Sorokhaibam Kikramaditya Singh v. State of Manipur
2007-01-25
B.D.AGARWAL
body2007
DigiLaw.ai
JUDGMENT B.D. Agarwal, J. 1. The doctor (the appellant herein) has been convicted for offences like abducting of a fellow doctor and subjecting her to sexual assault, etc. Hence, the appellant is hereby assailing the judgment and order dated 20.9.1993 passed by the learned Assistant Sessions. Judge, No. 1, Manipur East in Sessions Trial Case No. 9 of 1989. By this judgment, the learned trial Judge has convicted the appellant under Section. 376 read with Section. 511, 366 read with Section 34 and Section 327 of the Indian Penal Code ('IPC'). The appellant has been sentenced to undergo RI for one year for the offence of attempted rape 8 years S.I. with fine of Rs. 5,000 has been award1ed for the offence of abduction and 2 years S.I. has been awarded for the offence under Section 327, IPC. Being aggrieved with his conviction and sentence, the accused has preferred this appeal. 2. I have heard the arguments of Shri N. Kerani, learned senior counsel assisted by Mr. C. Samudragupta Singh for the appellant. I have also heard the arguments of Mr. R.S. Reisang, learned Addl. Public Prosecutor representing the State. I have also gone through the impugned judgment and oral and documentary evidence proffered by the prosecution and defence in the trial court. 3. The factual matrix in short compass is that in the year 1986, both the appellant and the victim girls were medical students at Regional Medical College, Imphal. The girl student used to attend here classes from home. On the particular day, i.e:, on 22.9.1986, at about 7.40 in the morning, the victim woman "SD" (full name withheld by me) was going to her college as usual on a motor bike (Luna). She was way laid by the appellant accompanied by a few other boys. The accused persons came in a jeep and forcibly lifted the victim girl in the said vehicle and took her to a nearby locality. It is also the prosecution case that the victim girl was forced to marry the appellant. It is also the case of the prosecution that the victim girl was taken to a house having inmates and in the said house, the appellant attempted to sexually molest her. However, the victim girl resisted her molestation and as such, the appellant did not succeed in the said attempt. 4. The alleged abduction was witnessed by few persons.
It is also the case of the prosecution that the victim girl was taken to a house having inmates and in the said house, the appellant attempted to sexually molest her. However, the victim girl resisted her molestation and as such, the appellant did not succeed in the said attempt. 4. The alleged abduction was witnessed by few persons. One of them, namely, Huidrorn Deven (PW No. 14) reported the incident to the father of the victim girl. Accordingly, the father of the girl went to Imphal Police Station and submitted a written FIR. This FIR has been registered as Imphal PS Case No. 941(9) 86 under Sections 366/341, IPC. (Ext. P/3). In the FIR, the name of the appellant was mentioned as the kidnapper. 5. On the basis of the FIR, the statement of independent and other witnesses were recorded and the Investigating Officer visited the spot and seized the motor bike and the belongings of the victim girl like notebooks, text books. Doctor's apron, Stethoscope and hand book, etc. On the very same day, at about 3.30 PM, the victim girl was rescued from the house of one Prava Devi along with the accused. The victim girl was forwarded to the hospital for her medical examination but it was not possible as the hospital was closed by that time. Hence, the victim was medically examined on the next day by Dr. L. Fimate, PW No. 6. The said Doctor was assisted by two other doctors. Similarly, the accused was also got examined by another government Doctor on 23.9.1986. As a part of investigation, the victim girl was also produced before a Judicial Magistrate who recorded her statement under Section 164, Cr.PC on 1.10.1986. After completing investigation, two accused persons were challaned. The present appellant was charged for the offences, for which he has been convicted whereas the co-accused, Khuraijam Shantikumar Singh was charged for the offence under Sections 366/327/34, IPC. It may be mentioned here that the co-accused was stated to be the driver of the jeep in which the victim girl was abducted. After the trial, the co-accused has been acquitted. 6. For smooth discussion of the evidence, it would also be just and proper to introduce the witnesses. PW Nos.
