S.D.BAJAJ,J - (1.) VIDE its impugned judgment dated 12.10.1985 learned trial court convicted Arun Malhotra and G. A. Ayuk the two accused appellants in, their individual Crl. Appeal Nos. 494-SB of 1985 and 495-SB of 1985 respectively of the commission of offences under Sections 366/34 and 76 of the Indian Penal Code for their having abducted prosecutrix Anita Sharma from Bus Stand, Karnal, around 7.30 p.m. in 28th July, 1984 and ravished her; one after the other, inside the house of Gabriel Ajong Ayuk, situated on the first floor of Khoti No. 547-R, Model Town, Karnal, and sentenced each one of them individually to undergo rigorous imprisonment for a period of five years for his conviction under Section 366/34 of the Indian Penal Code and to rigorous imprisonment for a period of ten years each for the conviction under Section 376 of the Indian Penal Code. Both the substantive sentences of imprisonment awarded separately to each one of the two convicted accused were, however, ordered to an concurrently. Feeling aggrieved therefrom each one of the two convicted accused has come up in appeal to this Court.
(2.) I have heard Shri R. S. Ghai, Sr. Advocate, with Mr. Vinod Ghai, Advocate for the Appellant, Mr. Arun Malhotra Shri P. S. Mann, Sr. Advocate, with Mr. Harinder Singh Advocate, for his co-accused Gobriel Ajong Ayuk, Shri R. N. Lohan Advocate for the State assisted by Shri S. S. Teji Advocate for the complainant and have gone through the relevant record. Prosecution case against the two convicted accused appellants is based on uncorroborated deposition of prosecutrix Anita Sharma P.W. 7 who states :- "On 26-7-1984 I had come to see my sister Santosh Kumari who is living in Bharatpur ahead of Gharaunda. Santosh is the daughter of my real uncle. I had brought Sandhara of Teej of Santosh. I boarded the local bus from Bharatpur on 28-7-1984 at about 5.00/6.00 p.m. I reached Karnal bus stand at about 7.30 p.m. I was to go to Pathankot. I enquired about the bus. Two boys were standing near me. The Negro accused today present in the court enquired from me where I was going I told him that I was to go to Pathankot. The other accused today present in the court was also with the Negro accused. The Negro boy (now accused) told me that there was no bus for Pathankot. The other accused today present in the court also told that no bus would be going to Pathankot. Both the accused today present in the court offered to help me. They asked me to accompany them to their house where their family was living. I want with both these accused. I am handicapped because of my defective leg on account of Polio. Thereafter both these accused took me to Karan Lake on a two wheeler scooter. We took tea there. Thereafter these accused brought me to the building wherein the office of Fisheries Department is on the ground floor and the room of Negro accused was on the first floor. There was one more rom occupied by somebody else on the first floor of that building. I enquired from both the accused as to where their families were and they told that the families had gone out for shopping. I did not take my meals because I had in my mind that I would take meals only when their families returned. At about 9.00 p.m. that day, the accused who is Indian and is present in the court today tore away my shirt and broke the string of my salwar. He committed rape with me twice against my consent. I cried out loudly and also asked him several times not to defile me but he did not agree. At that time, the Negro accused was standing out of that room. After the Indian accused today present in the court defiled me twice, the Negro accused who is Nigerian, came. He also made me fall on the ground and after placing me in his embrace, he committed rape with me once and that too against my wishes and despite my protestations. (The witness has pointed out towards Arun Malhotra accused telling that he was the Indian accused who committed rape twice on her and she pointed out towards accused Gabriel Ajong Ayuk as the Negerian-Negro accused who raped her once). On my cries, one male and one female came from the neighbourhood. I do not know their names. They rescued me from the clutches of the accused. I remained for the night with that male and female which was a couple. That couple told me that the Police Post was in the Model Town. This information was given to me the next morning. I was going towards the Police Post Model Town when the police met me on the way. I made my statement Exhibit PH before the police which was read over to me and accepting the same to be correct, it was signed by me." In cross-examination the prosecutrix admitted: (i) that she was living at Ambala and not at Pathankot, (ii) that her father was only a 'Kabari' and not a 'Thandedar' serving at Pathankot, (iii) that she had abortion once and was therefore habituated to sexual intercourse, (iv) that she had named Arun Malhotra accused only in her supplementary statement, (v) that going to Karan Lake with the two accused on their scooter was not mentioned by" her in the First Information Report, and that (vi) she had not sustained any injury in the course of alleged rape committed by the two accused upon her.
(3.) BESIDES the admission aforesaid made in the course of her cross examination as P.W. 7 prosecutrix Anita Sharma also filed in this Court Criminal-Misc. No. 7868 of 1988 on 4th November, 1988 exonerating the two accused of all blemish and asserting that she was in turn coaxed and pressurised by the police at Karnal to make the original and supplementary statement against them two on 29th July, 1984. The prosecutrix is 21 years of age and, therefore, sui juris. For want of injuries on her person indicating struggle during rape, sexual intercourse allegedly enjoyed by the two accused with her is to be regarded to have been made with her consent.;