Sharad Manohar, J.
1. Order of conviction and sentence of the present appellant who will be referred to hereafter as 'the accused' under Sections 363, 366 and 376 of the Penal Code is the subject-matter of the challenge in this appeal by the accused.
Since I find no other alternative but to allow the appeal and to pass an order of acquittal, it is necessary for me to state the case of the prosecution and the state of the evidence led by it in some details.
I will first state the prosecution case which has been accepted by the learned Additional Sessions Judge Pune I will thereafter refer to the nature of the evidence led by the prosecution and thereafter I will indicate the part of the prosecution story which can be said to have been established beyond any doubt. This would facilitate the appreciation of the conclusion that any Court must arrive at, namely, that the prosecution has miserably failed to establish any of the material facts which it must prove before it can make a legitimate claim for conviction of the accused of any of the offences with which he was charged before the learned Judge.
2. Nanda is the person at whose instance, according to the police this prosecution has been launched. She has been described by the prosecution, and I will use that very expression as prosecutrix Nanda. she is the daughter of the complainant Dinkar Adsul (PW 8). Manubai (PW 2) is the wife of Dinkar (PW 8). According to the police the age of Nanda is less than 16 years and hence her father Dinkar (PW 8) is her lawful guardian. Dinkar (PW 8) his wife Manubai (PW 2) and their children including Nanda stay at 7 Mula Road Khadaki Pune-3. Dinkar and Manubai have got an elder daughter Alka who has been married to one Vithal Sapkal. Alka and Vithal Sapkal stay at Ulhasnagar.
3. In front of the prosecutrix Nanda's house there is the house of one Madhukar Mane (PW 9) and adjoining Madhukar Mane's house is the house in which the family of Gajkwad stays. A young man called Anil Gaikwad is a member of that family. Behind the house of prosecutrix Nanda is the house in which the accused lives. The accused's father has a cycle shop. The time we are concerned with is the date 6th April 1979 and thereabout. At that time the age of the accused was about 20 years. The name of the uncle of the accused (his mother's sister's husband is Philip David. Philip David (PW 4) also stays at Ulhasnagar with his wife and five children. All of them just live in one room at Ulhasnagar. Madhukar Mane (PW 9) has two maternal uncles. Their names are Raghunath Chavan and Sarierag Chavan. Both of them stay in B. D. D. Chawl at Worli in Bombay. The name of Raghunath Chavan's wife is Kacharabai. She has been examined as PW No. 3 in these proceedings.
4. At the relevant time, in April 1979 the prosecutrix Nanda was studying in 7f.h standard in the Municipal Corporation Girls' School No. 38 at Wakdewadi Pune. She used to attend her school from 7.00 am. to 11.45 a.m. It appears that she used to walk all the distance from Khadaki to Wakdewadi for the purpose of attending her school.
5. Some time before 6th April 1979. the annual examination of the 7th standard in which Nanda was studying started. It was to last till 15th of April 1979. On the 6th of April 1979, Nanda left her home at Khadaki attended the school appeared for one paper of the examination held between 7.00 a.m. and 11.30 a.m. She should have returned by 12 noon. She did not return. Information was given by the father of the prosecutrix Nanda at the Mariai Gate Police Chowky on the next day morning i. e., 7th April 1979, at 7.30 a.m. or 8.00 a.m. The police got the occurrence report. The said report is produced at Exh. 21 in these proceedings. From the report it will be seen that the father of the girl gave her description to the police and informed that she was missing. No suspicion of her being kidnapped is voiced in the said report. However, on 11th April 1979, the father of the girl once again went to Mariai Gate Police Chowky but this time for the purpose of lodging a complaint against the present accused. This was treated by the police as the First Information Report which is produced at Exh. 22 in these proceedings. In the F.I.R. he has referred to his previous occurrence report and has stated further as follows:.I searched for her at the house of her girl friends and my relatives but she could not be traced and hence I informed you accordingly that on 7-4-1979 in the morning and my complaint is registered in Missing Register and since that time till this day my daughter Nanda is missing. I and my other relatives searched for her and in that search it transpired that one Lawrence s/o Shri Kannan Das the cycle shop dealer residing near my house has taken my girl at Bombay and hence I am lodging this complaint.
It is also stated further in the same report as follows:
Hence on 6-4-1979 at 12.00 noon my daughter Nanda aged 13 years has been enticed away by one person by name Lawrence Kannan Das r/o 7 Mula Road from my lawful custody without my consent.
One Madhukar Shankar Mane residing near my house and his two maternal uncles r/o Worli Lane seen both the boy and the girl in Bombay and he told me accordingly.
The case of the prosecution further is that the police traced the prosecutrix Nanda in the room of Philip David, the uncle of the accused at Ulhasnagar on 15th April 1979 along with the accused. Both of them were therefore brought by the police to Pune the accused was arrested by the police in Pune and the girl was returned to her father. It was thereafter that the statement of the girl was recorded by the police in which it is alleged that the accused had committed rape upon the girl on three occasions before she was taken into custody by the police. The statements of various other persons were also recorded by the police and on the basis of the said statements a chargesheet was filed by the police against the accused for having committed the offence of kidnapping the prosecutrix girl Nanda out of the lawful custody of her father Dinkar (PW 8) with a view to seduce her for sexual intercourse and for having committed rape on her while she was made to stay at the place of Philip David at Ulhasnagar.
