Umesh Chandra Dhyani, J. -
(1.) TAKING recourse to the provision of Section 156(3) Cr.P.C., the complainant Kumari Nirmal d/o late Bahadur Singh wrote a complaint (Ext. Ka -3) to Judicial Magistrate, Haridwar for taking legal action against Vijay Kumar, Virendra Kumar and Pappu. According to the complaint, the complainant was resident of Himachal Pradesh. Complainant's father was dead. Her elder sister was married to one Jagdish Prasad r/o Sherpur, PS Pathari, District Haridwar. One Virendra barber and his cousin Vijay used to come to Jagdish Prasad. They also started coming to complainant's village in district Sirmour, Himachal Pradesh. In February 1995, Vijay and Virendra came to complainant's house at Timbi, district Sirmour. They said that Nimnal's sister was ill. Nirmal was requested to come and see her sister. Complainant's mother sent her to see her ailing sister with Virendra and Vijay. Virendra and Vijay brought Nirmal in a house situated at Shashtri Nagar, Jwalapur and committed rape with her on pistol point. They continued to assault her sexually for the next 1 1/2 months. They did not permit the complainant to come outside. Pappu S/o. Dalchand committed rape with her. Complainant fell ill. She made a request to the accused persons, who, acceding to her request, dropped her at her house in Himachal Pradesh. They threatened her with dire consequence if she dared to disclose the incident to anyone. She was 14 years old. Then she came to know that accused -appellant Vijay got a search warrant issued against her on the pretext that she was the wife of said Vijay. On the basis of such complaint (Ext. Ka -3) and upon the orders of Judicial Magistrate concerned, a first information report bearing crime No. 391 of 1995 was registered in PS Jwalapur on 05.12.1998 under Sections 363, 366, 376, 342, 323 and 506 I.P.C.
(2.) INVESTIGATING Officer got the victim medically examined, took the statements of the victim and witnesses and after being satisfied that the accused persons committed offences of kidnapping and rape etc., submitted charge sheet against them for the said offences. The case was then committed to the Court of Sessions. When the trial commenced and prosecution opened it's case, charges in respect of offences punishable under Sections 363, 366, 376, 342 and 506 I.P.C. were framed against Ratan Singh, Virendra Singh and Vijay Kumar (appellant), to which they pleaded not guilty and claimed trial. As many as 06 witnesses were examined on behalf of prosecution. They were -PW 1 Dr. Meenakshi Aswal, PW 2 Nirmal (victim), PW 3 Rajendra Kumar Tyagi, PW 4 Rajendra Kumar Sharma, PW 5 Vipin Kumar Premi and PW 6 Jagat Singh. Incriminating evidence was put to the accused persons under statements under Section 313 Cr.P.C., in reply to which they said that they were falsely implicated in the case. Accused Vijay said that the prosecutrix was his wife. Four witnesses, namely, DW 1 Lalit Kumar, DW -2 Kunwar Pal, DW 3 Vikas Pardeshi and DW 4 Vijay Kumar were examined on behalf of defence. After considering the evidence on record and hearing both the sides, accused Vijay Kumar was acquitted of the offences punishable under Section 376, 506 and 342 I.P.C. Accused Virendra and Ratan Singh were exonerated of the charges levelled against them. Accused Vijay Kumar was however, convicted in respect of offences punishable under Sections 363 and 366 I.P.C. and was sentenced appropriately. Aggrieved against the said judgment and order of conviction and sentence, accused Vijay Kumar preferred the present criminal appeal.
