1 Apeal 991/07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL APPEAL NO. 991 OF 2007 Narharsingh @ Narayan Harising Kharwat @ Rajput .. Appellant Vs. The State of Maharashtra .. Respondent Mr. Murtaza M. Nazmi for the Appellant. Mr. S. A. Shaikh, APP for the Respondent State. CORAM : MRS. ROSHAN DALVI, J. Date of reserving the Judgment : 4th May, 2011. Date of pronouncing the Judgment : 6th May, 2011. JUDGMENT 1. The Appellant has been convicted Ld. 7th Advoc Assistant Sessions Judge, Pune on 12.08.2004 for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. He has been sentenced to undergo rigorous imprisonment for 7 years for the offence punishable under Section 363 and for 10 years for the offence punishable under Sections 366 and 376 of the Indian Penal Code. He has also been fined of Rs.1,000/- and in default sentenced to suffer further rigorous imprisonment for 6 months. 2. The accused has been charged with having kidnapped a 17 year old girl Manju Parshuram Hirawat on 27.09.2003 at Saudagar Society, Plot No.48, Dhankawadi from the lawful guardianship of her father without her consent. The Accused has been further charged of with enticed her from her father's house in Pune to Mumbai and 2 Apeal 991/07 then to Rajasthan and forced the said girl into illicit intercourse. The accused has been further charged with raping the said girl between 26.09.2003 to 26.10.2003 at Dhankawadi, Mumbai and Rajasthan. 3. The accused served as a driver in the house of the Complainant who is the father of the victim. The victim girl was 17 year old at the time of incident. 4. It is the prosecution case that on 26.09.2003 at about 7.30 p.m. when the victim girl had gone to bring vegetables she did not return until 9.30 p.m. when the complainant, her father, returned home from work at the flour mill with his wife. He inquired with his relatives and could not find her. He also inquired with his relatives at his native place in Rajasthan but could not find her. He lodged missing complaint on the next date. The police acted upon the missing complaint and rescued the girl after about one month. The case of the girl is that on 26.09.2003 at about 7.50 p.m. when she had gone to purchase vegetables, the accused came by an auto rikshaw and told her that she was called by her father. He took her in the auto rikshaw, put a handkerchief on her face and she became unconscious. When she recovered consciousness, she was in Bombay. The accused took her by bus to Rajasthan, kept her in a room for 10-15 days and committed forcible sexual intercourse upon her 5-6 times. Thereafter he took her at his sister's house and further raped her. After some days, the police traced her. The police came along with her uncle Pappu and her brother. She was brought back to Pune. She was referred for medical report at Sassoon Hospital. Her clothes were seized and sent for chemical analysis. The case against 3 Apeal 991/07 the accused was filed. 5. The defence of the accused is of denial. Mr. Nazmi, Advocate for the accused, essentially argued that this was not a case of lack of consent. The essential evidence to be considered is the evidence of the Complainant, the father of the girl, the girl herself and her medical examination coupled with the Chemical Analyser's report. This is contained in the evidence of PWs 1, 2 & 3. 6. The evidence of the Complainant shows that he lived with his wife, two sons, one daughter and the accused, his driver. He ran a flour mill. His wife assisted him at the flour mill. On the date of incident, he had gone to work at the flour mill and returned at 9.30 p.m. He found his daughter missing. He made inquiries with his relatives. No particular relative has been mentioned and none has been examined. She could not be found. He made inquiries at his native place also. Yet his daughter could not be found and hence he lodged the missing complaint on the next day. 7. The accused was his driver who lived with him. It is the evidence of the Complainant that the driver demanded Rs.2,000/- on account of the fact that his uncle had died. He gave him Rs.1,000/-. Since the accused wanted to go to his native place PW 1 told his brother- in-law to reach him to Swargate on his scooter. His brother-in-law reported that the accused got down at Padmavati locality, Pune. On the next day of the incident, he inquired with brother of the accused about the whereabouts of the accused. He was informed that his 4 Apeal 991/07 uncle had not died. Hence he suspected the accused to have taken away his daughter. His cross-examination is about his business at the flour mill, his daughter's age and about inquiries made with his relatives. Neither of them was traced. He has been put the case that his daughter used to talk with the accused and hence there was quarrel in the family, which he has denied. He