1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T 1. S.B. Criminal Appeal No.141/2002 (Hanuman @ Hunda vs. State of Rajasthan) 2. S.B.Criminal Appeal No.334/2004 (Laxmi Narayan @ vs. State of Rajasthan @ Lachu -o0o- S.B. Criminal Appeal under Section 374 (2) Cr.P.C. against the judgment dated 21.1.2002 passed by Shri Giriraj Prasad Gupta, RHJS Addl Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur in Sessions Case No.67/2001. -o0o- Date of Judgment :::: 24.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Rajat Ranjan for the appellants. Mr. Bhvnish Kumawat, P.P. By the Court: Accused appellants Laxmi Narayan @ Lacchu and Hanuman @ Hunda have filed the above mentioned two separate appeals against the judgment of conviction and order of sentence passed by 2 learned Addl. Sessions Judge No.1 (Fast Track), Jaipur City, Jaipur whereby both the appellants have been convicted and sentenced as under:- Under Section 366 IPC To undergo seven years' rigorous imprisonment and to pay fine of Rs.100/- each. In default of payment of fine to undergo rigorous imprisonment for one year. Under Section 376(2)(g) IPC To undergo ten years' rigorous imprisonment and to pay fine of Rs.100/- each. In default of payment of fine to undergo rigorous imprisonment for one year. The sentences for both the offences have been ordered to run concurrently. Since both the appeals arise out of the same judgment, they are being disposed of by this common judgment. Heard learned counsel for the appellants and learned P.P. and perused the impugned judgment as well as the material and evidence available on record. The brief facts as disclosed by the prosecution are that on 26.6.1996, complainant Govind Ram PW.2, submitted a written report Ex.P.3 at the police station Chaksu mentioning therein that his daughter Gaindi wife of Prabhu Lal Meena (hereinafter referred to as `the 3 prosecutrix') came to his house. On 18.6.1996 at about 3.00 P.M. Hudda, who is the brother-in-law of Gaindi and one Lacchu Meena came and informed that she was being called by her husband Prabhu due to which he sent his daughter with them but she did not reach at the house of her husband and Hudda has reached at village Lalpura. The whereabouts of Gaindi and Lacchu are not known. On the basis of this report, police registered a case under Sections 363 and 366/34 IPC vide FIR No. 173/96 Ex.P.10. During investigation, on 26.6.1996 the prosecutrix was produced at the police station Chaksu by her father and on the same day she was handed over to her father. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded. Accused appellants were arrested and after completion of investigation, police filed challan against both the appellants along with one Jagdish. On the basis of the material and evidence collected by the police during investigation, the trial court framed charges against the accused persons including the appellants under Sections 366, 376 and 376(2)(g) IPC to which they denied, pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as 13 witnesses and also produced several 4 documents. In their statements under Section 313 Cr.P.C. the accused persons denied the allegations. In defence one witness Jagdish was examined and some documents were got exhibited. The trial court after evaluating the entire evidence ocular and documentary by the impugned judgment dated 29.1.2002 convicted and sentenced the accused appellants in the manner as mentioned hereinabove. Against this judgment of conviction and order of sentence both the appellants have filed the above mentioned appeals. Heard learned counsel for the appellants as well as learned P.P. and perused the impugned judgment as also the evidence and material on record. Learned counsel for the appellants has contended that as per her own statement the prosecutrix was 27 years of age and during her medical examination she was found to be in between 22–24 years of age and immediately at the time of her recovery, her statements under Section 161 Cr.P.C. Ex.D.3 were recorded by the police in which she has not levelled any allegation against any of the accused for commission of rape. She was taken by five persons along with her brother and she went to the house 5 of her parents where she remained for three days and thereafter she was produced before the police which recorded her statements on the same day in which she has not narrated about the fact of commission of rape. Her statements under Section 164 Cr.P.C. were recorded after 9 days of her return to the house of her father in which for the first time she has levelled allegation of rape against the accused persons. She has remained in possession of the accused at different places and nowhere she raised any hue and cry against them. Her brother Dhanna was never examined by the prosecution. Immediately after the occurrence when she was taken to her father, she did not