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2013 DIGILAW 435 (UTT)

State of Uttaranchal v. Jai Prakash Rastogi

2013-07-03

SUDHANSHU DHULIA

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JUDGMENT SUDHANSHU DHULIA, J. 1. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of IPC. By an amendment in the I.P.C. Section 228-A has been inserted vide Act No. 43 of 1983, which bars the disclosure of the identity of the prosecutrix by publication and in fact it makes it an offence. Although, printing and publication in a law journal is not included in the definition of printing and publication in the above provision for which there are several pronouncements by the Hon'ble Supreme Court, yet, purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the alleged victim is only addressed here as the prosecutrix. 2. At the initial stage when this case had come up for final hearing, there was no one to represent the accused. Therefore, this Court appointed Mr. R.C. Tamta a practicing advocate of this Court as amicus curiae who took further time to prepare the matter on more than one occasion. Thereafter, purely in the interest of justice, this Court appointed another amicus curiae who is also a practicing advocate of this Court Mr. J.S. Virk, and both Mr. R.C. Tamta and Mr. J.S. Virk requested adjournment in the matter. Sri J.S. Virk again took time to prepare the matter and the matter was adjourned again. Finally this court was informed that one of the accused Mr. Shashi Kant Sharma has now engaged a private counsel i.e. Sri Lokendra Dobhal, Advocate in the matter, hence Mr. Lokendra Dobhal was given further time to prepare the matter. Mr. R.C. Tamta and Mr. J.S. Virk, amicus curiae continued to assist the Court on behalf of remaining accused namely Mr. Jai Prakash Rastogi. The matter is now being heard finally. 3. Heard parties at length. Heard Mr. Hari Om Bhakuni, Brief Holder for the State, Mr. Lokendra Dobhal, Advocate for respondent/accused No. 2 and Mr. R.C. Tamta and Mr. J.S. Virk, Amicus Curiae for respondent No. 1. 4. The present appeal arises out of the judgment and order dated 2.2.2002 passed by the learned Sessions Judge, Dehradun in Sessions Trial No. 123 of 1997, whereby the respondents/accused, who were charged under Sections 366 read with Section 34, 376 (g) and 342 IPC, have been acquitted of all the charges. J.S. Virk, Amicus Curiae for respondent No. 1. 4. The present appeal arises out of the judgment and order dated 2.2.2002 passed by the learned Sessions Judge, Dehradun in Sessions Trial No. 123 of 1997, whereby the respondents/accused, who were charged under Sections 366 read with Section 34, 376 (g) and 342 IPC, have been acquitted of all the charges. It is presently the Government Appeal against the said acquittal. 5. Brief facts of the case are that a first information report was lodged at Police Station Mussoorie, Dehradun by the prosecutrix herself on 25.2.1997 at 4:15 p.m. The first information report states that the prosecutrix who is a resident of Ganga Nagar Colony, BHEL, Hardwar, works as a clerk and field staff in a private finance company known as Nyle Leasing Ltd., Hardwar. Her job is to collect money from small investors and deposit them with the company and for that she earns a commission. For that purposes, on 25.2.1997 when she went from her house to the shop of one Jai Prakash Rastogi at Jwalapur, Hardwar and after collecting the money from him, when she was about to return she was told by Jai Prakash that he would open some more accounts for her and then he requisitioned a taxi. In the taxi was present the another accused i.e. Shashi Kant. The two took her to Mussoorie. In Mussoorie, they took her to a hotel called Shilton Hotel, where they booked a room, which was room No. 215. All three of them entered the room and thereafter she was informed that the mama (maternal uncle) of Jai Prakash will soon be coming, who will open the account. Jai Prakash thereafter left the room saying that he would soon return with his mama. He, however, returned at about 1:00 p.m. in the afternoon with a bottle of liquor and some fruits. She was then offered a glass of beverage which was said by the accused to be nothing but lemon water, but after drinking three glasses, she started getting dizzy and the two accused started misbehaving with her. She resisted these advances of the accused, however they closed the door from inside, then she was forcibly stripped of her clothes and gang raped by the two. She resisted these advances of the accused, however they closed the door from inside, then she was forcibly stripped of her clothes and gang raped by the two. At about 3 p.m. she somehow managed to come out the room, and raised an alarm on which the manager of the hotel and other employees gathered, but she went out of the hotel and then along with the driver of the car Girvar Singh, she went to the police station, where she lodged an FIR. Since it was a case of rape, the police immediately took the prosecutrix to the community health centre at Mussoorie. The registration certificate and medical report of the community health centre, Mussoorie, which