1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT State of Raj. Vs. Babu @ Vakil and anr. S.B.CR. APPEAL NO. 208/1997 . DATE OF JUDGMENT :::: 17th July, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K.Sharma, PP for the appellant-State. BY THE COURT: Challenge in this appeal is to the judgment dated 7th June, 1995, whereby the Additional Sessions Judge, Hindaun City, has acquitted the accused respondents namely Babu @ Vakil and Nanak Das in the offences under Section 363, 376, 403 of IPC. 2. The prosecution story is woven like this: That the complainant PW-1 Hukam Singh was posted as PWM in Railway Department at Fatehsingh Pura. He was living with his family in a Railway quarter situated at Railway Station Suroth. His daughter aged 14 years was studying in IXth Class. It is alleged that during the intervening night of 12th and 13th January, 1987 the accused respondent Vakil Singh enticed his daughter Shashi and kidnapped her from his house. It is further alleged that she has taken cloths and gold ornaments and 2 Rs.1,000/- also in a suitcase of blue colour. The complainant endeavoured to search his daughter but of no avail. Finally, the complainant submitted a written complaint Ex-P/1 in Police Station Kotwali, Hindaun City whereupon the police registered FIR Ex-P/5 and commenced investigation. 3. The Investigating Officer prepared a site plan Ex-P/2, recorded the statements of the witnesses acquainted with the facts and circumstances of the case, arrested the accused Nanak Das vide memo Ex.P/6 and accused Vakil @ Babulal vide vide memo Ex.P/7, recovered one suitcase of blue colour at the instance of accused Vakil Singh vide memo Ex.P/8, made the recovery of Ms.Shashi vide memo Ex.P/9 and drew other necessary memos, got the prosecutrix medically examined with a view to ascertain the commission of offence of rape as also to determine her age and after usual investigation filed the charge sheet against the accused respondents. 4. Both the accused respondents charged in the offences under Sections 363, 376 and 403 IPC pleaded not guilty and claimed trial. The prosecution has examined as many as 17 witnesses to prove its case. Both the accused respondents have claimed innocence in the statements under Section 313 of Cr.P.C. On completion of trial the accused respondents were not found guilty 3 and acquitted in the aforesaid charges as indicated hereinabove. 5. None has appeared on behalf of the accused respondents. Hence, heard the submissions advanced by the learned Public Prosecutor appearing for the State and with his assistance scanned the prosecution evidence as also the relevant material available on record. 6. While reiterating the grounds of appeal as enumerated in memo of appeal, the learned Public Prosecutor has assailed the impugned judgment of the trial Court basically on the following grounds:- (i) That the prosecutrix was below the age of 16 years which is very well proved from her school certificate. (ii) That the Trial Court has erroneously adjudged the prosecutrix to be a consenting party which is contrary to the facts available on record. (iii) He has further contended that there is no grounds to abandon the statements of the prosecutrix, her father PW-1 Hukam Singh and PW-16 Shriphal who have supported the prosecution case in its entirety. The learned Public Prosecutor submits that the offence is under Sections 363, 376 of IPC which is proved beyond doubt against both the accused respondents and they deserve to be convicted and the impugned judgment of the lower Court is liable to be set aside. 4 7. Vide Medical Examination Report dated 4th February, 1987 Ex.P/19, Ms.Shashi was examined by PW/15 Dr. Narayan Lal Bhardwaj whose report about injuries is as under: “No marks of external injury found over any part of her body including cheeks, breasts, thighs and external genitalia.” 8. With regard to the offence of rape, the Doctor has further stated that the absence of Hymen is indicative of some sexual act in the past. It does not contain fresh injury. 9. To bring home the offence under Sections 363, 376 of IPC, the prosecution has produced only one witness PW/4, the prosecutrix Ms. Shashi. Albeit, she has stated on oath that she was sleeping in her house. The accused came in the night and knocked the door. When she woke up, the accused asked her to accompany him to Kota for excursion. She agreed and then arranged the briefcase, put cloths, some ornaments and Rs.1,000/- therein and came out of the house. Further, she has stated that she accompanied Vakil Singh up to the Railway Station. This all happened at about 12-1 in the night. The prosecutrix is alleged to have been taken by the accused Vakil Singh to the residents of another co-accused Nanak Das. From there, all these three Shashi, the accused Vakil 5 Singh and co-accused Nanak Das went to Ajmer. She has narrated the entire story about the places she visited, and the acts she did with accused respondents. She has also stated that the accused Vakil Singh and Nanak Das both performed sexual intercourse with her against her will and without her consent. 10. The prosecution case solely rests on the evidence of prosecutrix Ms.Shashi. In view of the above facts and circumstances, the Court has to cautiously see as to what the age of the prosecutrix on the date of occurrence was ? PW- 17 Dr. Narayan Lal Bhardwaj conducted a clinical examination of Ms. Shashi and found her to be 17-18 years old. The prosecution has produced one marks-sheet of Higher Secondary School Certificate of the year 1992 wherein the date of birth of prosecutrix is mentioned as 15th May, 1972. It is pertinent to note that PW-17 Dr. Narayan Lal did not conduct any Ossification Test upon the Prosecutrix. Her age has merely been determined on the basis of clinical examination. He has explained in his medical examination that the exact age of the prosecutrix could be determined only on the basis of the ossification test which the prosecutrix refused to undergo. However, in its entirety, the prosecutrix is found to be of the age of 18 years. 