosecutrix as stated by PW-6 read with the contents of Ex. PW-6/B, she was 16-19 years of age at the time of her medical examination on 28.4.2002. On the basis of the aforesaid position the Trial Judge held as under: "So far as birth year of the prosecutrix is concerned, the same is proved on record from statement of PW-7 and the document Ext. PW-7/A prepared by him. Similarly, it is also further proved on record from the statement of PW-8 and coupled with the document Ext. PW-8/A prepared by him. Both these documents show the age of the prosecutrix as 28.2.1984. Even the radiological age of the prosecutrix is between 16 to 19 years. It also tallies with these documents Ext.PW-7/A and Ext.PW-8/A which show the age of the prosecutrix one day short of 18 years. It means, on the date of occurrence the prosecutrix was yet to attain the age of majority." 8. Even the radiological age of the prosecutrix is between 16 to 19 years. It also tallies with these documents Ext.PW-7/A and Ext.PW-8/A which show the age of the prosecutrix one day short of 18 years. It means, on the date of occurrence the prosecutrix was yet to attain the age of majority." 8. I wonder how could such a conclusion be arrived at if there was due application of mind to the documents relied by the trial Judge to arrive at the conclusion he had arrived at. In fact, in view of the contents of the aforesaid documents, the prosecutrix is proved more than 18 years of age on 27.4.2002, having completed 18 years of age on 27.2.2002. It simply shows that the learned Trial Judge failed to read and appreciate the evidence with such care as is expected of a person sitting over judgment in a criminal case. Unfortunately, this is not the first case where such a lapse has been noticed on his part. In Criminal Appeal No. 146 of 2005, titled Suresh Kumar versus State of Himachal Pradesh decided on 20th June, 2005, he was to found to have committed lapses in properly reading and appreciating the evidence. 9. The factual position as emerges from the evidence led by the prosecution i.e. Exs. PW-7/A and PW-8/A is that the prosecutrix on the date of her alleged kidnapping was more than 18 years of age. Therefore, the heads of charges under Sections 363 and 366, IPC, as framed against the accused could not be held as proved. Therefore, conviction of the accused under these heads is illegal and unsustainable. 10. There is yet another illegality committed by the trial Court in convicting and sentencing the accused, though only of academic nature, in view of the aforesaid conclusions. Section 366, IPC is an aggravated form of offence of kidnapping from the custody of lawful guardian. Therefore, a person cannot be convicted both under Sections 363 and 366, IPC. In case the kidnapping is with intent to compel the marriage of a woman or to force or seduce her to illicit intercourse, the case shall be governed by Section 366, IPC and otherwise it shall be governed by Section 363, IPC (See Rajinder versus State of Maharashtra 1997 (Cri. 840). In case the kidnapping is with intent to compel the marriage of a woman or to force or seduce her to illicit intercourse, the case shall be governed by Section 366, IPC and otherwise it shall be governed by Section 363, IPC (See Rajinder versus State of Maharashtra 1997 (Cri. 840). Thus, even if it is, assumed, though not proved, that the alleged kidnapping was with a view to compel the prosecutrix to marry against her will or to force or seduce her to illicit intercourse, the conviction and sentence could be awarded only under Section 366, IPC and not under Section 363, IPC as well. GROUND NO.II 11. According to the prosecution, the prosecutrix was removed from the jungle by the accused on 27A.2002 at about 3 p.m. The FIR about the occurrence has admittedly been lodged at 4.45 p.m. on 28.4.2002. The contention of the learned counsel for the accused is that the prosecutrix had reached at Bijjar at about 9 a.m. and her father (PW-2) was informed by the police about her being found crying at Bijjar at about 2.30 p.m. therefore, not lodging the report immediately after 2.30 p.m. leads to the inference that there had been deliberations and consultations with a view to falsely implicate the accused in the case. 12. Even If the contention is believed as it is, the accused cannot get benefit of the alleged delay in lodging the FIR. The prosecutrix, as per her evidence, remained confined in the inn till about 8 a.m. on 28.4.2002 and thereafter was enabled by a woman to come out of the bolted room Then she met one Surinder, narrated the occurrence to him and thereafter she went to Bijjar where she started crying and people gathered over there. Her father irrespective of the source of information started from his house to Bijjar at 2.30 p.m. He must have taken some time to reach Bijjar and then make inquiries from his daughter as to what had happened with her and then proceeded to the Police Station alongwith her. Her father irrespective of the source of information started from his house to Bijjar at 2.30 p.m. He must have taken some time to reach Bijjar and then make inquiries from his daughter as to what had happened with her and then proceeded to the Police Station alongwith her. He could not be expected to lodge the FIR immediately after 2.30 p.m. when he received the information that his daughter was found crying at Bijjar because at that time he was heard anything from the prosecutrix about the agony she had undergone and there was thus no occasion for PW-2 to rush to the Police Station without knowing the factual position about the ordeal undergone by the prosecutrix. In these circumstances, the contention that there is delay in lodging the FIR, therefore, version of the prosecution is suspicious is not sustainable. GROUND NO. III 13. It was contended by the learned counsel for the accused that at the time of medical examination of the prosecutrix her hymen was found intact and the opinion is that possibility of attempt of sexual assault cannot be ruled out whereas the finding that the hymen of the prosecutrix was intact, sexual intercourse with the prosecutrix was ruled out and the statement of the prosecutrix thus having been contradicted by the medical evidence could not have been believed. 