Jammu & Kashmir High Court
Bansi Lal And Anr. vs State Of Jammu And Kashmir on 16 March, 1998
Equivalent citations: 1999CRILJ114
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Appellants have filed this appeal against the judgment dated 30-7-79 passed by the Sessions Judge, Kathua in File No. 8/ Sessions. By means of this judgment, both the appellants have been held to be guilty of having committed offences under Sections 366/376, RPC. For the offence under Section 366, each one of the appellants has been directed to undergo rigorous imprisonment for three years as well as and to pay fine of Rs. 200/- and in default of payment of fine, they have been directed to undergo further rigorous imprisonment for six months: whereas for the offence under Section 376, RPC, they have been directed to undergo rigorous imprisonment for five years and to pay fine of Rs. 5,00()/- and in default of payment whereof, they have been directed to undergo further rigorous imprisonment for six months. Both the sentences have been ordered to run concurrently.
2. Brief facts of the prosecution case, out of which this appeal has arisen are that on 19-12-74, PW Usha Devi hereinafter, referred to as the prosecutrix came out of her house at about 4 A.M. for urination in the street. At such time both the appellants are stated to have caught hold of her and then having kidnapped her with an intention to commit sexual intercourse against her consent. Further case of the prosecution is that the prosecutrix was taken from place to place by both the appellants and was kept at the house of their relations in district Kathua as well as in the neighbouring State of Punjab at district Gurdaspur. Throughout her stay, prosecutrix was stated to have been put under threat of being killed after knife had been brandished by them saying that in case she creates any noise, she would be done to death. Appellants have further stated to have threatened the prosecutrix to toe in line within them failing which she would be cut into pieces and at times she was stated to have been threatened that both of them would throw her into the river Ravi. Throughout her stay of about 15 days with the appellants, prosecutrix is further stated to have been sexually abused as both the appellants committed sexual intercourse with her against her consent and the age of the prosecutrix was held out to be 16 years at the time when she was kidnapped from the lawful custody of her father PW Milkhi Ram.
3. Complaint Exhibit "PA" was made by the PW Milkhi Ram, hereinafter referred to as the 'complainant' which resulted in registration of FIR vide Exhibit "PB" when police swung into action. Prosecutrix was recovered from the house of one Balak Ram at village Dhar Kalan, Tehsil Pathankot. This complaint was made on 21-12-74, when the complainant was unsuccessful in locating her daughter i.e. the prosecutrix. Prosecution evidence further suggests that intimation of the prosecutrix being taken by the appellants was given to the complainant by one Gian Chand, who had seen both the appellants forcibly taking away the prosecutrix on the fateful day.
4. After recovery, as per the statement of the prosecutrix, she was given on superdari to Pardhan then was brought to Kathua, where she was medically examined and thereafter she was also examined at hospital in Jammu.
5. In addition to the aforesaid facts, it is also the case of the prosecution that after examination, the prosecutrix was found to be mentally deranged.
6. In the aforesaid premise after completion of the investigation in this case, appellants were challaned in the Court of Judicial Magistrate, Kathua, who after recording prosecution evidence as well as the statements of the respondents, prima facie found that there is case against the respondents which was triable by the Court of Session, therefore, committed the appellants to the Court of Session. After conclusion of the trial, both the appellants have been found guilty and have been ordered to undergo the aforesaid sentences, hence this appeal.
7. Learned counsel appearing for the appellants has forcefully urged that there is no authentic evidence regarding the age of the prosecutrix to suggest that on the date of alleged incident, age of the prosecutrix was less than 18 years. While further arguing on this aspect of the matter, Mr. Sharma submitted that in the background of this case as well as in the face of the statement of the prosecutrix, no offence whatsoever is made out against the appellants and alternatively it this plea is not accepted then it can safely be inferred and held that the prosecutrix was a consenting party in the whole affair. In addition to this, it was further submitted by the learned defence counsel that so far Saroop Chand-appellant is concerned, there is no legal evidence to uphold his involvement in the case muchless proving that he was in any manner connected/concerned with the alleged offences. On the other hand, learned Government Advocate controverted these pleas and submitted that the prosecution has been able to make out a foolproof case against the appellants and has further submitted that keeping in view the overall examination of evidence produced by the prosecution in the Court below, present appeal is liable to be dismissed.