6. The defence of the accused was simple. He has stated that on 14th April 1979 he had gone from Pune to the house of his uncle Philip David at Ulhasnagar. At about 5.00 p.m. on that day he was standing in the front portion of David's house and at that time he saw Nanda going by the road in front of the house of David. Upon seeing the accused Nanda asked him as to how he happened to be at Ulhasnagar and the accused told her that he had come to his uncle's place at Ulhasnagar. Nanda told the accused that she had come to the place of her sister at Ulhasnagar. While they were talking outside the house his aunt came out of the house and enquired about the girl and when she was informed that she was the girl residing in the house just in front of the house of the accused at Pune the accused's aunt invited the girl to come to her place on the next day morning for tea. Accordingly Nanda came to her place for tea on the next day morning.
The accused was not present in that house at that time. He had gone somewhere else. At about 9.30 a.m. he was called to the house of his uncle and was told that police had come to the place of his uncle. He returned to the house of his uncle and found that one policeman and another person were sitting in the house. The other person was a relation of Nanda. The police attached the satchel containing Nanda's clothes. She was carrying the satchel with her when she had come to the house of his uncle. Thereafter the police brought both Nanda as well as the accused to Pune and at Pune he was arrested by the police.
7. The police examined the prosecutrix Nanda as pw 1. Kacharabai wife of Raghunath Chavan as PW 3, Philip David as PW 4, Dinkar the father of the girl as PW 8 and Madhukar Mane as PW 9. I will presently refer to their evidence in some details. At this stage I may state that all the witnesses were examined for the only purpose of proving the following facts namely that-
Nanda was taken or enticed away on 6th April 1979 from her school by the accused when she came out of the examination hall the accused was standing at the bus stand outside the school from where he signalled her and made her go with him; from there Nanda went to her friend's house with the accused collected her clothes which she had kept there and both of them went to the railway station and from there they went to Dadar both of them got down at Dadar and went to the house of Raghunath Chavan and Sarjerao Chavan uncles of Madhukar Mane, (PW 9), at Worli from there the accused took the girl to Ulhasnagar and both of them stayed in the house of his uncle Philip David; from 7th April 1979 till 15th April 1979 both of them stayed in the same room in which Philip David stayed with his wife and five children; while staying there the accused raped the prosecutrix girl on three occasions and she was rescued by the police on the 15th of April 1979 and was brought to Pune along with the accused.
This was the case that the police wanted to put across the Court and the above mentioned witnesses were examined with that end in view. Let us now see whether police have been successful in establishing this case.
8. The star witness of the police is the prosecutrix Nanda (PW 1). She no doubt tried to depose to a portion of the prosecution story as mentioned above. She stated in her examination-in-chief that the accused used to visit the house of Madhukar Mane and from Madhukar Mane's house he used to signal her suggesting that she should come out with him. But the girl further added that she did not fall prey to those invitations. She further stated that the accused used to meet her on her way to school and used to threaten her and used to ask her to accompany him with a view to take sexual intercourse and threatened that if she did not go out with him for that purpose he would beat her. The girl stated that she did not accede even to these threats. But in the same breath she stated further that the accused used to take her to gardens for wandering occasionally. Even this he did by threatening her. Likewise he used to take her to movies. But she went with him because he had given her threats! She stated that all this was being done by her without informing anything in that behalf to her parents.
9. In para 5 of her examination-in-chief she stated that on the date in question, namely, 6th April 1979, at 7.00 a.m. she attended her school for the purpose of examination. The examination paper was over at about 11.30 a.m. When she came out the accused was standing in front of the school. The entire story related by her may be stated in third person singular as follows:-
As she came out of the school accompanied by her girl friends as her examination paper was over she saw the accused standing in front of the school. He signalled her by his hand that she should accompany him and giving her such signal he went to the side of Alka Talkies. The prosecutrix girl walked the distance and came to the house of her girl friend Asha Sambhaji Sonde. The house of Asha is situated in the Municipal Colony at Wakdewadi. The accused was standing at the Wakdewadi bus stop. While the prosecutrix girl was entering the house of Asha the accused said to her that she should go with him to Bombay suggesting that there should be no delay. The prosecutrix girl had kept her sari petticoat and blouse in the house of Asha in the morning before attending the school examination. These clothes were kept by her at Asha's place as per the suggestion of the accused made on the previous day. The girl therefore collected her clothes from the house of Asha and came to the bus stop of Wakdewadi and both of them came to Shivajinagar bus stop. From there they went to Dehu Road took their meals in a hotel and went from Dehu Road to Bombay by the 5.30 evening Madras Express. At 9.15 pm. they reached Dadar. For the night they halted at Dadar Railway Station and on the next day morning they went to the house of Raghunath Chavan and Sarjerao Chavan the maternal uncle of Madhukar Mane, at Worli. Sarjerao Chavan was not present in the house at that time. They waited for him. Sarjerao came at about 4.00 pm. He advised the accused to take the prosecutrix girl back to her parents' house and to return after a fortnight to attend the work. Hence the accused and the prosecutrix went to Ulhasnagar and stayed in the house of Philip David uncle.of the accused, at Ulhasnagar on 7th April 1979 In the room of Philip David the accused and the girl used to sleep together and during the period between 7th April 1979 and 15th April 1979 the accused had sexual intercourse with the prosecutrix girl on three occasions. The girl told his aunt that she was having pains on her private parts due to the accused's taking sexual intercourse with her. The aunt of the accused promised her to take her to a dispensary but she did not take her to any dispensary. In her examination-in-chief she has also stated that her birth date is 11-1-19C4 and she had attained puberty in October 1977.