It may be mentioned here that the co-accused was stated to be the driver of the jeep in which the victim girl was abducted. After the trial, the co-accused has been acquitted. 6. For smooth discussion of the evidence, it would also be just and proper to introduce the witnesses. PW Nos. 1 and 2 are closely related to the appellant; PW No. 3 is the seizure witness from the P.O.; PW No. 4 is the owner of the jeep and he is also the elder brother of the acquitted accused; PW No. 5 is the father of the victim girl; PW Nos. 6 and 7 are the medical officers. PW No. 8 is the victim girl herself. PW No. 9 is the woman in whose house the victim girl was first taken, PW Nos. 10 and 11 were stated to have seen the incident on the road; PW No. 12 is the police constable; PW No. 13 is the Police Investigating Officer and PW No. 14 is the independent witness who had also witnessed the abduction. Out of these 14 witnesses, as many as 6(six) witnesses (PW Nos. 1, 2, 3, 9, 10 and 11) were declared hostile. PW 4 also did not support the prosecution version that his brother, the accused No. 2 had driven the offending vehicle. Out of the remaining 7(seven) witnesses, 4(four) witnesses are official witnesses and the remaining 3(three) witnesses are the victim girl, her father and one Deven Singh. The JMFC, who had recorded the statement of the victim girl under Section 164, Cr.PC, has been examined as court Witness. 7. On the other hand, the accused No. 1 also examined himself as DW No. 3. His father has been examined as DW No. 4. Two more witnesses were examined by the accused to prove that there was long intimacy in between the appellant and the victim girl and that they had voluntarily eloped in the month of June 1986. DWs 1 and 2 have also been examined to prove that on 22.9.1986, the appellant was not arrested from his house. In a nutshell, it is the defence case that the appellant the victim girl had voluntarily eloped on 23.6.1986 with an intention to marry each other, since this custom was prevailing in their society.
DWs 1 and 2 have also been examined to prove that on 22.9.1986, the appellant was not arrested from his house. In a nutshell, it is the defence case that the appellant the victim girl had voluntarily eloped on 23.6.1986 with an intention to marry each other, since this custom was prevailing in their society. It is also the defence case that when the parents of the girl were informed about their elopement and decision of marriage, they did not agree to the proposal. It is also the defence case that to prevent further eloping, a false case has been concocted. 8. The learned Trial Judge has held that the prosecution has established the offence of abduction and attempted rape by causing physical injuries. At the some time, the learned Trial Judge has rejected the theory of eloping and framing of a false case. 9. Before examining and appreciating the prosecution and defence evidence, it should be borne in mind that the crimes against women have to be scrutinized and dealt with sensitively. The reasons for giving this special attention in such matters have been lucidly underlined by the hon'ble Supreme Court of India in the case of State of Punjab v. Ramdev Singh (1996) 2 SCC 384 in the following words: Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman, i.e., her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. 10. Similarly, while appreciating the oral evidence of the witnesses, court should not start with a presumption that the victim girl/woman must have been a consenting party nor any adverse inference can be drawn on the ground that the victim woman was promiscuous in sexual behavior. We have to overcome with this stereotyping attitude. It is because myth and prejudices have no place in the justice delivery system.
We have to overcome with this stereotyping attitude. It is because myth and prejudices have no place in the justice delivery system. Rather it is now the established rule of law that conviction for offences like kidnapping and sexual assault can be recorded on the sole testimony of the victim girl alone, subject to it being wholly reliable. This legal principle was authoritatively pronounced in the case of Rafique v. State of U.P AIR 1981 SC 96 . The root of this legal principle has embedded firmly in the criminal justice system of India. It has been restated by the Apex Court in a catena of judgments, virtually making the said principle as a statutory law. 11. In the case of State of Punjab v. Gurmit Singh and Ors. (1996) 2 SCC 384 , the hon'ble Supreme Court has made these trend setting observations: The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable.
The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. 12. Prior to that, in the case of State of Maharashtra v. Chandraprakash Kewal Chand Jain (1990) 1 SCC 550 the law was laid down by the Apex Court in this way: A prosecutrix of a sex offence cannot be put on 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 leveled 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 requires it to look for corroboration.
