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Balmukan and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Appeal Nos. 90, 91, 95 and 96 of 1950
Judge
Reported inAIR1952Raj123
ActsEvidence Act, 1872 - Sections 24 and 133; Indian Penal Code (IPC), 1860 - Sections 109, 361, 362, 366, 366A, 375 and 376; Code of Criminal Procedure (CrPC) , 1898 - Sections 236, 237, 238 and 288
AppellantBalmukan and ors.
RespondentState
Appellant Advocate Harak Lal, Adv.
Respondent Advocate Sumar Dan, Adv.
Excerpt:
- - the lady doctor, however, was not satisfied with this story of the girl, & eventually her father champa lal made a vague report in the thana on the 7th or 8th of may, 1949. thereafter, a head constable went to the hospital, and asked the girl to tell the truth. before we deal with the legal questions raised by learned counsel for the appellants we would like to consider whether the evidence of the girl can be believed. 8. it is, however, urged by learned counsel for the appellants that even if we believe the evidence of this girl, it would not be safe to convict the appellants on her statement as she is the prosecutrix, and there is no corrobora-tion available of her statement. they clearly corroborate the statement of the girl as to commission of rape on her by balmukan and.....wanchoo, c.j.1. these are four connected appeals from the same judgment of the sessions judge of jodhpur in a case under section 376 of the indian penal code. appeals nos. 90 and 96 are by balmukan, 91 by surjia, and 95 by sanwaria.2. the prosecution story was briefly this. mt. ramjot a young girl of about 14 years of age, had gone from her house in mochian-ki-ghati, jodhpur city, at about 11 a.m. on the 2nd of may, 1949, with food for her brother narain who was working in the 'karkhana' of narain dass inside sojati gate, sanwaria appellant is said to have met her outside tam-bakoo-ki-gali, and asked her to accompany him to bring a gas lamp lying in the public park. she was told that she would be paid some-thing for doing the job. she agreed to the proposal, as she had done such jobs for.....
Judgment:

Wanchoo, C.J.

1. These are four connected appeals from the same judgment of the Sessions Judge of Jodhpur in a case under Section 376 of the Indian Penal Code. Appeals Nos. 90 and 96 are by Balmukan, 91 by Surjia, and 95 by Sanwaria.

2. The prosecution story was briefly this. Mt. Ramjot a young girl of about 14 years of age, had gone from her house in Mochian-ki-ghati, Jodhpur City, at about 11 a.m. on the 2nd of May, 1949, with food for her brother Narain who was working in the 'karkhana' of Narain Dass inside Sojati Gate, Sanwaria appellant is said to have met her outside Tam-bakoo-ki-gali, and asked her to accompany him to bring a gas lamp lying in the public park. She was told that she would be paid some-thing for doing the job. She agreed to the proposal, as she had done such jobs for one Amaria,who deals in gas lamps, and at whose shop Sanwaria appellant used to work. She, therefore, went to the 'karkhana' of Narain Das and left the food she had brought for her brother there, and came back to Sanwaria, who was waiting outside with a cycle. Sanwaria then took her to the public park; but there was no gas lamp there, and she enquired where she had to go for the gas lamp. Sanwaria told her that it wag a short distance away, and thus enticed her away to a place near the aerodrome. There the two of them sat down under a 'neem' tree, and the girl again asked Sanwaria why she had been brought there. Sanwaria told her that he would have sexual intercourse with her; but the girl refused to agree to this.

At this stage, Surjia appellant appeared on the scene, and asked Sanwaria why he had brought the girl there, and threatened to telephone to the police. Sanwaria then begged Surjja not to take this course, and told him that he could also have sexual intercourse with the girl. The girl, however told both that she would not agree to this sort of thing. Thereupon both of them lifted her, and took her to a bath room in the Racecourse Bungalow nearby. There the third appellant Balmukan, who has some job in that Bungalow, met them, and it is said that Sanwaria offered him also that he could have sexual intercourse with the girl. Thereafter the girl was first raped by Sanwaria, then by Balmukan, and finally by Surjia. It is said that every time one man finished intercourse with her, she wanted to get out from the bath-room, but was forced back into the bath-room so that the next man may rape her. The result of this was that she began to bleed profusely from her private parts. She is said to have screamed for help; but no one came to the Bungalow.