10. The evidence of this girl no doubt appears to exude innocence. I have no doubt that she is an innocent girl in the sense that she is in an adolescent age and that she is doing everything as being dictated to her by nature. The question is whether her innocence can be equated to truth and with a view to verify the veracity of her statement in the examination-in-chief one has to read the evidence in the examination-in-chief a little more carefully only to see that although her statement exude innocence, truth is not the sole thing the girl wants to come out with. Some of the statements made by the girl in the examination-in-chief are on the face of them absurd. She wants the Court to believe that she went to the gardens and the movies with the accused because the accused had given her threats. This statement is on the face of it a meaningless statement. But the statement does show that she was having an attachment to the accused and probably that she was having some affairs with him which may or may not have involved sexual intercourse. The point, however, is that her examination-in-chief itself makes it clear that whatever affair she was carrying with the accused was not the result of coercion or threat. Whatever she was doing before the date of the incident in Pune she was doing willingly and voluntarily and was probably enjoying the same. Further, in all probability, she was quite happy about it but only so long as the affair was not publicised and the outer world was ignorant about it.
11. The question before us is however, not as to what she and the accused did before the incident on 6th April 1979, but the question is whether she should be believed when she tries to put it across to the Court that on 6th April 1979 the accused took or enticed her away out of the lawful custody of her parents and that the accused took sexual intercourse with her at Ulhasnagar.
12. I may state at this stage itself that there is some dispute as regards the age of the girl. She has given her birth date to be 11th January 1964. For proving the said birth date the prosecution has examined Rukminibai Waghchaure who is the headmistress of the Municipal Corporation Girls' School at Wakdewadi where the girl was taking her education. The school leaving certificate issued by the school also shows that her birth date is 11th January 1964. On the other hand there is the medical evidence which goes to show that her age could be about 15 years and a few months. But there can be a marginal error of about three years one way or the other, if medical evidence is the only criterion. No direct evidence relating to the girl's birth date by reference to the birth certificate is produced. On account of this lacuna in the prosecution evidence it is sought to be argued on behalf of the defence that the girl might be more than 18 years of age on the date of the incident, in which case neither Section 363 nor Section 376 could have any application because, it is contended this is a manifest case where the girl had done everything with absolute willingness.' I, however, choose not to enter into that aspect of the evidence and I proceed upon the assumption that the girl's age was below 16 years as contended by the prosecution. This being the position even if it is proved by the defence that the girl was a willing and consenting party to the act of sexual intercourse by the accused with the girl, still the offence of rape, under Section 376, by him was complete.
13. The questions, however, remain as to-
(a) whether the accused can be said to have taken or enticed the girl away from the lawful guardianship of her father (PW 8); and
(b) whether he had taken sexual intercourse with her at any time during the period between 6th April 1979 and 15th April 1979.
I have already mentioned that the evidence of the girl in the examination-in-chief leaves no room for doubt that her plea about everything having been done by her because of the coercion practiced by the accused is nothing but an eye-wash and it is just inconceivable that she was not a willing party to everything that was being done by both of them. But the admissions given by the girl in cross-examination are such that they practically demolish the prosecution case relating to both the offences, the offence of kidnapping and the offence of rape.
14. Now in the instant case we must bear in mind that it is not enough for the prosecution to say that the girl was found at Ulhasnagar in the house of the uncle of the accused on 15th April 1979. It is further necessary for them to show that it was the accused who was instrumental to her leaving the parental home. For this purpose they must establish either that it was the accused who took her away from the parental home or that he enticed her away out of the parental home. The evidence given by the girl in the examination-in-chief rules out the case of 'taking' away by the accused. The evidence leaves no room for the contention of 'taking' away. It is her case that she came out of the house on her own. She went to the school on her own. Before going to School she had in fact smuggled her wearing apparels into the house of one of her friends. She did not mince her words in her cross-examination when she stated that she left her parental home on that day with the clear intention not to return back. This clearly spells the decision to be her own decision. She has no doubt referred to the gesture of the accused of signalling from the bus stop. But when she had already taken a final decision to leave the house, the act of signalling on the part of the accused cannot be said to be instrumental to her leaving her home. Here I must hasten to add that even this story about the signalling by the accused from bug stop appears to be almost incredible. Point is that even if that theory is believed, still that gesture attributed to the accused does not give rise to the inference of 'taking' or even 'enticing' her away by the accused. She came out of the school on her own and even assuming that she saw the accused signalling her fact remains that thereafter she went to the house of Asha took her clothes and went away with the accused to Dehu Road to Dadar to Worli and to Ulhasnagar.
It may be contended that the last part played by the accused, namely signalling the girl to accompany him, would amount to 'taking' her away out of the lawful guardianship of her parents. A contention perhaps could be advanced that even when the girl was in school, came out of the school and was on her way to her home she continued to be in the custody of her parents and the accused signalling her to accompany him to a place other than her home then he must be deemed to have 'taken' her away from out of her parental custody. I do not propose to enter into the controversy whether such a view would be a correct view or not. I propose to assume the prosecution contention that even when the girl had gone out of her home, had been in the school and had come out of the school and was walking towards her home she continued to be in the custody of her parents. I assume further that if the accused signalled her while she was on her way home from school to come out with him and to accompany him to a place other than her home, then it would amount to 'taking' her away out of the custody of her parents.
