R.S. Bindra, J.C.
1. On the basis of the First Information Report Ext. P/2 lodged by Debendra Singh of village Langthabal Lek Mayai at 5-00 a. m. on 27-9-1967 that his sister Manitombi Devi, aged about 13 and a student of VIII Class, had been kidnapped by 7/8 persons including L. Birachandra Singh, a case was registered at the Police station Lamphel and investigations undertaken by P. W. 6 Tomchou Singh, a Sub-Inspector of Police attached to that Police station. On conclusion of the investigations, three persons. Kh. Surachandra Singh. S. Ibochouba Singh and H. Dhiren Singh, were hauled up under Section 366 I. P. C. In addition, Surachandra Singh was charge-sheeted under Section 376 I. P. C. H. Dhiren Singh was declared absconder and as such enquiry was held only against the other two accused by the committing magistrate. In course of time Surachandra Singh and Ibochouba Singh were committed to the Court of Session on the charges aforementioned. By his judgment dated 29th September, 1970. Shri O. Thambal Singh, Sessions Judge, Manipur, held the charges established against both the accused and each one of them was sentenced to three years' rigorous imprisonment under Section 366 I. P. C. and Surchandra Singh was, besides, sentenced to five years' rigorous imprisonment under Section 376 I. P. C. The sentences imposed on him were directed to run concurrently. Having felt aggrieved, the two convicts filed separate appeals in this Court, the one filed by Surchandra Singh being No. 39 of 1970 and that of Ibochouba Singh being No. 35 of 1970. Since the two appeals have arisen out of one trial, it would be convenient to dispose of them by this common judgment.
2. The case of the prosecution can best be gathered from the statement of the prosecutrix Manitombi Devi P. W. 2. She deposed that in September 1967 at about 3-00 p. m, when she was returning home from Heirangoithong Girls' High School, after close of the day's session, in company with her friends Sunita Devi P. W. 4 and Ibechoubi Devi P. W. 5. and happened to reach Ningthemcha Karong she sighted for young men including the two accused sitting close to a pipal tree. Those persons, she added, immediately proceeded towards her and Surchandra Singh, who appeared to be their leader, told her to stay behind and simultaneously caught hold of her hand to accomplish that objective. His three co-culprits helped Surchandra Singh in the process. Manitombi Devi felt perplexed over the development and so raised an alarm using the words 'Eibu Kanbiyu, Eibu Kanbiyu', She also made an effort to secure her release from the hold of Surchandra Singh, but failed. She was then forcibly made to march by the four culprits to Lourembam Leikai where she was lodged in a house. When she apprised the woman in that house that she had not been brought there with her consent, that woman refused accommodation to Manitombi Devi and the culprits in her house and told the latter to take Manitombi Devi somewhere else. Manitombi Devi was then taken from place to place amongst which was the house of the accused Surchandra Singh's mother's sister at Haobam Marak. After midnight when Manitombi Devi wept bitterly in that house Surchandra Singh proposed marriage between the two and threatened her with Khukri in case she refused. She however turned down the proposal whereupon the accused Surchandra Singh and Ibochouba Singh shifted her to another house where she was detained for the night. When she complained to the neighbours that she had been kidnapped, the accused did not feel safe to retain her in that house and so took her back to the house of Surchandra Singh's mother's sister and from there shifted her to an-other house in the north. A shortwhile after she was put in that house, some persons of the locality advised Surchandra Singh that if she was unwilling to be his wife she should be taken to some far off place to bring her round. On hearing those words, Manitombi Devi felt apprehensive and so pretended consent to marry Surchandra Singh only to avoid her being taken to some unknown distant place and Surchandra Singh informed those persons about the consent given by Manitombi Devi. Surchandra Singh thereafter bolted the door from within the room in which he and Manitombi Devi, happened to be. It is thereafter, stated Manitombi Devi, that Surchandra Singh committed rape on her by show of force and against her will. On the next morning at 11.00 a, m. the police reached that house accompanied by the first informant Debendra Singh and arrested Surchandra Singh and took Manitombi Devi into custody.