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 requires 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. 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. 13. Keeping in mind the legal principles, laid down by the Apex Court, relating to appreciation of evidence in sexual offences, I now proceed to examine the merit of the appeal. 14. The victim girl has been examined as a PW8. She has narrated the entire story vividly leaving no scope to entertain any doubt that either she has falsely implicated the appellant for her abduction or that any third person was interested to kidnap the victim woman. According to the victim girl, she left home as usual at 7.40 am on her motor bike. Only after going a distance of 200/300 meters, she was way laid by 4-5 unknown persons. Thereafter, she was forcibly ragged inside the jeep and taken to the house of an unknown person. The victim has deposed that in the process of abduction, the accused persons put one plaster on her mouth and to resist her abduction and plastering, she bite the hands of the appellant twice. According to the victim girl, she had also raised alarm to rescue her but nobody could come to her help. The victim girl also made an identical request/plea to the inmates of the house. However, the appellant continued to insist her to give consent for marriage.
According to the victim girl, she had also raised alarm to rescue her but nobody could come to her help. The victim girl also made an identical request/plea to the inmates of the house. However, the appellant continued to insist her to give consent for marriage. When she declined to accept the proposal, the appellant pushed an injection making her unconscious. After some time, she was shifted in an adjacent house, where the appellant made an attempt to sexually molest her. However, the appellant did not succeed in his attempt because of the forcible resistance. 15. According to the victim girl, at about 3.30 PM, a police party rescued her and she was taken to the police station where she narrated the entire story to her father. The victim girl has also identified the seized articles marked as Annexures-MO/1 to 9. She has also admitted the fact of her giving statement under Section 164, Cr.PC. 16. In the cross-examination, the victim girl was given repeated suggestions that she had well-knit intimacy and affair with the appellant and that she had written several love letters. However, the victim girl denied these suggestions. The victim girl has also dismissed the defence version that on 23.6.1986, she had voluntarily eloped with the appellant with an intention to marry her and that they lived together in the house of one Veterinary doctor and had voluntary sexual intercourse. The defence has brought on record two letters and one joint photograph of the accused and the victim girl with their negatives, which have been marked as D/1 to D/4. 17. The victim's father has been examined as PW No. 5. This witness Has deposed that he was reported about the kidnapping of one Deven Singh. Thereafter, he rushed to the scene of incident and found that the motor bike of his daughter was lying on the road. Thereafter, he lodged an FIR at 10 AM. PW No. 5 has also spoken about recovery of his daughter and noticing injuries marks on the person of his daughter. 18. PW14 (Deven Singh) is the only independent witness who has corroborated the prosecution story of kidnapping/abduction. This witness has deposed that at the relevant time, he was returning from a place known as Lalambung Makhong and crossing the same by-lane on foot. Suddenly, he noticed the appellant and few other persons forcibly taking away the victim girl.
18. PW14 (Deven Singh) is the only independent witness who has corroborated the prosecution story of kidnapping/abduction. This witness has deposed that at the relevant time, he was returning from a place known as Lalambung Makhong and crossing the same by-lane on foot. Suddenly, he noticed the appellant and few other persons forcibly taking away the victim girl. The attention of this witness was drawn hearing the shouting of the victim girl for help. PW No. 14 has also deposed that he saw one person slapping the victim girl while dragging her inside the jeep. Thereafter, the witness went to the house of the victim's father and reported him about the kidnapping. 19. PW6 is the doctor who had examined the victim girl on 23.9.1986 and found as many as 21 numbers of injuries in the nature of bruises, abrasion, swelling and tenderness. The doctor has opined that the injuries indicate struggle or use of force. It may be mentioned here that the injuries found on the body of the girl includes three numbers of injection marks with defused swelling and tenderness. However, the pertinent finding of the doctor is that he did not notice any sign of recent sexual intercourse with the victim girl. The doctor also did not notice any sperm during pathological examination. 20. PW7 is another doctor who had examined the appellant. In his examination, the doctor had noticed lacerated injury on the proximal interphalangeal joint, and right index finger, abrasion on the elbow, scratch mark on the left arm and abrasion on the left side of abdomen. This doctor has categorically opined that the injury No. 1 could also be caused by human teeth, thereby corroborating the victim girl's version that she had bite the hands of the appellant while he was attempting to gag her mouth by way of plastering. 21. The remaining independent witnesses have not supported the prosecution story and most of them have been declared hostile. Although it is not the rule of evidence that testimonies of such witnesses have no evidentiary value. However, I do not feel it necessary to discuss the evidence of hostile witnesses, since the prosecution version finds corroboration from a series of circumstantial evidence and also from the evidence of PW14. 22.
Although it is not the rule of evidence that testimonies of such witnesses have no evidentiary value. However, I do not feel it necessary to discuss the evidence of hostile witnesses, since the prosecution version finds corroboration from a series of circumstantial evidence and also from the evidence of PW14. 22. After going through the impugned judgment, I find that the Trial Judge has rejected the defence story of previous eloping on 23.6.1986 on the ground that the accused did not examine the person in whose house they had taken shelter. In my considered opinion, rejecting the defence story on such technical ground was not proper. The learned Judge has not given any cogent explanation as to why the testimonies of DWs 1 and 2 cannot be accepted. These two persons are independent witnesses from the locality and have spoken about previous eloping. I find from the record that in the cross-examination, the victim girl reacted sharply when the learned defence counsel produced love letters. On two occasions, she became excited and grabbed the letters and torn it in pieces. Some how, two letters could be assembled but other letters became unmanageable to assemble. This reaction of the victim girl is suggestive of her previous affair with the appellant. Otherwise, there would have been no reason to destroy the letters by a well educated witness. 23. The defence case of affairs, with the appellant could also be inferred from the fact that during the medical examination of the victim girl the doctor had noted that her hymen was torn and vagina was admitting three fingers. The doctor has opined that the victim girl was accustomed to sexual intercourse. Since the victim girl was a colleague of the appellant, the possibility of developing intimacy and affair cannot be totally ruled out. Besides this, the father of the victim girl has also stated that few months earlier to the present incident, the appellant had also attempted to outrage the modesty of his daughter. For the earlier incident also, an FIR was lodged which was registered as Lamphel police Station case No. 267(7)/86 Section 354/323, IPC. This fact is also suggestive of some sort of affairs between the appellant and the victim girl. 24. In my considered opinion, the defence case of affair do not help them in any way. Rather, it will be a negative factor to the appellant.
This fact is also suggestive of some sort of affairs between the appellant and the victim girl. 24. In my considered opinion, the defence case of affair do not help them in any way. Rather, it will be a negative factor to the appellant. I say so because the fact of being a colleague and having close intimacy and affair with the victim girl, would be a motive to get the victim girl for the entire life as a wife. When it was not possible in the month of June 1986, or prior to that, the girl was forcibly taken away in the month of September 1986. 25. It appears to me that the learned Counsel for the appellant wants to derive a point that because of affair and previous eloping against the will of victim's parents, a false case has been concocted. This submission cannot be accepted because of long gap between the alleged elopement in the month of June and abduction in the month of September. The defence case of false implication and concoction of a case of abduction is also belied from the fact that a large number of personal belongings of the girl were recovered from the road soon after the abduction. In my considered opinion, an adult girl and a medical student is not likely to carry items like stethoscope, notebooks, medical books if there was any decision to elope with the accused. Besides this, had it been a case of voluntary elopement, the victim girl would not have left behind her hand bag on the road. 26. The above apart, the doctor (PW7) had also noticed bite marks on the hand of the appellant and others injuries on the person. According to the accused/appellant, he had received these injuries in the police station, while resisting his detention, it is difficult to believe that a medical student would resist his detention so violently. Be that as it may, the appellant has stated in his oral deposition that he was not examined by Dr. L. Robin Singh (PW7). However, while cross-examining the said doctor, no suggestion was given to him that he has issued a false medical certificate without examining him.