15. But the difficulty in the instant case is that this theory of signalling gets a complete shattering blow in the girl's cross-examination. The position is that the 'taking' away by the accused of the girl out of the custody of her lawful guardians could be proved by the prosecution only by virtue of the act of signalling in the instant case. There is no other act which can be imputed to the accused which would amount to such 'taking'. if this signalling was really being done by the accused as it is now alleged by the girl in the Court, a reference to this act on the part of the accused would have found some place somewhere in the statement made by the girl before the police during the investigation. The cross-examination of the girl, however, leaves no room for doubt that no such signalling was imputed by her to the accused in her statement before the police. In para 20 of her deposition the girl has admitted in so many words that she did not state in the police statement that the accused signalled her with the hand after she came out of the examination hall. As a matter of fact the entire part alleged to the accused after she came out of the examination hall which would amount to the 'taking' on his part finds absolutely no place in the girl's statement before the police. It is impossible to conceive of a position that that police would not have asked a question and a pointed question at that, to the girl in this behalf, because this is the quintessence of the offence imputed to the accused. Significantly enough we find that this gesture on the part of the accused which forms the gravamen of the offence is not as much whispered about in the girl's statement before the police.
But this is not all. Even the absurd theory of threats which theory has been vociferated in her examination-in-chief finds no place in her statement before the police.
But most of all what we find from her evidence in the cross-examination as regards her clothes, on the morning of the crucial date, i.e., 6th April 1979, is extremely revealing. In para 18 of her cross-examination the girl stated in quite unequivocal terms as follows:-
I took with me my clothes when I left my house in the morning of the day of the incident for attending the examination. I had decided to go with the accused to Bombay after attending the examination paper after keeping my clothes at the house of Asha.
As if this was not sufficient, in the next para 19 the girl has stated as follows:-
I can differentiate between a good and bad thing. I had decided not to return to my house when I left the house in the morning of the day of the incident. My examination was not over on that day of incident. My examination was to continue up to 15-4-1979.
16. It is thus clear beyond a shred of doubt that on the morning in question the girl had decided, on her own, to leave the house; with that aim she smuggled her clothes to the house of her friend Asha and with that aim she picked up her clothes from her friend Asha's house and went away somewhere. This much position appears to have been proved beyond any doubt.
No doubt the girl further stated that she was taken by the accused first to Dehu Road thereafter to Dadar thereafter on 7th Apr. 1979 to Worli and thereafter to Ulhasnagar. But the evidence of the girl is so undependable that it is impossible to hold that these facts can be said to have been proved beyond reasonable doubt. For proving these facts independent evidence is indispensable for the prosecution. The prosecution even purported to lead such independent evidence. Therefore, let us see that independent evidence led by the prosecution to prove these facts. I assume that, if proved, these facts may constitute 'taking' of the girl by the accused within the meaning of Section 363 of Indian Penal Code.
17. The first witness for proving one of the links in the chain of the facts is Kacharabai (PW 3). This Kacharabai is the wife of Raghunath Chavan who is the uncle of Madhukar Mane. Kacharabai Madhukar Mane and the prosecutrix girl are Hindus. The accused is obviously a Christian. In the context of this position, two possibilities were to be weighed against each other;
(1) whether the accused took the girl to Kacharabai or
(2) whether the girl took the accused to Kacharabai.
More readily believable version would have been that the girl took the accused to Kacharabai and not the vice versa. But let me assume that it is not the only possible inference and let me assume that if the evidence of Kacharabai is to be believed it could be said that the accused took the girl to Kacharabai. The question still remains as to what is the evidence of Kacharabai and the next question is whether it is to be believed. Kacharabai (PW 3) stated in her evidence that she was the wife of Raghunath Chavan and that her husband and his brother and their family stayed in the B. D. D. Chawl at Worli. She further stated that about 8.30 a.m., on some day in the past, the accused and the prosecutrix girl came to their house. She further stated that both of them told her that they had come to them as guests. Kacharabai told them that she did not even know them. Thereupon both of them, the accused and the girl, told that they were on their way to Ulhasnagar. Both of them waited in her house till 2.00 p.m. until her brother-in-law Sarjerao came. The witness stated further that the girl had told her about her relationship with the accused. According to the witness, the girl stated to her that the accused and herself were brother and sister. The witness further stated after Sarjerao came home he took both of them, the girl and the accused, to Dadar Station. This is all that the witness has stated in her examination-in-chief.
But her cross-examination is of an extremely revealing character. In her cross-examination she had to admit that she could not tell not only the day on which the boy and the girl had come to her house at Worli but even the month or the year in which they had come. She also conceded that they had visited her house about two or three days before the police had come to the house of the witness. Now it is significant to note that the police could not have gone and in fact never went to the house of this witness any time before 15th April 1979. My purpose of mentioning this fact will become clear presently when I examine the evidence of the police witness. But it may be stated here at this stage itself that this witness's cross-examination gives rise to some huge question marks-
(1) as to whether the statement of this witness was ever recorded by them during the course of the investigation; and
(2) if her statement was recorded by the police, whether it was an honest and genuine statement made by her out of her free-will or was a statement which she was spoon-fed to make or veritably bludgeoned into making. This doubt further snow-balls when we turn to the statement made by this witness in para 5 of her cross-examination. In said para 5, the witness stated that before her depositions in the Court were being recorded the police had read over to her previous police statement. I will have occasion to say something about the legal effect of this admission. The point to be noted at this stage is that the prosecution attempts to put across to the Court the story that this witness has made a voluntary statement before the police during the investigation receives a severe jolt by virtue of this part of the witness's evidence.
18. But the process of snow-balling of the doubt assumes alarming proportion when we turn to the evidence of Head Constable Bansode (PW 10). Head Constable Bansode admitted in his evidence that while he took down the statement of the witness he had written her name not as Kacharabai but as Vanabai. He also stated that it was a mistake committed by him. But it is plainly unintelligible how such a mistake could be committed. It is not as if the names of Kacharabai and Vanabai are so similar that one can be mistaken for the other.