6 11. The learned Public Prosecutor has assailed the impugned judgment of the trial Court merely on this ground that the learned Additional Sessions Judge has adjudged the prosecutrix to be a consenting party in this case. He has contended that the conclusion arrived at by the trial Court on this score is contrary to the facts and circumstances of the case and the view is totally erroneous which is liable to be abandoned. 12. Having perused the impugned judgment of lower court, it is found that the learned Additional Sessions Judge has critically examined the evidence of PW-4 Ms. Shashi in detail. He has properly appreciated her evidence as also the evidence of her mother, brother and Dr. Naryan Lal. The manner in which the prosecutrix woke up at 1.00 in the night and accompanied the accused Vakil Singh up to the Railway Station and thereafter visited so many places one after another in succession and stayed in hotels at Jaipur, Ajmer and other places ostensibly evinces that neither the prosecutrix was enticed by the accused Vakil Singh nor she was taken up forcibly. 13. In the medical examination report Ex.P/9, the prosecutrix has been adjudged to be fully grown up girl. She voluntarily accompanied the accused Vakil Singh. Though the 7 corroboration of the statements of the prosecutrix is not sine qua non in the case of a rape if her evidence is trust-worthy but if the evidence of the prosecutrix is found to be tainted and coloured, then the corroboration of rape is required for the conviction of the accused. In the absence of a woman's consent, the essential feature of actus rues is rape which is totally wanting in the instant case. 14. It is to be noted that the occurrence of this case took place on 13th January, 1987 and the prosecutrix was recovered by police on 4th February, 1987, after 23 days of the occurrence. The accused are alleged to have sexual intercourse with the prosecutrix every day forcibly without her consent and against her will but the medical examination report Ex.P/19 does not corroborate her version. 15. Having ruminated the Higher Secondary School Certificate of Ms. Shashi and the medical examination report Ex.P-19, Ms. Shashi is found to be below 15 years of age according to Board Certificate on the date of occurrence but on the basis of clinical examination, Dr. Bhardwaj has determined her age to be 17-18 years. Though in the examination- in-chief he has stated that she was not below the age of 14 years and not more than 18 years but in cross-examination he has clarified that this age could be one or two 8 months more than 18 years but it could be ascertained only on the basis of radiological examination report which has not been done in the instant case. So far as the Higher Secondary School Certificate is concerned, there is only a photostat copy on record which is neither verified from any authority nor its genuineness has been proved by the prosecution. The learned Trial Court, in view of the judgment of Hon'ble Apex Court given in the case of Rampoorti Vs. State of Haryana (AIR 1970 (SC) 1029) and one judgment of this Court rendered in the case of Ram Singh Vs. State of Rajasthan (RCC August 1989, 378), has held the age of prosecutrix to be 18 or above 18 years. Otherwise too, the age of prosecutrix has been determined to be 18 years by the Doctor. The ossification test could render more assistance to the Court in determining the most probable age of the prosecutrix. However, in the facts and circumstances, the prosecutrix is found to be 18 or more than 18 years of age and on this point, I concur with the finding of the learned trial Court. 16. Had the prosecutrix been forcibly ravished by three accused persons successively for a long time against her will, she, undisputedly, would have sustained injuries on her genitals and other parts of the body. Absence of injury on any part of the body of the 9 victim girl sometimes probablise offence of any coitus. When no mark of injury or violence is found on any part of the body inspite of having been ravished continuously by two persons, it can safely be inferred that either the lady was a consented party to the act of sexual intercourse or no rape was committed upon her. In the facts and circumstances, the prosecutrix did not have any external injury over any part of her body including cheeks, breasts, thighs and external genitals. Not only this, no tenderness was found on vagina. 17. Secondly, the prosecutrix is alleged to have been abducted by the accused persons from her house and thereafter she is alleged to have been taken from one place to other one after another. She stayed in a Hotel at Jaipur. She also stayed in a Hotel at Ajmer. In between, she had gone to bus stand, Railway Station, market and at the residence of a friend of the accused but neither she raised any alarm at any place nor she tried to run away nor she raised hue and cry that the accused persons had brought her forcibly. All these circumstances reveal that the prosecutrix was not enticed and taken away from her house forcibly but she voluntarily went with the appellant Vakil Singh. These factors do not make out that any offence under Sections 366 and 376 of IPC was committed by the accused respondents. Similarly, the offence 10 under Section 403 IPC is also not proved against them. The learned trial Court has examined the prosecution evidence in detail and his finding of acquittal is found to be cogent, just and well merited. I do not find any illegality or infirmity in the impugned judgment and it calls for no intervention. 18. For these reasons, the criminal appeal filed by the State being devoid of merits stands dismissed. (MAHESH BHAGWATI)J. PCG