particularly Exhibit A-6 suggest that she was suspected of having consumed alcohol and that she made allegations of rape. The matter was hence referred to the Hospital at Dehradun, which is at a distance of 30 to 35 kilometers. On the same day i.e. 25.2.1997 she was examined at the Doon Hospital by one Dr. Renuka Naithani (PW3). The report suggests that the prosecutrix was brought by one lady constable No. 239 Vijaya Chaudhary on 25.2.2997 at 10:15 p.m. to the hospital and that she was not accompanied by any relatives. Her height is 5 feet 6 inches and she was 60 kgs. in weight. Her teeth were 8 + 8/8 + 8. On general examination, it was found that there are no marks of injury on her body, axillary and pubic hair well developed, breasts well developed. On local examination and internal examination, it was found that no marks of injury have been seen on her private parts. The hymen was old torn and the vagina admits two fingers easily. Thereafter, the vaginal smear was taken and sent for histopathological examination. Prima facie, it was suggested that no definite opinion of rape could be given at present but final opinion will be given only after seeing the histopathological report. It was further reported that the girl is habitual to sexual intercourse. The histopathological report says that the vaginal smear is negative of spermatozoa and it was said that no definite opinion regarding rape can be given. 6. It has further come in the evidence that both the accused were arrested on the same date i.e. on 25.2.1997 from Mussoorie itself. 7. The police after investigation filed its charge-sheet before the court. The histopathological report says that the vaginal smear is negative of spermatozoa and it was said that no definite opinion regarding rape can be given. 6. It has further come in the evidence that both the accused were arrested on the same date i.e. on 25.2.1997 from Mussoorie itself. 7. The police after investigation filed its charge-sheet before the court. The matter was committed to session and thereafter formal charges were framed against the accused under Sections 366/34, 376 (g) and 342 IPC. 8. The prosecution in order to establish its case presented as many as 6 witnesses, out of which the testimony of prosecutrix as well as that of the manager of the hotel who was examined as PW1 are extremely relevant. The testimony of other witnesses shall also be looked into including the testimony of a defence witness i.e. DW 1 Girvar Singh who was the driver of the car and who brought the prosecutrix and the two accused from Haridwar to Mussoorie on that fateful day. Prior to it, the prosecutrix gave a statement under Section 164 Cr. P.C. on 26.2.1997. She reiterates what she has already stated in the FIR and by and large the statement remains the same as it was in the first information report which is that she was taken by Jai Prakash and Shashi Kant from Haridwar to Mussoorie in a taxi and thereafter they took her to Shilton Hotel in room No. 205, where she was raped by the two accused. The only discrepancy here would be that the room in which she was taken was 205 whereas in first information report as well as in her testimony in court, including the testimony of the manager the room No. is not 205 but 215. All the same, it is an extremely minor discrepancy. 9. The prosecutrix was examined on 5.11.1997 as PW2. In her examination in chief she says that about eight to ten months back when she was working in Nile Leasing Ltd. Company, Haridwar as Clerk cum Field Worker, where her job was to open accounts for customer and collect money and deposit the same with the company, for which she earned a commission. She had gone to the shop of one Jai Prakash Rastogi which is one of the accused, she recognized him in the court as the accused. She had gone to the shop of one Jai Prakash Rastogi which is one of the accused, she recognized him in the court as the accused. On 25.2.1997 after collecting the money from Jai Prakash i.e. the accused when she was about to return to her office, Jai Prakash said to her that he would like to open some more accounts with her but for that she would have to accompany him to Mussoorie (District Dehradun) as his uncle (mama) stays at Mussoorie. She was further told that the account will be opened in the name of his mama. Immediately, Jai Prakash requisitioned a taxi which was standing nearby. In the taxi one Shashi Kant was already sitting. Thereafter the two accused Jai Prakash and Shashi Kant took her in that taxi to Mussoorie. The taxi was parked at Gandhi Chowk, Mussoorie. While doing so they informed the driver that they would be returning at 4 O' clock. Shashi Kant then took her to a hotel and thereafter Shashi Kant went to the reception and scribed something on the register which was laying at the reception of the hotel. Then Shashi Kant and Jai Prakash escorted her to room No. 215 of the hotel. Shortly thereafter Jai Prakash left the hotel, saying that he would be returning with his mama in a while, and they must wait in the room. He returned about 1:30 p.m. carrying a bottled with him and some fruits. The contents of the bottle were