19. Taking all these things together namely that-
(a) the witness does not support the prosecution case that it was the accused who had brought the girl to her house;
(b) the witness does not remember the day, month, year or anything about when the boy and the girl had come to her house;
(c) the witness states that they had come to her house two or three days before her statement before the police which could not have been before 15th of April 1979;
(d) the fact that the police have recorded in her statement the name of the witness as Vanabai and not Kacharabai and lastly
(e) the fact that the police have tutored this witness before leading her evidence before the Court all these facts go to show that the very fact whether her statement was ever recorded by the police is extremely doubtful. In any event it is not a statement made by her genuinely and honestly. The statement, if she had, technically speaking, made it, has all the hems and frills of a statement 'extracted' and not of one made genuinely. The evidence of this witness for proving a part of the prosecution story, namely, that the girl was taken by the accused from Pune to Worli therefore, becomes incredible. The prosecution could have examined Sarjerao to throw some light upon the reality. But the prosecution has chosen to examine illiterate Kacharabai rather than the conceivably more knowledgeable Sarjerao. Why? No explanation.
20. In this connection it is further significant to note that there are other prosecution witnesses who have given evidence which is unhelpful to the prosecution case and hence they have been declared hostile at the instance of the prosecution. But so far as this witness PW 3 is concerned the police have not made even an effort to declare her hostile. This means that her statement was just not recorded by the police and that some Vanabai's statement was tutored into her mouth at the time of her evidence in the Court.
21. But even if we assumed that statement of this witness PW 3 was really recorded by the police and further that as per her evidence this girl Nanda and the accused had gone to her house at Worli the particular gesture could as well be spelt as proving the fact that it was the girl who went to her house accompanied by the accused and not that the accused took her to that place. If the girl on her own accord went to the place of this witness and the accused simply accompanied her to that place, it could not be said that the girl was 'taken' by the accused to the house of this witness PW 3.
Whichever way we look at it, the conclusion is inescapable that the evidence of this witness does not advance the prosecution case even an inch towards its goal.
22. The next witness Philip David was sought to be examined for the purpose of putting it across to the Court that the accused had taken the girl to the place of his uncle and had stayed there for about a week and took sexual intercourse with her during that period But this witness PW 4 does not help the prosecution in his examination-in-chief at all. All that he stated was that the accused came to his house on 14th April 1979 and that in the afternoon the accused came across the girl going by the street; that both of them went on talking and when David's wife learnt that the girl was the neighbour of the accused in Pune she invited her for tea on the next day morning that when the girl came on the next day morning for tea the accused was not present in the house at that time and it was in these circumstances that the police came and took the girl and the accused into their custody. The witness further stated that the accused was called by his wife after the girl had come. According to the witness the accused was not even present in the house of the witness when the girl had come to his house in the morning of 15th April 1979. Incidentally it may be pointed out . here itself that even according to the prosecutrix girl the accused was not present in the house of David at the time when the police came on the scene on 15th April 1979.
This witness PW 4 was declared hostile and was allowed to be cross-examined by the prosecution. No doubt in his cross-examination the witness had to admit certain statement made by him before the police during the investigation. It came out in the cross-examination that in the police statement the witness had purported to give the story as was desired by the prosecution, namely, that the girl was brought to his house by the accused on 7th April, 1979 and not that the accused alone came to his house on 14th April 1979. But it can be hardly gainsaid that the statement made by any person before the police cannot partake the character of substantive evidence. At the most the police can rest content by saying that the evidence of this witness pw 4 before the Court is not a true piece of evidence. But that does not mean that the statement made by the witness before the police can form substantive evidence before the Court. This apart I will have occasion to discuss the police evidence in this case and to point out that the entire investigation itself has been very much tainted to such an extent that the genuineness and veracity of the entire investigation itself becomes alarmingly suspect in the instant case.
23. The next witness relied upon by the prosecution is the father of the girl Dinkar (PW 8). He has proved the first information report Exh. 22, lodged by him on 11th April 1979. I have already culled out the relevant portion of the first information report in which this witness had made allegations against the present accused for having kidnapped the prosecutrix girl. This witness stated that the information in that behalf was received by him from Madhukar Mane. The evidence of this witness PW 8 is useful for the prosecution for no other purpose. We must therefore turn to the evidence of Madhukar Mane to see whether any such information was given by Madhukar Mane to Dinkar, PW 8 and if so whether the information given by PW 8 to the police in the F.I.R. was found on truth.
24. The only purpose for which Madhukar Mane (PW 9) was examined by the prosecution was to prove that he had given the information to Dinkar (PW 8) which was reflected by Dinkar's F.I.R. (Exh. 22). The relevant portion of the F.I.R. has already been culled out by me. The author of the F.I.R. stated that Madhukar Mane had seen both the boy and the girl in Bombay and that he had told him Dinkar accordingly. The statement by itself is innocuous because the fact that the accused and the girl were seen in Bombay by Madhukar Mane would not necessarily mean that the accused had taken her away or had enticed her away to Bombay. But what the witness has stated before the Court in his evidence is even more revealing. He did not make any statement before the Court that he had seen the accused with the prosecutrix girl in Bombay at any time before 11th April 1979. In fact he was examined as a prosecution witness and all that he was asked was whether his two uncles had ever told him about the accused and the girl Nanda. He was allowed to be declared hostile and was allowed to be cross-examined by the prosecution. But neither in his examination-in-chief nor in his cross-examination either a suggestion was made to him or a question was asked to him or any information was elicited from him that he had seen the accused and the girl being together in Bombay. This means that the statement made by Dinkar (PW 8) in the F.I.R. was something out of his imagination and something that the police themselves did not very seriously believe.