tell to anyone about commission of rape with her. The Forensic and Serological report also do not disclose any factum of semen or bleeding. The prosecutrix is a major lady and it is not believable that she would not have raised any hue and cry at any place as mentioned by her during the period when she was in the custody of the accused appellants. In support of his arguments, learned counsel for the appellants has placed reliance on the decisions of the Apex Court in the matter of State of Karnataka vs. Suresh Babu Puk Raj Porral (AIR 1994 SC 1966) and State of Andhra Pradesh vs. Lankapalli Venkateshwarlu (AIR 2000 SC 3555) 6 wherein it was held that the statement of the victim before the police if does not disclose any commission of rape with her and medical evidence is not supporting the allegation made by the prosecutrix then no case under Section 376 IPC can be made out against the accused. On the basis of the above submissions learned counsel for the appellants has prayed for quashing and setting aside the impugned judgment. Learned Public Prosecutor supporting the judgment has contended that no independent corroboration of the statement of the prosecutrix is required in case the deposition given by the prosecutrix is reliable and credit worthy. In the instant case, the prosecutrix in her statement under Section 164 Cr.P.C. as well as before the court has levelled clear allegation against both the appellants that they have committed rape with her. The prosecutrix was put under threat on the point of knife and thereafter rape was committed. In such circumstances it is not possible for the lady to raise hue and cry. She was taken from the house of her father on the pretext that she was being called by her husband and with this pretext they took her from the house of her father and gave Bidi for smoking which led her to loose her mental balance and under that sedation she was 7 taken from place to place. The testimony of the prosecutrix inspires confidence and thus, learned trial court has not committed any error of law in convicting the appellants as the conviction of the appellants is based on the ocular evidence produced by the prosecution. On the strength of these submissions, learned P.P. has contended that no interference is required to be called in the impugned judgment. Having heard learned counsel for the parties, I have scanned the evidence available on record. It is not in dispute that the prosecutrix was about 22 years of age at the time of the occurrence and was a major lady. The medical report Ex.P.6 discloses her age 22+. Vaginal swab slides were sent to FSL about semen and blood. As per the medical report Ex.P.8 no injury was found on the person of the prosecutrix. In the light of this evidence if the statements of the prosecutrix are perused it is found that as per her statements both the accused appellants came to her father's house and asked him to send her as she was being called by her husband. She went with them and it was Lacchu who gave a Bidi to her for smoking. After smoking Bidi she felt giddy thereafter she was taken to a Dharamshala 8 where rape was committed by both of them and in the morning she was taken to Diggi in a bus where she was kept for three days and there also Lacchu committed rape with her. From there she was taken to Sawai Madhopur where also Lacchu committed rape with her. From Sawai Madhopur they went to Chaksu where Jagdish son of Bhura and another Jagdish came on motor cycle. Jagdish son of Bhura asked her to sit on the motor cycle. He stopped the motor cycle near the road slept her and committed rape with her and brought her to Lalpura village where villagers collected and called her brother and she was handed over to her brother from where she went to the house of her father and remained at the house of her father for three days and thereafter she was produced before the police where her statement was recorded. In her cross examination, she has stated that in her version recorded by the police, she has not stated that no offence was committed with her. There is clear variation and contradiction in the statements given to police and also in the statement recorded before the court. If rape would have been committed with the prosecutrix she could have certainly stated about this fact to the police and also to her father. Her father 9 Govind Ram PW.2 in his statement before the court has not stated any thing about commission of rape with the prosecutrix. In her statement Ex.D.1 given to the police, she did not say about commission of rape. In the statements under Section 164 Cr.P.C. which were recorded after nine days, if she gives contrary version then it can very safely be presumed that she has exaggerated the matter and has involved the accused appellants in the case. There is no other independent witness by which the offence of rape can be corroborated. If