poured into a glass and given to her as lemon water. When she took a sip or two, she found the drink to be extremely bitter and consequently did not wish to drink any further, but the two insisted and forced her to drink and thus she drank three glasses of that liquor. Thereafter the two accused, in spite of her resistance and against her will, started misbehaving with her. They stripped her of her clothes and raped her, in turn. At about 3 p.m., she somehow managed to come out of the room and raised a cry. When she did so, the Manager of the hotel and other employees also gathered. The two accused Jai Prakash and Shashi Kant trickled away. She says that she herself lodged the report with the police and she had gone to the police station with the manager and other employees. When she did so, the Manager of the hotel and other employees also gathered. The two accused Jai Prakash and Shashi Kant trickled away. She says that she herself lodged the report with the police and she had gone to the police station with the manager and other employees. She was given the report in the court, which she identified as the same report which she has lodged. Thereafter the prosecutrix says that she was taken to a hospital where she was medically examined. Her undergarments were also taken into custody by the police and were put in a sealed packet. The sealed envelop was marked as Exhibit 2. 10. The prosecutrix was put to a detail cross examination by the defence. A lot of mileage has been drawn by the statements given by her in the cross-examination that she had never tasted liquor before or that she had not even tasted lemon water before. She had also said in her cross-examination that prior to that fateful day, she never had any sexual experience with any person. The argument of the defence would be (as it was before the trial court) that it is highly improbable that prosecutrix would have taken three glasses of an alcoholic beverage against her will. Secondly her statement regarding the fact that she was a virgin prior to that incident is also contradicted by her medical report, which clearly states that she is habitual to sexual intercourse. In fact on these two grounds alone the trial court has acquitted the accused; of which we will come later. The learned counsel for the respondents (defence) have primarily stressed on these two aspects. 11. Apart from these discrepancies, which are apparent and which must be taken note by this Court, there are no other discrepancies. PW 1 I.K. Sethi, who is Manager of the hotel was also examined on 5.11.1997. He states that both the accused came with the prosecutrix in the hotel and they signed as Mr. and Mrs. S.K. Sharma, and the accused Jai Prakash gave his wrong name as Vijay Kumar. This witness identified both the accused in the court. Not only this, booking register was also produced in the court, where signatures of these accused are present. and Mrs. S.K. Sharma, and the accused Jai Prakash gave his wrong name as Vijay Kumar. This witness identified both the accused in the court. Not only this, booking register was also produced in the court, where signatures of these accused are present. According to him they had taken room No. 215 and after sometime the prosecutrix came out of the room and raised a cry, when they were checking out from the hotel. She said that they are not right persons and she does not want to stay with them and she ran away. At this time, the manager suspected that something was wrong and he tried to call the police on phone but failed to establish a contact. He thereafter tried to contact Station House Officer at his residence but failed in doing that as well. Meanwhile according to his statement, policemen came from police chowki which is situated near parking and the prosecutrix along with the policemen went to lodge the FIR. 12. PW3 Renuka Naithani is the doctor who examined the prosecutrix. In her statement she said that no definite opinion of rape could be given. In her cross-examination by the defence, she says that in case the prosecutrix have been raped by two grown up persons, considering the physique of woman she would have sustained injuries. 13. PW 4 is Dr. Balvant Veer, who had examined the prosecutrix on the same date i.e. 25.2.1997 at Mussoorie. In his examination in chief, he says that the prosecutrix was brought by one constable Sher Singh and on external examination he found that the prosecutrix was smelling of liquor and she was not able to stand properly though otherwise she seemed to be in her senses. She was given some primary treatment like injection, etc. in order to bring her back to normal. 14. PW5 Som Singh is the Head Moharrir at Police Station Musoorie, who registered the FIR on 25.2.1997 and PW 6 Sub-Inspector Subhash Chand Banola is the investigating officer of the case. It has come in the evidence and the statement of both these witnesses that the accused was arrested by the police on the same day i.e. 25.2.1997 from Mussoorie. 15. Another witness which was examined by defence is DW1 Girvar Singh. It has come in the evidence and the statement of both these witnesses that the accused was arrested by the police on the same day i.e. 25.2.1997 from Mussoorie. 