Decided on September 07,2012

Som Singh Appellant


- (1.) At around 01.10 P.M. of 30 th January, 1994, Jai Singh (PW2) lodged a First Information Report to the effect that his daughter Nirvesh (PW1) was kidnapped by the appellant around 5:00 P.M. of 28 th January, 1994. In this First Information Report, therefore, there was an allegation pertaining to kidnapping of the victim. When, however, the charge-sheet was filed by the Police, after completion of investigation, pursuant to the First Information Report, it was alleged that the appellant is guilty of having committed offences punishable under Sections 363, 366, and 374 of the Indian Penal Code. In other words, appellant is guilty of kidnapping, kidnapping with intent to marry as well as rape. On the basis of the charge-sheet, charges were framed and the same were tried. In course of trial, PW2 proved the First Information Report. PW2 held out that PW1 was 12 years' old. PW1 deposed that at about 5:00 P.M. of 28 th January, 1994, when she had gone to the field to relieve herself, appellant picked her up and had forcible sex with her. She stated that, thereafter, appellant had taken her to his house blind folded. She stated that in the house of the appellant, she was kept in a room in naked condition. She stated that she lived in the house of the appellant for one night and one day, in course whereof, three times in the night and three times in the day time, she was forced to have sexual intercourse by the appellant. It was, then, stated that the appellant made out to her that they will go to Roorkee and stay there and for that purpose, they left the house of the appellant at around 4 O'clock in the morning of 30 th January, 1994 and went to the Jasodarpur Bus Station. She stated that, after having had reached the said Bus Station, she and the appellant were waiting for the Bus and around 6:00 A.M. of 30 th January, 1994, the Police came and arrested her and the appellant. She further stated that after she and the appellant were arrested, both of them were taken to the Police Station, where her father (PW2) met her.
(2.) I wanted to see the arrest memo of the appellant. Original records were looked at by the counsel for the parties, but they could not decipher what has been written thereon. As a result, none of them could say with surety as to the date and time of the arrest of the appellant. In the circumstances, evidence given by PW1 to the effect that the appellant was arrested around 6:00 A.M. of 30 th January, 1994 is to be accepted. But why arrest will be made when there was no information of commission of an offence even, has not been explained by the prosecution. The fact remains that the police officer, who arrested the appellant did not say in course of tendering evidence, nor the prosecution relied upon any recovery memo suggesting recovery of PW1 from the custody of the appellant. Instead, it was stated by the police officer, who arrested the appellant, that he found the appellant as well as PW1 at the Jasodarpur Bus Station and he arrested them. Therefore, independent of the evidence of PW1, there is no other evidence of the appellant taking custody of PW1 against her wishes or of recovery of custody of PW1 from the appellant. According to PW1, she lived with the appellant for one night and one day. Then again, according to her, she was taken by the appellant with him to his house in the evening of 28 th January, 1994 and again was taken to Jasodarpur Bus Station in the morning of 30 th January, 1994. She, accordingly, in course of her evidence, talked about either the night of 28 th January, 1994 or the night of 29 th January, 1994, but not of both the nights. In the circumstances, the evidence of PW1 as regards forcible taking custody of her by the appellant and such custody being retrieved from the appellant is not acceptable. In the event, the testimony of PW1 to that effect is not accepted, then the testimony of PW2 that custody of PW1 was taken forcefully for the purpose of inducing PW1 to marry the appellant also is not acceptable.
(3.) As aforesaid, the First Information Report alleged kidnapping of PW1, but the charge-sheet in addition thereto held out rape of PW1. In order to establish rape of PW1, prosecution led evidence suggesting that the victim was examined by a Doctor on 30 th January, 1994 at around 5:30 P.M. There were two medical reports of such examination. Both of them suggested, there is no visible mark of rape. The doctor, who conducted medical examination of PW1, deposed in Court. She supported her findings as recorded in the medical reports. Neither in the medical reports, nor while deposing before the Court, the doctor, who conducted medical examination, deposed that PW1 had sex. In the absence of PW1 having sex, even if she is 12 years' old, question of there being any rape does not arise.;

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