3. Dr. Sumati Devi P. W. 1 medically examined Manitombi Devi on 1-10-1967 for determining her age and finding out if she had been ravished. In the opinion of Dr. Sumati Devi, based on clinical and X-Ray examinations Manitombi Devi was aged between 16 and 17 and she had been raped quite recently, her hymen being torn besides being red, swollen and tender.
4. The accused Ibochouba Singh, according to the statement of Investigating Officer Tomchou Singh, surrendered before the Magistrate on 23-11-1967 and the Magistrate sent him to the Police station Lamphel where he was placed under arrest on the same date,
5. Both the accused entered the plea of not guilty. Surchandra Singh adopted the defence plea that Manitombi Devi had voluntarily eloped with him on her return from the school that he had been waiting on the way under her instructions, that she accompanied him to his house voluntarily and that she was a willing party to his cohabiting with her.
6. The prosecution examined six witnesses to establish the charge. The accused however did not lead any defence.
7. The Sessions Judge reached the findings that Manitombi Devi was aged not less than 18 on 27-9-1967. that she had actually been abducted by the culprits and had not eloped with Surchandra Singh. and that Surchandra Singh had committed rape on her. On these findings he convicted and sentenced the two accused in the manner stated above,
8. Two of the witnesses examined by the prosecution, namely P. W. 4 Sunita Devi and P. W. 5 Ibechoubi. Devi, were accompanying Manitombi Devi when the latter was said to have been abducted. Neither of them supported the prosecution during the course of their examination at the trial and so they were declared hostile and the prosecution was permitted to cross-examine them. The learned Sessions Judge returned the verdict of guilty against the two appellants on the strength of the testimony of the prosecutrix as corroborated by the statements made by Sunita Devi and Ibechoubi Devi before the Committing Court. Those statements were availed of in terms of Section 288 Cr. P. C.
9. Shri Nodiachand Singh, representing Surchandra Singh and Shri Kerani Singh, who appeared for Ibochouba Singh, vehemently urged that the previous statements of Sunita Devi and Ibechoubi Devi had not been properly brought on its record by the trial court and that as such they could not have been relied upon in support of the prosecution case. Section 288 provides that the evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act. 1872. Obviously, the previous evidence of a witness can be treated as evidence in the case 'in the discretion of the presiding Judge'. That discretion indisputably is a judicial discretion and not arbitrary or whimsical. It has to be emphasised that the provisions of Section 288 constitute a wide departure from the general rule that all evidence must be direct or. in other words, the witness himself must appear in Court to give oral evidence of the facts which he claims to have perceived. This general rule is, of course, subject to the provisions enacted in Section 33 of the Indian Evidence Act. The rule enacted in Section 288 Cr. P. C. is clearly of a very exceptional nature and in my opinion the power given by it can be exercised only when the Judge has reason to believe that a witness had made a truthful statement before the Committing Magistrate but had indulged in mendacity at the trial and that it is desirable in the interests of justice that his previous statement should be brought on the record. Before the Judge decides to bring the previous statement on the record it is only fair that he should indicate his intention to the defence counsel and weigh carefully the arguments addressed at the bar by that counsel as also by the Prosecutor. There is yet another condition which must be complied with before the previous statement can be brought on the record under Section 288. It is that the provisions of Section 145, Evidence Act. should be complied with. This conclusion follows from the terms of Section 288 itself. It is stated there that the previous evidence may be treated as evidence for all purposes 'subject to the provisions of the Indian Evidence Act, 1872'. The Supreme Court held in Tara Singh v. The State : 2SCR729 , that there is no reason why Section 145. Evidence Act, should be excluded when Section 288 states that the previous statements are to be subject to the provisions of the Indian Evidence Act, Section 145, the Supreme Court observed further, falls fairly and squarely within the plain meaning of these words, and that on giving effect to the plain meaning of the words used in Section 288, the evidence of the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous statement as required by Section 145 Evidence Act. If the prosecution wishes to use the previous testimony to the contrary as substantive evidence, the Supreme Court concluded, then it must confront the witness with those parts of it which are to be used for the purpose of contradicting him and then only can the matter be brought in as substantive evidence under Section 288.
