GOPAL KRISHNA SHARMA, J. - (1.) BOTH these appeals have been directed against the judgment dated 30th Apr,, 1986, passed by the Sessions Judge, Kota, by which, all the appellants, except appellant Peer Ali, have been found guilty of offence u/s. 376 (2) I. P. C; appellant Peer Ali u/s. 376/109, I. P. C; and all of them have been sentenced to 10 years rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine, to further undergo 6 months' rigorous imprisonment.
(2.) A challan was filed by the police against 8 persons. After trial, the Sessions Judge acquitted accused Mohan Singh of the charges levelled against him and convicted the remaining 7 accused persons. Accused Sultan, Ram prasad, Peer Ali alias Peeru and Kanwar has preferred Appeal No. 266/86, whereas accused-appellants Jagdish Ratley, Babi and Jaikishan have preferred Appeal No. 268/86. According to the prosecution story, Mst. Shyamvati, along with her husband Omprakash, had gone to see a picture (cinema) in Manoj-Talkies', Kota, in the night-show running from 9 PM to 12 PM. Appellant Peer Ali was the Gate-Keeper at the Talkies. When Mst. Shyamvati and her husband were sitting in the cinema-hall, Peer Ali came in and asked them that the Manager of the cinema-hall was calling them. They both went to the room of the Manager, where, they were inquired about their relationship; and when the Manager was satisfied that they were husband and wife, they were allowed to go and sit in the cinema-hall. They both were witnessing the cinema in the. II-Class. After some time, two boys came there and by showing a knife, they took Mst. Shyamvati out of the hall, and before leaving the hall, they directed Omprakash to keep sitting in the hall. Mst. Shyamvati came out of the hall, where 4 other persons were present. It is mentioned in the report that Jagdish and Jaikishan had taken Mst. Shyamvati out of the hall. Jagdish then took Mst. Shyamvati to the lavatory; but Peer Ali asked them that somebody might see them there, so, nothing to do there and that she might be taken outside the talkies. Thereupon, Jagdish, along with 7 other accused persons, took her in the back of the cinema-hall. It is then alleged in the report that Mst. Shyamvati was taken by those persons to a jungle and 7 accused persons committed rape on her. In the report, Mst. Shyamvati has mentioned the names of the accused persons, who had committed rape on her. Her allegation was that the accused persons were calling each other by their names for committing sexual-intercourse with her one after another, and so, she could remember the names of those persons. Thereafter, she had become senseless. According to her report, Peer Ali did not commit any sexual-intercourse with her, but, he was standing there while throwing torch-light for helping the other accused persons in committing sexual-intercourse. When Mst. Shyamvati came into senses, she came back to cinema-hall, and outside the hail, she found her husband there. As they were threatened by some persons, both Mst. Shyamvati and Omprakash left the cinema-hall in an auto-rickshaw and came to Nayapura Bus-Stand. There, they met two constables, to whom, they narrated the entire story. They were asked to go PS-Bheemganj Mandi and report the matter. Both the police constables followed them upto PS-Bheemganj Mandi, where a report was. lodged at 1. 30 AM on 29th Jan, 85. After lodging the report, Mst. Shyamvati and her husband returned to their house; and then, again at 10 AM, they came to police station where the clothes of Mst. Shyamvati were seized by the police. Mst. Shyamvati was then sent for medical-examination. The same day, the police arrested the accused persons and also got their medical-examination done. After completing usual investigation, the police submitted a challan against 8 persons. The trial court, after concluding the trial, found that no case was made out as against accused Mohansingh, and so, it acquitted him, and the other accused persons were found guilty and sentenced as mentioned above. The learned counsel for the appellants argued that the report (Ex. P. l) was lodged by Mst. Shyamvati, wherein, she gave the names of all the accused persons, who had committed the offence. The report was read over to me. In the way in which the report has been written, it indicates that this is a false and manipulated report. Such a report can be lodged and dictated if somebody prepares a case with a particular motive, argued the learned counsel. Then, according to him, constable Mahaveer Prasad who was posted at PS-Ladpura; was the real brother of the husband of the prosecutrix. During his statement in the court, Omprakash PW 2 was questioned about Mahaveer Prasad. The evidence is that Mahaveer Prasad had come to PS-Bheemganj Mandi. There is difference in the statements of the witnesses on the aspect as to when this Mahaveer Prasad had arrived at the police station, who had called him and on whose information, he had come to police station. Omprakash PW 2 stated that Mahaveer Prasad had come to police station at 2 AM. He has stated that the name of Mahaveer Prasad was not disclosed by them. Mahaveer Prasad had arrived at the police station after 45 minutes of the lodging of the report. He has further stated that after the lodging of the report at the police station they came out of the Police Station and were waiting for an auto rick shaw, at that time, Mahaveer Prasad arrived there. He has also stated that his wife did not have any talk with Mahaveer Prasad. Mst. Shyamvati PW 1 has stated that Mahaveer Prasad, constable, was real brother of her husband and. that he was called that very night; when they came to PS- Bheemganj Mandi, Mahaveer Prasad was also with them; Mahaveer Prasad was called at PS- Bheemganj Mandi, and after his arrival, the report was lodged there. The report was lodged at 1. 