It is said that a fourth man had come to the scene, and had rebuked the appellants, who had told him that he could also have sexual intercourse with the girl; but that man declined the offer, though he did nothing to help the girl. The clothes of the girl got blood stained, and so Sanwaria made her wash her cloths and take bath, and thereafter the clothes were allowed to dry in the sun, and then she put them on, and left the place with Sanwaria. As she was unable to walk on account of the bleeding from her private parts Sanwaria put her On the handle of his cycle after some distance, and brought her up-to a 'pyao' on the Ratanada Road, and left her there. The girl asked Sanwaria what she should say to her mother about the bleeding. Sanwaria advised her to tell her mother that she had fallen down, and had thereby got injured.

The girl was eventually taken home by some persons who live near the pyao. On arrival at her house, she told her mother that she had been injured by a fall. She was then taken to the Ummaid Hospital, where she gave the same story of (being?) injured to the lady doctor. The lady doctor, however, was not satisfied with this story of the girl, & eventually her father Champa Lal made a vague report in the thana on the 7th or 8th of May, 1949. Thereafter, a head constable went to the Hospital, and asked the girl to tell the truth. She then came out with the story, which has been narrated above. Thereafter Sanwaria was produced before the girl, who identified him to be the person who had taken (her?) away. Later, an identification parade was held, in which the girl correctly identified the other two appellants also, namely Balmukan & Surjia. All the three appellants confessed, & their confession were recorded by the Sub-Divisional Magistrate Jodhpur, and thereafter the case was sent up for trial to Court.

3. All the three appellants pleaded not guilty, and said that they had been falsely implicated by the police.

4. The main evidence in this case consists of the statement of the girl, Mst. Ramjot, and the retracted confession of the three appellants. Before we deal with the legal questions raised by learned counsel for the appellants We would like to consider whether the evidence of the girl can be believed. Her evidence may be divided into three parts namely, (1) about what happened before she reached the Race-Course Bungalow, (2) what happened at the Racecourse Bungalow, and (3) what happened after the Racecourse Bungalow.

5. Learned counsel for the appellants urges that the statement of the girl should not be believed because of the discrepant statements she has made about the first part, namely, what happened before she reached the Racecourse Bungalow. Her first statement to the police in this connection was that she had been threatened by Sanwaria, and practically taken away by force from near Sojati Gate. In the Committing Magistrate's Court she, however, said that Sanwaria invited her to go away with him for sexual intercourse, and she, therefore, went with him. It was for the first time in the Sessions Court that she said that she had been enticed away by a trick that she would be paid for carrying a gas lamp. It seems to us that the statement which she made in the Committing Magistrate's Court, is the truth, and that is why these discrepancies have appeared about this part of the story. If we remember, the subsequent conduct of this girl, namely, her asking Sanwaria what excuse she should give for the bleeding, and her not coming out with the true story for five or six days and her insisting that she had been otherwise injured, there can be no doubt that she had gone away with Sanwaria that morning in order to have sexual intercourse with him. She changed her statements on this point, but the truth came out in the Committing Magistrate's Court. We are, not therefore, prepared to disbelieve her because of these discrepancies, particularly when she had come out with the truth on one occasion. Some allowance must be made for a girl of fourteen also in such circumstances.

6. So far as the second part of the story is concerned, namely, what happened at the Racecourse Bungalow, the statement that she has made appears to us to be correct, except perhaps that part of jt where she said that she was taken away by force by Sanwaria, for it appears that she was willing to have sexual intercourse with Sanwaria. We see no reason to disbelieve her statement that she was not willing to have sexual intercourse with the other two, namely, Balmukan and Surjia, whom she did not know from before, and that she came out of the bath-room after the intercourse with Sanwaria, and was then forced back into the room, so that the other two appellants might rape her.

7. As for the third part of the story also, there seems no reason for disbelieving her statement, for what she has said has been corroborated by other witnesses as to her being taken in a tonga from the 'pyao' and as to injury to her private parts. We are, therefore, of opinion that the statement of this girl, Mst. Ramjot, is substantially true, except for the part where she suggests that Sanwaria had taken her away by a trick and that the intercourse with Sanwaria was against her will.

8. It is, however, urged by learned counsel for the appellants that even if we believe the evidence of this girl, it would not be safe to convict the appellants on her statement as she is the prosecutrix, and there is no corrobora-tion available of her statement. Particular stress is laid on the fact that she made no complaint immediately after the incident, and that it was only after five or six days that she came out with the story of rape. That attitude of her is, however, understandable, because she did not want to implicate Sanwaria with whom she had gone willingly for sexual intercourse. It seems to us that she did not come out with the full story because she wanted to shield Sanwaria, as is clear from the fact that she asked him what excuse she should give to her mother. It was only when the medical examination showed that it could not be a case of injury, and when the police tackled her, that she came out with the full story.

9. The corroboration in this case consists only of the retracted confessions made by the three appellants. These confessions were recorded on the 13th of May, after each of the appellants had been given a warning as required by law. The appellants were brought into the Magistrate's Court at 11-30 a.m., and were kept there till about 3 p.m., and it was after that that the confessions were recorded. The Magistrate also said in his evidence that he enquired whether the police had threatened them into making the confession, and they said, 'No'. It seems, therefore, that the appellants had ample opportunity to think over matters while they were waiting in the Court room of the Magistrate for about four hours before their confession were recorded. We are, therefore, not prepared to believe that these confessions were made by the appellants because of any threat or inducement by the police or anyone else. They appear to us to be voluntary confessions, and a comparison of the three confessions would show that they are, more or less, similar on facts which would be within the common knowledge of three appellants, and thus appear to be true also.

10. In his confession, Sanwaria said that he knew the girl intimately, and had one day suggested to her to have sexual intercourse with him : but she then refused. On the 2nd of May, the girl herself suggested that they should go out for a walk. He, therefore, came to the Sojati Gate where the girl was waiting for him, and he took her towards the aerodrome. They sat down near the Race-course Bungalow, but could not find proper opportunity, and were returning when Surjia appellant mot them. He took them to the Race course Bungalow, where Balmukan appellant met them. These two suggested that Sanwaria could carry out his intention, and could have intercourse with her, and thereafter Sanwaria had sexual intercourse with the girl. He was followed by Balmukan, and Balmukan was followed by Surjia, She did not bleed on the first occasion; but after Surjia had intercourse with her, she began to bleed from her private parts. Thereafter, he took her on. his cycle, and left her near the police Lines.

11. The confession of Surjia was that is saw Sanwaria going with a girl on his cycle. After a short distance, Sanwaria sat down on the road with the girl, and they began to cut jokes with each other; but on seeing Surjia, they got up to go away. He then asked them who they were. The girl told him that she was a Mochi and Sanwaria was a Nai. Surjia then asked them to accompany him, as he would get them arrested after telephoning to the police. Then he took the two of them to the Racecourse Bungalow, where they met Balmukan Farrash. Surjia then told Balmukan that he wanted to telephone, and also informed him about the girl and Sanwaria. Balmukan then asked these people to sit down. Then Sanwaria told them that he had brought the girl for sexual intercourse, and Surjia suggested that Sanwaria should begin it, and they would follow. So Sanwaria first took the girl to the bath-room, and had sexual intercourse with her. He was followed by Balmukan, and Surjia followed Balmukan. Surjia saw some bleeding, and said that he would not have sexual intercourse with the girl. The other two, however, insisted that he should also have sexual intercourse with her. So he had to go and have intercourse with the girl. Then the girl was brought out, and had a bath and Sanwaria took her away.

