Case: State Of U.P Vs. Chhoteylal

On September 19, 1989 the prosecutrix (name withheld by us) had gone to relieve herself in the evening. Ram Kali (A-3) followed her on the way. While she was returning and reached near the plot of one Vijai Bahadur, Chhotey Lal (A-1) and Ramdas (A-2) came from behind; A-1 caught hold of her and when she raised alarm, A-1 showed fire-arm to her and gagged her mouth. A-1 along with A-2 and A-3 brought the prosecutrix upto the road. There, A-3 parted company with A-1 and A-2. A-1 and A-2 then took the prosecutrix to Village Sahora. On the night of September 19, 1989, the prosecutrix was kept in the house of Girish and Saroj Pandit in Village Sahora. On the next day i.e., September 20, 1989, in the wee hours, A-1 and A-2 took the prosecutrix in a bus to Shahajahanpur where she was kept in a rented room for few days. During their stay in Shahajahanpur, A-1 allegedly committed forcible intercourse with the prosecutrix. Whenever prosecutrix asked for return to her house, A-1 would gag her mouth and threaten her. In the meanwhile, Rampal - brother of the prosecutrix - made a complaint to the Superintendent of Police, Hardoi on September 28, 1989 that A-1, A-2 and A-3 have kidnapped her sister (prosecutrix) on September 19, 1989. Based on this complaint, the First Information Report (FIR) was registered on September 30, 1989. The prosecutrix was recovered by the police on October 13, 1989 from Shahabad - Pihani Road near Jalalpur culvert. On that day itself, the prosecutrix was sent for medical examination to the Women Hospital, Hardoi where she was examined by Dr. Shakuntala Reddy. Ram Manohar Misra to whom the investigation of the case was entrusted then took steps for determination of the age of the prosecutrix as advised by the doctor and sent her for X-ray examination3. On October 17, 1989, the prosecutrix was produced before the Judicial Magistrate I, Hardoi, where her statement under Section 164 Cr.P.C. was recorded by the Judicial Magistrate4. A-1 was arrested on December 2, 1989. On completion of investigation, A-1 was chargesheeted for the offences punishable under Sections 363, 366, 368 and 376 of the Indian Penal Code (IPC); A-2 was chargesheeted under Sections 363, 366 and 368, IPC and A-3 under Sections 363 and 366, IPC5. The prosecution in support of its case examined five witnesses, namely, complainant - Rampal (PW-1), prosecutrix (PW-2), Investigating Officer - Ram Manohar Misra (PW-3), Subhash Chandra Misra - Head Constable (PW-4) and Dr. Shakuntala Reddy (PW-5)6. A-2 had died and the trial abated as against him. The III Additional Sessions Judge, Hardoi vide his judgment dated September 5, 1990 acquitted A-3 as the prosecution was not able to establish any case against her. However, on the basis of the prosecution evidence, the III Additional Sessions Judge held that the prosecutrix was about 17 = years of age at the time of occurrence of crime and found A-1 guilty under Sections 363, 366, 368 and 376, IPC and sentenced him to undergo 7 years rigorous imprisonment under Section 376 IPC and the different sentences for other offences which were ordered to run concurrently7. A-1 challenged the judgment passed by the III Additional Sessions Judge, Hardoi before the Allahabad High Court, Lucknow Bench, Lucknow. The High Court vide its judgment dated March 11, 2003 reversed the judgment of the trial court and acquitted A-1. While acquitting A-1, the High Court gave three reasons, namely; (one) kidnapping took place on September 19, 1989 whereas the report of the occurrence was lodged after ten days and there was no reasonable and plausible explanation as to why the report could not be lodged promptly and why it had been delayed for ten days; (two) according to medical evidence, the prosecutrix was found to be 17 years of age and she could be even of 19 years of age at the time of occurrence and (three) no internal or external injury was found on her body and she was habitual to sexual intercourse. We deem it appropriate to reproduce the entire reasoning of the High Court as it is which reads as follows:It has been submitted by the learned counsel for the appellant that according to the prosecution, alleged kidnapping took place on 19-9-1989 whereas the report of the occurrence was lodged after ten days. There was no reasonable and plausible explanation forthcoming from the side of the prosecution as to why after alleged kidnapping of a minor girl a report could not be lodged promptly and why it has been delayed for ten days. This by itself shows that the report had been lodged after consultation and after due deliberation and the prosecution can be safely looked with doubt. I fully agree with the contention of the learned counsel for the appellant and furthermore, according to medical evidence on record, girl in question was found 17 years of age and she could be even 19 years of age at the time of alleged occurrence. No internal or external injury was found on her body and she was used to sexual intercourse. The charge of rape also stands not proved. The learned court below was thus not justified in believing the prosecution theory and convicting the appellant.

Reasoning: The expressions `against her will and `without her consent may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression `against her will would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression `without her consent would comprehend an act of reason accompanied by deliberation. The concept of `consent in the context of Section 375 IPC has come up for consideration before this Court on more than one occasion. Before we deal with some of these decisions, reference to Section 90 of the IPC may bethat a woman who is victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accompliceThe testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations