1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER 1. SB CRIMINAL APPEAL NO.4/2003. Gajendra @ Rocky Vs. State of Rajasthan 2. SB CRIMINAL APPEAL NO.15/2003. Surendra @ Palli Vs. State of Rajasthan Under Section 374(2) of the Code of Criminal Procedure. DATE OF ORDER: 17th January, 2009. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Jitendra Singh Tanwar for the appellants. Mrs.Nirmala Sharma PP for the State. BY THE COURT: These two criminal appeals under section 374(2) of the Code of Criminal Procedure have been filed against the judgment and order dated 27th November, 2002 passed by the learned Additional District & Sessions Judge (Fast Track), Jaipur District Jaipur in Sessions Case No.139/2001 (116/1998) whereby appellants Gajendra @ Rocky and Surendra @ Palli have been convicted and sentenced as under: Gajendra @ Rocky Under section 376(2)(g) IPC 10 years rigorous imprisonment and a fine of Rs.5,000/-. Under section 376 IPC 7 years rigorous imprisonment and a fine of Rs.2,000/-. Under section 366-A IPC 10 years rigorous imprisonment and a fine of Rs.2,000/-. Under section 323 IPC acquitted 2 Surendra @ Palli Under section 376(2)g IPC 10 years rigorous imprisonment and a fine of Rs.5,000/-. Under section 366-A IPC 10 years rigorous imprisonment and a fine of Rs.2,000/-. In default of payment each of the appellant was directed to undergo one year imprisonment. Since both the appeals arise out of same judgment of conviction and order of sentence, therefore, they are being decided together. Briefly stated the facts are that the prosecutrix (name with held) lodged a written report Ex.P-1 in the police station Phulera accompanied with her mother Mayarani and maternal- grand-mother Smt. Gulab Devi stating therein that she was living along with her mother in Ilahi Manzil Kasba. There was nobody in the family except her mother in the house. On 2.7.1998, at about 1.00 p.m. during noon, when her mother was sleeping in the house, she went outside the house to ease herself, there she found Rocky son of Yatish brahmin standing who caught hold of her and thereafter took her in his room and closed the doors. Accused Rocky thereafter removed all clothes from her body and committed rape with her. It is also alleged by the prosecutrix that prior to this incident of 2.7.1998, on 1.7.1998 at 2.00 p.m. in the noon while she was sleeping in the house, Rocky called her outside the house and thereafter accused Rocky took her to his house and after removing her clothes committed rape with her. At that time accused Surendra @ Palli was also there. Both of them 3 threatened her not to disclose the incident to anybody, failing which her mother would be killed. On this report, FIR No.97/1998 was registered in the police station under section 366A, 376 and 387 IPC and investigation commenced. During the course of investigation, statements of witnesses were recorded. Site was inspected and inspection report Ex.P-5 was prepared. The prosecutrix was medically examined and in this regard medical report for the purpose of rape was prepared as Ex.P-6. For age estimation, X-ray was taken. The age estimation report Ex.P-7 after examination was prepared. Vaginal swab of the prosecutrix was taken. Cloths of the prosecutrix were also seized and sent for examination in the FSL but no FSL report has been produced. The accused were arrested. After completion of investigation, charge- sheet was filed before the Civil Judge (J.D.) and Judicial Magistrate, Sambher district Jaipur and the case was committed to the court of Sessions and ultimately came for trial before the Additional District and Sessions Judge (Fast Track) Jaipur district Jaipur. On hearing arguments on charge against the accused- appellant Surendra @ Palli charge under section 376(2)(g) and 366A was framed and against Gajendra @ Rocky charge under section 376(2)(g), 376, 365 and 366A was framed on 28.4.2001. Both the accused denied the charge and claimed trial. In support of its case, prosecution examined PW-1 Smt. Maya who is the mother of the prosecutrix. PW-2 Smt. Gulab Devi who is maternal grand-mother of the prosecutrix. PW-3 is the prosecutrix. PW-4 is 4 Abdul Latif who was examined in relation to site plan Ex.P-5. He has denied his signatures on Ex.P-5. PW-5 is Shri Ram. He has been declared hostile by the prosecution, therefore, his evidence is of no help to the prosecution. PW-6 is Harish Kamra. He has also been declared hostile. His statement as a whole is of no help to the prosecution. PW-7 is Ramesh Chand. He has proved the arrest memo Ex.P-11 of accused Gajendra @ Rocky and the arrest memo Ex.P-12 of accused Surendra @ Palli. PW-8 is Baluram Choudhary, Constable at the relevant time in the police station Phulera. He was examined in relation to seizure of a diary, purse, photo and some letters. He has also prepared site plan Ex.P-14. PW-9 is Dr. Anjali Agrawal. She has examined the prosecutrix and found no injury, tenderness or redness on the private part of the prosecutrix. She also did not find any injury on the person of the prosecutrix and she also took vaginal swab. PW- 10 is Dr. Saroj Kumar Mishra. He has examined the accused appellants in relation to their potency and found that both the accused appellants were competent to perform sexual act. PW-11 is Govind Singh, constable. He was also examined in relation to seizure made of purse etc. vide Ex.P-13 and P-14. PW-12 Motilal is the investigation officer. PW-13 Laxmi Narain has been declared hostile. He has denied his signatures on inspection note Ex.P-5. PW-14 is Dr.G.C. Mathur. He has prepared X-ray report Ex.P-15 and the X-ray plate Ex.P-19. After close of the prosecution evidence, statement of the accused appellants under section 313 5 Cr.P.C. were recorded by the trial court to explain the circumstances appearing against them. Both the accused appellants stated that they have been falsely implicated in the case. On hearing final submissions, learned trial court convicted and sentenced the accused appellants as stated here-in-above. Hence, the present appeals have been filed. I have heard learned counsel for the accused appellants as well as learned public prosecutor and also gone through the statements of the witnesses and the entire material available on record. In the instant case, the following points require consideration: (i) Whether the prosecutrix was below 16 years of age; (ii) whether the prosecution has been able to prove the case of gang rape in the present matter; (iii) whether the present case is one of consent or rape was committed by the accused-appellants with the prosecutrix; and (iv) whether the judgment and order of conviction is liable to be set aside or upheld? The learned trial court recorded its finding that the accused appellants jointly committed rape with the prosecutrix. The trial court has further recorded its finding that the prosecutrix was below 18 years of age and rape was committed under threat given by the accused-appellants to kill her mother. Now I proceed to examine the points framed by me. 6 POINT NO.1. In this regard PW-1 Maya who is the mother of the prosecutrix has not supported the prosecution case. She has stated that the accused appellants who were neighbourers and the prosecutrix told her that she was taken by the accused appellants in the railway waiting room. In the cross-examination she has denied her police statement Ex.P-3 completely. She has stated in the cross examination that the prosecutrix was born in the year 1984 but in relation to other aspects concerning age of the prosecutrix her testimony is not liable to be accepted. PW-2 Smt. Gulab Devi is the maternal grand-mother of the prosecutrix and she has also not supported the prosecution case and completely denied the statement given to the police. PW-3 is the prosecutrix. She has stated in her statement recorded by the trial court on 18.2.2002 her age as 18 years. In the cross-examination though she has stated that she had studied in school but no educational certificate has been tendered in evidence. In the last lines of the cross-examination she has stated her age to be 16 years at the time of incident. PW-9 is Dr. Anjali Agrawal. She has stated that at the time of medical examination of the prosecutrix she stated her age as 14 years. She has also stated that prosecutrix was fully developed girl. She has also stated that breasts and genital organs of the prosecutrix were also fully developed. On the basis of X-ray report she stated that she was below 17 years of age. 7 PW-14 is Dr. G.C. Mathur who has proved X-ray report Ex.P-15. In the X-ray report age of the prosecutrix has been stated above 14 years and below 17 years. In relation to above evidence, the contention of the learned counsel is that in the instant case, the physical appearance of the prosecutrix, her medical examination, the statement of witnesses and prosecutrix would suggest that she was not a minor and in any circumstance she was not below 16 years of age. It is also contended that when age is doubtful then benefit should go to the accused. It is contended that it was the duty of the prosecution to have taken care to produce the educational certificate etc. when it came to the notice of the prosecution that the prosecutrix had studied in some school. On the other hand, learned public prosecutor contends that the prosecutrix has stated her age as 14 years and in the medical examination it has come that she was above 14 years but below 17 years and, therefore, minor. I have carefully considered the submissions and perused the relevant material in this regard. In this case, the mother of the prosecutrix and maternal grand-mother of the prosecutrix both have turned hostile and their evidence is of no help to ascertain the age of the prosecutrix. In the instant case, no educational certificate was tendered in evidence, therefore, now what remains in this case to ascertain the age of the prosecutrix is the statement of the prosecutrix and the 8 statements of the two doctors. The prosecutrix is a fairly developed lady as per Ex.P-6. She was examined and she was found fully developed. The age estimation report Ex.P-7 states that she had 28 permanent teeth, axillary and pubic hairs were present, breasts and genital organs were also found well developed. It is stated that definite opinion about age was possible only after radiological examination. Ex.P-15 is X-ray report in which age has been stated between 15 to 17 years. From the ossification test it appears that she was 14 to 17 years of age, therefore, two years upwards and downwards can very well be estimated. In the statement of the prosecutrix though she has stated her age as 14 years but in the cross examination she has stated that at the time of incident she was 16 years of age. In the over all circumstances and taking into consideration the physical appearance it can be said that the prosecutrix was above 16 years and below 18 years of age. The finding of the learned trial court, in my opinion, is not liable to be sustained as it is not based on proper appreciation of evidence. The prosecution has also with held the relevant material in this case in relation to age of the prosecutrix. When it was within the knowledge of the prosecution that she had studied in some school then what was the hitch in not obtaining the educational certificate and produce the same more particularly when the age of the prosecutrix was important for deciding the fate of the case because if the prosecutix was minor then whether it is a case of consent or no consent has got no 9 meaning in the eye of law. After carefully considering the entire material, I am of the opinion that the prosecutrix was above 16 years and below 18 years of age. The point no.1 is answered accordingly. POINTS NOS.2 AND 3: Since both the point nos.2 and 3 are inter-related, they are being decided together. Learned counsel has contended that firstly the case of the prosecution is entirely false and secondly even if it is presumed that the intercourse was done then it was with consent. It is also contended that as regards accused appellant Surendra @ Palli is concerned, there does not appear any evidence against him. It is also contended that since it is not a case where it can be said that there was a gang rape and since the age factor as to whether the prosecutrix was below 16 years of age could not be proved, therefore, no offence can be said to be proved under sections 365 or 366 IPC. It is contended that in case the court comes to the conclusion that the sexual intercourse was done then it is only a case under section 376 IPC. It is contended that the accused appellants have already undergone sentence of more than 6-1/2 years, therefore, the minimum prescribed sentence under section 376 IPC will meet the ends of justice. On the other hand, learned public prosecutor contends that the prosecutrix being a minor, therefore, there was no question of consent and intercourse with the prosecutrix against 10 her wish and desire is sufficient to prove the prosecution case and the prosecution evidence led in this case sufficiently proves the case against both the accused appellants. I have carefully considered the submissions made before me. It is to be seen that Ex.P-1 is the written report which was lodged by the prosecutrix in the police station on 4.7.1998 and when this report was lodged, the prosecutrix came with her mother and maternal grand-mother. Neither the mother nor maternal grand-mother of the prosecutrix have supported the prosecution case. In this written report, two incidents have been narrated. One incident is dated 1.7.1998 and the other incident is dated 2.7.1998. In relation to the incident dated 1.7.1998 which took place in the noon at about 1.00 p.m., it has been stated that the accused appellant Rocky took the prosecutrix in his house when she came out of her house to ease herself. Thereafter accused committed rape with her and at that time another accused Surendra @ Palli was also there. He also committed rape with the prosecutrix. In relation to another incident of 2.7.1998 it has been alleged in the report that in the noon at about 2.00 p.m. while she was sleeping in the house, Rocky called her outside the house and thereafter accused Rocky took her to his house and after removing her clothes, committed rape with her. In the statement PW-3, the prosecutrix, has stated that she knew the accused appellants from before as accused Rocky was residing near her house. She has 11 further stated that 2-3 years before when she came out of the house, accused-appellant Rocky took her to his house and did bad work with her. She has also stated that accused appellants Rocky and Surendra both were in the house. She has further stated that she was undressed and accused Rocky committed intercourse with her. Thereafter she came to her house. She has further stated that after 2-3 days of the above incident while she was at her house, accused Rocky called her out and took her to his house and thereafter again she was undressed and committed intercourse with her. It is also stated by her that accused Rocky and Surendra @ Palli took her to railway waiting room and there they committed bad work with her. She has also stated that other boys also used to be called by them and they also used to commit rape with her. She has stated that the entire story about the incident was narrated to the mother and maternal grand-mother. In the cross examination, she has stated that she had studied in a railway school. She has also stated that the accused were residing near her house. She has also stated that there is a chowkidar in the railway waiting room. When she was confronted with her statement recorded by the police that nothing was stated in the report and the statement about her being taken to waiting room etc., she stated that she did tell all the things which she has stated in the court to the police. She has also stated that 3-4 days before lodging the FIR, accused Rocky also took her with him but she did not object to her taking by accused Rocky. She has admitted that 12 when intercourse was done with her she got discharged and the accused appellant also got discharged. She has also stated that whenever intercourse was done with her, the accused appellants also used to get discharge and she also used to get discharge simultaneously. She has stated that since a threat was given by the accused-appellants to kill her mother, therefore, this report was lodged, otherwise she would not have lodged the report. Except the above evidence which is of very shaky nature, it appears that the prosecutrix was of easy virtues. Even in the medical examination report, this has come that there was no sign of intercourse on the private parts of the prosecutrix. There was no tenderness or swelling. Her hyman was found old raptured. She was found fully developed and she had 28 permanent teeths. In the statement she has not stated the fact that the incident took place on1.7.1998. The statement of the prosecutrix along with cross examination with her reveals that she was always a consenting party. Her statement does not appear to be reliable. She has stated that intercourse was used to be done by many persons on several occasions in the railway waiting room. It is not believable that in the railway waiting room where always remains crowd of people then how it is possible that such an incident of rape is committed particularly when the prosecutrix admits that in the waiting room there was chowkidar and other persons also used to be there. The learned trial court though has completely believed the statement of the prosecutrix but I am of the opinion 13 that the trial court has not properly appreciated the evidence. A plan and simple reading of the statement and the cross examination of the prosecutrix would lead to the conclusion that on such statement, conviction is not liable to be passed under section 376 IPC or under section 366A IPC. The evidence of the prosecutrix is not at all reliable, further there is no corroboration to the statement of the prosecutrix. In view of the above discussion, the answer to points no.2 and 3 is that the prosecution has not been able to prove the allegation of gang rape with the prosecutrix and the prosecution has not been able to prove its case beyond doubt. Whatever evidence is available on record is suggestive of consent. POINT NO.4: In view of the answer recorded to points framed by me and on finding that the prosecutrix was not below 16 years and not above 18 years of age, I am of the opinion that no offence was committed by the accused-appellants and further the case is one of consent only in relation to accused Rocky. In relation to accused Surendra @ Palli, no reliable evidence is available on the file. Both the accused-appellants, therefore, are liable to be acquitted giving benefit of doubt and the trial court judgment of conviction and order of sentence recorded against the accused- appellants is liable to be set-aside. In the result, both the appeals are allowed. The judgment of conviction and order of sentence dated 27th 14 November, 2002 is hereby quashed and set aside. Accused- appellants are acquitted of the charges framed against them. Accused appellants are in jail since more than 6-1/2 years. They be set at liberty if not required in any other case. (S.P. PATHAK),J.