That apart the question does arise as to whether his two uncles had told this witness anything regarding the accused or Nanda with reference to their visit to his uncles' residence at Worli. The answer of the witness was that none of his two uncles ever told him about the accused and the girl. The contention of the prosecution is that this statement is contradictory to the witness's earlier statement before the police and on that ground an application was made that he should be declared as hostile Now I plainly do not understand as to how this question itself was admissible in evidence. This witness was asked whether his two uncles had told him anything regarding Nanda. Those two uncles of the witness were not examined by the prosecution. Whatever answer that the witness would give would be purely hearsay evidence. The statement made by the witness before the police that his uncles had told him about the accused and Nanda was intended to be used by the police only for the purpose of recording the statement of the two uncles of this witness to this witness. They could have been examined as witnesses if they had any information about Nanda and the accused. But the statement that his uncles had told him about Nanda and the accused is not admissible in evidence. That statement which is not admissible as evidence in the Court cannot be made admissible by the back-door method of proving the statement by cross-examination of the witness, showing that the statement, though inadmissible in evidence, was in fact made by the witness before the police. It was an error on the part of the learned Judge to hold that the witness should be declared hostile.
Further by declaring the witness hostile all that the prosecution has elicited from the witness is the following and nothing else:
Maternal uncle told me that Nanda was saying to Lawrence that let us go to Thana at her elder sister's house. Since that time 1 do not know their whereabouts....
Now if this statement was to be proved it was not enough for the prosecution to prove that such a statement was made by this witness before the police. The statement of Madhukar Mane that his uncles told him about Nanda and the accused can be proved only by examining those two uncles of Madhukar Mane and not by proving the statement of the witness before the police by getting an opportunity to cross-examine the witness. It is thus clear that the evidence of this witness Madhukar Mane is of no use whatsoever for the prosecution.
25. Lastly there is the evidence of the panch witness Sayed Nabu Amin (PW 6). In the examination-in-chief the panch witness stated nothing in favour of the prosecution and stated nothing which could inculpate the accused. The purpose of examining the panch witness was to show that the muddemal articles 1 to 3 were seized from the person of the accused in the house of David at Ulhasnagar. By this statement the prosecution wanted to prove the presence of the accused in the house of David at the time when the girl was taken into their custody by the police at that place. But the panch witness stated nothing in that behalf in his examination-in-chief. For reasons which are not easy to be fathomed he was allowed to be declared hostile and was allowed to be cross-examined. In the cross-examination he was asked as to whether the muddemal articles of clothes 1 to 3 were recovered from the person of the accused. He denied that fact. Nothing was done further by the police to prove, from his early statement before the police, that he had made any statement on any previous occasion which would show that the muddemal articles were recovered from the accused at Ulhasnagar. But the point is that even assuming that those articles were recovered from the person of the accused at Ulhasnagar that fact has no bearing whatsoever on the case of the prosecution. The fact that the accused was present at Ulhasnagar is an admitted fact. The question is whether the accused took the girl to Ulhasnagar. The evidence of this witness and the panchnama which was made by the police and signed by this panch witness do not take the case of the prosecution even an inch further towards proving that it was the accused who had taken the girl to Ulhasnagar.
26. I will now turn to the police evidence. The evidence consists of the depositions of Head Constable Bansode and of no one else. In his evidence all that he has deposed to is the fact that he had visited the house of Raghunath Chavan on 14th April 1979 and had recorded the statement of Raghunath Chavan and his wife Kacharabai on that day. He further stated that he visited the house of Philip David at about 9.30 a. m. on 15th April 1979 and there he came across the girl Nanda and the accused. But this statement of the witness is belied by the evidence of the girl who had stated in categorical terms that at the time when the police came to the house of David accused was not present in the house.
In the cross-examination, however, this witness had admitted the fact that he had not gone to Andheri in connection with the search of Nanda as stated by him in his report submitted to the P. S. I. on 16th April 1979. He had mentioned in the report that he had gone to Andheri for making search of Nanda. He told the Court that it was a mistake on his part. Likewise he had to admit that in the house of Raghunath Chavan in the B. D. D. Chawl at Worli he recorded the statement not of Kacharabai but of one Vanabai. He stated that the name of Vanabai was mentioned by mistake in the place of Kacharabai. But he could not explain how such a mistake could take place when the two names, Kacharabai and Vanabai did not sound alike.
He further admitted that when he went to the house of David on 15th April 1979 he was accompanied by Vithal Sapkal. This Vithal Sapkal is none other than the husband of Alka the sister of the prosecutrix girl. This means that before going to the house of David, he went to the house of Alka. That was obviously with a view to verify whether Nanda had met her sister Alka. It was only thereafter that he went to the house of David.
27. The last piece of evidence is the medical evidence of Dr. Gulab Laxman Wagh (P. W. 7). The doctor was examined with a view to prove that the prosecutrix girl was subjected to sexual intercourse by the accused. The doctor no doubt stated in his evidence that the girl's hymen was found ruptured. But he could not give any evidence that any rape was committed upon her. On the other hand he stated that from the examination he found the girl to be habituated to sexual intercourse. In the cross-examination the witness also admitted that the hymen can be ruptured due to causes other than sexual intercourse.