10. It is in the light of the above interpretation of Section 288 that I proceed to examine whether the statements of Sunita Devi and Ibechoubi Devi had been properly relied upon by the Sessions Judge. The learned Assistant Government Advocate conceded that the statement of Ibechoubi Devi made before the committing Magistrate had not been properly brought on the record by the Sessions Judge and as such he could not have relied upon it in determining whether or not the accused had committed the offence. A perusal of the statement made by Ibechoubi Devi in the trial Court clearly brings out that no order was passed by the Sessions Judge indicating his intention to treat the previous statement of Ibechoubi Devi as evidence in the case. True that some portions of her previous statement marked Ext. P/5 were put to the witness by the Prosecutor for the purposes of contradiction, but from that circumstance alone we cannot spell out the conclusion that the Sessions Judge had brought Ext. P/5 on his own record in exercise of the power given by Section 288. Cr. P. C. Hence, I hold that the learned Sessions Judge went wrong in basing his findings on the strength of the statement Ext. P/5.
11. The previous statement Ext. P/3 of Sunita Devi, I feel satisfied, had been brought on the record in the man-mer required by law and so the same could have been relied upon by the Sessions Judge as a piece of evidence in the case. After Sunita Devi had been declared hostile and the Prosecutor had cross-examined her with reference to her previous statement, the Sessions Judge passed an order transferring Ext. .P/3 to his own file under Section 288 Cr. P. C., and thereafter the Prosecutor as well as the defence counsel cross-ex-mined her. The Sessions Judge having made his intention clear by the aforementioned order and having allowed the Prosecutor and the defence counsel to cross-examine the witness thereafter, there is no substance in the contention of the appellant's counsel that Ext. P/3 had not been properly brought on the record, or it could not be relied upon as a piece of evidence in the case.
12. As a consequence of the above conclusions, we have at present the testimony of Manitombi Devi P. W. 2 and the statement Ext. P/3 made by Sunita Devi before the Committing Court in support of the prosecution case. Ibechoubi Devi P. W. 5 did not support the prosecution in her statement at the trial and her previous statement, as held above cannot be legally read as evidence in the case. The testimony of Manitombi Devi and the statement Ext. P/3 of Sunita Devi leave no room for doubt that Manitombi Devi had been actually ab-ducted by the four persons who met her near Ningthemcha Karong when she was on way back to her house from school. If she were a willing party in eloping with either of four persons she could not have raised an alarm and used the words 'Eibu Kanbiyu. Eibu Kanbiyu' as she is proved to have done. Nor would she have been moved from house to house during the period of her captivity If she were a party to the game. Instead, she would have been taken to some pre-decided comfortable lodging where she and her paramour could feel secure, such as the house of Surachandra Singh's mother's sister. Nor, again, could have Manitombi Devi rushed out of the room in the manner she did on hearing the arrival of Police and her brother. Therefore, the only question that falls for determination is whether the present appellants are two out of the four culprits who abducted her, Manitombi Devi specifically identified them as such when she entered the witness box in the trial Court. However, Sunita Devi described the culprits as 'unknown young men' and she was neither called upon to identify the two appellants as out of those four culprits, nor did she do so on her own. Therefore, we have no corroboration of Manitombi Devi's statement from the testimony of Sunita Devi that Surachandra Singh and Ibochouba Singh were paricipants in the crime. However. Surchandra Singh admitted at the trial during the course of his statement under Section 342 Cr. P. C. that he had taken Manitombi Devi to his house when she was returning from the School, though he added that she had accompanied him voluntarily. In face of that statement of Surchandra Singh there can be no doubt on the point that he was one of the four culprits and as a matter of fact the main culprit. The statement of Mamtombi Devi therefore gathers corroboration respecting the accused Surachandra Singh. I would therefore uphold his conviction under Section 366 I. P. C.