the statement of the prosecutrix is not reliable and does not inspire any confidence then the single uncorroborated statement is not reliable and needs for corroboration which has also not done by the prosecution. The statements of the prosecutrix along with the medical evidence if perused, clearly reveal a serious doubt on the prosecution story. The judgments cited by the learned counsel for the appellants also support the arguments of the learned counsel for the appellants. Admittedly, when the prosecutrix was recovered by the police on 26.6.1996 on the same day her statements were recorded by the police under Section 161 Cr.P.C. in which no allegation of rape is coming forward then after 9 days if 10 statements are recorded it casts serious doubt about the version of the prosecutrix. The prosecutrix reached to the house of her father where she remained for three days and thereafter she was produced before the police and during that period also no FIR was lodged about commission of offence of rape. This is the fact which goes against the prosecution. From the evidence so tendered and in absence of reliability of prosecutrix's statements the offence of rape prima facie cannot be established against the accused appellants but the fact that both the accused appellants went to the house of the father of the prosecutrix and took her with them on the pretext of she being called by her husband is very well established as this fact of taking her is born out from all the statements given by the prosecutrix to the police as well as before the court and also in the statement recorded under Section 164 Cr.P.C. Accused appellants were charged for offence under Sections 366 and 376(2)(g) IPC. For offence under Section 366 IPC the prosecution has to prove that the kidnapping or abduction of any woman was with intend either to seduce her to illicit intercourse or to marry any person against her will and if no such intention is 11 alleged and proved, offence under Section 366 IPC would not be made out. As discussed above, when the story of the prosecution about the rape with the prosecutrix has been disbelieve because of variation in the statements of the prosecutrix then the offence under Section 366 IPC cannot also be said to be made out against the accused appellants because for commission of offence under Section 366 IPC the intention of the accused should be either to marry her or to seduce her to illicit intercourse. Mere abduction does not bring an accused under the ambit of any penal section. So far as charge under Section 366 IPC is concerned mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman for any of the purposes mentioned in Section 366 IPC. In the instant case since there is no prima facie establishment of offence under Section 376 IPC, offence under Section 366 IPC cannot be said to be made out. The question then emerges that what offence can be said to be made out against the appellants for taking the prosecutrix with them on the wrong pretext ? From the evidence produced by the prosecution it is borne out that on the pretext of calling by her husband, the prosecutrix was taken away by 12 the appellants on 18.6.1996 and she was kept in custody till 26.6.1996. Therefore, wrongful confinement of the prosecutrix for ten days is clearly established against the appellants. The evidence also shows that during this period the prosecutrix was not allowed to go out of the custody of the appellants and thus, offence under Section 344 IPC is clearly borne out and proved against both the appellants. It is also clear that no charge under Section 344 IPC was framed against the appellants but this being the minor offence and no prejudice will be caused to the appellants if the appellants are convicted under Section 344 IPC instead of Sections 366 and 376 (2)(g) IPC. On the basis of the evidence produced by the prosecution a case against the appellants for commission of offence under Sections 366 and 376(2)(g) IPC is not made out but certainly the prosecution has been able to prove a case under Section 344 IPC against them. Consequently, both the appeals are partly allowed. Conviction of the appellants under Sections 366 and 376(2)(g) IPC and sentence imposed thereof by the learned Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur by the impugned judgment dated 29.1.2002 in sessions case no.67/2001 are set aside aside 13 instead both Hanuman and Laxmi Narain are convicted for offence under Section 344 IPC and for this offence they are to undergo rigorous imprisonment for three years with a fine of Rs.5,000/- each. In default of payment of fine they shall undergo simple imprisonment for six months. It is given out that both the appellants have already undergone imprisonment for more than six years. Therefore, the appellants be set at liberty forthwith if not required in any other case. (Bhanwaroo Khan),J. bairwa