- (1.) THIS Criminal Appeal has been filed under Section 374 of the Code of Criminal Procedure, against the judgment and conviction passed by learned District and Sessions Judge, Sawaimadhopur, on 19. 6. 1982, in Sessions case No. 56/1980, whereby the appellant Om Prakash was convicted under Section 342 I. P. C and sentenced to six months R. I. and also a fine of Rs. 200/ -. In default of payment of which, he has to further undergo R. I. for one month. Accused appellant Man Singh was convicted under Section 366/342 IPC and sentenced to R. I. for five years and also a fine of Rs. 500/- in default of payment of which, he has to further undergo R. I. for three months. Accused appellant Bhagwati was sentenced u/s 376/366/342 IPC and sentenced to five years R. I. and also a fine of Rs. 500/- on each count, in default of payment of which he has to undergo R. I. for three months.
(2.) IT will suffice for the purposes of this appeal to state that a Parcha-bayan (statement) of prosecutrix Pushpa was recorded at Police Station Hindaun, district Sawaimadhopur, on March 28, 1980, wherein it was stated by her that she came to meet her elder sister Mst. Parvati, alongwith her mother at village Chinaita, P. S. Hindaun. Her sister was married to Ram Khiladi. She came about 5-6 months before the incident took place. After 2-3 days, Ram Khiladi and his brothers (accused-appellants Bhagwati and Man Singh) turned her mother out of their house after threatening her and kept prosecutrix confined in the house. These persons pressurised her to marry Bhagwati but she refused. Appellant Bhagwati used to rape her against her will and also used to beat her. She further staled that last day Man Singh and Bhagwati brought her to village Hindaun to sell her to some person and kept her hidden in the house of an Advocate and confined her in a wooden cabine of a barber in the night. On her shouts, she was rescued by Police Constables. She wants to go to her mother. On this statement, the Police registered a case under Secs. 376, 366 and 342 I. P. C. against the appellants. The prosecutrix was also examined under Section 164 Cr. P. C. and after completing the investigation, challan was submitted. Accused appellants were committed to the Court of Sessions Judge, Sawaimadhopur, who framed charge against the accused persons under the above mentioned Section. After examining the evidence of the prosecutrix and defence and hearing both the parties the appellants were found guilty and convicted as mentioned above. I have heard Shri S. M. Ali, learned counsel for the appellants, Shri K. N. Sharma, learned Public Prosecutor and Shri Biri Singh, learned counsel for the complainant. It is contended by Shri Manzoor Ali, learned counsel for the appellants that there is no evidence on record to support the charge. It is also contended that the prosecutrix lived with appellant Bhagwati as his wife since about March, 1978, and, therefore, no offence is made out against the appellants. It is also contended that appellant Man Singh did not commit any offence under Sections 366/342 as the prosecutrix came to Police Station, Hindaun, to lodge an F. I. R. on March 27, 1980, regarding her abduction against Sohan Singh and Mst. Shanti. It was also submitted that appellants Man Singh and Om Prakash did not Commit any offence under Section 342, as Om Prakash is married and when they reached the bus-stand of Hindaun, which is near the wooden cabin of appellant Om Prakash, he took them to their residence which was nearby. It is also submitted that appellant-Bhagwati was not present at that time. It is contended that prosecutrix was not recovered from wooden cabine of Om Prakash as falsely alleged by the prosecution. It is further contended that appellant Bhagwati did not commit any offence under Section 342 IPC as prosecutrix who lived in his house, as his wife, went out of the house and met all her neighbours and those living in the village at her own will and also went to work in the field every day. It is also contended that neither her sister Mst. Parwati nor her mother and her elder brother, who came alongwith her when prosecutrix come to meet her elder sister Parwati, were examined to substantiate the allegations of the prosecution that the mother of the prosecutrix was turned out of the house forcibly and thereafter accused appellant Bhagwati pressurised to marry her and when she refused, repeatedly committed rape upon her and also gave her beatings. It is also submitted that the trial court has erred in relying on the sole testimony of the prosecutrix who cannot be termed to be a reliable witness. To consider the points raised by the learned counsel for the appellants, it will be necessary to go through some of the statements and documents, which have been pointed out by both the parties. Mst. Pushpa, PW 6 has stated in her statement that about 5-6 months earlier than the date of occurrence, she had come alongwith her mother from Orissa to meet her elder sister Parwati, who was married in village Chinaita in Rajasthan with Ram Khiladi. She further statesthat she and her mother lived alongwith her sister for about 