Be that as it may, the appellant has stated in his oral deposition that he was not examined by Dr. L. Robin Singh (PW7). However, while cross-examining the said doctor, no suggestion was given to him that he has issued a false medical certificate without examining him. If the appellant had, in fact, received the injuries in the struggle at the police station, he must have been examined by a doctor and the accused must have summoned the said doctor to prove his injuries. However, this was also not done by the accused. Hence, I find no difficulty to accept the findings of the lower court that the accused has taken this plea falsely. 27. In the cross-examination, the accused/appellant was given a suggestion that a General Body meeting of Students Council of RMC was held on 25.9.1986 and a resolution was adopted condemning his action in kidnapping the victim girl, which was denied. However, the appellant has admitted that he was rusticated from the college for 5 years on the ground of gross indiscipline within the college premises and the said order was issued on 19.1.1987. This admission is no doubt followed an explanation from the accused that subsequently, the said order was revoked by the High Court. Revocation is the order is a different matter. It may be on technical grounds. However, the fact remains that the appellant was rusticated from the college and this must have been done after administrative inquiry. Since this fact has direct nexus with the incident, the same is also taken as a corroborative evidence of the involvement of the accused in the abduction. 28. Shri N. Kerani, learned senior counsel for the appellant submitted that to bring home the offence within the mischief of Section 366, IPC, the prosecution must prove the intention of kidnappings. The learned senior counsel relied upon the ruling of Supreme Court given in the case of Chote Lal and Anr. v. State of Haryana AIR 1979 SC 1494 . There is no scope to distinguish the legal principle. In the case before me, there are ample evidence that the appellant always intended to marry the victim girl. Rather it was also the defence during the trial. Hence, the motive of abduction is also on record and this fulfills the criteria of offence under Section 366, IPC. 29.
There is no scope to distinguish the legal principle. In the case before me, there are ample evidence that the appellant always intended to marry the victim girl. Rather it was also the defence during the trial. Hence, the motive of abduction is also on record and this fulfills the criteria of offence under Section 366, IPC. 29. The learned Counsel for the appellant also submitted that the victim's evidence must be corroborated by other evidence. This submission was made on the basis of the judgment of Apex Court in the case of Ram Murti v. State of Haryana AIR 1970 SC 1029 . This case is distinguishable on facts. In the cited case, there was serious dispute regarding the age of the victim girl. Besides this, the corroboration was necessary since there was divergent statement in the testimony of the prosecutrix. The evidence of the prosecutrix was suggestive of consent for sexual intercourse. However, in the case at hand, there are ample evidence that the victim girl was forcibly taken away while she was on way to her college. I reiterate that her past intimacy and affair with the appellant is no ground to take a view that she must have been a consenting party to elope with the accused on the relevant day also. In the case of Ramdev (supra), the Apex Court has held that past conduct of a woman is not a criteria to decide the offence in the following words: Even if the victim in a given case has been promiscuous in her sexual behavior earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. 30. The same view was also taken in the case of Gurmit Singh (supra). It is worth noting here that law relating to sexual assault even during the subsistence of marital relationship is taking a new shape. In the celebrated case of R. v. R. (1991) 2 All ER the hon'ble Judges of the House of Lords (England) have laid down a trend-setting law holding that even if a husband forces her wife to have sexual intercourse against her will he is not immune from being prosecuted for the offence of rape. According to their Lordships there is no exemption from marital rape.
According to their Lordships there is no exemption from marital rape. In other words, their lordships have held that a wife has a right to say no to her husband for co-habitation. On the same analogy it can also be said that a person, assuming to be a prosecutive husband, has no right to abduct a woman for entering into a marital relation. 31. In the present case. I find that the appellant was demonstrating his male prowess that the victim girl must submit to him and satisfy his dream of getting her as his wife. To uphold the dignity of women no act of male chauvinism can be condoned by the judiciary. Hence, the act of the appellant cannot be approved under any circumstances. 32. Shri N. Kerani, learned senior counsel for the appellant also submitted that since the victim girl herself has denied that she was examined by Dr. L. Fimate (PW6), the said medical evidence should be left out of consideration. In my considered opinion, this submission has no merit. It appears to me that the victim girl must have denied her medical examination because there was a finding of her being a sexually lascivious woman. In the case of M.K. Antony v. State of U.P AIR 1985 SC 48 , the hon'ble. Supreme Court has held that the testimony of witnesses should be examined as a whole and not on piece meal basis. Their lordships have further held that discrepancies, not touching the root of the case should be ignored and every attempt should be made to find out the truth. The guiding observations are extracted below: 10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth.