14. As per the medical opinion, the hymen of the prosecutrix was intact. However, the finding by itself is not sufficient to hold that the prosecutrix was not subjected to rape. In this regard, reference may be made to the following observations at Page 476 of Modis Medical Jurisprudence and Toxicology (22 th Edition): "Normally, the hymen is ruptured by the first act of coitus, though it may persist even after frequent acts of coitus if it happens to be loose, folded and elastic; or thick, tough and fleshy. Cases have been recorded in which the hymen had to be incised at the time of delivery, while even prostitutes have been known to possess an intact humen." 15. At the time of medical examination of the prosecutrix a red abrasion about 1 cm X 14 cm was present-over her fourchette at 7 O clock position. The fourchette is usually not injured in an act of sexual intercourse with a nubile virgin. But it can be injured if the act of six is committed with violence. At the time of medical examination of the prosecutrix a red abrasion about 1 cm X 14 cm was present-over her fourchette at 7 O clock position. The fourchette is usually not injured in an act of sexual intercourse with a nubile virgin. But it can be injured if the act of six is committed with violence. (See: p-503, Modis Medical Jurisprudence supra). 16. As per the report received from the laboratory, Ex. PA human blood and semen stains were found on the Salwar of the prosecutrix and underwear of the accused. Human blood was found on Baniyan and swab of the prosecutrix. 17. Based on the above, injuries noticed at the time of medical examination of the prosecutrix and finding of semen and blood on analysis of the above articles, PW-6 has finally opined that these findings suggest that sexual assault had taken place. 18. It may also be mentioned here that when the prosecutrix was initially examined by PW-17, he noticed three abrasions and two contusions on her person vide MLC Ex. PW-17-A. One of these injuries is opined to have been caused by rape when others are opined to be more than 24 hours of the medical examination and capable of being caused by rape when others are opined to be more than 24 hours duration. The prosecutrix was medically examined by PW-17 on 28.4.2002 at 7.15 p.m. As per the prosecution case and evidence of the prosecutrix she was dragged by the accused by use of force and put in the vehicle he was driving at 3 p.m. Therefore, injuries capable of being caused of dragging could be of the duration of more than 24 hours at the time of her medical examination at 7.15 p.m. on 28.4.2002. the abrasions and contusions are capable of being caused by the act of dragging and putting a person forcibly in a vehicle. 19. In view of the medical evidence as on record and discussed herein above, it is clear that the medical evidence is not contradictory of the version of the prosecutrix. On the other hand, it lends credibility to the version of the prosecutrix about her forcible removal and rape. The contention to the contrary, therefore, is not sustainable/ GROUND NO.IV: 20. It was contended by the learned counsel for the accused that the prosecutrix is proved more than 18 years of age. On the other hand, it lends credibility to the version of the prosecutrix about her forcible removal and rape. The contention to the contrary, therefore, is not sustainable/ GROUND NO.IV: 20. It was contended by the learned counsel for the accused that the prosecutrix is proved more than 18 years of age. She has though stated that at time when she was being dragged by the accused towards his jeep, she was having a sickle in her (sic-hand) and she had assaulted him and he had sustained injuries. It is also stated by her that she had tried to inflict injury with her hands, nails and leg on the accused. However, it is evident from the medical examination of the accused that no external injury was found on his person. Thus, as per the medical evidence, use of force by the accused cannot be inferred. On the contrary, the statement of the prosecutrix being exaggerated is not reliable. The only reference which can be drawn is that she was a consenting party to act of sex, if any, committed by the accused with her. According to the learned counsel for the accused, statements of Rajesh Kumar (PW-5), Neelam Sharma (DW-1) and Bali Ram (DW-2) also lend credence to the submission that the prosecutrix was, in fact, eloping with the accused and their indulgence in sex, if any, was with the willingness and consent of the prosecutrix. 