5 6 months. Ram Khiladi turned her mether out of the house after toreatening and beating her. She slates that appellants Bhagwati and Mansingh are brothers of Ram Khiladi. After her mother was turned out, she continued to live with her sister. She was confined by Ram Khiladi. Bhagwati and Man Singh was pressurised to marry Bhagwati but she refused. Therefore, she was given beatings. Accused appellant Bhagwati committed sexual intercourse with her against her wishes from time to time. She further statesthat about l 1/2 years from the date, her statement was recorded in Court. Appellant Bhagwati and Mansingh took her out from their house and brought her to Hindaun in a house of an Advocate where she was kept. She was brought to Hindaun on cycle and they reached Hindaun at about 6 A. M. Bhagwati and Man Singh wanted to sell her at Hindaun. She was kept for the whole day in the house of an Advocate whose name she did not know and at night she was kept in wooden cabine of Om Prakash barber. After keeping her inside the cabine, Om Prakash and Man Singh both were keeping watch on her outside the cabine. After mid night she shouted, thereupon she was rescued by police. While in cabine, accused appellant Om Prakash and Mansingh wanted to commit rape with her but they did not do so. In cross-examination, she states that when she came alongwith her mother to meet her sister, her elder brother had also come alongwith them. She denied the suggestion that! her mother had got her married to appellant Bhagwati, She states that she cannot say whether her elder sister Parwati knew that the accu-sed appellants Bhagwati, Man Singh and Ram Khiladi had forcibly turned out her mother from the house. She states that after her mother went away, she continued to stay in the same house for six months. During this period till she was recovered , by police, none of her family members ever came to her. While she lived in village Chinaita, in house of Bhagwati, her sister Parwati used to meether. She had told her sister that she is given beatings but she expressed her helpless. She also states that none of the neighbours ever came to her help, she also states that she used to go out of her house in the village when she liked and also she used to do work in field. She admitted that one Sohan Singh Jat and his mother-in-law Mst. Shanti lived in the same village. She denied the suggestion that the above mentioned two persons abducted her. On her own she stated that when appellants Man Singh and Bhagwati were abducting her to Hindaun, one Gujar whose name she did not know saved her. However, the above mentioned both appellants again brought her from house of that Gujar. On the next day she was confined in wooden cabine of barber. She was confronted with her statement recorded under Section 164 Cr. P. C. in which she has stated that she was abducted by Sohan Singh and Mst. Shanti, who wanted to sell her. She was saved by Hardayal and Bhanwar by caste Gujar. However, she stated that she had never made such statement before the Magistrate. She also stated that she was taken by the appellants Bhagwati and Man Singh to office of an Advocate, where she was kept confined for whole day. The Advocate was also present in the office at that time but she did not have any talk with him. She denied the suggestion that she was taken to the office of the Advocate by Bhagwati and Mansingh to file proceedings regarding her abduction by Sohan Singh and Mst. Shanti. She also states that she did not go to see cinema in Hindaun on that day alongwith accused-appellants Om Prakash and Man Singh. She was confronted again with her statement under Sec. 164 Cr. P. C Ex. D 1 in which she has stated that after sunset, she was taken at night to cinema by Man Singh and Om Prakash and after seeing the cinema, they took meal in a hotel. She denies that she had given any such statement before the Magistrate. She further states that she was asked to sit inside the wooden cabine but no arrangement for her slee-ping was made. She states that while her statement under Sec. 164 Cr. P. C. (Ex. D. 1 was recorded, she had stated that she was taken to Hindaun for sale. How-ever, she could not say why the same was not recorded in Ex. D. 1. She further states that she had also stated before the Magistrate while Ex. D. 1 was recorded that appellant Bhagwati had committed sexual intercourse with her several times. But why the same in not written, she cannot say. From the statement of prosecutrix, it can be said that there are several important contradictions in her statement and the statements recorded by her under S. 164 Cr. P. C. (Ex. D. l), In Ex. D. l there is no allegation of any rape hav-ing been committed by accused appellant Bhagwati. She clearly states in Ex D. l that she was abducted for the purposes of sale by Sohan Singh & Mst. Shanti and she was rescued by Hardayal and Bhanwar, Gujar by caste. It is important to note that none of these important witnesses were examined by the prosecution while Hardayal D. W. 3 has been examined as a defence witness. D. W. 1 Rame-shwar Prasad is an Advocate, in whose office the prosecutrix alleges to have been confined for whole day has also been examined as a defence witness. She has also stated in Ex. D. l that she went to see cinema show with appellant Mansingh and Omprakash & thereafter all of them had means at hotel. She also stated in Ex. D. 1 that she had come to Chinaita & met her sister. She further states that 2-3 days earlier, police had arrested her from village Chinaita & brought her to Hindaun and that she was got released from police by accused-appellants Mansingh and Ram Khiladi her brother-in-law. It may also be pointed out that she states in her examination-in-chief, in the very begining that she came to village Chinaita alongwith her mother 5-6 months earlier to meet her sister. She and her mother lived at the house of her sister for about 5-6 months when her mother was forcibly turned out by Ram Khiladi from his house. In cross-examination she has clearly stated that after her mother was forcibly turned out, she continuously lived for about six months in the same village in the house of Bhagwati. This clearly shows that she lived in village Chinaita for about a year before the incident took place and not six months as stated by her earlier. Dr. Narayan Lal Bhardwaj P. W. 1, after examining the prosecutrix has stated that her age is bet-when 15 and 18 yrs. He has also stated that the prosecutrix is habitual in sexual intercourse. He has also stated that there were no marks of any fresh injuries P. W. 2 Ram Singh, P. W. 3 Virendra Singh, P. W. 4 Mangti Ram and P. W. 5 Ram Kripal are the police constables who state that they recovered prosecutrix from the wooden cabine of Om Prakash barber. It may be pointed out that the prosecutrix herself has stated in Ex. D. 1 that she was taken in custody by police 2-3 days earler than the incident and was brought to Hindaun from where the appellant Mansingh and her brother-in-law Ram Khiladi got her released. Thus the statements of these four police constables are of no consequence.
(3.) IN his statement recorded under Sec. 313 Cr, P. C. appellant Bhagwati has stated that prosecutrix is his married wife and the marriage was performed by consent of her mother and prosecutrix herself and that he did not give any threats or beatings to prosecutrix. He has also stated that he has married prosecutrix in accordance with the Hindu Customs and therefore has lived with her as husband and wife. He has also stated that he and his brother Man Singh had taken prosecutrix to an Advocate at Hindaun. He went away to factory and prosecutrix was taken by Man Singh to the Advocate. He has also stated that prosecutrix was brought to Hindaun. Sohan Singh and Mst. Shanti had abducted the prosecutrix and they had got her released with difficulty from village. D. W. 1 Rameshwar Prasad is an Advocate in whose office the prosecutrix alleges to have been confined for full day. He has stated that prosecutrix came along-with appellant Man Singh for the first time on March 22, 1980 in his house at Hindaun. He drafted an F. I. R. on the allegations stated by the prosecutrix and sent the same to Dy. S. P. and S. H. O. Hindaun & also sent a copy to S. P. Sawai Madhopur. He states that he had told them that if nothing happens for 5-7 days, they should come to him again for lodging a complaint in Court. Thereafter both of them came to him to his office on March 27, 1980. On the version given by the prosecutrix and F. I. R. he drafted a complaint against Sohan Singh and Mst. Shanti, both of whom are of village Chinaita. On the same day both of them came to Court and when the call for filing application complaints was given, the complaint was filed by the prosecutrix herself with his assistance. He states that neither on March 22, 1980, nor on March 27, 1980, the prosecutrix was ever confined in his office. He states that she never entered in his house as alleged by her. He also states that Mahendra Singh A. S. I. , P. S. Hindaun, had pressurised him not to appear for prosecutrix as he wanted that she should start living with his younger brother. However, he refused not to appear on behalf of Mst. Pushpa. He informed Bar Association, Hindaun, regarding this matter in writing and a resolution, was passed and the Advocates went on strike. Procession was also taken out by the Advocates. A deputation of Advocates also called upon S. P. Sawaimadhopur and he had also accompanied them. Ex. P. 17 is report lodged by this witness with S. P. Sawaimadhopur, in which he has narrated the facts given in his statement extracted above showing that prosecutrix visited his office on March 27 and that he had filed a complaint on her behalf against Sohan Singh and Mst. Shanti. It is also stated in this application that A. S. I. Mahendra Singh pressurised prosecutrix to give false statement against this witness and his wife as well as his daughter to state that this witness committed rape with her while she was confined in his house, with help of his wife and daughter. It is further stated in this application that A. S. I. Mahendra Singh by hook and crook wants to arrest him and his wife and daug-hter and that steps should be taken to stop the evil designs of