30 AM; it means, before lodging the report, Mahaveer Prasad was called at the police station, and in his presence, the report was written. So, these are the statements of Mst. Shyamvati and her husband Omprakash. It shows that from the very beginning, the correct report was not lodged at the police station. Mahaveer Prasad, constable, who was posted at PS- Ladpura, was called by these persons, and after his arrival at PS- Bheemganj Mandi, the report was lodged. It means, after due consultation with Mahaveer Prasad, the report was written. But, this fact has been completely denied by Omprakash PW 2. According to him, Mahaveer Prasad bad arrived at 2 PM, in the day-time, and that, he had arrived after 45 minutes of the lodging of the report. It means, the "report was lodged at 115 PM; but, this is not the position. It was lodged at 1. 30 A M. , as is clearly mentioned in the report (Ex. P. 1 ). This report was sent on 29th Jan. 85, to the concerned Magistrate at 2. 50 PM, on which, there is an endorsement also to this effect. So, it is clear that the report was lodged at 1. 30 AM, and it could not be written at 1. 15 PM, just before the arrival of Mahaveer Prasad, who had arrived at 2 Pm, because, the report was sent to the Magistrate concerned at 2. 50 PM. This difference proves that the case was made out/concocted from the very beginning. Mahaveer Prasad being a police constable posted at Kota, and he being real brother of Omprakash PW 2, they tried to entangle these persons, and this was the reason that in the FIR, the accused persons were named. Neither Mst. Shyamvati, the prosecutrix, nor her husband Omprakash knew the names of the accused persons, but, still, they were named in the F. I. R. To show truthfulness as to how the prosecutrix came to know the names of the accused persons, it was mentioned in the report that during the course of committing sexual intercourse by the accused persons, they were calling each other for having his turn, by names. It cannot be believed that the persons who would commit an offence in the night, in a jungle and under bushes, would call each other by name, so that, the prosecutrix might remember and know their names. Hence, this statement of Mst. Shyamvati PW 1 cannot be believed at all. The position is thus clear that after the arrival of Mahaveer Prasad at PS-Bheemganj Mandi, the report was lodged, and after due consideration and consultation with him, the names of the accused persons were written in the FIR. So, this F. I. R. was not immediately recorded, but, it was recorded later on, i. e, after the arrival of Mahaveer Prasad at the police station. It, therefore, cannot be believed that Mst. Shyamvati would remember the names of the accused persons and narrate them while lodging the report. It creates a great suspicion in the correctness of the story of the prosecution, from the very beginning. After perusing the report. (Ex. P. 1), & the statements of Mst. Shyamvati PW 1 and Omprakash PW 2, it becomes clear that some improvement was made in the court-statement. The report (Ex. P. 1) itself is an exhaustive report, wherein, minute details have been mentioned. But, if the statement of Mst. Shyamvati, recorded in the court, is looked into, it is found that improvement was made therein. There is difference in the statement about the fact as to when she along with her husband was called by the Manager at the cinema-hall and also to the point as to when Mst. Shyamvati was taken but of the cinema-hall. This difference also indicates that while giving the statement, the intention was to implicate the accused persons by hook or by crook -. Shyamvati in her court-statement has stated that while they were witnessing the picture, two persons came inside the hall; one of them sat beside her husband and the other, behind them; and she was then called behind and at the point-knife, she was taken out. What is surprising is that neither Mst. Shyamvati raised any hue and cry, nor did her husband Omprakash object to the act of those two persons; nor did he go to the Manager of the talkies when Mst. Shyamvati did not return to the cinema-hall for a long time-For such a long time he kept sitting in the cinema-hall knowing that his wife was taken away by two miscreants at the point of knife : Omprakash, being the brother of Mahaveer Prasad constable posted at Kota, could have come out of the cinema-hall, contacted the police or the Manager of the hall and narrated all these happenings, why this was not done by Omprakash ?
