1. Athasingh has been found guilty of offences under Sections 366 and 376, Penal Code. Under Section 366, Penal Code he has been sentenced to three years' rigorous imprisonment. Under Section 376, Penal Code he has been sentenced to five years' rigorous imprisonment and to fifteen stripes. Both the sentences have been directed to run concurrently.
2. Lalu has been found guilty of offences under Sections 366 and 376/144, Penal Code. On each count he has been sentenced to three years' rigorous imprisonment with the direction that both the sentences are to run concurrently. Against their conviction and sentence, they have come up in appeal. Lalu has filed Criminal Appeal No. 12 of 1952 and Athusingh has filed Criminal Appeal No. 14 of 1952. Both the appeals arise out of the same judgment and have been argued together. I have, therefore, given only one judgment in them. The original judgment will be placed in the file of Criminal Appeal No. 12 of 1952 and a copy thereof will be filed in Criminal Appeal No. 14 of 1952. The judgment will govern both the appeals.
3. The prosecution story is that Partap P. W. 1, and his wife Sm. Pari P. W. 2 lived on the ground floor of a building in Mohalla Shisha Khan. Another room in the ground floor was vacant. Two rooms in the upper storey were occupied by Kauromal and Sm. Shanti and her husband Boolchand. The prosecution case is that the accused persons used to visit Sm. Shanti and when doing so they used to stand in front of Partap's house. This was objected to by Partap. 2-3 days prior to 25.1.1952 Sm. Pari reprimanded the accused persons.
4. Partap and Sm. Pari lived by selling earth which they carried about in a 'thela'. On 25.1.1952 they returned from their rounds to their house and had their meal. Then Partap left to return the 'thela' to the owner Mirchumal. Sm. Pari went to bed. Partap returned to his house at 10 p.m. and when he came near his house, he saw the two accused persons standing in front of his house. They had a knife (or knives). Getting suspicious that some foul play was intended, Partap went to the out-post at, Usri Gate and lodged a report. A police constable accompanied Partap and the two started for the house of Partap. On their way, the constable picked up two other constables & 2 outsiders Ladu P. W. 8 and Anshi Ram, who has not been examined. On reaching the house, they found the door half-open. Sm. Pari was not in the house. They started looking round and noticed certain dragging marks leading towards the hills. Going in that direction, in the light of a battery torch which one of the constables had, they came to a cavity in the hill side and there saw Athusingh having sexual intercourse with Sm. Pari, They also noticed Lalu sitting near the head of Sm. Pari holding a knife in his hand. When the police party approached near the mouth of the cavity, Athusingh got up (he had no 'pyjamas' on then) and rushed at the police party. The prosecution's suggestion is that both the accused persons stumbled and rolled down the hill side receiving some injuries. Both the accused persons were secured.
5. At first Athusingh denied the whole occurrence but later he pleaded consent and also urged previous intimacy with Sm. Pari. Lalu's defence was that he did not commit any offence but had been falsely implicated. He had gone to his maternal uncle's house for his dinner and while he was returning, he saw the police party taking away Athusingh. Athusingh had injuries. When the accused questioned the police, he was asked to go away. On his repeating the question he was beaten by the police and taken to the out-post with the allegation that he was an associate of Athu Singh.
6. The learned Counsel for Athusingh has urged that the only question in this appeal is whether an offence of rape has been committed or whether Sm. Pari was a consenting party. It was alleged that Athusingh had previous intimacy with Sm. Pari. (His Lordship after discussing evidence continued). On a consideration of the evidence referred to by learned Counsel I am unable to hold that Sm. Pari was a woman of easy morals particularly as there is no mention of the name of any person who used to visit her and their names were not put to her in cross-examination. In any case the mere fact that Sm. Pari did not bear the best of characters may at best only render it likely that she might be a consenting party. It would not necessarily follow that she was a consenting party.
7. The next point urged by the learned Counsel is that, the fact that no pit marks or scratches were found on the person of Athusingh also suggests that Sm. Pari was a consenting party. I am again unable to draw any such conclusion. The evidence indicates that Sm. Pari was in an advanced stage of pregnancy. P. W. 6 Dr. Miss Vergis has stated that Sm. Pari was not in a position to put up any strong resistance. Then there is the fart that one person was sitting near her head holding a knife. Besides, having put up certain resistance in the beginning, she may have considered that further resistance was futile. But that would not make her a consenting party. The learned Counsel has also urged that there is no evidence of any cries or shouts of Sm. Pari. The prosecution case is that she was gagged. Sm. Pari also stated that she tried to shout hut could not and also tried to throw off Athusingh but did not succeed.