has also been put the case that because of that the accused was removed from service as driver. It is argued on his behalf that because of the relationship of the accused with the victim girl, he has been removed from service and a false case has been filed against him. 8. The evidence of victim girl is initially about how she was kidnapped on 26.09.2003 when she was at the market. Her evidence shows that she travelled by auto rikshaw when she was made unconscious and brought to Bombay. She regained her consciousness at Bombay. The accused threatened her and said he would kill her because of which she remained quiet. He also told her to say that they were going to the house of his uncle if anyone asked her. He took her by bus to Rajasthan. She has deposed that she was kept her in one room without description of the room. She was kept there for 10-15 days when she was raped. Then she was shifted to the house of his sister. Then also she was raped. No particulars of the acts have been given. Her evidence that she was raped 5-6 times in that room has been shown to be omitted in her police statement. That is the most material omission. That is the very charge against the accused. She was traced by the police a month after the kidnap when the police arrived with her uncle and brothers. 5 Apeal 991/07 9. This entire evidence shows the total lack of any efforts at escape by the victim girl who was 17 years old. She was initially brought to Bombay for a day. She went to Rajasthan by bus. Her cross-examination shows that she reached in the evening. This was approximately 24 hours from the time of kidnap. Mr. Nazmi rightly argued that bus halted at various places and she had various opportunities to escape which she did not avail. The room in which she was kept is not shown to have been locked. She is not shown to be imprisoned them. Yet there is no effort to escape. The sister of the accused has not been examined and hence that part of the evidence is left completely uncorroborated. The act of rape upon her person during the period she was kept in the room in Rajasthan cannot be considered as it is a material omission. 10. In her cross-examination she has denied the case put to her that she deposed falsely at the say of her parents and she was not kidnapped or raped. Her cross-examination shows that she was taken to her house in Bombay. There were 4 members in that house. The premises had two rooms and one mezzanine floor. There is nothing to show that she could not escape from that premises. The only justification for not shouting as well as raising an alarm is the threat of the accused. Mr. Nazmi argued that three aspects of not raising the alarm during the entire journey to Rajasthan, not escaping or protesting despite having physical force upon her and not taking any help from the sister of the accused or the four persons in Bombay shows her implicit consent to live with the accused. Further he argued that 6 Apeal 991/07 it has not been the prosecution case that the accused was armed or was in company of any other person who also helped the accused. Hence the lack of protest on her part shows her complete consent for living with the accused for the month that she was with him until she was brought back by her uncle and brothers. 11. Though the prosecutrix is shown to be a minor child, it is the case of the prosecution that she was 17 years old in the charge, evidence as well as in the question put to the accused in his statement. However the age becomes immaterial except under Section 363 which is in respect of the kidnapping a person from the lawful guardianship denoting the kidnapping of a minor under the age of 18 years. So far as the substantial offence of rape is concerned, since the prosecutrix was admittedly 17 years old, she would not fall within the 6th description of the offence under Section 375 of the Indian Penal Code. Her consent to the act of sexual intercourse becomes material to consider. 12. The evidence of PW 3, the doctor from Sasoon General Hospital shows her medical examination done on 29.10.2003. The doctor has narrated the prosecution story as having been told by the girl. She gave the history of sexual intercourse 7-8 times against her wish and consent. She also stated about she being burned on her chest by a bidi stroke. An old burn mark on her third right rib with sternum was shown to be present. The doctor found her hymen being torn and her labia minora and labia major were normal. He opined that there was evidence of forceful penetration intercourse. 7 Apeal 991/07 13. The cross-examination of the doctor revealed that he could not say about age, time or duration of the hymen tear. The doctor's report shows sexual intercourse having been performed but it is not understood how it is stated to be forceful as his evidence shows that her genital parts were normal. 