JUDGMENT Mr. Kanwaljit Singh Ahluwalia, J.: (Oral).:- Present appeal has been preferred by Rajesh Kumar. He was convicted by the Court of Additional Sessions Judge, Sangrur vide its impugned judgment dated 11th September, 2002 for offences punishable under Sections 376/342/506 IPC and vide a separate order of even date, the appellant was sentenced as under: “ Name of offence Sentence u/s 376 IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months. u/s 342 IPC To undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month. u/s 506 IPC To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months.” 2. All the sentences were ordered to run concurrently. 3. The appellant, along with his friend Satnam Singh and parents, namely Yog Raj and Darshana Devi, was named as an accused in case FIR No.73 dated 07.09.1995 registered at Police Station Lehra under Sections 366/376/342/506/120-B/34 IPC. The trial Court acquitted Satnam Singh and parents of the appellant, namely Yog Raj and Darshana Devi. 4. Sukhwinder Kaur, mother of the prosecutrix (name of prosecutrix withheld to protect her identity), got recorded a daily diary report No.17 of 21.08.1995 at Police Station City Lehra in district Sangrur. This DDR has been exhibited as Ex.PF. It was stated therein that Sukhwinder Kaur, along with her sister Balbir Kaur wife of Ranjit Singh, Darshan Singh son of Bant Singh and Ranjit Singh son of Ishar Singh, residents of Lehra, arrived at Police Post and gave an information that her daughter (prosecutrix) aged between 20-25 years, was married with Paramjit Singh son of Bant Singh, resident of Bakshiwala, Police Station Bareta about two years before. The prosecutrix along with Balbir Kaur, the real sister of complainant, had gone to watch Teian fair. Prosecutrix had left the house on 6th August, 1995 on her own accord without any consent. The complainant had been searching at various places where relations and acquaintances were residing, but the prosecutrix was not found. The prosecutrix along with Balbir Kaur, the real sister of complainant, had gone to watch Teian fair. Prosecutrix had left the house on 6th August, 1995 on her own accord without any consent. The complainant had been searching at various places where relations and acquaintances were residing, but the prosecutrix was not found. It was further stated that the complainant learnt and had a suspicion that her daughter had temporarily left with Rajesh Kumar son of Yog Raj resident of Lehra, who was employed in a Bank at Karanpur (Rajasthan). It was stated that Yog Raj, father of Rajesh Kumar was also aware of this incident. 5. Subsequently, the prosecutrix on 7th September, 1995 got recorded her statement Ex.PC to Ajit Singh ASI Police Station City Lehra. She disclosed her age to be 21 years and stated that two-and-a-half years ago she was married with Paramjit Singh son of Bant Singh. After some time of the marriage, her relations with her husband became strained and she started residing at her parental house. In one room of the house, Rajesh Kumar son of Yog Raj, resident of Lehra was residing as a tenant. He was employed in State Bank of India at Karanpur. Rajesh Kumar used to keep an evil eye on her. One Satnam Singh, who was also working in the same Bank, also used to visit Rajesh Kumar. They both had taken her photographs. Many times she demanded back her photographs, but they stated that the same shall be published in the newspaper. Thereafter, the prosecutrix had gone to the house of her husband. In the month of August, she accompanied by her maternal aunt Balbir Kaur, went to watch Teian fair. On 6th August, 1995, Rajesh Kumar came to the house of her maternal aunt. At that time, prosecutrix was alone in the house. Rajesh Kumar told that her mother was not well and she has sent him to bring the prosecutrix. The prosecutrix accompanied Rajesh Kumar, who took her to his house at Lehra, where his father Yog Raj and mother were present. They told the prosecutrix to go in the morning, as it had become too late. Rajesh Kumar threatened her to spend night in his house, otherwise he would expose her photographs to the general public and defame her. The prosecutrix accompanied Rajesh Kumar, who took her to his house at Lehra, where his father Yog Raj and mother were present. They told the prosecutrix to go in the morning, as it had become too late. Rajesh Kumar threatened