8. From the evidence of the prosecution, it is clearly made out that the prosecutrix had attended the school and had studied upto 6th Class. Admission form together with School Leaving Certificate could be one piece of evidence to prove her date of birth. Entry from the register of deaths and births could be another proof to prima facie establish that on the date of commission of offence i.e. 19-12-74, the age of the prosecutrix was less than 18 years. In addition to this, there could be further evidence namely horoscope as well as record of the Panchayat to prove the date of birth, which in my opinion was necessary to bring home the guilt under Section 366 of the RPC against the appellants. As already noted, the prosecution has not cared to bring any such evidence on record.
9. In the absence of proof of age, it will not be safe to hold that the age of the prosecutrix was less than 18 years and, therefore, her having been taken away forcibly by the appellants, they had committed the offence under Section 366 of the RPC, as held by the learned Sessions Judge below and the findings in that behalf deserve to be set aside.
10. Further case of the prosecution is that the prosecutrix was after having been kidnapped in the wee-hours on 19-12-74 was not only kidnapped but also sexually abused by the appellants. In this behalf when a reference is made to the statement of the prosecutrix in the Court of Session, it is clear that there is evidence to suggest that firstly she was taken to the house of Chandu Ram maternal uncle of the appellants where sexual intercourse was committed against her consent, from there she was taken to Barasaran when all of them went into the house of their sister at Punjab in village Godawala Gawam. During their journey in bus the prosecutrix was stated to have been threatened with the knife. At sister's house, she was lodged for 4/5 days by the appellants where sexual intercourse was again committed against her wish. Again she was taken to Mhrikot in tehsil Basohli and on the way, she was not allowed to create noise as both of them were threatening her. For three days all of them were stayed at Mhrikot when both the appellants are stated to have committed sexual intercourse against her consent, from where she was taken to Mozadhar in tehsil Pathankot at the house of Balak Ram! The prosecutrix states that she was abandoned and police recovered her from this place. Besides this there is statement of the prosecutrix that Bansi Lal appellant wanted her to forcibly marry and for this purpose, she was taken to Gurdwara hut the Granthi there declined. In her cross-examination amongst other things, the prosecutrix had stated that she was taken to jungle by Bansi Lal-appellant and she crossed the river under threat. The prosecutrix has further admitted that it was Bansi Lal alone who had kidnapped her.
11. Next material witness in this case is the father of the prosecutrix Milkhi Ram. As per this witness, Gian Chand witness had informed him that the prosecutrix was being taken on Sananghat road and this witness went to trace her out. Besides this Milkhi Ram has also stated that wife of his brother Mehar Chand informed him. He admits in his cross-examination that he knew both the appellants and their family members. Another strange fact that has come in his statement is that on the date of occurrence, he went for his duty as Postman at 10 A.M. whereas the incident had taken place at 4 A.M. in the morning. In case the incident had taken place as claimed by the prosecution, there was no question of complainant having come to know that his daughter Usha Devi was missing from home since 4 O'clock after she had gone for urination. His cross-examination further suggests that there was proposal for the marriage of the prosecutrix with Bansi Lal-appellant and when the witness declined such offer, he was threatened that his daughter would be kidnapped. However, no report was made in this behalf to the police nor this fact was disclosed to anyone. On the other hand, when reference is made to Exhibit "PA", he has named Saroop Chand and Ved Parkash sons of Amar Nath and Banwari Lal son of Amar Nath and one Mst. Kirpo widow of Amar Nath. What was the reason for his naming Mst. Kirpo widow of Amar Nath has not been explained by the witness. He further admits that the fact of the prosecutrix having been taken by gagging her mouth was wrong.
12. Other material witness in this case is the statement of Doctor Balbinder Kour, who had examined the prosecutrix as well as Doctor Ravinder Kumar Choudhary, Head of the Department Psychiatry, Government Medical College and SMGS Hospital, Jammu. As per the opinion of Doctor Balbinder Kour, sexual intercourse had been performed on the person of the prosecutrix within the duration of 48-96 hours. It may be appropriate to mention that she had examined the prosecutrix on 03-1-75 at 5.30 P.M. and opinion has been exhibited as "PD". No marks of violence were found on the body or private parts of the prosecutrix by the doctor. As per Doctor Ravinder Kumar, the prosecutrix was suffering from simple schizophrenia with hysterical overlay and he has proved certificate given by him vide Ex. "PC".
13. In the context of the present case, the prosecutrix in no uncertain terms admits that she was taken from place to place. She was made to cross the river, besides this she travelled in bus on different occasions. She was taken to Punjab then brought back, then taken to Gurdawara at Basohli. It is not understood as to why and for what reason, she did not raise 'hue and cry' nor created noise. May be at the time of her initial kidnapping, she was under threat, but thereafter while moving in the bus etc., it cannot be accepted that she was not in a position to have asked for help or to have raised 'hue and cry'. Not only this, but it can safely be said that the version given by the prosecutrix for having been raped against her wish, does not inspire confidence and is not worthy of credence. Mental derangement of the prosecutrix has been prayed for as another ground to hold that the prosecutrix was not in a position to consent even if she was found to be a consenting party. In this behalf suffice it to say that there is no legal evidence to the effect that her mental derangement was to the extent that she was not in a position to understand her welfare and secondly, the statement of her father recorded during the course of trial in the Court of Session, nowhere suggests of any such disability. Even in her statement recorded during the course of trial, this was never the case of the prosecutrix herself. It may also be appropriate to notice at this stage that on the other hand the prosecutrix has admitted that she has been married after this incident and is living happily with her husband at Batala. It is further not the case of the prosecution nor there is any evidence to suggest that after the incident the mental health of the prosecutrix has in any manner improved. That being so, simply on the basis of Ex. 'PC', it cannot be said that the prosecutrix was deranged to such an extent that she was not to be a consenting party.
14. The prosecution case otherwise does not inspire confidence. Reason being that when reference is made to the statement of the complainant. he admits having gone to his office on the date of occurrence i.e. 19-12-1974 at 10 A.M. It is admitted case of the prosecution that the prosecutrix had gone out of the house at 4 A.M. on this day. It is this conduct of not making any attempt of enquiring about his daughter by the complainant as father of the young missing girl from home, which makes the prosecution case highly improbable. In case the girl was actually missing as claimed by the prosecution, then attempt would have been made by the complainant and his other family members to trace her out on the day of occurrence. This further compels this Court to hold that the prosecution has in fact withheld the real genesis of its case and when it is so held, then as a corollary to this it leads to the conclusion that investigation was neither honest nor fair.
15. In this context, it may be appropriate to notice that F.I.R. had been lodged on 22-12-1974 i.e. on the 4th day of the occurrence. With a view to cover up delay, the theory of Gian Chand having informed the complainant appears to have been introduced. Except that (there) is no plausible explanation given by the complainant for lodging the belated complaint vide Exhibit "PA". This reason is not very convincing as well as plausible and is accordingly not accepted in the background of this case.
16. The prosecutrix in her examination-in-chief has made general statement that she was kidnapped by both the appellants. However, in her cross-examination, she had specifically admitted that it was Bansi Lal alone who had firstly kidnapped her and then raped her. This further belies the case of the prosecution as putforth against both the appellants being the persons responsible for having committed criminal acts for which they were charge sheeted.
17. Above all, medical certificate issued by PW Dr. Balbinder Kour does not suggest or to what was the state of the genitals of the prosecutrix when she was examined by her on 03-1-1975, whether the prosecutrix was habitual to sexual intercourse or not, is not mentioned therein, and what was her physical state; nothing has been stated in the medico-legal certificate or in the opinion given by her. Similarly, there is no evidence to suggest that both the appellants were either got examined and were found physically capable of having intercourse. In the absence of such evidence," it will not be safe for this Court to hold that the prosecutrix had been raped by any-1 one of the appellants. No doubt, in a given situation depending upon the nature of prosecution evidence and on its acceptability, statement of the prosecutrix alone can be made the basis for convicting the accused, as ordinarily a lady would not like to put herself to shame and disrepute in the society by making false allegation of her having been raped by someone and at the same time to screen real offender of having committed such offence. But that is not the situation in the present case.
18. It may also be appropriate to notice that both the appellants as well as the prosecutrix and the complainant are all residents of Basohli. On evidence of this case, it can also be safely inferred that the prosecutrix as well as her family members knew the appellants and their family members. In these circumstances, in case the prosecutrix had in fact been kidnapped and/or raped as claimed by the prosecution, there was enough chance for the prosecutrix to have cried and saved herself at different places as already noticed when reference is made to her statement.
19. So far involvement of Saroop Chand-appellant is concerned even prosecutrix herself has disproved the prosecution case.
20. It may be appropriate to notice that evidence discussed hereinabove is only from the file of Court of Session after commitment as the evidence recorded before the Committal Magistrate was not intended to be transposed by the prosecution for being read in Sessions Court.
21. As a result of the aforesaid discussion, this appeal is allowed and consequently both the appellants are acquitted of the charges, for which they were convicted and sentenced by the trial Court. Fine if deposited, is ordered to be refunded to the appellants and the bonds furnished by them are hereby discharged.