- (1.) THE above two appeals arise from a common judgment of the learned Additional Sessions Judge, Shri Ganganagar. dated 24 8-77, whereby both the appellants were convicted for the offences 366 I. P. C. , and each one of them was sentenced to one year's rigorous imprisonment and a fine of Rs. 200/- each, in default of payment of fine, to undergo further rigorous imprisonment for a period of two months. THEy were also convicted for the offence under Sec. 376 I. P. C, and each one of them was sentenced to four year's rigorous imprisonment and a fine of Rs. 500/-, each, and in default, to further, undergo rigorous imprisonment for six months.
(2.) IN nutshell the prosecution case is that Smt. Muli, aged about 27 years, was married to one Manphool, but was divorced by him some ten years ago and then she went in 'nata' some 3-4 years ago to Jangirsingh Bajigar, resident of Anupgarh. Jangir Singh was serving as a driver at Ganganagar. On 21-6-75 she had come to see her husband at about 11. 00 a. m. , from Sadul Sahar. Her husband Jangir Singh had gone taking the Jeep at about 4-5 00 p. m. , and she was left with one Bhaniram instructing him to take her to the hotel of Kishori for meals. The accused persons came there, accompanied with 2-3 more persons, They picked up quarrel with Bhani. Thereupon she went away towards Lakkad Mandi. She was followed by the accused persons Santram and Amli. The accused Amli threatened her with a pistol and Santram with a knife and asked her to accompany them. There-upon, out of fear she went ahead of them. She was taken to the pits nearby the Sugar Mills and then both of them raped her. Thereafter, she was brought at the railway station, where she met her husband Jangir Singh. She divulged the occurrence to him. Then she, along with her husband Jangir Singh, went to Kotwali, Shri Ganganagar and lodged a verbal report Ex. P/4 at 1. 30 a. m. On her report a case under Secs. 366 and 376, I. P. C. , was registered and investigation was conducted by the S. H. O. Ast Ali (P. W. 11 ). Mst. Muli was got medically examined. The accused Santram was arrested on 22-6-75 vide memo Ex P. /9 and his 'kachha' was seized Santram was also got medically examined. At the instance of Mst. Muli, site, plan Ex. P. /10 and site notes Ex. P. 10a were prepared. Four broken plastic bangles were recovered from the spot vide memo Ex. P. /ll. Site plan of the hotel of Kishori Ex. P /12 was also prepared and its site notes are Ex. P/12a. On the information and at the instance of the accused Santram, knife was also recovered. The accused Ganeshia and Madan were arrested on 27-6-1975 and on 30-6-1975 the accused Amli was arrested and he was medically examined. The accused Chimnia was arrested on 3-7-1975. The 'ghagra' and underwear of the prosecutrix Mst. Muli and the underwear of the accused Santram were sent for chemical examination. The report of the State Forensic Science Laboratory is Ex P. /19, which is positive for human semen on all the clothes. After completion of investigation, charge-sheet was presented against the accused persons, who were ultimately tried by the Additional Sessions Judge, Ganganagar. All the accused persons, namely, Santram, Amli, Ganeshia, Chimnia and Madan were charged for the offences under sections 143 and 451, I. P. C. and the two accused persons Santram and Amli were further charged for the offences under sections 366 and 376, I. P. C. The accused persons, however pleaded not guilty to the charges and claimed to be tried. At the trial, the prosecution examined Madan Lal (P. W. 1), Puran (P. W. 2) Lalaram (P. W. 3), Tekchand, C. I. , Kotwali Shri Ganganagar (P. W. 4), Manglaram, Chowkidar, Sugar Mills (P. W. 5), Mohan Singh (P. W. 6), Bhanwarlal Constable (P. W. 7), Mulibai (PW 8), Jangir Singh (P. W. 9), Dr. S. S. Baxi (P. W. 10), Ast Ali. S. H. O. (P. W. 11) and Bhaniram (P. W. 12 ). The statements of the accused persons were recorded, in which they denied the prosecution case. No evidence was led in defence. After hearing the arguments, the learned Additional Sessions Judge acquitted all the accused persons of the offences under Sections 143 and 451, I. P. C. He, however, convicted and sentenced the appellants Santram and Amli, as aforesaid. Dissatisfied with their convictions and sentences, these appeals have been preferred. I have heard Shri B. R. Arora, learned counsel for the appellants and Dr. S. S. Bhandawat, learned Public Prosecutor for the State. The crucial question in the present appeal is as to whether the victim Mst. Muli was a consenting party? It cannot be doubted that Mst. Muli was taken or went with the accused persons and the accused persons had sexual intercourse with her in the neighbourhood of the Sugar Mills after 8. 30 p. m. , on 21-6-1975. The matter was reported at the Polite Station Kotwali, Shri Ganganagar, at 1. 30 a. m. , on the same night and the clothes of the victim and the underwear of the accused were found positive for human semen. Not only that on medical examination of the accused Santram, it was found that the mucus memberance below the penis was slightly wet emitting the vaginal smell. The vaginal smear taken by Dr. S. S. Baxi, also showed non-mobile sperm-atozoa.
