- (1.) THIS Criminal appeal under Section 374 Cr. P. C has been filed against the conviction and sentence passed by the learned Sessions Judge, Bundi, on 20. 10. 1981, in Sessions Case No. 34/1981, by which he convicted the accused appellants under Sections 342, 343 and 366 IPC and sentenced each of them to suffer rigorous-imprisonment for one and half year and a fine of Rs. 500/ -. In default of payment of fine to further undergo three months rigorous imprisonment.
(2.) BRIEFLY stated the facts of the case are that a report was lodged against the accused appellant and one Panchu at Police Station Hindoli, district Bundi, on 29th Nov. , 1980, by one Chhotu that his daughter Mst. Rami was abducted and kept in wrongful confinment by the accused appellants. F. I. R. No. 129/ 80 was registered and investigation commenced. During the course of investigation, the clothes of prosecutrix and she her-self was recovered. The prosecutrix was medically examined. The police recorded her statement under section 164 Cr. P. C. After completing the investigation, a challan was submitted by police under sections 366, and 376 I. P. C. against the accused appellants. The prosecution produced as many as seven witnesses in the Court of Sessions Judge and three witnesses were examined on the side of defence. After examining the accused-appellants under section 313 and hearing the arguments, the accused appelants were acquitted of the charge to have committed offence under section 376 I. P. C. but were convicted and sentenced as mentioned above. It is contended by Shri Pareek, learned counsel for the appellants that the conviction has been based on sole-testimony of prosecutrix Mst. Rami, P. W. 2 and there is no other witness to support her solitary statement. It is contended that she can not be termed to be a witness of sterling worth and several contradictions have come-up in her statement, which shows that no reliance can be placed on her evidence. It is also contended that the trial court disbelieved her allegations regarding committing of rape and acquitted the accused appellants of the offence under Section 376 I. P. C. There was hardly any evidence to convict and sentence the accused appallants under sections 342, 343 and 366 I. P. C. It is pointed out by the learned counsel that the incident is said to have taken place on Nov. 22,1980, but F. I. R. was lodged on November 29,1980, after delay of as many as seven days. This delay has not been explained by the prosecution. It is also pointed out that even though prosecutrix is married, she was living in house of her father and she has clearly stated in her statement recorded under section 164 Cr. P. C. that she wants to stay with her father and in her statement recorded in Court, she has stated that she is not kept properly in house of her husband. It is also pointed out by learned counsel that from her statement, it is clear that she was taken to several places while she was sitting on back of cycle but she did not raise any hue and cry even while passing through bazars and from the pacca roads. It is also pointed out that even though she stayed with her sister Pushpa, but she did not complain her that she has been forcibly taken by the accused appellants. It is, therefore, submitted that no offence is made out against the accused appellants under sections 342, 343, and 366 I. P. C. It is contended by Shri Alvi, learned Public Prosecutor that in her evidence the prosecutrix has stated that she was forcibly taken-away by the accused persons. Even though an offence under section 376 is not made out and they have been acquitted by the trial court, still the offence under sections 342, 343 and 366 is clearly made out from her statement. It is pointed out that her statement is completely reliable and the trial court has rightly relied upon the same. I have heard both the parties, gone through the judgment of the trial court as also the documents and evidence on record. P. W. 2 Mst. Rami, prosecutrix in her statement has stated that accused appellant Chhagna told her that her sister Pushpa was calling her, therefore, she accompanied Chhagna. She has made it clear in her statement that Mst. Pushpa is not her real sister but she calls Chhagna as 'jijaji' and in her statement u/s. 161 Cr. P. C. she has stated that Chhagna told her that she will have to live with accused appellant Harnath. She was taken to Mohanpura, where she stayed for one-night and slept with her so called sister Pushpa. Thereafter, she was taken to village 'pade' on cycle. In 'pade' she was made to live in house of Harnath. She alleges that Harnath committed rape with her while she stayed in his house. She lived in Pade for seven-eight days. In her cross-examination, she states that she had gone to attend a 'mela' (festival) where thousands of people had come. Since Chhagna told her that her sister Pushpa was calling, therefore, she accompanied him. The cycles were kept at quite a distance from place of Mela. She states that when she was forced to sit on cycle, she raised hue and cry. She was confronted with her statement | recorded u/s 161 Cr. P. C, in which she does not mention that she raised hue and cry. In the first instance, she stated that when she was not prepared to accompany them she was given beating with sticks but thereafter, she says that she was not given beating with sticks but she was threatened that if she will not accompany, she will be beaten. She states that Chhagna had forced her to sit on the back of the cycle. She was confronted with her statement Ex. D. 2, in which she has stated that she was made to sit infront of the cycle and not in back. She states that she was not tied with anything on cycle nor her mouth was closed with any thing. She states that on the way several villagers came but no one came for her help. When they reached a place 'chhavni' all the accused appellants stopped for taking tea. She was not taken to shop and was made to sit in back of the shop where one Gopal was sitting. She says that Gopal was on her side and was telling Chhagna and Harnath why were they taking her alongwith them. She states that she did not raise any hue and cry at that time. From Chhavni, she was taken to Mohanpura and on the way two villages came. At Deoli, she met some ladies also. She also