15. Another witness which was examined by defence is DW1 Girvar Singh. He is the driver of the vehicle which carried the prosecutrix and the two accused from Haridwar to Mussoorie on that fateful day. The defence witness, however, contradicts the story of the prosecution and says that the car was booked from Haridwar by the prosecutrix herself and the two or three persons who were accompanying her in the car were not the two accused but other two persons of much younger age and after dropping them at Mussoorie, he had gone. This, however, is an absolutely false statement given by the defence, as it is contradicted by every other evidence given by the prosecution particularly by the statement of PW 5 that the prosecutrix was brought at the police station by the driver of vehicle No. UP 10 B 2252. Moreover, as we shall see the presence of the two accused at the relevant time at Shilton Hotel can never be in doubt. The statement of this witness thereafter should never have been relied upon. 16. Once I have reviewed the entire evidence which was there before the trial court, I am unable to draw with the same conclusions as arrived at by the trial court. 17. All the same, since this is an appeal against acquittal, few words about the powers of the High Court in such matters would be in order. An appeal against acquittal is provided under Section 378 Cr. P.C. However, the powers of the High Court in dealing with the matter relating to appeal against acquittal are given under Section 386 (a) Cr. P.C. in which the appellate court (i.e. High Court) may either dismiss the appeal for insufficient ground or interfere or may reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. 18. Broadly speaking, there is no difference in the High Court- s power while dealing in appeal whether it is against a conviction or against an acquittal. The difference, however, is in the approach! 18. Broadly speaking, there is no difference in the High Court- s power while dealing in appeal whether it is against a conviction or against an acquittal. The difference, however, is in the approach! This has been so well expressed by Justice Krishna Iyer in its inimitable style, in Shivaji Sahabrao Bobade & Another vs. State of Maharashtra, 1973 (2) SCC 793 , which is as follows:- In India it is not a jurisdictional limitation on the appellate court but a judge-made guideline of circumspection. But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, (sic) however, by the weighty thought that the rebuttable innocence, attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration 19. Having said this, the learned Judge of the Hon'ble Apex Court says further about adversarial system of criminal justice as practiced and followed in our country :- Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro- the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author (1) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated persons- and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. 20. By now it is firmly established that in an appeal against acquittal the appellate court has full powers to review all the evidence which had been placed before the trial court and based on that evidence the appellate court can reach a conclusion that the order of acquittal must be reversed. The earliest reference of this is found in two Privy Council decision, first being Sheo Swarup & Others vs. King Emperor, AIR 1934 Privy Council 227 (2) and the other being Nur Mohammad vs. Emperor, AIR 1945 Privy Council 151. While categorically holding that there are absolutely no limitation upon the appellate court to reverse the finding of acquittal made by the trial court as cautioned that it should only be done after due consideration on the following four matters, which reads as under:- (1) The views of the trial Judge as to the credibility of the witnesses. (2) The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial. (3) The right of the accused to the benefit of any doubt. (4) The slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. (3) The right of the accused to the benefit of any doubt. (4) The slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rule and principles well known and recognized in the administration of justice. 21. However, having considered the above aspects if the appellate court comes to the conclusion that the view taken by the trial court is not a correct view and there was sufficient evidence before the trial court for convicting the accused, then it is the duty of the appellate court to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established. In such a case, the appellate court must interfere in the decision of the trial court as said in Harbans Singh & Another vs. State of Punjab 1962 Supp. (1) SCR 104 : AIR 1962 SC 439 . 22. In Sanwant Singh & Others vs. State of Rajasthan, AIR 1961 SCC 715, the Hon'ble Apex Court reiterated the above decision and said that the power of an appellate court in an appeal against acquittal is not different from that it has in an appeal against conviction; the difference lies more in the manner of approach and perspective rather than in the content of the power. 