13. The conviction of the other accused Ibochouba Singh cannot be legally sustained inasmuch as we have the solitary statement of Manitombi Devi against him and it is settled beyond con-1 troversy that in cases of the present nature it is prudent to look for corroboration of the statement of prosecutrix before a verdict of guilty can be re-turned and that if such corroboration is not available it would be completely unsafe to convict the person concerned, would therefore allow the appeal of Ibochouba Singh, set aside his conviction and sentence, and order his acquittal.
14. I am now left only to examine the correctness of the conviction of Surachandra Singh under Section 376 I. P. C. Shri Nodiachand Singh urged on the authority of AIR 1955 Nag 121, Motiram v. State, that the charge of rape is not substantiated. The rule laid in the reported case is that the consent of a woman of over 18 years of age to a sexual intercourse obtained by putting her in fear of death or of hurt is no defence to an accused person, but where the fear to which the woman is subjected is neither of death nor of hurt, but only of being arrested, when as a matter of fact there is no warrant of arrest against her, the consent though obtained by fraud is nonetheless consent, for she is willing to allow sexual intercourse for a price, which is fictitious one because there is no warrant of arrest against her. In such a case the High Court observed the accused cannot be convicted under Section 376 I. P. C. Shri Nodiachand Singh read to me the statement of the prosecutrix in which she affirmed that after she had given pretended consent to marry to Surachandra Singh the latter bolted the room and committed rape on her. It was the contention of Shri Nodiachand Singh that once Manitombi Devi had consented to marry Surachandra Singh, though only to avoid her being removed to a distant unknown destination, the sexual intercourse between Surachandra Singh and her must be presumed to have been committed with her consent. I confess my inability to accept the argument as legally valid. Assuming that Manitombi Devi had given her consent to marry Surachandra Singh, that fact per se would not bring about a relationship of wife and husband between the two and the subsequent sexual intercourse between them would fall outside the definition of 'rape' only if Manitombi Devi was consenting party to that act. However, we have her firm averments that 'the accused forcibly raped me', that 'He showed there by that time the Khukri and then I was compelled to submit to the torture', and that it is thereafter that Surachandra Singh committed the carnal act with her. These averments clearly negative the consent to the act of sexual intercourse. I would, therefore, hold, in agreement with the trial Court, that the charge under Section 376 I. P. C. has also been brought home to Surachandra Singh. Hence his conviction on that charge is also confirmed.
15. The last point urged by Shri Nodiachand Singh was that in case the conviction of his client is upheld he should be given the benefit of the provisions of the Probation of Offenders Act because he was aged about 20 at the time of the trial. Here again, I express my inability to accept the prayer made. It is for the reason that the offence under Section 376 I. P. C. is punishable with life imprisonment and as such the provisions of the Probation of Offenders' Act are not attracted. The sentence of five years' rigorous imprisonment under Section 376 I. P. C. and of three years, rigorous imprisonment under Section 366 I. P. C. imposed on Surachandra Singh do not appear to be excessive. The abduction of School girls while on way to School or back to home and commission of rape on them. I believe, is one of the most heinous offences one can conceive. Instances like the present one instil fear in the minds of young girls as also their parents, and in a poor country like India it is not possible for a normal citizen to arrange chaperons for their young wards. Hence, I uphold the sentence awarded to Surachandra Singh.
16. In the result, the appeal of Ibochouba Singh is allowed and his conviction and sentence set aside, while that of Surachandra Singh is dismissed outright. The former need not now surrender to his bail but the latter will without delay.