(3.) MR. B. R. Arora, learned counsel for the appellants submitted that if Mst. Mulli would not have been a consenting party, she would have certainly sustained some injuries on her person, if force would have been used against her, not by one, but two accused persons. Besides that, her conduct would have been entirely different. The occurrence is said to have taken place at about 8,30 p. m. She was followed by the two accused persons and was forcibly taken by them from near the Lakkar Mandi. If this story would have been true, her conduct would have been that she would have raised alarm and shrieks and her alarm and cries would have attracted the people from the neighbourhood, which is a densely populated part of the city. Besides that, if she would have made to fall on the ground in the Khala or in the pits, she would have sustained injuries. According to MR. Arora, it appears that she is a lady of easy virtue. According to MR. Arora the matter would not have been reported by her, if her husband would not have met her at the railway station, because as per her statement, she was to leave by the 12 O'clock train in the night. It is because her husband met her at the railway station, the occurrence was narrated by her to Jangir Singh, when he found her clothes wet. MR. Arora submitted that it is highly improbable that if Mst. Muli would have been taken by force and if force would have been used against her will to commit sexual intercourse, she would not have sustained injuries. According to Dr. S. S. Baxi, he did not find any mark of violence or mark of struggle on the person of Mst. Muli. The learned Public Prosecutor, on the other hand, urged that the bangles of the prosecutrix were found broken at the place of occurrence. If Mst Muli would have been a consenting party, it does not stand to reason that she will immediately report the occurrence. He urged that prompt lodging of the first information report negatives the case of consent. I have carefully considered the submissions advanced by the learned counsel for the parties. I have been carried through the statement of Mst. Muli. A reading of her statement, to my mind, leaves no room for doubt that Mst. Muli was a willing party in the commission of intercourse with her. These circumstances have an important bearing in order to reach the conclusion as to whether she was a consenting party or not. She left the hotel at about 8. 30 p. m. , followed by the accused persons. If any force was used against her or she was threatened by the accused persons, she would have certainly raised an alarm. It cannot be conceived that because of extending of alleged threats to her she completely became passive. It is true that the two circumstances pointed out by the learned Public Prosecutor may go to suggest that Mst. Muli was not a consenting party, but those two circumstances are not so conclusive and decisive of the question. The bangles could have been broken, if they came in contact with some ragged objects and report could have been lodged by her. when she happened to meet her husband Jangir Singh at the railway station, Had her husband not meet, she would have left by train, as stated by her. Both the accused persons are aged about 19, whereas the age of the prosecutrix is about 27 years or 30 years, as stated by her. The circumstances that she did not raise alarm and that she sustained no injury, go to point out that in the entire affair, she was a willing party In any case, the circumstances reasonably lend one into doubt in the truth of the prosecution case and in that view of the matter, both the accused persons, in my opinion, are entitled to the benefit of doubt. From the evidence on record, in my opinion, it is not proved beyond all reasonable doubt that the accused persons abducted Mst. Muli for having sexual intercourse with her and that they committed rape on her. Both the offences are not proved beyond all reasonable doubt, so the appellants are entitled to acquittal. In this view of the matter both the appeals deserve to be allowed. ;