23. In Ramesh Babulal Doshi vs. State of Gujarat, 1996 (9) SCC 225 : AIR 1996 SC 2035 , the Hon'ble Apex Court has further elaborated the above principle as to what parameters the High Courts should deal with the order of acquittal. It was further held:- 7. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions. 24. In the State of Punjab vs. Phola Singh & Another, 2003 (11) SCC 58 , the Hon'ble Apex Court held :- 9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. 25. In State of Rajasthan vs. Shera Ram alias Vishnu Dutta, 2012 (1) SCC 602 : AIR 2012 SC 1 , it was held that there is a thin distinction, but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. It was further held :- 10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. It was further held :- 10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience. 26. Broadly therefore what emerges is that in dealing with an appeal against acquittal, the powers enjoyed by the appellate court i.e. the High Court are the same as it has in an appeal against conviction. But as already said the difference is only in its approach. The Court has to be more circumspect and cautious. Unless there are substantial and compelling reasons no interference should be made in an appeal against acquittal. 27. Having said this I find that the trial court, purely on the basis of conjectures and surmises, has acquitted the accused. The reasoning adopted by the learned trial court while acquitting the accused is reflected from the observations made by it which is reproduced as under :- The statement of the prosecutrix creates doubt in the prosecution story as to how a sane person will take one after the other three glasses of liquor under the impression of lemon water. If the prosecutrix was taking the liquor under the impression of lemon water then she would have come to know of this fact that she was given liquor instead of lemon water, immediately when she sipped the first glass of liquor. If the prosecutrix was taking the liquor under the impression of lemon water then she would have come to know of this fact that she was given liquor instead of lemon water, immediately when she sipped the first glass of liquor. But taking repeatedly three glasses of liquor shows that the incident has not taken place in the manner, as has been alleged by the prosecutrix. The circumstances of this case show that the prosecutrix accompanied the accused persons from Hardwar to Mussorie in a Taxi and for the sake of arguments, if it is assumed that she was taken by the accused persons on a false pretext, even then the further circumstances in the case speak otherwise as the prosecutrix stayed with the accused persons in a room of hotel and she stayed inside the room for about two hours and she has stated that during these two hours, both the accused persons committed rape upon her. The prosecutrix has further stated that some how she could manage to come out of the room at about 3:00 p.m. and raised hue and cry. This part of the statement of the prosecutrix appears to be untrustworthy. Taking of three glasses of liquor under force appears to be unreasonable and beyond imagination. Had the prosecutrix being not a consenting party, then there was no reason to take another glass of liquor, under the impress (sic) of lemon water which was being provided by the accused persons to the prosecutrix, as has been alleged by her. 28. Merely because the prosecutrix had consumed three glasses of liquor will not make her a consenting party. She did not lure the accused to Mussoorie, all the way from Haridwar, which is close to 100 Kilometers. She did not book the room in Shilton Hotel nor did she get the liquor in the room. All this was done by the accused. Moreover, one must also keep in mind the social stratum of the prosecutrix. She works for a living. The work is to collect door to door small investments, which she deposits with her company and earns a commission. The chances are that she never tasted an alcoholic beverage prior to that incident. Her reaction to the situation where she was placed is not abnormal. In fact it is quite natural. 29. She works for a living. The work is to collect door to door small investments, which she deposits with her company and earns a commission. The chances are that she never tasted an alcoholic beverage prior to that incident. Her reaction to the situation where she was placed is not abnormal. In fact it is quite natural. 