21. On the other hand, it was contended by the learned Deputy Advocate General that at least one of the five injuries found of the person of the prosecutrix as per the medical opinion could have been caused because of rape. The laceration of the fourchette is attributable to use of evidence. Even if there is any minor discrepancy in details, her statement cannot be disbelieved as a whole. She was taken to the jungle i.e. a lonely place where she was initially subjected to rape and thereafter to a lonely inn where she was again subjected to rape and there is no reason to disbelieve her version supported by medical opinion. 22. She was taken to the jungle i.e. a lonely place where she was initially subjected to rape and thereafter to a lonely inn where she was again subjected to rape and there is no reason to disbelieve her version supported by medical opinion. 22. It may be pointed out at the very outset that by now it is well settled that conviction of a person accused of the commission of rape can be based on the sole evidence of the prosecutrix because she is not an accomplice in the crime but is a victim thereof, thus the injured person. In the normal course, no self-respecting woman would come forward to lower her dignity and self esteem by making false allegations of rape on her and for this reason also her testimony cannot be suspected. Therefore, in case the statement of the prosecutrix is cogent, reliable and confidence inspiring that can form the basis for conviction of the accused. If for some reason the Court cannot place implicit reliance on the testimony of the prosecutrix it may look to the other evidence produced by the prosecution to lend credence to the evidence of the prosecutrix. In a case where the prosecutrix has no motive to falsely implicate the accused the Court should ordinarily have no hesitation in accepting her evidence. 23. In Ved Parkash versus State of Himachal Pradesh (2005(1) SLC 395), this Court while dealing with the question of value of the statement of the prosecutrix, held as under; "8. At may be pointed out at the very outset that by now it is well settled that conviction of a person accused of the commission of rape can be based on the sole testimony of the prosecutrix because she is not an accomplice but victim of the offence, hence, the injured person. Her evidence can also not be suspected for the reason that no self respecting woman would come forward to lower her dignity and self esteem by making false allegations of rape on her. Therefore, a conviction can be based on the statement of the prosecutrix when her statement is found cogent, reliable and confidence inspiring. In case for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look into other evidence which may lend assurance to her testimony.. Therefore, a conviction can be based on the statement of the prosecutrix when her statement is found cogent, reliable and confidence inspiring. In case for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look into other evidence which may lend assurance to her testimony.. In a case where the prosecutrix is adult and of full understanding the Court can base conviction on her evidence unless shown to be infirm or untrustworthy. In case the prosecutrix has no motive to falsely implicate the accused the Court should ordinarily have no hesitation in accepting her evidence." 24. In State of Punjab Versus Gurmail Singh (1996) (2) SCC 384, the Apex Court held as under: "In State of Maharashtra v. Chandraprakash Kewalchand Jain Ahamadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarized the position in the following words: (SCC p. 599, para 16). A prosecutrix of a sex confidence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court, must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which required it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any corroboration1. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix." 25. It may also be pointed out that while appreciating evidence such importance cannot be attached to minor discrepancies. The discrepancies which do not go to the root of the matter and shake and basic version of the witness needs not be given undue importance. It has to be born in mind that powers of observations differ from person to person and in majority of the cases people cannot accurately recall a conversation and reproduce the every word used or heard by them. Similarly a person cannot be ordinarily expected to recall the sequence of events which took place in rapid succession accurately but he can mix up the narration of the events when narrating the same at a later stage. The Court atmosphere is another factor which can lead to nervousness of a witness leading him to mix-up the facts. 26. In Bharwada Bhaginbhai Hirjibhai versus State of Gujarat (AIR 1983 SC 753), the Honble Supreme Court held as under: "5....Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious: 1. The Court atmosphere is another factor which can lead to nervousness of a witness leading him to mix-up the facts. 26. In Bharwada Bhaginbhai Hirjibhai versus State of Gujarat (AIR 1983 SC 753), the Honble Supreme Court held as under: "5....Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious: 1. By and large a witness cannot be expected to posses a photographic memory and to recall the details of an incident It is not as if a video tape is replayed on the mental screen. 2. Ordinarily it so happens that a witness is overtaken by events. The witness could not have been anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. 3. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one persons mind, whereas it might go unnoticed on the part of another. 