her to spend night in his house, otherwise he would expose her photographs to the general public and defame her. That night, both of them slept in one room and Rajesh Kumar committed rape with the prosecutrix without her consent. On 7th August, 1995, appellant Rajesh Kumar and prosecutrix boarded a bus for Sunam from bus stand Lehra. Thereafter, Rajesh Kumar took the prosecutrix to Chaman hotel at Hanumangarh and Amandeep hotel at Ganganagar and kept her there. They used to give wrong particulars and wrong name of the prosecutrix to the hotel staff. Thereafter, they took a room on rent at Dabhwali, wherefrom Rajesh Kumar used to go to attend his duty in the morning and return in the evening. During this period, rape was committed upon the prosecutrix. Being fed-up, the prosecutrix returned to her parental house. Rajesh Kumar and Satnam Singh came there and told that a case had been registered against the prosecutrix for running away from the house and she should accompany them to the Police Station. The prosecutrix accompanied them to the Police Station, where under duress her signatures were obtained on certain papers. Even thereafter, Rajesh Kumar and Satnam Singh continued to threaten the prosecutrix and her parents that in case any action is initiated, they would be liquidated. Left with no other option, the prosecutrix along with her parents, was going to report the matter, when the Investigating Officer met her. It was stated that Rajesh Kumar in connivance with his father Yog Raj, mother and one Satnam Singh, has exploited her and committed rape upon her forcibly. 6. From a perusal of DDR Ex.PF recorded at the instance of mother of the prosecutrix and the statement Ex.PC made by the prosecutrix, following facts emerge: (1) The prosecutrix, who was married for two-and-a-half years, left with accused at her own accord on 6th August, 1995. (2) The DDR was lodged after 15 days, i.e. 21st August, 1995, by mother of the prosecutrix. (3) A month later, on 7th September, 1995, the prosecutrix made a statement Ex.PC, on the basis of which formal FIR Ex.PC/1 was registered. (2) The DDR was lodged after 15 days, i.e. 21st August, 1995, by mother of the prosecutrix. (3) A month later, on 7th September, 1995, the prosecutrix made a statement Ex.PC, on the basis of which formal FIR Ex.PC/1 was registered. (4) In the statement Ex.PC, it is stated that the prosecutrix accompanied the accused to Hanumangarh and Ganganagar, where they stayed in hotels and subsequently, they took a room on rent at Dabhwali, where the prosecutrix resided along with the accused-appellant and he used to go to attend his duty in the morning and return in the evening. (5) The prosecutrix was aged more than 20 years. In the context of above noted facts, evidence led by the prosecution can be briefly noticed as under: 7. Prosecutrix was medico legally examined by Dr.Harwinder Kaur PW-1 on 11th September, 1995 at about 1.30 p.m. No external or internal mark of injury was found on the hymen of the prosecutrix and her vagina admitted two fingers easily. 8. The prosecutrix appeared as PW-2 and stated that she was married with Paramjit Singh in the year 1993. After her marriage, she went to her parental house at Karanpur, District Ganganagar, Rajasthan, where Rajesh Kumar was a tenant in a portion of the house. He was employed in State Bank of India at Karanpur. The prosecutrix stayed in her parental house for a period of about one year and nothing unusual was done to her by the accused. But she stated that Rajesh Kumar and Satnam Singh had taken her photographs. Thereafter, the prosecutrix returned to the house of her in-laws in village Bakshiwala. In the month of August, 1995 on the occasion of Teej, Rajesh Kumar accused came to the house of maternal aunt (mother’s sister) of the prosecutrix at Lehra, where the prosecutrix had gone to meet her. She was alone at that time. Rajesh Kumar told her that her mother was seriously ill and she had been called, upon which the prosecutrix accompanied the accused. Rajesh Kumar took her to his house at Lehra, where parents of Rajesh Kumar told that since night had fallen, she could not reach at Karanpur and she should stay at their house. Rajesh Kumar told that in case she would not stay in their house, he would defame her by showing her photographs. Rajesh Kumar took her to his house at Lehra, where parents of Rajesh