S.N.Saxena - (1.) THIS criminal appeal is directed against the order of conviction and sentence whereby the learned lower court convicted accused Aziz alone under Section 366/368, I.P.C. and sentenced him to undergo R.I. for 5 years and pay a fine of Rs. 500 for the offence under Section 366, I.P.C. and R.I. for 5 years and again a fine of Rs. 500 for the offence under Section 368, I.P.C. The sentences were ordered to run concurrently and in case of default in payment of fine under each head, Aziz was directed to undergo further R.I. for 6 months. Learned lower court, however, acquitted Aziz of the offences under Section 363/376, I.P.C.
(2.) THREE other persons, namely, Kripa Ram, Babu and Shafiq were tried as co-accused along with appellant Aziz for the offences under Section 363/366/368, I.P.C. Before proceeding further, it may be observed that the evidence against all the four accused persons was of common nature but it was found unworthy of credit so far as the three accused other than the appellant were concerned. The case related to the alleged kidnapping, abduction and rape of the prosecutrix Smt. Shanti. She was a married lady but had been living in the house of her father for the last about three years. At the time of the incident, she was carrying a pregnancy of about three and half months (3 1/2 months). It was also important to mention here that one Alias Khan also was mentioned as accused No. 1 in F.I.R. of she incident by complainant Matoley, who is father of the prosecutrix but he was not put for trial along with the above mentioned co- accused persons. The complainant himself was out of station in the night intervening 8/9.10.1976 during which at about 11 or 12 p.m., the five accused persons named in the F.I.R., had forcibly taken away the prosecutrix when she had come out of her house for attending the call of nature. According to the F.I.R, the age of Smt. Shanti Devi was about 14 or 15 years' only on 8.11.1976 but her medical examination after about 2 1/2 months of the said incident, revealed that she could be even 19 or 20 years old at the time of the incident, Le., on 8.11.1976. According to the prosecution story, Smt. Shanti Devi was kept at a number of places and appellant Aziz had committed rape upon her. She ultimately was recovered by P.W. 6 S.I. Ram Pal Singh on 2.1.1977 from a house in village Hardua within police station Bhojnipur in District Kanpur. The house where from she allegedly was recovered had been described as the house of appellant Aziz. No witness of recovery except the said S.I. and the prosecutrix was examined by the prosecution. After completion of the investigation, the accused persons were charge-sheeted for the various offences as mentioned above. The defence of the accused persons consisted of denial of their alleged guilt. Learned lower court, after considering the evidence on the record, passed the impugned order as already mentioned above.
(3.) FOR the appellant, it has been contended that the evidence against all the co-accused persons was of common nature and the appellant, therefore, should have been acquitted by the learned lower court which had found the same evidence unworthy of credit so far as the three co-accused persons were concerned. Learned counsel for the appellant argued that there were neither circumstances nor evidence of oral nature on the record on the basis of which the case of appellant Aziz could be distinguished from that of the co-accused persons. It was also argued and to my mind correctly, that the prosecutrix herself was not a reliable witness of the incident. She had specifically stated vide page 13 of the paper book, in reply to a Court question that Kripa and Shafiq had not participated in this incident at all and they even had not talked to her nor accompanied her from her house. She falsified the prosecution story regarding the identity of the co-accused persons, who allegedly had abducted her. Her statement that she had been ravished by Aziz was disbelieved by the learned lower court and in view of this circumstance, it could be held that she was not a wholly reliable witness. To the contrary, the aforesaid state of affairs suggested that she had made considerable improvement in her statement. At page No. 14, she stated that rape had been committed upon her by one Suddin which, however, had not been the case of the prosecution. It is said that she had been detained for sometime in the house of Suddin which was occupied by 10 to 12 family members, who were present in the house those days. The manner in which this incident had commenced appeared to be unnatural and improbable. It is not a case of pre-arranged plan for kidnapping or abduction of Smt. Shanti Devi. To the contrary, whatsoever had happened was by way of a chance only. It is, however, difficult to believe that the accused persons would have been there when Smt. Shanti Devi had come out of her house to attend a call of nature at about 11 p.m. and, therefore, their assembly near the door of the house of Smt. Shanti Devi at that point of time did not appear to be probable. Such an incident could have taken place only if she herself was a willing party prepared to go along with Aziz and others who were not strangers to her. Aziz lived in the same locality in which the house of the father of Smt. Shanti Devi was situate. The possibility of their knowing each other was very much there. It is also not explained as to how Smt. Shanti Devi had become pregnant when she had been living away from her husband for the last about 3 years. This circumstance supports to a large extent the argument of the learned counsel for the appellant that an affair probably was going on between Smt. Shanti Devi and Aziz resulting in their movements to different places out of her free will during the said period of 2 1/2 months. The possibility of Smt. Shanti Devi, therefore, being a consenting party to the whole affair could not be safely ruled out.;