29. The other factor which the learned trial court has gone into is that the discrepancy between the testimony of the prosecutrix regarding her virginity or in other words regarding her statement that she had not have any sexual intercourse prior to that fateful day is contrary to the medical report. For this learned trial court had this to say : The testimony of the prosecutrix further becomes doubtful and untrustworthy on the basis of the medical evidence adduced by the prosecution in this case. The prosecution was medically examined in the women hospital on 25.2.1997 at 10:15 p.m. at Dehradun and the doctor found that no mark of injury was seen on her private part and the doctor also opined that her vagina and hymen old torn. The doctor also further opined that vagina admits two fingers easily. The doctor again by way of supplementary report opined that no definite opinion about the rape could be given. The doctor also opined that the prosecutrix was used to sexual intercourse. The doctor appeared before this court, as P.W. 3, and she has stated in her deposition that she cannot tell it confidently whether the rape was committed upon the prosecutrix or not. This doctor has specifically stated before the Court, in her cross-examination, that the prosecutrix was used to sexual intercourse. Again this doctor has specifically stated in her cross-examination that if two healthy persons commit rape upon prosecutrix Km. Meena Rathhor, there may be redness on the vagina of the prosecutrix and in case if the prosecutrix resists then there is a possibility of injury on any part of her body. The doctor has also stated that she did not find any swelling on the private part of the prosecutrix, when the question was asked by the court, then the doctor replied that in case, if the redness on vagina appears, then it can last for 24 hours. P.W. 4 Dr. Balawant Veer Vikram also stated in his deposition that when Km. P.W. 4 Dr. Balawant Veer Vikram also stated in his deposition that when Km. Meena Rauthor was produced before him for medical examination, at Mussoorie, then he found that smell of alcohol was present in her mouth, but she was in her senses. The statement of the prosecutrix show that she can tell lie upto any extent as she has stated in her statement before the court, that she had no illicit relation with any other person, prior to this incident. 30. Shame and modesty were the reasons why the prosecutrix lied about her past sexual experience, if there were any! It is extremely unlikely that an unmarried girl, that too around 18 years of age would openly admit that she is not a virgin, regardless of the consequences. In fact what is surprising is that this aspect could amaze the trial court and hence he could declare the prosecutrix a liar. Practical day to day ground realities were not considered, when these observations were made. 31. The learned State counsel, however, pressed upon the point that the acquittal of the accused is purely on conjectures and surmises. There was overwhelming evidence against the accused both of gang rape under Section 376 (g) as well as Sections 366 and 342, IPC and based on evidence only a conviction was possible and they have been wrongly acquitted. 32. The defence respondents have raised the same plea which has been raised in the trial court and on which grave doubt has been expressed by the trial court, has already been referred above. 33. This court must express grave concern in the manner in which the trial court has dealt with the entire issue. Such cases particularly of rape or gang rape require deep sensitivity from a trial Judge. Certainly the manner in which the whole case has been examined by the learned trial court does not meet the standards, required in the matter. The Hon'ble Apex Court in Visveswaran vs. State rep. by S.D.M. (2003) 6 SCC 73 : AIR 2003 SC 2471 while dismissing the appeal of the accused in a case of Section 376, IPC stated as under:- The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. by S.D.M. (2003) 6 SCC 73 : AIR 2003 SC 2471 while dismissing the appeal of the accused in a case of Section 376, IPC stated as under:- The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. 34. There is definitely a doubt which the defence has been able to raise in its favour to some extent about rape and for that the benefit must go to the defence as reasonable doubt always belongs to the defence. Consequently as far as charges of rape, particularly of gang rape under section 376 (g) is concerned, it must be said that the entire circumstances of the case including the medical report do not clearly establish that there has been a gang rape, as alleged. Therefore as far as acquittal of accused under Section 376 (g) is concerned, the same is not liable to be interfered with by this Court. 35. Having said this, however, what remains to be seen is whether the accused have been rightly acquitted under Section 366 or under Section 342, IPC as well. This court is of a clear view that on the weight of the evidence which was there before the trial court the trial court has failed to examine the matter in its true perspective as both under Section 366 as well as under Section 342 the accused was liable to be convicted. 36. Let us deal first with Section 366, IPC which reads as under: 366. 