The guiding observations are extracted below: 10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief, minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in a matter of trivial details even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. 33. The learned Addl. P.P. has also submitted that minor discrepancies in the evidence of the witnesses can be ignored. To substantiate this submission, the learned Counsel has cited the judgment of the Apex Court given in the case of Sukh Dev Yadav and Ors. v. State of Bihar (2001) 8 SCC 86 . In this case, their lordships have observed that it is now well-settled that the court can sift the chaff from the grain and find out from the actual testimony of the witnesses. Accordingly, I am not prepared to attach much importance to the denial of the victim girl about her medical examination by a team of doctors of her own college. 34.
Accordingly, I am not prepared to attach much importance to the denial of the victim girl about her medical examination by a team of doctors of her own college. 34. Above all, the prosecution story of abduction has also been corroborated by PW14, who is an independent and disinterested witness. This witness has not given any distorted or exaggerated testimony. No suggestion was also given to this witness that he has taken part in the case with any ill motive. Hence, this witness has rightly been considered as an eye witness of the incident by the trial court. 35. After surveying the entire evidence on record, I find no difficulty to concur with the findings of the trial court that the appellant had abducted the victim girl with assistance of a few other persons with an intention to compel her to marry the accused. Accordingly, the conviction of the appellant under Section 366 read with Section 34 of the IPC is hereby maintained. 36. Regarding the conviction under Section 376 read with Section 511 of the IPC, I find that the victim girl has not given satisfactory evidence as to how the attempt of rape was made. I also find from the testimony of the victim girl that tranquilizer was injected and for sufficiently long period she became unconscious. Had the appellant any intention to rape her, he could have easily done so in such a state of unconsciousness. It is also unbelievable that in a state of semi-consciousness, the victim girl would have been able to resist the attempt of rape. Hence, the conviction of the appellant on this count is her by set aside. 37. As stated earlier, the appellant has also been convicted under Section 327, IPC. After going through the entire evidence on record, it appears to me that the victim girl was not assaulted to extort any property or to compel the victim girl to do any illegal act. In my opinion, the physical injuries sustained by the victim girl were a part of her abduction. In other words, this offence merges with the primary conviction under Section 366, IPC. As a corollary, no separate conviction, under Section 327, IPC is necessary. It is accordingly set aside. 38. Sentence now I shall turn to the quantum of sentence. As noted earlier the trial court has imposed 8 years S.I. and fine of Rs.
In other words, this offence merges with the primary conviction under Section 366, IPC. As a corollary, no separate conviction, under Section 327, IPC is necessary. It is accordingly set aside. 38. Sentence now I shall turn to the quantum of sentence. As noted earlier the trial court has imposed 8 years S.I. and fine of Rs. 5,000 with default sentence of S.I. for one year for appellant's conviction under Section 366, IPC. 39. In fact the proportionality of sentence was already heard in advance on 11.1.2007, when the learned Counsel for the appellant had raised a technical objection about the procedure of sentence hearing adopted by the trial court. The objection was over-ruled with a speaking order. On that day, Shri Kerani, learned Counsel for the appellant had submitted that one of the grounds for imposing higher punishment was that the chances of marriage of the victim had reduced due to rape stigma. However, in the meantime the victim girl has become a doctor and she has also married. At the same time, the convict has also married another woman and having children. 40. Having regard to the above developments, which can be considered as mitigating factors for interfering with the sentence, I hereby reduce the substantive sentence to 2(two) years S.I. Fine amount with default sentence is maintained. Period of custody, if any, undergone by the appellant during investigation or trial shall be set-off under Section 428, Cr.PC. 41. The appellant is directed to surrender in the trial court within a period of two weeks from today. 42. Appeal stands dismissed with the aforesaid modification in the sentence. 43. Send down the LC record forthwith with a copy of this judgment. Appeal dismissed.