4. By and large people cannot accurately recall a conversion and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. 5. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. 6. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. 7. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. 7. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. 6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. 7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar v. State of Rajasthan, (1952) 3 SCR 377 at p. 386: (AIR 1952 SC 54 at p. 57), has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court. "The rule, which according to the cases had hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge.......The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction f can be allowed to stand." 27. Similar view has been taken by the Apex Court in Appabhai and another versus State of Gujarat ( AIR 1988 SC 696). 28. There is no rule of practice that there must, in every case, be corroboration before a conviction f can be allowed to stand." 27. Similar view has been taken by the Apex Court in Appabhai and another versus State of Gujarat ( AIR 1988 SC 696). 28. It is in view of the above position in law that the rival contentions of the parties are required to be appreciated. 29. The prosecutrix (PW-1) has fully supported the prosecution version regarding her forcible removal by the accused in a jeep to the jungle and having subjected her to rape twice there inside the jeep and her having been threatened by him to do away with her life in case she raised any alarm. It is further in her evidence that she was taken to the Kotla In and was confined in the room and again subjected to rape by the accused. On the following morning at about 5 a.m. the accused left the place after bolting the door. It is also the version of the prosecutrix that it was at about 7 or 8 a.m. that she was freed from the room by a lady who had come to the spot on hearing the prosecutrix knocking the door of the room of the Inn. She has claimed that when she was dragged by the accused to the jeep and she tried to save herself from the accused she sustained injuries on her right leg and arm. The only discrepancy pointed out in her statement is that she was in possession of a Darati and attacked the accused and also tried to inflict injuries on him by her hands, nails and legs and the accused sustained injury whereas as the per the contents of MLC Ex. PW-16/A read with statement of PW-16, no external injury was found on his person and according to the learned counsel for the accused this medical evidence belies the statement of the prosecutrix. 30. It may be pointed out that the prosecutrix is nowhere shown to have admitted that while attacking/inflicting injuries to the accused with hands, nails, etc. she used the Darati as a weapon of offence nor she has stated that the injuries caused by her to the accused were of the nature which could be seen on examination of his person. It may be pointed out that the prosecutrix is nowhere shown to have admitted that while attacking/inflicting injuries to the accused with hands, nails, etc. she used the Darati as a weapon of offence nor she has stated that the injuries caused by her to the accused were of the nature which could be seen on examination of his person. Mere admission that the accused sustained injuries does not mean that some wounds, abrasions, contusions or other bleeding injury was caused to him. Therefore, non-finding of any injury on the person of the accused does not render the version of the prosecutrix regarding the resistance met out by her to the accused when he dragged her to the jeep as improbable. 31. It is specifically stated by her that when she was dragged to the vehicle by the accused she sustained injuries on her right leg and arm. A perusal of the MLC Ex. PW-17/A reveals that there were two injuries (abrasions) on the posterior aspect of right forearm and over right elbow of the prosecutrix. There were two injuries, i.e. a contusion and abrasions over her right leg. It was contended by the learned counsel for the accused that these injuries are of the duration of more than 24 hours, therefore, cannot be connected with the alleged dragging. As per the prosecutrix she was forcibly dragged by the accused to the jeep at about 3 p.m. on 27.4.2002 and she was medically examined on the next day at 7.15 p.m. and thus intervening period apparently is more than 24 hours. The findings of the aforesaid injuries on the person of the prosecutrix rules out the possibility of her having accompanied the accused of her own accord and willingness with a view to marry him or that the submitted to the accused of her own free will and consent/ 32. The willingness or consent by a woman for sexual intercourse must be free and without any fear or coercion. If she submits even without resistance to the sexual advances of a person because of fear or she is placed in a situation where she has no hope of being saved from being raped and keeps silent that does not mean that she was a willing or consenting party in the commission- of the sexual act. 33. If she submits even without resistance to the sexual advances of a person because of fear or she is placed in a situation where she has no hope of being saved from being raped and keeps silent that does not mean that she was a willing or consenting party in the commission- of the sexual act. 33. The finding of the injury on the fourchette of the prosecutrix is indicative of the use of violence against her while committing sexual intercourse with her. In case the prosecutrix aged more than 18 years at the relevant time was a consenting/willing party to the act of sex there was no occasion for use of force to commit the act of sex with her. Thus, it cannot be said that the prosecutrix with her own free will and consent had the sexual intercourse with the accused. 