36. Let us deal first with Section 366, IPC which reads as under: 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid. 37. Since the determination of age of the prosecutrix is seen to be 18 years we would presume that she is around 18 years or even more than 18 years of age. Though abduction per se is not an offence under the law applicable in India, but it becomes an offence only if a person is abducted for any particular purpose which is defined under the law. One of them is contained under Section 366, IPC. An offence contained in Section 366, IPC, inter alia, is if a girl or woman has been abducted and is seduced to illicit intercourse. From the evidence on record, it is absolutely clear that the prosecutrix was abducted so that she could be seduced for illicit intercourse by the two accused. Now what is seduction? Earlier the view of the Courts was to give the meaning to seduction in a very narrow sense which would be where a girl strays away from the path of virtue for the first time, only then she is said to have been seduced for illicit intercourse. However, now a wider meaning of seduction is adopted by the Courts wherein each act would come within the meaning of seduction which would include even having seduced a girl who is already used to sexual intercourse. The fact that this seduction was for an illicit intercourse was also not in doubt. However, now a wider meaning of seduction is adopted by the Courts wherein each act would come within the meaning of seduction which would include even having seduced a girl who is already used to sexual intercourse. The fact that this seduction was for an illicit intercourse was also not in doubt. Illicit intercourse though nowhere been defined in law would mean an act of sexual intercourse which is outside the wedlock, or a sexual intercourse which is not warranted under the law. Therefore under the present case, an offence under Section 366 is clearly made out against both the accused. 38. Coming to Section 342, IPC, the fact that she has been illegally confined in a hotel room is also not in doubt, which is clearly established by the strength of the statement given by the prosecutrix including the statement given by the manager of the hotel. Therefore the judgment of the trial court is set aside to the extent that respondent has been acquitted under Sections 366 as well as 342, IPC. The findings are reversed. Both the accused are hereby convicted both under Sections 366 as well as 342, IPC. 39. Heard learned counsels for the parties on quantum of sentence. 40. Having come to the conclusion that the order of acquittal recorded by trial court as far as Sections 366 and 342, IPC is concerned is wrong, and this Court having convicted and sentenced the accused thereafter asked the counsel for the respondent Sri Lokendra Dobhal as to what is the financial status of the accused person. Though they have not come out with anything definite, the indications are that both the accused are either shopkeepers or have petty business in Haridwar. 41. In view of the above, this Court deems it fit and proper that both the accused are sentenced for an imprisonment of one year six months each along with a fine of ` 30,000/- each, and in default of payment of fine they shall undergo further imprisonment of two months each under Section 366, IPC. Apart from this, they are sentenced under Section 342, IPC for an imprisonment of six months and fine of ` 1,000/- each and in default of payment of fine they shall undergo further imprisonment of one month each. 42. The matter has also been considered under the provisions of Section 357, Cr. Apart from this, they are sentenced under Section 342, IPC for an imprisonment of six months and fine of ` 1,000/- each and in default of payment of fine they shall undergo further imprisonment of one month each. 42. The matter has also been considered under the provisions of Section 357, Cr. P.C. particularly in view of the recent Supreme Court judgment in Ankush Shivaji Gaikwad vs. State of Maharashtra, 2013 (2) Bom CR (Cri) 830 : AIR 2013 SC 2454 , wherein it has been said that it is the mandatory duty of the Court to apply its mind to the question of compensation in every criminal case. The matter has thus been examined on this aspect as well. Definitely from the act of the accused persons, the mental agony and injury has been caused to the prosecutrix and she, therefore, must be compensated for the same. Considering that there is a rough determination of the financial status of the accused before this Court and also since the fine is also not very high, it is further directed that the entire fine so recovered from the respondents shall be paid to the prosecutrix. This Court, therefore, orders that the entire amount to be deposited by the respondents as fine, as and when it is deposited, shall be given to the victim i.e. the prosecutrix as compensation under Section 357, Cr. P.C. 43. Subject to the above observations, the instant Government Appeal is allowed. The respondents/accused shall surrender before the appropriate court within 60 days from today and shall undergo the sentence as awarded by this Court. The sentences awarded to the respondents/accused shall run concurrently. It is made clear that the period of sentence already undergone by the respondents/accused during trial and appeal shall be adjusted from the sentence awarded to the appellants. 44. Let a copy of this judgment be sent to the trial court to make respondents/accused serve out the sentence in the light of the observations made above. Lower Court record be sent back. Appeal allowed.