says that she did not jump from the cycle while she was taken from one place to another. At one place she had jumped from the cycle but at that time there was no one on the road. She did not raise any hue and cry at Deoli, as none of her relatives lived in that village. She states that while in Mohanpura, she lived with her sister Pushpa and slept in her room, the door was closed from inside. She states that she could not sleep at that night even though her sister Pushpa went to sleep in normal course. When enquired why did not she go out-side the house, she replied how she could go out side the house. She also stated that she was not tied in the house. When they reached village Fade, she did not raise any hue and cry there, neither she jumped from the cycle on seeing several persons around there. She says that there were two ladies in the house of appellant Harnath where she was made to stay. There is a well in the village of Harnath where she used to go daily for taking bath. On that well, several ladies from the same locality came for fetching water. She states that she did tell some of the ladies at the well that she has been brought forcibly here but could not give names of any of the ladies to whom she talked. She states that she is very unhappy in house of her in-laws. From this statement, it can be seen that she slept at night with her sister Pushpa but she did not inform her or tell her that she has been brought forcibly, neither walked out of the house. The door was closed from inside and there was no lock either from inside or outside. During the day she used to go on the well for taking bath every day but she did not go away from the house of Harnath and prefer to go back and stay there till she was recovered. P. W. 4 Chandra is brother of the prosecutrix. He says that prosecutrix had gone alongwith other members of the family to festival and after some time she went alongwith five-six ladies to a temple. Other ladies came back after about \ hour and informed that prosecutrix had gone with Chhagna and Harnath. He says that he did not inform the police that her sister had gone away with Chhagna and Harnath even though he came to know about this on Saturday evening. He further says that when he went to Pade, where he met Rami, she did not tell her that Chhagna had brought her forcibly. The prosecutrix, after she reached Police Station, stated that she was forcibly brought by Chhagna and Harnath. She did not say so while in village Pade. Prosecutrix also did not tell her where Harnath and Chhagna kept her or she was allowed to move. She also did not tell him whether both the persons had committed sexual intercourse with her.
(3.) P. W. 5 is Gopal, who according to prosecutrix accompanied her when she was taken by Harnath, Chhagna and Panchu. It may be stated that no cha-llan was filed against Panchu and Gopal. This witness is brother of Pushpa, who is wife of Chhagna, whom prosecutrix calls as her sister. In his examination-in-chief, this witness has stated that the prosecutrix inquired from him whether his sister Pushpa had come in the festival. He further states that prosecutrix told her that she would go with Harnath. Then, she on her own desire, accompanied with Harnath. He further states that he sat infront of the cycle and prosecutrix sat in back of the cycle, which was driven by Harnath. This witness was declared hostile by the prosecution. D. W. 1 Narain has stated in his examination-in-chief that he and Ram Chandra accompanied Harnath. Ram Chandra is brother of prosecutrix. Ram Chandra served them tea and enquired from Harnath whether he will be prepared to marry with prosecutrix. Harnath told him that he is unmarried and very poor person and further stated that no one will be prepared to marry him. D. W. 3 Heeralal has stated that one year before, he invited Chhotu, father of prosecutrix and his family for eating food, Harnath had also come. Thus, from the evidence discussed above, it can be seen that while prosecutrix was going on cycle with Chhagna and Harnath, she had occasion to pass through several villages on the way, where she could have got-down from cycle and informed the people that she was taken away by force. Apart from that when she said that she did not complain even to Pushpa, whom she calls her sister, that she had been brought forcibly by Harnath and Chhagna. She had been visiting every day the well in the village where several ladies came and she had occasion to raise hue and cry that she. had been brought forcibly by accused appellants. P. W. 4, her brother also states that when for the first time he met her sister at village Pade, she did not tell him that she had been brought forcibly by the accused appellant or that the accused persons had committed rape upon her. From the statement of P. W. 2 the prosecutrix, it can not be said that she is a witness of sterling worth. In. Bondal Vs. State of Madhay Pradesh (1) it was held that when the house in which prosecutrix was detained had not remained lonely and the prosecutrix was found to be telling lie regarding attempt to commit sexual intercourse with her during her detention inside the house, in such situation, offence u/s 366 I. P. C. is not made out against the accused appellants. In this case also the story of the prosecutrix regarding committing of offence u/s 376 IPC has not been made out and the trial court has acquitted the accused appellants of the charge u/s 376 IPC. By the statement of prosecutrix herself, she was not detained forcibly nor she was lonely, she lived with her sister Pushpa but did not complain her regarding her bringing forcibly against her wishes by the accused appellants. Babu Vs. State of Rajasthan (2) was a case where the prosecutrix did not raise any hue and cry inspite of opportunities. It was held that had she been compelled by force to go from one place to another or had she been induced by any deceitful means to go from one place to another she would have surely raised a hue and cry especially when she knew it well at the house of her girl friend Jhamku that the appellant was negotiating with others for her sale. Her conduct in going with the appellant from one place to another without raising any hue and cry shows that she was a consenting party to her removal by the appellant. ;