Kumar told that since night had fallen, she could not reach at Karanpur and she should stay at their house. Rajesh Kumar told that in case she would not stay in their house, he would defame her by showing her photographs. Due to the threats given by the accused and his parents, she stayed with Rajesh Kumar at night. There, in the night Rajesh Kumar committed the wrong act. On 7th August, 1995, she along with the accused, boarded a bus from Lehra to Sunam, wherefrom Rajesh Kumar took her to Chaman hotel at Hanumangarh and Amandeep hotel at Ganganagar. In all the hotels, wrong name and particulars of the prosecutrix were given. Subsequently, they took a room on rent at Dabhwali. Rajesh Kumar used to go to attend his duty in the morning and return in the evening. At Dabhwali, the accused committed sexual intercourse with her without her consent. Thereafter, she left Rajesh Kumar and went to the house of her parents at Karanpur, where Rajesh Kumar and Satnam Singh arrived. They took her to the Police Station, saying that a criminal case had been registered against her for illegally leaving the house. Under their pressure and threat, her signatures were obtained on certain papers. 9. In cross-examination, the prosecutrix stated that she had passed seventh class and knew Hindi and Punjabi. She had strained relations with her husband and therefore, she left him and started residing with her parents. On the advice of her father, she again started living with her husband Paramjit Singh. She further stated that accused took her photographs to blackmail her and the said photographs were taken at Karanpur in some studio, named Laxmi Studio. She further deposed that the photographs, which were taken by the accused, were normal and there was nothing indecent in them. She further stated that at the bus stand, a number of people were present and in the bus, other passengers were also traveling including a lady. She further testified that she stayed in Amandeep hotel at Ganganagar and the hotel was in front of the Police Station. She also admitted her signatures on Ex.DA to state that these signatures were taken on blank papers at Police Station Karanpur. She also admitted her signatures in the entry Ex.DB dated 7th August, 1995. 10. She further testified that she stayed in Amandeep hotel at Ganganagar and the hotel was in front of the Police Station. She also admitted her signatures on Ex.DA to state that these signatures were taken on blank papers at Police Station Karanpur. She also admitted her signatures in the entry Ex.DB dated 7th August, 1995. 10. Inder Singh PW-3 had not supported the prosecution case and was declared hostile. He was recalled for cross-examination, wherein he stated that name of the accused was Rajesh Kumar. This witness was to be examined to say that when prosecutrix left her house, a noise was raised by Balbir Kaur and he had informed her that the prosecutrix had left with accused Rajesh Kumar. 11. Vijay Kumar PW-4 was Manager of Chaman Hotel at Hanumangarh. He stated that a lady alone stayed in the hotel, on the name of Alisha and she had taken a room from 9th August, 1995 to 10th August, 1995. The lady referred was none else, but the prosecutrix. 12. Balbir Kaur PW-5 stated that the prosecutrix is her niece, who had come to meet her. On 6th August, 1995, this witness had gone to the bazaar for purchase of grocery. When she came back, the prosecutrix was missing. On enquiry, it was learnt that she had gone with Rajesh Kumar, who was working in a Bank. This witness further stated that Rajesh Kumar was known to the prosecutrix from childhood. 13. Mohinder Singh, father of the prosecutrix, appeared as PW-6. He stated that Rajesh Kumar was residing in their house as a tenant. He further stated that his daughter had visited the house of his wife’s sister, Balbir Kaur, where she was found missing. After 15-16 days, the prosecutrix returned to their house. This witness further stated “I do not know whether my daughter was taken with her consent or without her consent”. In cross-examination, this witness gave the age of his daughter as 21 years. 14. Neeraj Kumar, Manager of Akashdeep Hotel at Ganganagar, appeared as PW-7 and stated that one Rajinder Kakkar along with his wife had checked in the hotel on 10th August, 1995 and left the hotel on 11th August, 1995. He had not identified the accused and was declared hostile. 