12. In his confession, Balmukan stated that Sanwaria and Surjia brought the girl to the Racecourse Bungalow. Surjia called him, and he asked Sanwaria why he had brought the girl. Sanwaria said that he had brought her for sexual intercourse. The girl was then taken to a room, where there was a telephone. Sanwaria first had intercourse with the girl. Then Balmukan went for intercourse, but could not succeed on account of his own physical incapacity, and came out after a few minutes. Then Surjia went into the room. Shortly after Surjia came out, and said that the girl was bleeding, and was taking a bath. Thereafter, Sanwaria left with the girl.

13. These statements appear to us to be true, except that Surjia and Balmukan tried to slur their own part in the affair. They clearly corroborate the statement of the girl as to commission of rape on her by Balmukan and Surjia. So far as Sanwaria is concerned, we have already said that the intercourse by him was with the consent of the girl. Learned counsel, however, urges that a retracted confession cannot be used to corroborate the statement of the girl, because such a confession itself requires corroboration. He relies on 'QUEEN EMPRESS v. JADUB DAS', 27 Cal 295 and 'DEVENDRA BHATTACHARYA v. EMPEROR' AIR 1927 Pat 257. In the Calcutta case, it was held that it was not safe to convict an accused person on his retractetd confession standing by itself uncorroborated, or on the statements of witnesses brought in under Section 288 of the Criminal Procedure Code without independent corroborating testimony, nor could these two be joined together and held as mutually corroborating each other so as to justify a conviction based on them. We are, however, of opinion that the statement of the prosecutrix in a case under Section 376 of the Indian Penal Code does not stand on the same footing as statements of witnesses brought in under Section 288 of the Code of Criminal Procedure, and there is no reason why the statement of the prosecutrix if true, should not be held to corroborate the retracted confession of the accused and vice versa. So far as the statement brought on the record under Section 288 is concerned, it is damned by the fact that the maker of it has gone back on it. But this is not so in the case of the statement of a prosecutrix, which is believed to be true.

14. The Patna case gives no reasons of its own, and merely relies on the Calcutta case cited above. But the facts in the Patna case were that the prosecution wanted to corroborate one retracted confession by another retracted confession, and it was held that this could not be allowed. In the case before us, the prosecution does not want us to corroborate the retracted confession of one accused by the retracted confession of the other. What we are asked to do is to treat the statement of the prosecutrix as the corroboration of the retracted confession of each of the accused as against him, and to treat the retracted confession of each accused as corroboration of the statement of the prosecutrix as against that particular accused We see no reason why this cannot be done, and these two cases do not go against the view which We are taking. These confessions, therefore, corroborate the statement of the girl that she had to submit to sexual intercourse with the three appellants that day at the Race-course Bungalow.

15. The next question is whether the appellants have been rightly convicted. So far as Balmukan and Surjia are concerned, we are satisfied that the girl had not consented or agreed to sexual intercourse with them, and they committed rape on her. We are not impressed by that part in the confession of Balmukan where he said that he was physically unable to have sexual intercourse with the girl, because we are satisfied that the girl's statement on this point is true; nor are we impressed by that part of the statement of Surjia where he said that he was forced to have sexual intercourse with the girl by the other two appellants. It seems to us that the girl had gone with Sanwaria to have a good time, and Surjia took advantage of it and threatened Sanwaria with exposition. Thereupon Sanwaria suggested to him also to have sexual intercourse with the girl though the girl was unwilling. They then went to the Race-course Bungalow, of which Balmukan was chaukidar, and he apparently agreed to the use of the bath-room in the Bungalow, and the consideration was that he should also have sexual intercourse with the girl. But we are satisfied that the girl was not willing to have sexual intercourse with these two appellants, namely, Surjia and Balmukan, and they have been rightly convicted under Section 376 of the Indian Penal Code.

16. We now turn to the case against Sanwaria. He has been convicted under Sections 376 and 366 of the Penal Code. He was not charged under Section 366, but under Section 366A, and the contention of learned counsel is that under these circumstances he could not be convicted under Section 366. There is force in this contention inasmuch as a charge under Section 366 has certain elements which are not present in a charge under Section 366A. Under Section 366A. a girl below the age of 18 years has to be induced by any means whatsoever to go from any place with the intention that such girl may be forced or seduced to illicit intercourse with another person. Under Section 366, on the other hand, there has to be a kidnapping or abduction, which introduces certain elements which are not to be found in Section 366A. We are, therefore, of opinion that it is not possible to convict under Section 366 on a charge under Section 366A, for S, 366 cannot be said to be a minor offence as compared to Section 366A. Further, we may add that it cannot be said that the girl was either kidnapped or abducted in this case. There was no abduction, because we are satisfied that the girl was not compelled by force or induced by any deceitful means to go with Sanwaria. There was no kidnapping either, even though the girl is below the age of 16 years, because there never was any intention of taking the girl out of the guardianship of her father and what the two of them wanted was to go away for a short time in order to have a good time. The conviction, therefore, of Sanwaria under Section 366 cannot stand.

17. The next question is whether his conviction under Section 376 can stand. So far as that is concerned, we have already said that the intercourse with him was with consent. It is, however, urged on behalf of the State that the girl is below the age of 14, and her consent is, therefore immaterial. We have looked into the evidence regarding the age. It is true that the medical evidence suggests that the age of the girl was about 13 years; but that evidence is not conclusive. The mother of the girl certainly said that she was 13; but she could not give the year of her birth- The statement of the father of the girl suggested that she might even be 15 or 16. In this state of The evidence, we are not prepared to hold that the girl was necessarily under 14 and in this view of the matter, her consent would protect Sanwaria so far as an offence under Section 376 of the Indian Penal' Code is concerned.

18. Lastly, it has been urged on behalf of the State that in any case Sanwaria can be convicted under Section 376 read with Section 114 of the Penal Code for abetment of rape. Learned counsel for the appellants, however, urges that as there was no charge of abetment, Sanwaria cannot be convicted under Section 376 read with Section 109 or 114 of the Penal Code. There has been difference of opinion in the High Courts whether a person can be convicted of abetment on a charge of substantive offence; but the majority opinion is that this can be done under certain circumstances.

19. The earliest case on the subject is 'REG v. CHAND NUR', 11 Bom H C R 240. In that case it was held that it was not open to a Court to find a man guilty of the abetment of an offence on a charge of the offence itself. The reason for this view was that when a person was accused of an offence, he might not be conscious that he would have to meet an imputation of collateral circumstances constituting abetment of it, which might be quitedistinct from the circumstances constituting the offence itself,

20. This case was considered in a Full Bench of the Lower Burma Chief Court in 'S. P. GHOSH v. EMPEROR', 16 Cri L J 676 (L B). It was explained that that case merely amounted to this that where the charge for the substantive offence did not give proper notice to the accused of what he had to meet it would not be correct to convict the accused of abetment. It was also held that that decision was no authority for the proposition that an accused charged with an offence could not, in any case, be convicted of abetment of the offence. Where therefore, the charge for the major offence gave full notice to the accused of all the circumstances alleged against him, conviction for abetment would not be improper even though there was no charge of abetment. (21) The Madras High Court in 'PADMANA-BHA PANJIKANNAYA v. EMPEROR', 33 Mad 264, held that a person charged with the substantive offence could not be convicted of the offence of abetment of that offence.

22. In a later case, 'SUBBAYYA v. EMPEROR', 23 Mad L J 722, however, it was pointed out by Sundara Aiyar J. that 'PAN-JIKANNAYA'S CASE', 33 Mad 264, could not be intended to lay down a universal rule that in no case would a conviction for abetment be possible where the charge was only of the principal offence. The learned Judge went on to say,

'The question is what were the facts charged. If on those facts two charges could be framed, namely, the commission of the principal offence, and the abetment, then by virtue of provisions of Section 237, the accused may be convicted of the offence of the abetment though it was not charged separately against him.'