14. The clothes of the victim girl as well as the accused were collected after she was rescued. My attention has been specifically drawn to panchnama proved by PW 5 which shows that she was taken under pretext of marriage. It, of course, has not relevance to the seizure of clothes. In fact the entire evidence is wholly irrelevant because clothes of both the parties have been seized days after the offence, if at all, was committed and could not have incriminating evidence thereon. 15. The spot panchnama proved by PW 6 shows the room where she was kept. It is shown to be the room of 10 x 10 feet having tin sheet roof with one door. It was situated in forest area far away from the village near certain marble stone mines. There was no electricity telephone or any other houses in the area within a distance of of 25 km from the room. It is not known how the prosecutrix could have taken the police party to the said room if she was kidnapped and brought there and kept inside the room as deposed by her. There are no landmarks shown which she could have remembered to lead the police party to that place. The evidence of the spot panch and the spot panchnama itself throws doubt upon the prosecution case of kidnapping of the victim girl. 8 Apeal 991/07 16. The C.A. Report naturally shows no blood or semen upon any of the clothes. Except one Jangiya of the victim which is stained with blood in the middle and washed. The blood group was not conclusive and hence the report assumes no significance at all. 17. The Ld. Judge has believed the evidence of the Complainant and the victim girl to essentially conclude about the commission of the offence by the accused. The evidence of the Complainant is rather unnatural and uncorroborated in all material particulars. It is too much of coincidence that is driver asked for leave and his daughter would be missing on the same evening. Yet it did not propel him to take steps immediately but wait until the next day. He claims to have inquired with his relative but none is shown or examined. His driver, who otherwise lived with him in his house, has not continued in service. Hence his case that he was removed from service and false case was made out against him stands to reason. The evidence of the prosecutrix itself shows a complete lack of circumstances which would constrain her not to ask for help or to help herself. The evidence of the doctor is wholly immaterial. If the prosecutrix is seen to have had sexual intercourse, the forcibility in it cannot be seen as the medical examination itself was done after about a month from the time she lived with the accused. The medical report does not show any evidence of injury due to force. It shows the most material part of her body normal. 18. Mr. Nazmi drew my attention to two apt Judgments showing circumstances denoting consent in two similar cases reported in Om Parkash & Anr. Vs. State of 9 Apeal 991/07 Haryana 2006 CRI. L.J. 1846 and Chinta Sinku Vs. State of Jharkhand 2008 CRI. L. J. 2192. In these cases the complaint has been lodged by the family members of the prosecutrix who was taken from one place to another a period of days and where she lived with the accused in certain accommodations. The ample opportunities those victims had to escape or call for help were not availed resulting in the observation that she willingly remained in the company of the accused on her own conduct in not taking any action and remaining silent even when the accused was not near her. The observation in the Judgments that the accused was not armed and she was not gagged throughout are material circumstances absent to show the presence of the consent. 19. Consequently the appreciation of the evidence by the Ld. trial Judge appears to be wholly erroneous. The observation of the Ld. trial Judge specially about the fact that the semen would not appear but drawing an inference of forcibly sexual intercourse is an error which deserves correction. The conclusion of the Ld. Judge that the offences with which the accused is charged have been proved beyond reasonable doubt is seen to be erroneous and is required to be set aside. 20. The Accused Narharsingh @ Narayan Harising Kharwat @ Rajput is seen not to have committed the offence of kidnapping the prosecutrix or enticing her and forcing her into illicit sexual intercourse or committing rape upon her punishable under Sections 363, 366 or 376 of the Indian Penal Code. Hence the conviction and sentences of the Appellant (accused in Sessions Case No. 65 of 2004) are set aside. The accused Narharsingh @ 10 Apeal 991/07 Narayan Harising Kharwat @ Rajput is acquitted of the offences punishable under Sections 363, 366 & 376 of the Indian Penal Code. The Accused shall be released forthwith. His bail bond stands cancelled. (ROSHAN DALVI, J.)