(3.) PROSECUTION led the evidence through PW 2 Nirmal (victim). She said in her examination -in -chief that in the month of February, 1995, Vijay and Virendra came to her house in Timbi (H.P.) and told that her sister was ill. They also told that PW 2 was being called at Sherpur. She was permitted by PW 2's mother to accompany Virendra and Vijay, as they were old acquaintances. Virendra was Orderly in PW 2's brother -in -law's school. They reached Haridwar around 7:00 -8:00 p.m. Virendra told that they will go to Vijay's house and will got to PW 2's sister's house after taking tea. She was taken to Vijay's house and was offered tea. She became semi -unconscious. She insisted Vijay and Virendra to take her to her sister's house but they refused. PW 2 became unconscious thereafter. When she regained consciousness, she found that her hands and feet were tied with a rope. They committed rape with her. They continued to assault her sexually for the next 15 days' in the house of Vijay. In between Pappu S/o. Dalchand also came there and he also committed rape with her. She was kept confined for 1 1/2 months. She was threatened with dire consequence on the pistol point. She was then dropped at her village (Timbi). PW 2 disclosed the incident to her mother after 2 -3 days. When she did not recover, she was sent to her sister's home at Sherpur. Then she again came back to village Timbi. After about 1 1/2 months, her brother -in -law (jija) came to Timbi and said that Vijay, Virendra and Pappu got search warrants issued against her. She then lodged a report (Ext. Ka -3) in PS Jwalapur. In the cross -examination, she said that she studied upto class IX. The report was written by a lawyer. After about 1 1/2 months, when the accused persons instituted a criminal case against her brother -in -law for theft only then the report was lodged by her. An affidavit which was filed along with the application, which was addressed to the Magistrate (Ext. Kha -1), indicated that her age was 22 years. Ext Kha -2 was also shown to the witness. She admitted that she was married. Many a questions were also asked in her cross -examination for contradicting the contents of her complaint with her statement given to the Investigating Officer. Accused Vijay and Virendra continued to remain there for 1 1/2 months. There was only one cot in the room, in which she was kept. Accused -appellant Vijay instituted a criminal case against her jija (brother -in -law) regarding an incident which took place on 17.09.1995. Accused Virendra was Orderly in the school of her jija Jagdish, who was a teacher. Vijay and Virendra were cousins. Pappu alias Ratan came only after 15 -16 days. She also said that she informed the investigating officer that the accused committed rape with her. PW 2 also admitted that Vijay instituted a first information report relating to the commission of theft against her (stating that PW 2 was his wife). She denied that she filed first information report against the accused persons in retaliation. She denied that she was married to accused Vijay. PW 2 was shown various photographs in her cross -examination. She identified the persons including her mother, her neighbour and herself featuring therein. She admitted that the accused Vijay was sitting by her side in which her mother was also sitting. She also admitted that the accused Vijay offered a ring to her and the same was depicted in the photographs. She also admitted that he sister Kamlesh wife of Jagdish was applying tika to accused -appellant Vijay Kumar. She also identified the person of Vijay in one of the photographs. It appears form the contents of her cross -examination that she wanted to conceal many a things regarding her relationship with Vijay but could not hide the same. She could not explain the time and distance between Timbi and Dehradun, the place where she visited time and again, as her brother -in -law was posted in Haridwar. She denied the suggestion that she was married to Vijay and since her brother -in -law Jagdish was against her marriage with Vijay, therefore false allegations were got levelled against them. Learned Court below did not find accused Vijay guilty of the offence punishable under Section 376 I.P.C., in as much as, she was held to be about 17 years of age, as on the date of occurrence and also held that cohabitation with Km. Nirmal (prosecutrix) was with her consent, but learned court below exonerated other accused persons on the same set of evidence, whereas in fact, the others were not legally married to the prosecutrix. It is also surprising that whereas the others were acquitted in relation to the offences punishable under Sections 363 and 366 I.P.C., the so called husband Vijay was convicted in respect of said offences on the basis of same set of evidence. When Ratan Singh and Virendra Singh were granted benefit of doubt, why not the present appellant Vijay was granted the same benefit on the same piece of evidence? The case of Vijay was definitely on better footing than Virendra and Ratan. When Virendra was exonerated, there was no sense in convicting the accused -appellant Vijay. Learned trial court has said in internal page 14 of the judgment that the prosecutrix could not tell where she was kept confined. The Investigating Officer did not prepare the site plan. Investigating Officer himself gave a statement that Kumari Nirmal could not locate the said house. Km. Nirmal also did not point out the house situated in Jwalapur, where she was kept and sexually assaulted. One co -accused Virendra was acquitted of the offences punishable under Sections 363 & 336 I.P.C., how could the so called husband of the victim could be convicted in relation to the said offences on the same piece of evidence? There was no State Appeal against the acquittal of co -accused Virendra Singh, therefore, this Court does not find it necessary to enter into the evidence relating to offences punishable under Sections 363 and 366 I.P.C. as against accused Vijay. It was possible that there would have been evidence against Vijay (as also Virendra), but no useful purpose would be served by holding Vijay guilty when the co -accused was exonerated taking into account the same piece of evidence, especially when no State appeal was preferred against Virendra's acquittal.;