MITAL, J. - (1.) THE appellant Makhan Singh has challenged his conviction under Section 376 IPC and sentence of 7 years rigorous imprisonment, fine of Rs. 10,000/-and in default further simple imprisonment for one year recorded by learned Special Additional Sessions Judge (Women Atrocities), Shri Ganganagar by his judgment dated 22. 3. 99 in Sessions Case No. 92/97.
(2.) ONE Jagga Singh son of Shanker Singh resident of 8k made a report at Police Station, Hanumangarh on 28. 3. 96 at 1. 30 PM. stating therein that he had gone to the house of Harbans Singh on the occasion of the marriage of his daughter with all the members of the family on 27. 3. 96. His daughter Pema Bai aged 14 years wearing yellow suit and black shoes went back at 10. 00 to wash the clothes and to come back again. His son-in-law Resham Singh son of Darshan Singh Raisikh resident of 365 Head was present in the house and at about 11. 00 A. M. The appellant accused Makhan Singh came there and called Pema Bai outside the house. He told her that she is required to be present in the marriage immediately and her mother was calling her in the function. Thus,. Pema Bai accompanied the appellant. It was informed by Resham Singh to him when they came back to their house. He searched Pema Bai at the house of Harbans Singh, but Pema Bai and Makhan Singh both were not traceable. Jagga Singh continued search of his daughter and in the evening one Nagar Singh informed him that he had seen Pema Bai going with the appellant Makhan Singh. It was alleged in the F. I. R. that the appellant had kidnapped her daughter. On the basis of the above report Ex. P/4 by father of Pema Bai i. e. Jagga Singh, offence was registered under Sections 363 and 3661. P. C. PW. 5 Bhanwar Singh Rathore conducted the investigation. He recorded the statement of the witnesses. He recovered Pema Bai on 1. 4. 96 and prepared recovery memo Ex. P/1. At the time of the said recovery, Pema Bai was sitting with Makhan Singh at the bus Stand of Nai Mandi, Ghadsana. The appellant was also arrested there vide arrest memo Ex. P/2. She was medically examined on the same day by the Medical Jurist, who categorically opined that intercourse had been done with her within five days. The appellant was also medically examined and was found capable of performing the act of sexual intercourse. On the basis of radiological examination, the age of the prosecutrix was about 17-18 years. The vaginal swab and smear, one Salwar was sent for chemical examination by forwarding letter Ex. P/9 and the F. S. L. report is on the record, which shows that human blood was found on the above three articles though the blood group could not be determined because results remained inconclusive. On submission of the charge-sheet, the appellant was tried for the offences under Section 363, 366 and 376 I. P. C. The prosecution examined Pema Bai PW-2 the prosecutrix and other material witnesses Nagar Singh PW. 1, Resham Singh PW 3 and Jagga Singh PW. 4. Dr. Ratan Agarwal PW 6 proved X-ray and Radiological Report Ex. P. 6 regarding the age of the prosecutrix between 17-18 years. Dr. K. K. Garg PW. 8 has proved the medical examination report Ex. P. 1. Bhanwar Singh PW. 5 is Investigating Officer and Ram Gopal PW. 7 Head Constable has proved the forwarding letter to F. S. L. Ex. P. 9 and the receipt Ex. P 10. The learned trial court appreciated the oral and documentary evidence on record and came to the conclusion that the age of prosecutrix at the time of the alleged occurrence was not less than 18 years and it was between 18 to 20 years. It further came to the conclusion that the prosecution could not prove the fact of abduction because in the statement of the prosecutrix it appeared that she voluntarily accompanied the appellant when the accused told her that he will purchase clothes for her. No threat was given or pressure employed to the prosecutrix at the time when she went with the appellant to Bikaner. On the appreciation of the statement of the prosecutrix, the learned trial court drew the conclusion that though the prosecutrix went with the appellant from her house of her own accord to purchase clothes but when she was taken and kept at Bikaner by the appellant he threatened her and forcibly violated her body. Thus, the appellant committed an offence under Section 376 I. P. C. In the result the) impugned judgment and sentence was passed as stated above. I have heard the learned counsel for the appellant and the learned Public Prosecutor, I have carefully gone through the evidence on record and particularly the statement of the prosecutrix and the medical evidence. It is vehemently argued that the circumstances in the case and from the statement of the prosecutrix, it is clearly made out that she of her own went with the appellant. No threat was given by the appellant and even force was not used against her. The prosecutrix did not resist the act and she did not raise cries