15. Ajit Singh PW-8 proved DDR Ex.PF and recording of statement of the prosecutrix as Ex.PC and registration of the formal FIR Ex.PC/1. He had not identified the accused and was declared hostile. 15. Ajit Singh PW-8 proved DDR Ex.PF and recording of statement of the prosecutrix as Ex.PC and registration of the formal FIR Ex.PC/1. He also deposed regarding various facets of the investigation. 16. HC Daljit Singh PW-9 and Constable Balwinder Singh PW-10 tendered their affidavits Ex.PM and Ex.PW-10/A to prove link evidence. 17. S.P. Bangarh, who was then posted as Sub Divisional Judicial Magistrate, Sunam, appeared as PW-11 to prove the statement of the prosecutrix recorded under Section 164 Cr.P.C. This statement was exhibited as Ex.PD. 18. Thereafter, prosecution closed its evidence and a statement of the accused appellant was recorded under Section 313 Cr.P.C. He denied all the incriminating circumstances put to him and pleaded innocence. He further stated that he has been falsely implicated. 19. Krishan Lal DW-1 stated that Rajesh Kumar was his tenant at Karanpur. Pankaj Desmukh, Branch Manager of State Bank of India, Bhartpur appeared as DW-2 and stated that in the month of August 1995, he was posted as Branch Manager, State Bank of India, Karanpur. He stated that during the period when the prosecutrix was raped, the accused remained present in the Bank and attended the duty. 20. MHC Sukhwinder Singh DW-3 proved DDR No.17 dated 21st August, 1995; DDR No.10 dated 24th August, 1995 and DDR No.14 dated 25th August, 1995 registered at Police Station City Lehra, as Ex.DW3/A, Ex.DW3/B and Ex.DW3/C respectively. 21. Bhagwan Singh, appearing as DW-4, stated that the prosecutrix was his niece. He further stated that for some time, the prosecutrix was missing. According to counsel for the defence, this witness is not reliable. 22. Photographs, to which a reference has been made by the prosecutrix, were not recovered by the Investigating Agency. 23. The trial Court, after appreciating the evidence, has given findings, which go in favour of the accused. Since this Court will be picking up the thread from the findings already returned by the trial Court, therefore, it will be necessary to reproduce the same as under: “24. It is admitted fact that on 6-8-1995 accused Rajesh Kumar and Satnam Singh were working in State Bank of India, Branch Karanpur. From the statements of PW-2 and PW-6, it is evident that accused Rajesh Kumar took one room on rent from the father of (prosecutrix) at Karanpur. It is admitted fact that on 6-8-1995 accused Rajesh Kumar and Satnam Singh were working in State Bank of India, Branch Karanpur. From the statements of PW-2 and PW-6, it is evident that accused Rajesh Kumar took one room on rent from the father of (prosecutrix) at Karanpur. It is also the admitted case of the prosecution that (prosecutrix) was married with Paramjit Singh, resident of village Bakshiwala but she had got strained relations with him and that even after marriage, she was residing with her parents at Karanpur. It is also the case of the prosecution that Balbir Kaur, real sister of mother of (prosecutrix) was residing at Lehra and the parents of Rajesh Kumar were also residing at Lehra. There is also evidence on the record that Rajesh Kumar accused used to take messages from the house of Mohinder Singh at Karanpur, to the house of Balbir Kaur at Lehra. Also, PW-2 deposed that the accused took away her photographs from the house of her parents. Thus, this Court is of the view that even before the occurrence, there was some intimacy between accused Rajesh Kumar and (prosecutrix). XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 26. … … … As per the prosecution version, on 7-8- 1995, accused Rajesh Kumar took (prosecutrix) to bus stand, Lehra, from where they boarded the bus. It is evident that while on the way to bus stand, Lehra, and even on reaching bus stand, Lehra, or while sitting in the bus, (prosecutrix) had not raised any alarm or hue and cry. It is highly improbable that a married woman, who was raped by her abductor on her previous night, would remain silent and not raise alarm, when she was taken to some public place on the very next day. It means that till 7-8-1995 (prosecutrix) was consenting party and she left her house of her own. In this case, the Investigating Officer, while appearing into the witness box as PW-8, proved DDR dated 21-8-1995, which was got recorded by the mother of the prosecutrix, and the copy of the same is Ex.PF. As per Ex.PF, Sukhwinder Kaur got recorded statement before the police of Police Station, Lehra, that (prosecutrix) her daughter, left the house on 6-8- 1995 of her own, along with Rajesh Kumar son of Yog Raj. As per Ex.PF, Sukhwinder Kaur got recorded statement before the police of Police Station, Lehra, that (prosecutrix) her daughter, left the house on 6-8- 1995 of her own, along with Rajesh Kumar son of Yog Raj. So, in these circumstances, it is fully proved on the record that (prosecutrix) left the house of her Aunt on 6-8-1995 of her own sweet will. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 29. … … … This Court has already held that on 6.8.95 (prosecutrix) left of her own with accused Rajesh Kumar from the house of her aunt. PW-2 (prosecutrix) stated on oath that subsequently Rajesh Kumar took her to different places like Hanumangarh, Ganganagar and Dabwali, and that during the said period Rajesh Kumar committed rape on her person without her consent. Even if (prosecutrix) accompanied Rajesh Kumar of her own on 6 and 7 August, 1995, that does not mean that accused Rajesh Kumar had got right to commit sexual intercourse with her without her consent. In the present case, there is every possibility that on the first 3-4 days of the occurrence, (prosecutrix) may have consented to have sexual intercourse with Rajesh Kumar, but thereafter she might have refused to submit herself to have sexual intercourse with Rajesh Kumar, after being fed-up with the conduct of accused Rajesh Kumar. This fact is also established from the perusal of statement of PW-2 (prosecutrix) who stated on oath that accused Rajesh Kumar committed sexual intercourse with her without her consent. This part of the statement of PW-2 (prosecutrix) does not require any corroboration and has to be believed. Merely because no injury was found on the person of (prosecutrix) at the time of her medical examination, does not mean that she was not raped… … …” 24. The trial Court has held that (a) there has been a previous intimacy between the prosecutrix and the accused; (b) the prosecutrix left with the accused at her own accord; (c) sexual intercourse performed between the accused and the prosecutrix at Lehra, Hanumangarh and Ganganagar was with the consent of the prosecutrix; and (d) the sexual intercourse performed by the accused with the prosecutrix at Dabhwali was without her consent. 25. 25. The last finding of the trial Court cannot be accepted, as it has come in the evidence that accused had taken a room on rent at Dabhwali, where the prosecutrix stayed with him. In the morning, the accused used to attend his duty in the Bank and return in the evening. It has also come in the evidence of Pankaj Desmukh, Branch Manager of State Bank of India DW-2 that during the period when the prosecutrix and accused stayed at Dabhwali, accused regularly attended the Bank. If it is so, that the accused used to leave his room to attend his duty, there was sufficient occasion and time for the prosecutrix to leave Dabhwali and go to her parental house, which she eventually did on 7th September, 1995. The mere assertion of the prosecutrix that at Dabhwali she was raped, is of no significance, as it has already been held by the trial Court that at Lehra, Hanumangarh and Ganganagar, sexual intercourse performed between the accused and the prosecutrix was with consent. Therefore, this part of the findings returned by the trial Court that at Dabhwali, sexual intercourse performed upon the prosecutrix was without her consent, cannot be accepted, being improbable, unnatural and unconvincing. 26. Hence, this Court, while affirming the findings of the trial Court, also holds that the prosecutrix being a grown-up lady of 21 years of age, remained in the company of accused for sufficient long period, they traveled in public transport and visited various places, they stayed in hotels at two cities, took a room on rent, lived there; thus it can be safely held that prosecutrix was a consenting party to the sexual intercourse and thus, no offence of rape has been committed by the appellant. Therefore, present appeal is accepted. Conviction and sentence awarded to the appellant are set aside and he is acquitted of the charges. --------------------