23. The next case is 'EMPEROR v. MAHA-BIR PRASAD', 49 All 120. There it was laid down that abetment not being a 'minor offence'. Section 238, Cri P. C., would not apply, and a person charged with the offence could not be convicted of abetment of it except where the case was covered by Section 237, Criminal P. C. This would happen, if there was no element in the abetment, which was not included in the charge. Obviously, therefore, this case also rests on the basis of notice to the accused of the facts which go to make up the charge of abetment before the accused can be convicted of abetment on a charge for the offence itself.

24. The next case is 'JANANADA CHARAN v. EMPEROR', 34 Cal W N 198. It was held that

'a person charged only with a substantive offence can be convicted of abetment thereof, if the facts proved justify such conviction and be such as were sufficient to give the accused notice of allegations of abetment, in spite of the absence of a specific charge.'

The question whether the accused had notice and also the further question whether the facts proved justify the conviction for abetment depended upon the facts of each case.

25. This case was followed in 'DEBI PROSAD v. EMPEROR', '36 Cal W N 595, where it was held that an accused person chargedwith an offence under Section 379, Penal Code, might be convicted under that section read with Section 114, although there might not have been any such charge. The case was held to be covered by Sections 236 and 237 of the Code of Criminal Procedure. That was a case where a person incited a boy to steal pulley from Messrs. Burn and Company and carry it on his head. The boy did so, and the person who incited the boy, was charged under Section 379. The Magistrate, however, convicted him under Section 379 read with Section 114, as it had not been proved that the accused had actually removed the pulley. It was held that the boy's evidence gave clear notice to the accused of the facts against him, and he could be charged under Section 236 of the Code of Criminal Procedure in the alternative for abetment of the offence, and, therefore, his conviction for abetment without a charge was correct.

26. We may next refer to 'SAMUEL JOHN v. EMPEROR', AIR 1935 All 935. This was a case where a person was charged with rape, and was convicted of abetment of rape. The learned Judge rested the conviction under section 238(2) Criminal Procedure Code, on the ground that the abetment was a minor offence. This is, however, a doubtful view, and we have already referred to the earlier case in 'EMPEROR v. MAHABIR PRA-SAD', 49 All 120, where it was held that such a case is not covered by Section 238.

27. The next case is 'PROVINCIAL GOVERNMENT v. GOMAJI, AIR 1944 Nag .192. In that case a person was charged under Section 193, but was convicted of abetment thereof, and it was held that

'When an accused is charged under Section 193, Penal Code, the Courts are under law not precluded from convicting the accused for the offence of abetment if they find it established. If, however, the evidence adduced in support of the charge for the substantive offence does not, give notice to the accused of all the facts which constitute abetment he cannot be convicted of abetment.'

Reliance was placed in this case on 'BEGU v. EMPEROR', AIR 1925 P C 130, where a person was charged under Section 302 and convicted under Section 201 of the Penal Code, and their Lordships of the Privy Council relied on Sections 236 and 237 of the Code of Criminal Procedure in that connection. Section 236 was explained in these words by their Lordships:

'A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.'

28. This case was followed in PROVINCIAL GOVERNMENT, C P & BERAR v. SAIDU', AIR 1947 Nag 113, where the same principle was laid down, and reliance was placed on Section 237 of the Code of Criminal Procedure. The principle that was laid down was that there was no bar in law to convict a person of abetment without a distinct charge if the circumstances brought the case under Section 237, and the essential facts which would have warranted the framing of the charge of abetment were all disclosed to the accused so as to give him an opportunity to meet them.

29. The next case is 'HIRA SAH v. EMPEROR', AIR 1947 Pat 350. It was held inthis case that the abetment of an offence is not a minor offence within the meaning of Section 238; but a conviction for substantive offence could be changed into one for abetment, if the facts were such that the principles of Sections 236and 237 might be applicable, and if no prejudice was caused to the accused in his defence. In this case a person, other than the licensee, who could not be convicted for contravention of Clause 5 of License Form A, Bihar Coal, Sugar and Kerosene Oil Dealers' Licensing Order, 1942, was convicted of abetment of such contravention, applying the above principle.

