K.Narayan - (1.) BY the judgment and order dated 29.1.1981 the appellant was found guilty and convicted of the offences under Sections 366 and 376. I.P.C. in S.T. No. 99 of 1979 and sentenced to rigorous imprisonment for 4 years under each count. The sentences were, however, made to run concurrently.
(2.) THE prosecution story in brief has been that the accused appellant had enticed one Km. Savita, aged about 16 years when she had gone to take examination of High School on 4.5.1979. THE first information report about the incident is said to have been lodged on 10.5.1979, also conveying that she was seen with the accused by Babu Ram and Santosh Kumar. THE girl is said to have been recovered when she was staying with the accused in a Dharmshala in Modi Nagar. on 19.5.1978 by the Sub-Inspector of Police. Santosh Kumar, the appellant accused was arrested on the same date. Km. Savita was produced for medical examination and in the opinion of Dr. Mrs. V. L. Tewari, P.W. 10, she had well developed, auxiliary and pubic hair and breast were also well developed, and her vagina examination, hymen was found to have been torn old healed and admitted two fingers easily. There was no external or internal mark of injury. In the opinion of doctor she was used to sexual intercourse. Skiagram examination was also taken up and according to the report of radiologist epiphyical union epiphysis was seen round the elbow and knee joint, whereas union at distal ends of radius and ulna bones were nearing completion (almost united). On these observations the medical opinion was that her age was about 18 years. Before proceeding with other things it may be mentioned here that there was also evidence about her date of birth having been recorded in the school register as 2.6.1961 as stated by P.W. 5 Jagan Nath Prasad Singh and in view of the medical observation of about 18 years and the entry of the date of birth in the school registers I have least hesitation in concluding that she was a little less than 17 years on the date of alleged occurrence which was in May 1978. The prosecution case as later on developed after investigation was in the form that she was taken by force or entriced away by the accused and that he had forcibly committed sexual intercourse with her against her wishes.
(3.) THE prosecution had examined P.W. 1, P. D. Sharrma, the Sub- Inspector of Police who had arrested the accused and recovered Km. Savita from Dharamshala on 19.5.1978 P.W. 2 Santosh Kumar and P.W. 6 Babu Ram were examined to State that they had seen the accused and Km. Savita going together on the date of alleged enticement. Ass to what is the value thereof may be considered below if required and for the present it may be said that there is no occasion for discarding their evidence P.W. 3 Gajraj was the manager of the dharamshala where the two had stayed and obviously there is not much dispute about that factor. P.W. 7 Atma Ram the father was not an eye witness of anything except the matter of age which I have already accepted. I am not prepared to accept his contention that Km. Savita was below 16 years at that time as it is in contradiction with both the medical evidence as well as the recorded date of birth which presumably must have been given by him long before the alleged occurrence itself. P.W. 8 Chandra Prakash was an X-ray Technician and his evidence was formal while P.W. 9 Surendra Singh, Sub-Inspector of Police had investigated the case. The material evidence in the case has been that of P.W. 4 Km. Savita who may be called victim prosecutrix or anything. The learned Sessions Judge has come to conclusion that she was forced to sexual intercourse but this is a very superficial appreciation of the evidence. According to her statement she was compelled by the accused to go with him. In fact, it is difficult to understand as to what stand she wanted to take? In the first instance she stated that the accused had allured him with a promise 'Panipath ke pas ek jheel hai wanha tujhe ghuma lau.' It is also stated by her that he had allured her with future promise for giving good clothes and ornaments. Can it said to be use of force at all. The mere idea was that it was an enticement is also against the exactness of general behaviour specially with girl. It is easy to say that because she was minor, she could not understand but that does not obtain any weight in view of the fact that she was used to sexual intercourse and was going; to take examination which for any student carries more meaning than a future promise for ornaments or clothes or a suggestion to go for roaming out to a lake. It may be that the child aged about 3 or 4 years may be enticed by presentation) of a Lolipop but a girl of 17 knows herself better and if she is pretending that,she did hot know as to what for she was being offered the promise of clothes and ornaments, she is deceiving herself in her effort to deceive the court. Her statement that she went up to Panipath for the above promise and was thereafter taken to Ambala by force, is again another effort to tell a lie which is so clear on its faoe that nobody could believe it. There is no evidence except in her own statement that she was taken to Ambala or Kalka or Simla. The Investigating Officer has been very particular about obtaining the extract of the register of Dharamshala but no effort was made to verify her statement from hotels at Shri Nagar where she had stated to have stayed in a hotel. She must have been in the presence of the manager of the hotel before getting entry into the room. Her statement in cross-examination that whenever she tried to raise an alarm her mouth was shut forcibly does not stand to scrutiny because if she wanted to raise alarm it must have been in the presence of several others and if she could not have raised alarm. She could have shown her resentment by movement of her hands and legs which would have naturally invited the attention of passers by. Her statement that the accused used to give fists blows in her stomach is beyond understanding as that will also be seen by others.;