8. The learned Counsel has also urged that Kouromal and Sm. Shanti who live upstairs have not been examined. There is no evidence to indicate that Kouromal was present at the time of the occurrence. As regards Sm. Shanti, the evidence shows that on enquiry she stated that she had shut the doors. The learned Counsel has also pointed out the contradiction as to whether the two accused persons were quarrelling with Sm. Pari when Partap approached his house at about 10 p. m. I am afraid this contradiction is not likely to help the case of Athusingh. He admitted that he had spiel intercourse with Sm Pari and he was caught in the act. There is ample evidence on the record to show that he did have sexual intercourse with Sm. Pari. The prosecution case is that he committed rape. Athusinch's defence of consent was not believed by the learned Magistrate and I see no reason for differing from his conclusion The evidence does not even raise the suspicion that his defence may probably be true.
9. No other point has been pressed before me.
10. I am, therefore, of opinion that Athusineh has been rightly found guilty of offences under Sections 366 and 376, Penal Code.
11. As regards the sentence, I am unable to hold that the sentences err on the side of severity. I, therefore, see no force in Athusingh's appeal and dismiss it. I am informed that he is in jail custody.
12. Lalu has been found guilty of offences under Sections 366 and 376/114, Penal Code. The learned Counsel for Lalu has urged that Ex. P/10 and the first information report Ex. P/1 do not specifically mention that it was Lalu who was armed with a knife. The learned Counsel has also urged that the knife was not found though searched for. The learned Counsel has further pointed out that the First Information Report Ex. P/1 mentions Lalu only at the end and alleges that he was sitting near Sm. Pari holding her down. The learned Counsel has drawn my attention to the statement of P. W. 8 Ladu 'who states that Lalu was standing about one step away. In fact, Ladu had earlier stated that they saw Lalu stand, up. The learned Counsel has pointed out that P. W. 1 Partap stated that Lalu was sitting by his wife and holding a gag in her mouth and an open knife in the other hand. The learned Counsel has urged that Sm. Pari has contradicted this statement. Sm. Pari stated
he (Athusingu) held one hand over my mouth in which he had put a portion of my 'Dupatta'. Accused Lalu stood over me with a drawn knife.
On the other hand, P. W. 10 Lal Singh stated
Lalu was at the head of the woman and had placed his hand over the gag in the mouth of the woman, I also saw that accused Lalu carried an open knife in the other hand.
There is thus contradiction as to whether Lalu was gagging Sm. Pari. But there is none about his having the knife. The fact that the knife was not found is no sufficient reason for discarding the prosecution story on this point.
13. The learned Counsel has next urged that the learned Magistrate was greatly impressed by the fact that Lalu's name was mentioned in Ex. P/10. The learned Counsel points out that in his cross-examination Partap stated that he did not know Lalu's name since before and did not mention Lalu's name at the police outpost. Sm. Pari also says that she did not know Lalu since previously. I am unable to attach much weight to this. From the very beginning, whether Lalu's name was mentioned at the police out-post, or not the presence of two persons clearly was indicated. Sm. Pari throughout in her statement mentioned specific acts performed by the two persons. Only two persons were finally arrested by the police. No enmity was alleged against the police party and there is no reason why the police should have falsely implicated Lalu. The defence story that Lalu was arrested merely because he questioned the police man twice about Athusingh's arrest is too ridiculous to be believed. Thus the only reasonable explanation for his arrest can be that Lalu was found by the police party present at the spot. No great weight, therefore, need be attached to the contention that Lalu's name may have been added subsequently in the report Ex. P/10.
14. The learned Counsel has referred me to - Dhanna v. State (1950) 5 Dom I.R (Madh B) 61 (A). Relying on this ruling, the learned Counsel urges that Lalu was a mere spectator at the rape and this alone does not justify his conviction for abatement. This ruling will not help the learned Counsel. The dragging marks seen by the witnesses and the injuries found on the person of Sm. Pari which were admittedly caused by dragging indicate that she was forcibly taken from her house. The presence of two persons was, therefore, necessary and in these circumstances, I see no reason to disbelieve the statement of Sm. Pari that Lalu was present from the very beginning and had an open knife in his hand and that she was being threatened with this open knife throughout. Sm Pari has also stated that Lalu held her hand when she was dragged up the hill. I have already referred to the evidence suggesting that Lalu stood with an open knife at the time the offence was committed. It is clear that he was there to assist the commission of the offence.
15. No other point has been urged before me.
16. I am, therefore of opinion that Lalu has been rightly found guilty of offences under Sections 366 and 376/114, Penal Code. The learned Counsel has urged for a reduction of the sentence. So far as the offence under Section 366, Penal Code is concerned, I am unable to accede to his request and a reduction of sentence under Section 376/114, Penal Code will serve no useful purpose as the learned Magistrate has already directed that both the sentences are to run concurrently.
17. I, therefore, see no force in Lalu's appeal and dismiss it also. I maintain his conviction and sentences. Lalu is on bail and is present. He shall be taken into custody forthwith.