30. The next case, to which we may refer, is 'CHOTEY v. EMPEROR', AIR 1948 All 168. This case was mainly concerned with the difference between Sections 109 and 114 of the Penal Code, The learned Judge doubted if the case was covered by Section 114. It was held that it was not enough to frame a charge for the substantive offence without specifying the special circumstances which brought the case within the purview of Section 114. Eventually, the learned Judge held that the conviction of Chotey forabetment under Section 109 of the Indian Penal Code was illegal, but did not give any particular reason for arriving at that conclusion, and there was no consideration of Sections 236 and 237 of the Code of Criminal Procedure.

31. A review of these authorities, in our opinion clearly establishes that where the case is covered by Sections 236 and 237 of the Code of Criminal Procedure, and the accused has notice of all the facts which go to make up the charge of abetment, he can be convicted of the charge of abetment, even though the charge framed against him was only of the substantive offence. We, therefore, propose to examine the facts of the present case on this principle.

32. The evidence as to the charge of abetment of the offence of rape was all before the Court in the statement of the girl. In the words of their Lordships of the Privy Council in 'BEGU v. EMPEROR', AIR 1925 P C 130, a man can be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made. In this case, on the evidence of the girl, Sanwaria could have been charged of an offence under Section 376 read with Section 109 of the Indian Penal Code for abetting the offence of rape by Surjia and Balmukan. The evidence of the girl is that Sanwaria suggested to Surjia, when the latter threatened him, chat he could also have sexual intercourse with the girl, though the girl was not agreeable. Then there is evidence that after intercourse between the girl and Sanwaria, the girl wanted to come out of the bath-room, but Sanwaria forced the girl to go back to the bath-room as another man was coming. We are, therefore, of opinion that Sanwaria appellant can be convicted of the offence of abetment of rape by Balmukan and Surjia, even though he was not charged with it. On the facts, this offence of abetment has been proved.

33. There is a statement of one witness Pabudan in this case, to which we have not referred. It is enough to say that he tried to pose as an eye-witness; but his evidence is utterly unreliable, and we have placed no reliance on it.

34. Notice has been issued to all the three appellants to show cause why the sentenceshould not be enhanced, Surjia has been sentenced to four years' rigourous imprisonment, while the offer two have been sentenced to only two years' rigorous imprisonment. We are of opinion that there was no reason for giving a less severe sentence to Balmukan and Sanwaria. Balmukan's case is equally serious, because it was his duty as Chukidar of the Racecourse Bungalow to see that it was not used for commission of an offence. Instead of that, he allowed the use of Bungalow, provided he was also allowed to rape a girl. As for Sanwaria, the fact that the girl was willing to have sexual intercourse with him did not give him any right to abet the other two accused in committing rape on the girl, when he found that he was. in a tight corner, and Surjia and Balmukan were going to hand him over to the police. We are, therefore, of opinion that the sentence of these two accused should be enhanced.

35. So far as Surjia is concerned, he has been sentenced to four years' rigorous imprisonment. We consider that in cases of rape of girl of immature age like this girl, it is desirable that a sentence of whipping should also be inflicted. We think that in this case a sentence of ten stripes should be given to all the three appellants. We, therefore, dismiss the appeal of Surjia, and enhance the sentence passed on him, and order that in addition to four years' rigorous imprisonment, he will undergo ten stripes under the Whipping Act.

36. We also dismiss the appeal of Balmukan, and enhance the sentence in his case from two to four years, rigorous imprisonment, and also sentence him to ten stripes under the Whipping Act.

37. We partially allow the appeal of Sanwaria, and set aside his conviction under Section 366 of the Indian Penal Code. We also set aside his conviction under Section 376 of the Indian Penal Code, and instead convict him under Section 376 read with Section 109 of the Indian Penal Code. We enhance his sentence from 'two years' to four years' rigorous imprisonment, and also sentence him to ten stripes under the Whipping Act.


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