34. In case the prosecutrix was the consenting party to the act of sex there was no reason for the accused to bolt away from the Inn leaving the prosecutrix there confined in the room. Had the prosecutrix been a willing partner to the acts of the accused there was no reason why she should not wait for the accused in the house of DW-1, till the accused return and then went with him to solemnize the marriage. There is no reason as to why after having come to Bijjar the prosecutrix should start crying and narrating her tail of misery to the people who had gathered over there on hearing her cries. 35. The accused is his own statement under Section 313 of the Code of Criminal Procedure has nowhere claimed that the prosecutrix wanted to marry him or had willingly accompanies him to different places and had the sexual intercourse with him with her consent and of her free will. 36. PW-5 is the person with whom the accused was working as a driver. He has stated in his cross-examination that the accused remained a driver with him for about 1 !4 years upto 20.4.2002 and during this period the prosecutrix used to come to his house to meet the accused and also used to telephonically call the accused on his telephone. He has further stated that Saraswati used to told them that she wanted to marry the accused but her father was opposed to the marriage because of caste difference. He has further stated that Saraswati used to told them that she wanted to marry the accused but her father was opposed to the marriage because of caste difference. He has further sated that on 27.4.2002, the prosecutrix visited his house for the last time to know about the whereabouts of the accused when he informed her that the accused had left the job. He has further stated that the prosecutrix had told him that she had run away from her house in order to marry the accused and thereafter she left his house. Be it stated that this witness was examined only with a view to prove that his vehicle of which the accused was a driver was impounded by the police in connection with the case. In view of the aforesaid statement given by him in cross-examination, he was re-examined for the prosecution. The statement of this witness on the face of it is unreliable and unnatural. He was examined by the police during the course of the investigation but did not state the facts about the prosecutrix going to his house, telling him that she wanted to marry the accused or her arrival at his house on 27.4.2002 and informing that she had left her house in order to marry the accused. Even if so, in the ordinary course when it had come to his notice that the prosecutrix was eloping with the accused and was searching out for him this witness would have informed her parents. His claim that the accused had left his job on 20.4.2002 is also unreliable for the reason that he claims to have employed another driver in, place of the accused on 21.4.2002 but he is admittedly unaware of the parentage and address of such driver which is absolutely impossible to believe. Had his vehicle not been involved as a means of removing the prosecutrix from one place to another, he would have objected to its Impounding which he did not do. Had his vehicle not been involved as a means of removing the prosecutrix from one place to another, he would have objected to its Impounding which he did not do. Because the accused was his driver at the relevant time and his vehicle was involved in the removal of the prosecutrix, therefore, he has made a statement which comes to that his vehicle was not used for the removal of the prosecutrix and that the prosecutrix herself was willing to go with the accused which statement in the facts and circumstances of the case is not reliable and confidence inspiring. 37. Neelam Sharma (DW-1) has stated that on 28lfl of April two years before at about 7.45 a.m. she had gone for a morning walk with her dog, when she found the prosecutrix siting on the roadside in village Kotla. She enquired from the prosecutrix as to why she was sitting there and the prosecutrix informed her that she had run away from her village Jarol with a view to marry one Banti of village Tikkar. She has further stated that when she questioned the prosecutrix about Banti, the prosecutrix informed that he had gone for arranging money for performing g the marriage. She has further stated that the prosecutrix then came to her house and remained there till 12-1 p.m. took her bath, combed her hair and also took her lunch in her house alongwith her children. Thereafter, after connecting someone on telephone, the prosecutrix left her house in the normal manner without telling anything. According to the prosecution, this witness had unbolted the door of the Inn on hearing the cries and set the prosecutrix at liberty. The versions now given by this witness is quite unnatural for the reason that when she was specifically and definitely told by the prosecutrix that she had run from her village in order to marry one Banti