Mahendra Singh. Thus the statement of this witness D. W. 1 has far reaching effect and shows that the prosecutrix has wrongly stated that she was confined for whole day in the office of an Advocate when in fact she had gone to lodge an F. I. R. against Sohan Singh and Mst. Shanti Devi and thereafter since nothing happened, to lodge a complaint in the court of law. This also shows that she came to Hindaun with appellant Mansingh and Bhagwati for the purposes of filing complaint against Sohan Singh and Mst. Shanti Devi and not for the purposes of selling her by them at Hindaun as alleged in her statement. D. W. 2 Ram Khiladi, brother-in-law of prosecutrix has stated that Rs. 3000/- were paid to mother of prosecutrix and thereafter prosecutrix married appellant Bhagwati as per Hindu Rites. He states that her mother stayed for two day more after marriage and thereafter went away. The elder sister of prosecutrix is married to him since 10 years and mother of Parwati had come to his village to give his daughter in marriage to him. He states that prosecutrix lived for six months after marriage in his house. He also states that about six months after marriage of prosecutrix, she was abducted by Sohan Singh and Mst. Shanti. D. W. 3 Hardayal is an important witness. He states in his examination-in-chief that at about 12 A. M. while he was returning from his well to his house, he found one person and the lady on the way. Behind them at some distance another lady was coming who was about 20 years old. When he met them, he enquired as to where they were going at this hour in cold season. They gave no satisfactory reply to him. That person and lady went a little ahead, another lady following them came near him told him that her name was Pushpa. At that time both the persons who had gone ahead gave call to Pushpa to come with them. At that time Pushpa told him to save her from these persons. Thereupon, he called both these persons to come near to him but they ran away. He thereafter brought Pushpa to her house. On his enquiring, she told him that she belongs to village Chinaita and that she was married to Bhagwati. The prosecutrix lived in his house for 4-5 days. He himself went to village Chinaita, which is about 20 miles away from his village and brought appellant Bhagwati and Man Singh with him. Thereafter in presence of Sarpanch is and others, appellants Man Singh and Bhagwati took Pushpa alongwith them. This is an independent witness, who is mentioned by prosecutrix in her statement Ex. D. 1 recorded under Section 164. Cr. P. C. where she clearly states that while she was being abducted by Sohan Singh and Mst. Shanti Devi, she was rescued by Hardayal and another person. Thus it can be said that none of the prosecution witnesses corroborates the allegations made by the prosecutrix against the appellants and from her statement discussed above she cannot be said to be a witness of sterling worth. There is no doubt that in a case under Section 366/376, the statements of prosecutrix is an important piece of evidence and conviction can be based on her solitary statement also but it is always desirable that there should be some corroborating statement to support her allegations. More over in such a case the prosecutrix should be a witness of sterling worth. She has stated in her statement that she used to move out from her house freely and met the neighbours and villagers and also went to work in fields. When a lady can move about freely at, stated by her, it cannot be said that she was kept confined in house against her wishes. Her conduct, can be said, completely negatived the use of any force or pressure. The circumstances give a definite indication that she was a consenting party is living in the house of appellant Bhagwati where she has lived for as much as about a year before the incident took place. It is also expected in such matters that one or more of the family members of the prosecutrix appeared as prosecution witnesses to corroborate the allegations made by prosecutrix. In this case, neither her mother nor her elder brother who came alongwith her in the first instance when she came to visit her elder sister in village Chinaita has appeard as prosecution witness to corroborate the statement. Her mother was the best witness to have come and stated that she was forcibly thrown out of the house by Ram Khiladi and prosecutrix was forcibly confined to his house with a view to pressurise the prosecutrix to marry with appellant Bhagwati. In absence of such corroborative evidence, no reliance can be placed on the statement of prosecutrix, who cannot be termed to be a witness of sterling worth, who may inspire confidence. Medically her age has been stated to be between 15 and 18, years and in such cases it is always presumed that this is only an estimate of age, which can be one or two years more also. Medical evidence is flexible and in case of doubt, the benefit regarding the age should go to the accused persons. ( Therefore, it can be safely said that the prosecutrix was more than 18 years of age and was also physically well-developed as stated by P. W. 1 Dr. Narayan Lal. ;