If the girl was habituated to sexual intercourse it was quite possible that she had taken the intercourse with somebody else even before 6th April 1979 or for that matter with someone else before she was examined by the doctor. The fact that it was the accused who had taken sexual intercourse with her during the period between 7th April 1979 and 15th April, 1979 could not be said to have been proved on the basis of the medical evidence. The only piece of evidence relied on for proving that he had sexual intercourse with the girl during that period is the evidence of the girl herself. But the girl was evidently telling manifest lies. She had admitted in her cross-examination that she had run away from the parental house even after she was brought back from Ulhasnagar by the police. She categorically admitted that she used to go to movies and for strolls in the gardens with the accused. There is evidence on record in the form of deposition of the girl's own mother Manubai (P. W. 2) which shows that this girl was suspected to be going out with one Anil Gaikwad a young man residing in the neighbourhood and on that account he had thought it fit to resort to the method that commended itself readily to him, of beating the devil out of her ! I still repeat that this does not mean that the girl is not an innocent girl. She may be innocent. But her innocence lies in the fact that she knows not what she has been doing and she has been responding to the irresistible impulse. She was passing through the phase of adolescence and during that stage the youngsters are more sensual than reasonable. They have to be forgiven for they do not know what they are doing. Such adolescent youngsters can be aptly described as innocent offenders. They require tactful and affectionate handling; not the beating and the hiding resorted to by most of the parents in our society and which was the very thing freely resorted to by her father. More often than not, this third degree method employed by the parents against their adolescent children results in making the children even more recalcitrant. They get the feeling not only of frustration but even that they are unjustly required to face heavy odds with their backs to the wall. Ultimate result in the case such as the present one is that the youngsters, with their backs to the wall, tend to be defiant. Not infrequently, no external inducement or enticement is necessary for them for playing the truant. But it is not an unusual trait amongst these adolescents to have the desire to defy the parental authority but no courage to face the parental wrath. Let me then recapitulate as to what the prosecution has proved by its evidence in the instant case. We have to discard a major portion of the girl's evidence consisting of allegations against the accused which have not been corroborated by any independent evidence or by the girl's previous statement. We have also to leave aside the evidence of Kacharabai (P. W. 3). Philip David (P. W. 4) Dinkar (P. W. 8) Madhukar Mane (P. W. 9) and the Head Constable Bansode (P. W. 10), because their evidence does not lead the prosecution case anywhere. Insofar as the evidence to prove that it was the accused who took away the girl to Ulhasnagar stayed at his uncle's house for about 7 days and took sexual intercourse with her on three occasions is concerned, all that the prosecution can be said to have proved is that for reasons best known to her the girl decided to leave the parental home in the morning of 6th April, 1979; she took her clothes with her and came to the house of her friend Asha thereafter she went to the examination hall, wrote her paper, came out of the examination hall at about 11.30 a. m. and went away somewhere with somebody and, lastly, that she was found in the house of Philip David at Ulhasnagar in the morning of 15th April, 1979. The further fact that has been established is that she herself has a sister at Ulhasnagar by name Alka that the police went first to Alka's house on 15th April, 1979, picked Alka's husband Vithal Sapkal and thereafter went to the house of Philip David and took into custody the girl whom they found in the house of David. This is all that the prosecution has established in the instant case and the prosecution wants the Court to hold that on this much evidence and on the basis of these circumstances the Court should convict the accused for having taken the girl out of the custody of her parents or for having enticed the girl out of the custody of her parents. I fail to see how such a conclusion is possible on the basis of such miserable piece of evidence.
28. The prosecution further wants the Court to hold, on the basis of the medical evidence that the accused had committed rape upon the girl on three occasions during the period between 7th April, 1979 and 15th April 1979. But in the face of the medical evidence it is impossible to accept this contention. If the contention is accepted, it would mean that every word proceeding from the mouth of this girl must be regarded as a gem of truth of the purest ray serene. This is something which just cannot be countenanced. So far as the present case is concerned, the prosecutrix girl's evidence is totally unreliable. The prosecution ought to have led at least some evidence somewhere for proving the various incriminating statements of the girl against the accused. How far such corroborative evidence would have furthered the prosecution case when the substantive evidence of the girl is totally unreliable, is a different matter. But the point here is that there is no such corroboration to be found anywhere vis-a-vis the question of rape. The medical evidence shows that the girl is habituated to sexual intercourse. The medical evidence further shows that there is no injury whatsoever upon her private parts. The fact that 'in the medical evidence the girl is not found to be a virgointacta does not mean that she had intercourse with the accused as alleged by her, during her stay at Ulhasnagar. Moreover the medical evidence itself shows that the hymen could have been ruptured even otherwise than by sexual intercourse with any male person.
29. Moreover dwelling more upon the question relating to rape, it must be borne in mind that the story unfolded by the girl is intrinsically incredible. The accused is alleged to have taken the girl to the house of David who stays in one room with the six members of his family. There was hardly any room for the two additional guests to reside in the house. It is therefore inconceivable that the accused could have committed rape upon the girl in such a room in the presence of all others. For coming to such a conclusion one should have to hold that the members in the said household abetted the accused in committing rape. The prosecution has not gone to the length of taking such an extreme plea. If that plea is not taken then it follows that the statement made by the girl about her having been raped by the accused in those impossible circumstances is a meaningless story.
Incidentally, I may state here that so far as the last point relating to the conviction of the accused of the offence of rape is concerned, Mrs. Desai, the learned Public Prosecutor, was wholly unable to support the conviction of the accused of the said offence and she was quite frank about this position.
