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2. The investigation of the case was conducted and during the investigation, statement of witnesses were recorded, prosecutrix was recovered and thereafter the accused was arrested. Statement of prosecutrix u/s 164 CrPC was also got recorded. After completing the other formal investigation, the charge sheet u/s 363/366/376 IPC was presented before the court for trial.

3. After being heard, the accused was charged u/s 363/366/376 IPC vide order dated. 22.5.2008 to which he pleaded not guilty and claimed trial.

14. I have heard the arguments on behalf of State by Ld. Addl. PP Sh. A.K Mishra as well as Sh. G.M Faruqi, Ld. Counsel for the accused.

15. The case of prosecution is based upon the three sections of IPC i.e. u/s 363/366/376 IPC. For the offence of kidnapping to be proved u/s 363 IPC, the only condition is that a minor must be taken or enticed away out of lawful guardianship of such minor without the consent of such guardian. The minor as per section 361 IPC would be under 16 years of age if male and under 18 yrs of age if female whereas for the offence u/s 366 IPC, the kidnapping must be with intent to compel a woman or with knowledge that such woman shall be compelled to marry against her will or may be forced or seduced to illicit intercourse. For section 366 IPC, the word minor is not used and this is applicable for a woman of any age. Whereas for offence u/s 376 IPC rape is said to be committed, if the sexual intercourse is committed without the consent of a woman. However, if the woman is minor and below the age of 16 years then the sexual intercourse committed with or without her consent is also termed as rape and is punishable u/s 376 IPC.

18. The other allegations against the accused are for committing the offence u/s 366 IPC and section 376 IPC. The deposition of PW­2 needs to be narrated here to arrive at the conclusion whether the kidnapping of the prosecutrix by the accused was with intention to compel her to marry with him or to force/ seduce her to illicit intercourse. According to PW­2, she knew the accused and also used to talk to him. Accused used to come to her school daily and her friends also knew him and used to talk to the accused. On the relevant date i.e. 8.2.2008 at about 7.20am, she was dropped by her father i.e. PW­1 at the school gate. She went to her class but came back to buy a pen and there accused met her and according to her she was enticed by the accused to go along with him to Vaishno Devi, Temple and despite her refusal, she was again enticed to go to Vaishno Devi Temple at J&K and while she was sitting in the car along with accused Sukhbir, she was seen by her three friends. Many children were also standing there as well as the shops were opened but she did not raise any alarm though she states that accused had put his hands upon her mouth, but surprisingly nobody even noticed this act, except for her friends who had seen her while sitting in the car with the accused and they had also informed to PW­1 that the prosecutrix had gone away with the accused and not that accused had taken the prosecutrix along with him forcefully. Thereafter, according to PW­2 she was taken to Vaishno Devi Temple, J&K, though in her cross examination she improved upon by saying that before going to Vaishno Devi Temple, J& K, she was taken to friend's house of the accused at Indirapuram where other inhabitants were also present. She had made efforts to cry at Indira Puram house but accused had put his hands but she did not weep at the Indira Puram House. At ISBT bus stand, there were public persons present and police officials were also taking round yet she did not tell anybody there regarding accused taking her forcibly. In the same breath, she testified that accused had extended threats and she had tried to scream at ISBT bus stand but accused put his hands on her mouth. She also testified about the presence of other occupants in the bus by which they went to Vaishno Devi Temple, J&K, but she did not tell anyone regarding her plight for the same reason as the accused had threatened her and throughout her stay with the accused, she did not raise any alarm because of the threats given by the accused nor she had made any complaint with any authorities of the guest house where she was kept by the accused since she was confined in the room by gagging her mouth. At the Vaishno Devi Temple, J&K, she did not come across any police officials but only the officials conducting the checking, there also she did not disclose them about her plight since accused had threatened her. Despite her admission that lady police had separately checked her at Vaishno Devi Temple, J&K, in the separate ladies cabin, still, the prosecutrix did not prefer to avail the opportunity to disclose about the accused to ladies police because of alleged threatening given by the accused. She was having the phone number of her mother and father since both of them have individual mobile phones, the accused was also carrying the mobile phone but she did not try to contact her parents while being with the accused since she was not allowed by the accused to make a call. She deposed about the non availability or occasion to write down the phone number of her parents and give it to anybody when being with the accused or otherwise at any place during her absence from home so as to tell the person giving the parchi to convey to her parents, despite the availability of the opportunities with respect to the presence of many persons including the bus passengers, police officials and also ladies police who had checked her separately in a cabin. The conduct of the prosecutrix throughout only goes to show her being the consenting party in failing to avail all the opportunities available to her to inform the public or the police or even to call her parents with respect to forcible taking by the accused, if that was so.

21. Let us see what is the evidence in this respect. MLC of prosecutrix is on record which was prepared on 14.2.2008 and as per MLC, no injury was found on the private parts of the prosecutrix. Her hymen was found not intact which could admit one finger easily. There was no injury mark on genitalia. Her under garments were also sealed separately which were also not having any marks/semen stains etc to suggest the commission of rape/intercourse. The prosecutrix informed about injury on her wrist of her right hand and stated that she sustained that injury while protesting the rape committed by the accused. There is no other injury on her person due to the resistance. as deposed the injury on her right hand was given by the nails of hands of the accused. There were also no injury marks on the person of accused. In the normal course had there been any resistance from the side of the prosecutrix, the injuries on her body would have been many more than only a small bruise on her wrist or at least some injuries also on the body of accused. Though, the suggestion as given on behalf of defence was also in contradiction to the plea of the accused that he had not committed any sexual intercourse with the prosecutrix whereas the suggestion was that the sexual intercourse was done by the accused with her own volition and if the defence admits that the act of the sexual intercourse was there, then it would definitely amount to rape even with the consent of the prosecutrix. Be that as it may, in terms of categorical denial of the accused with respect to any sexual intercourse with prosecutrix in his statement recorded u/s 313 CrPC, the prosecution needs to stand on its own legs. It is also correct that even if no injuries are found on the private parts or on the person of prosecutrix and even if the MLC does not suggest the commission of the rape, the sole testimony of prosecutrix can be relied upon as is held by the higher Courts in Catena of judgments but the question is, whether it is a case where the sole testimony of prosecutrix with respect to commission of offence of rape should be relied upon. The answer to this question is a definite "no," considering the deposition of the prosecutrix which is not worth of any credence and it would not be safe to rely upon the sole testimony of such person whose testimony otherwise neither inspires confidence nor is worthy of any credit and accordingly, in the absence of any corroboration to the such charge of commission of rape or sexual intercourse or even of seducing/forcing her for any sexual intercourse, the accused deserves the benefit of doubt. Accordingly, is held guilty and convicted for the offence u/s 363 IPC and is acquitted for the offence u/s 366/376 IPC. Let he heard on the point of quantum of sentence.