also. She came back to her house from the house of Harbans Singh, where she and her parents had gone to attend the marriage function, saying to her parents that she had to wash clothes. The prosecution case is that Makhan Singh called her out of the house and the prosecutrix accompanied him. The prosecutrix did not sustain injury on her person while committing the alleged offence. It is submitted that the trial court has committed an error in holding that the prosecutrix was threatened or force was used against her by the appellant for violating her body. The prosecutrix had ample opportunity to make complaint against the appellant prior to the appellant and the prosecutrix were seen by the parents and the police sitting at Ghadsana Bus Stand. This circumstance also indicates that the appellant never gave any threat or used force against her. The learned Public Prosecutor supported the impugned judgment. It is contended that there is no cogent person to disbelieve the statement of the prosecutrix which fully proved that the appellant committed the offence by using force and giving threats to the prosecutrix. She could not have mustered courage at the strange place at Bikaner and in the company of the appellant to speak to any person about the incident. The prosecutrix PW. 2 Pema Bai has deposed that the appellant told that her mother has called her at the house of Harbans Singh. At that time she was washing clothes and her brother-in-law Resham Singh was also present in the house. Thereafter she proceeded for the house of Harbans Singh after informing her brother-in-law Resham Singh with the appellant. When the appellant told her that he will purchase clothes for her, she accompanied with the appellant. The appellant took her to Anoopgarh and from there to Bikaner by Bus. The appellant forcibly did sexual intercourse with her at Bikaner for three days. After three days he brought her to Ghadsana by Bus, where her parents met her. The prosecutrix has clearly stated that the accused did the alleged act against her consent. She has categorically stated in the chief-examination that whenever the accused committed the alleged act he pressed her mouth and afterwards used to threaten her that if she narrated to anyone, she will be killed by him. 1 have perused the cross examination of this witness in which she stated that no person acquainted to her met on the way to Anoopgarh. After reaching Bikaner, accused took her in the 'dharamshala' where she was kept for three or four days, she has emphatically denied the suggestion that he did not commit sexual intercourse with her and she was simply deposing against the accused on tutoring by her counsel. I do not find any material or cogent reason to disbelieve the testimony of the prosecutrix. Her statement remains intact and unshattered in cross-examination. She was under the influence of threat given by accused that she could not gather so much courage to tell about the incident against the accused at Bikaner or on the way to Anoopgarh. It is quite natural that a lady aged 18 years or so would not speak to anyone due to fear at a strange or unknown place where no one is acquainted or related to her and it was this psychology and fear psychosis working in the mind of the prosecutrix. Therefore, if she did not utter anything to someone in the bus or any other place, it does not lead to this inference that she was a consenting party. I am of the opinion that the learned trial court has not committed any error in believing the statement of the prosecutrix which goes to prove beyond reasonable doubt against the appellant the offence u/s. 376 1. P. C.
(3.) RESHAM Singh PW/3 has also supported the prosecution case that the appellant had come to the house and took the prosecutrix from there with him and thereafter he was not traceable. This fact is also deposed by Jagga Singh father of the prosecutrix PW/4. Nagar Singh PW/1 has also stated that he saw the prosecutrix with Makhan Singh, but by that time the bus had left the bus-stand. Dr. K. K. Garg, Medical Jurist has also supported the prosecution case by stating the condition found on examining the private parts. It is true that there was no other visible injury on the person of the prosecutrix but it merely suggests that she could not and therefore did not resist the violation of her body by the appellant. This fact also do not show that commission of the said act involved her consent in view of the unequivocal and trustworthy statement of the prosecutrix. As a result of the above discussion, 1 come to the conclusion that the prosecution succeeded in proving the offence u/s. 376 I. P. C. beyond reasonable doubt against the appellant and he has been rightly convicted and sentenced for the same. In the result, the impugned judgment and the sentence dated 22. 3. 99 passed by learned Addl. Sessions Judge (Women Atrocities) Sri Ganganagar is hereby upheld. The appeal is hereby dismissed. .;