30. Mrs. Desai, however, tried to submit that so far as the offence of kidnapping was concerned there was evidence to show that it was the accused who took and enticed the girl away from her parental home. She contended that the girl being of the age below 18 years her consent for being taken away was of no legal consequence and the offence was complete even though she happened to be a consenting party to the act of kidnapping. This brings me to the question as to whether an offence under Section 363 could be spelt out in the background of the evidence in the instant case. Section 363 of the Indian Penal Code contemplates two kinds of kidnapping -. (a) kidnapping from India and (b) kidnapping from lawful guardianship. We are not concerned with the offence of kidnapping from India. Section 361 defines kidnapping from the lawful guardianship. It provides as follows :-
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of such guardian is said to kidnap such minor or person from lawful guardianship.
Some observations would not be out of place. In order to come within the mischief of that section the accused must have either taken away the minor girl or must have enticed the minor girl out of the keeping of her lawful guardian without the consent of such guardian. The two expressions 'taking' and 'enticing' evidently have two different connotations. But both the expressions call for some positive step having taken by the accused to remove the girl from the lawful custody of her guardians. Neither of the sections would have any application if the girl has of her own accord, come out of the custody or come out of the keeping of her lawful guardians and if it is thereafter that the accused had gone with her to some place. To illustrate, the accused may go to the house of the girl and may lift her from her house. He no doubt commits the act of kidnapping. But if the girl is of the age of understanding and has left her parental home of her own accord and meets some person and requests him to accompany her to some place for her safety, the person accompanying the girl is not guilty of kidnapping her. There may be cases in which the girl might leave the custody of her guardian and might in fact go to a third person and prevail upon him to take her to some distant place. In such cases even if the person knew that the girl is a minor girl and knew the names of her parents still if he has not initiated the girl's coming out of the house, mere passive acquiescence on his part evidenced by his accompanying the girl to places would not necessarily spell the offence of kidnapping on his part. It cannot be said in such cases that it is the accused who has 'taken' away the girl from out of her parents' custody. If any authority is necessary for this proposition the same is to be found in the judgment of the Supreme Court in the case of S. Varadarajan v. State of Madras : 1965CriLJ33 . In that case the girl who had reached the state of understanding had candidly admitted that on the morning of October 1st she herself telephoned to the accused to meet her in his car at a certain place went up to that place and finding him waiting in the car got into that car of her own accord. This is what the Supreme Court held further in that case in this context at page 36 of Cri LJ:.Further Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's Office and got the agreement of marriage registered there thinking that this was sufficient in law to make them man and wife by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side The appellant by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him....
The position in the instant case is not materially different. In the instant case the girl has admitted in so many words that when she took her clothes from the house and kept them at her friend Asha's house she had already taken the decision to leave her parental home and not to return back home. The decision to leave the house was taken by her on her own It cannot be said that the evidence in the present case fixes the decision to be that of the accused. The mere fact that the accused was found with the girl at Ulhasnagar would not necessarily mean that he had taken her to Ulhasnagar. It is equally possible that the girl herself had decided to leave the parental house as she did and thereafter prevailed upon the accused to take her to places, the last one of them being Ulhasnagar. It is also possible that finding that they had no place where they could stay together she herself decided to go to her sister's place at Ulhasnagar and from there on the 15th of April 1979 she had come to the house of Philip David probably to meet the accused there. There exists a multitude of these possibilities and likelihoods in the instant case and the Court cannot pick up just one of them, namely, that the accused prevailed upon the girl or took away the girl to accompany him out of the lawful custody of her parents.
31. I must state here that Mrs. Desai the learned Public Prosecutor was fair enough to concede that the evidence on record did not justify an inference that the accused 'took' the girl away from the custody of her guardians. But she insisted that there is evidence to show that the girl was 'enticed' away by the accused. But, to my mind, the evidence even on this point of 'enticing' is extremely meagre to the extent of its being almost non-existent. For enticing it is not enough that the accused accompanied the girl. It must be proved that the accused had been instrumental in her taking the decision to leave the parental home. Now in the instant case there is nothing on record to show that it was the accused who was instrumental to the decision making on the part of the girl to leave the parental home. She has no doubt stated that before she decided to leave the house with a view not to return back she had a discussion with the accused. But even the girl who has gone all the way to make allegations against the accused has not stated that it was he who advised her to leave her parental house. In order to hold that the accused 'enticed' away the girl it is necessary to have some evidence to the effect that accused had given her some temptation or promise or assurance or allurement which had the effect of an irresistible force upon the girl. No such things have been stated by the girl in her evidence. I do not mean that if she had stated so, the Court would have readily believed it. The evidence of the girl does not leave any scope for an argument that the girl received a promise or assurance or any tempting offer from the accused boy by virtue of which she was forced to leave her parental house.
There is thus no evidence to prove the 'taking' of the girl by the accused; the evidence about his 'enticing' her away is equally absent. If this is so, there is no kidnapping of the girl and hence the question of application of Section 363 of the Indian Penal Code does not arise.
I have already observed that the conviction relating to rape under Section 376 is unsustainable in the instant case, on the face of it, because there is next to no evidence relating to rape by the accused. On closer examination, the position relating to the kidnapping under Section 363 and under Section 366 of the Indian Penal Code turns out to be no better. The conviction of the accused under all the three sections cannot therefore be sustained.
32. The result, therefore, is that the appeal is allowed. The order of conviction and sentence passed by the learned Sessions Judge Pune is hereby set aside and the accused is acquitted of all the offences with which he had been charged. Fine, if paid, is ordered to be refunded to the accused. Bail bond stands cancelled.