(3.) THE learned Public Prosecutor argued that on account of fear, Omprakash did not dare report the matter in the police. This is no argument. Can a person tolerate that his wife would be taken out of cinema-hall at. knife-' point by some Goondas, and knowingly that some mis happening would be there to his wife, he would not bother to save her chastity and life ? Was it a matter of fear ? Such an argument does not appeal any sensible person. I see no reason why Omprakash would keep silent and would continue sitting in the cinema-hall knowing that some offence might be going to be committed with his wife outside the hall. This conduct itself shows that from the very beginning, the true fact has been kept in the dark and not brought before the Court. It is revealed from the record of the case that from the very beginning, the police wanted to make out a case entangling some persons as miscreants, and in that attempt, they not only set out a false case, but also, they failed to discharge their duties. If this sort of police officers are- there in the police department, then, may the God. save this department. No doubt, something must have happened to Mst. Shyamvati; it cannot be said that she was hot at all raped by somebody. THE argument that a lady would not say anything about her character or losing her chastity of of her being raped by some persons, is also no argument. No doubt, a lady would feel shy, but, such a lady as in this case, who can manipulate such an offence, in such a manner, and that too, at the hands of some persons, cannot and should not be believed at all. Solitary state-ment of a prosecutrix can be taken into consideration or be relied for convicting a person, but that statement should be of sterling worth. If we look into the statement of Mst. Shyamvati and the FIR, we find that there is defference. THEre is nothing in the FIR (Ex. P. 1) that after taking her from the cinema-hall whether she was taken to the lavatory or on the verandah, where the two persons had committed rape on her and that then she was taken behind the bushes, where 8 persons committed rape on her. This is a statement which the prosecutrix gave in the court, which finds no place in the report (Ex. P. 1 ). So, this was the character of the lady. Is it justifiable to believe the statement of such a lady ? to convict a person on her solitary testimony ? Then, according to the record, Mst. Shyamvati was 15 years of age. A girl of 15 years is not a major woman; she is a girl of tender age; and her physical parts would not develop in a proper way. No doubt, the doctor has stated that she being a married woman, she was habitual of sexual-intercourse, but, it does not mean that her private-parts would be as developed as of a woman of 30-40 years, that even if a number of persons commit sexual intercourse with her forcibly, Would there be no injury on her private-parts. The prosecutrix in this case was aged 15 years; she was allegedly raped by 8 persons at a time; and even then, there would not be the slightest injury on her private-parts, cannot be believed, this is beyond imagination even, especially when she was allegedly raped behind the bushes, which was a rough surface, but, she did not receive any injury on her body also. This all shows that the case has not been properly investigated, and the case, after a great manipulation and concoction, has been put up in the court, to get convicted the accused persons; and all the witnesses have been tutored to say the same thing. It cannot be said or disputed that no offence was committed with Mst. Shyamvati; she might have been raped; but that offence was not committed in the manner in which the report (Ex. P 1) was lodged and in the manner the witnesses have deposed in the court. So, unless the case is proved beyond reasonable doubt, a person cannot be convicted merely on the presumption that a girl has been raped by somebody. While convicting a person, one has to prove that the man has committed the offence, otherwise, it would be highly unjustifiable to punish anybody. The fact is that Mst. Shyamvati, in the report (Ex. P. 1), gave the names of the persons and mentioned that somebody had called Jaikishan to commit the offence, who accordingly did it; and then, Karansingh (alias Kanwar) was called and be also committed the offence. But, according to Omprakash PW 2; Jaikishan and Karansingh were sitting by his side when Mst. Shyamvati was taken by the two persons from the cinema-hall; and till Omprakash was sitting in the hall, Jaikishan and Karansingh were also sitting by his side who did not permit him to move anywhere. So, Jaikishan and Karansingh were in the cinema-hall. As such, is it a correct allegation in the FIR that Jaikishan and Karansingh also had committed rape on the prosecutrix ? This all indicates that the prosecution has not fairly investigated the case, and a false story has been cooked up and after deliberation, a detailed report (Ex. P. l) was lodged, in order to get the accused persons convicted by hook or by crook, and the witnesses were made to say in the court accordingly; so, their testimony is not at all worth reliability. There is difference on the point that after commission of the offence, when Mst. Shyamvati returned to cinema-hall and saw her husband standing there outside what her husband uttered, how and from where they caught the auto rickshaw and how they came to police station. If we look into the statements, we find that there is difference on this aspect also. If the fact as stated by the witnesses is a true then, there should not have been any difference on this point. According to the learned Public Prosecutor, there are minor contradictions, in the statements of the prosecution witnesses. In my view, the contradictions are not of minor nature; they are not amongst other witnesses, but, between the prosecutrix and her husband; so, how can it be taken so lightly, specially when, the punishment for the alleged offence is so severe. So, this aspect is to be looked into very minutely. The accused persons were put to identification-test. . They were not known to the prosecutrix, Mst. Shyamvati and her husband, Omprakash, their names were, however, known to Mst. Shyamvati, because, the accused persons were being called by their companions by their names to have their turn for committing sexual-intercourse with the prosecutrix. In the report (Ex. P. 1), she did not mention any sign or description by which she could recognize those persons, and because she knew their names, does not mean that she knew them, they were not known to her. So she should have given some description of those persons, by which, she could identify them, but, there is no description in the report. Omprakash who was not present at the spot, but was standing outside the cinema-hall when Mst. Shyamvati returned from the place of occurrence, has given a casual statement by saying that behind the prosecutrix, 6 to 8 persons were, coming, who were those, 8 persons ? Two were Jaikishan and Karansingh who were sitting with Omprakash in the cinema-hall, and 8 persons more means in all 10 persons; but Omprakash has not stated anywhere in his statement that he could identify those 6 to 8 persons in the night, which means that he did not know the accused persons; he did not disclose to the police, the identities and descriptions by which he could identify them. The fact is that when in the morning at about 10 O'clock, Omprakash and Mst. Shyamvati came to police station, the accused persons were already there under arrest, and possibility cannot be ruled out that the accused persons must have been shown to them by the police. ;