the natural conduct of the witness would have been to find out her full particulars and, if possible, inform her parents and not to entertain an eloped girl at her house as she claims to have done. This witness was cited as a prosecution witness and was given up by the prosecution on 18/.9.2004 on the plea that she had been won over by the accused. This witness was cited as a prosecution witness and was given up by the prosecution on 18/.9.2004 on the plea that she had been won over by the accused. The reason assigned for not examining this witness by the prosecution seems to be quite probable in view of the aforesaid unnatural conduct of DW-1.Evidently, she has made the statement with a view to favour the accused. It is also her version that the prosecutrix was having nothing with her except the clothes she was wearing. In case it was a case of elopement, the prosecutrix could not be accepted to be empty handed which is another factor which discredits the version of DW-1 and lends credibility to the prosecution version that it was a case of the removal of the prosecutrix by the accused by use of force and subjecting her to rape. 38, DW-2 claims to be residing in Kotla Inn which admittedly has only one room for the last 20-25 years. He has further stated that on 27th day of a month two years back a girl had come to that Inn in summer season at about 7-7.30 a.m. He enquired the name and village of the girl, who informed him that she had come from village Jarol but he had forgotten her name, but claims that she was also called by the name of Kukki. He further states that she had told him that she had run away form her house in order to arranging the marriage with Banti, resident of Tikkar. He has further stated that the prosecutrix enquired from him about telephone facility and he informed her that it was available in the village and after her telephonic talk one Banti came in the Inn with the same girl in the evening and showed the intention to stay in the Inn and during night they stayed with him in the Inn, In the morning they left saying that they wanted to perform the marriage. The statement of this witness is also unreliable and unbelievable, it is the constant case of the prosecution that the prosecutrix had left her house for jungle to bring grass on 27th April, 2002 and before that she was in her village and there is no dispute about it even by way of suggestion. The statement of this witness is also unreliable and unbelievable, it is the constant case of the prosecution that the prosecutrix had left her house for jungle to bring grass on 27th April, 2002 and before that she was in her village and there is no dispute about it even by way of suggestion. Thus, there is no question of the prosecutrix having visited the Kotla Inn on that day at 7-7.30. Secondly, the evidence of this witness is also unnatural for the reason that once he had been informed by the prosecutrix that she had run away form her house in order to marry one Banti, in the ordinary course of human conduct, he could not have provided shelter to her but, on the contrary, he would have taken steps to inform her parents of the situation. It is also not believable that this man had been residing for 20-25 years in an Inn meant for the visitors which consists only one room and evidently not shown to be meant for him to reside in. The fact, however, remains that he has admitted the presence of the accused and the prosecutrix in the Inn on the night intervening 27 & 28th of April, 2002. Apart from this fact, he is making a statement deliberately and intentionally to support the accused whose father was admittedly known to him. 39. The statements of these witnesses, thus, are not confidence inspiring and reliable to support the contention that the prosecutrix was a consenting party to the act of sex, if any, committed by the accused with her. 40. Thew above discussion leads me to the conclusion that on the basis of the material on record it cannot be held that the prosecutrix was a consenting and willing party to the act of sex with her by the accused. The contention of the learned counsel for the accused to the contrary, therefore, cannot be upheld. 41. For the reasons stated herein above the conviction and sentences imposed to the accused under Sections 363 and 366, IPC cannot be sustained. The contention of the learned counsel for the accused to the contrary, therefore, cannot be upheld. 41. For the reasons stated herein above the conviction and sentences imposed to the accused under Sections 363 and 366, IPC cannot be sustained. Since there is nothing in the charge framed against the accused which might have put the accused to notice that it could be a case of abduction by sue of force against him, therefore, I refrain from examining whether the conviction of the accused under Section 363 and 366, IPC need to be converted into other penal provisions providing punishment for forcible removal of a woman from one place to another. The heads of charges under sections 342, 506 and 376, IPC, however, are fully proved, therefore, his conviction under these heads of charges calls for no interference. 42. As a result, this appeal is partly allowed and the conviction and sentences of the accused under section 363 and 366, IPC are set aside. However, his conviction and sentences under Sections 376, 342, and 506, IPC do not call for any interference and are, therefore, affirmed. 43. Appeal is disposed of in terms of the above orders.