L.S. Mehta, J.
1. Prosecutrix is Mst. Interject Kaur (P. W. 4). She lived at Chak No. 21 BB, Padampur. Her step-mother is Mst. Sarjeet Kaur (P. W. 3). Her father is Jagat Singh (P. W. 2), who worked as a driver, employed by the Rajasthan Road-ways, Ganganagar. It is alleged that Mst. Inderjeet Kaur was on visiting terms with accused Jarnail Singh, They also indulged at times in talks with each other in Jarnail Singh's fields. On August 26. 1968, at about 11 a. m. Inderjeet Kaur went to Jarnail Singh's field with a basket for fetching grass. She took with her a 'Khurpi' (scythe). When she was mowing grass, Jarnail Singh came to her and felled her down on the ground. Her 'Salwar' was taken out of one leg and her 'Kachha' (underwear) was also removed. She was then forcibly ravished for a minute or two. Her cry attracted two way-farers, namely, Sukh Ram (P. W. 5) and Chandan Singh (P. W. 7). On a challenge, thrown by the two witnesses Jarnail Singh left the victim and went away. The two persons escorted her to her house. Having been apprised of the happening, Sarjeet Kaur (P. W. 3) sent Mahendra Singh (P. W. 6) to Gangangar to convey information relating to the incident to her husband Jagat Singh. Jagat Singh went to his house and then proceeded to the police station, Padampur, The Sub-Inspector of police first asked Jagat Singh to produce eve-witnesses. He then took two eye-witnesses. Sukh Ram and Chandan Singh, to him. Thereafter the Station House Officer recorded first information report (Ex. P. 2) on August 28. 1968. at 9 p. m. Inderjeet Kaur was examined, on August 28. 1968. by Dr. Har Govind, (P. W. 9). No injury was found on her person, nor on her private part. He, however, noticed tear on her hymen, which showed that there had been sexual intercourse with her. The Doctor did not record a finding that such an intercourse had been against her will. Accused Jarnail Singh was also medically examined by Dr. Shreenath (P. W. 1). He did not discern any mark of injury anywhere on his body. The Doctor further opined that he was capable of performing sexual act. After the investigation was concluded, the police presented a challan against accused Jarnail Singh in the Court of Sub-Divisional Magistrate, Karanpur. The said Magistrate conducted preliminary inquiry and committed the accused to the Court of Sessions Judge. Ganganagar, to take trial under Section 376, I. P. C. The case was tried by the Assistant Sessions Judge of the place. The accused denied to have committed the alleged crime. In support of its case the prosecution examined 9 witnesses. In his Statement, recorded under Section 342, Criminal P. C.. the accused took the plea that he committed no crime and that he was a married person and was leading a family life. The prosecution allegations, according to him, are false. He did not produce any evidence in his defence. The Assistant Sessions Judge. Ganganagar, by his judgment, dated May 21, 1970. found Jarnail Singh guilty under Section 376, I. P. C. and sentenced him to suffer rigorous imprisonment for four years. Jarnail Singh's appeal was dismissed by Sessions Judge. Ganganagar, on August 19, 1971.
2. Aggrieved by the above verdict. Jarnail Singh has taken the present revision application. The main contention of learned Counsel for the petitioner is that the two witnesses, Sukh Ram (P. W. 5) and Chandan Singh (P. W. 7), were not present on the spot at the time of the occurrence. They are got up witnesses and, therefore, their evidence should not have been trusted by the court below. The statement of Mst. Inderjeet Kaur (P. W. 4). counsel has persuasively submitted, is also unworthy of credence. If at all any sexual intercourse, counsel adds, was performed on the date of the occurrence, it positively took place with her consent. The prosecutrix. according to learned Counsel, was above 16 years of age. Learned Deputy Government Advocate supported the judgment of the court below.
3. I may first take up the evidence of eye-witness Sukh Ram (P. W. 5). He says that on the date of the incident he was returning from Padampur with some flour. On his way he heard an outcry of Mst. Inderjeet Kaur. He saw Jarnail Singh performing sexual intercourse with her against her wishes. When he challenged the accused, he threatened him with serious consequences and asked him to quit. In the meantime Chandan Singh also arrived there. Thereafter both of them threw challenge to Jarnail Singh and he left the place. He and Chandan Singh escorted the girl to her house.
4. Sukh Ram (P. W. 5) appears to me to be a chance witness. In his statement, recorded under Section 164, Criminal P. C. (Ex. D. 3 at portion marked A to B). he had deposed that he had been going from 21 BB. to Padampur, but before the trial court he has said that he was coming from Padampur. When the witness was confronted with this discrepancy, he said that he had not deposed previously that he had been going to Padampur. In the cross-examination the witness has said that he did not disclose the event either to the village Lumbardar or the Panch. This conduct of his does not accord with human probability. The prosecutrix has deposed in her statement that she went to Jarnail Sing's field to fetch grass with a basket. As against this Sukh Ram states that he lifted the grass wrapped with a bed-sheet and took it to the prosecutrix's house. The witness does not know the colour of the bed-sheet. There is another striking feature in his statement. He says that even after his challenge the accused continued performing sexual intercourse. Later on the witness says that the prosecutrix did not tell him anything. Had the girl been ravished, her first natural reaction would have been to raise clamour and narrate the atrocity to the witnesses the moment she had had an opportunity of doing so. In his police statement Ex. D. 2 (at portion marked A to B) he had stated that the girl had left for her village and that he followed her. But before the trial court he has deposed that he and the other witness escorted the girl and gave an account of the incident to her mother. The witness then says that the prosecutrix's mother did not tell anything. This reflects another unnatural conduct. The witness was examined by the police under Section 161, Criminal P. C., on August 29, 1968, i. e.. on the 4th day of the occurrence. Unjustified, unexplained and long delay in recording the statement of a material witness renders the evidence of such witness unreliable (vide Balakrushna v. State of Orissa : 1971CriLJ670 . It is in the evidence of Jagat Singh, (P. W. 9), father of the prosecutix, that he went to the police station and took eye-witnesses with him. The eye-witnesses were interrogated by the police and then the first information report was recorded. This also gives an impression that the evidence of this witness is a manufactured one.
5. Chandan Singh (P. W. 7) in his examination-in-chief relates the facts as disclosed by Sukh Ram (P. W. 5). Chandan Singh also appears to be a chance witness. He says in the cross-examination that the prosecutrix was tossing her legs and feet with full force at her command. The surface was hard. But not a single scratch has been found on her person. The witness was examined on the fourth day of the occurrence by the police under Section 161. Criminal P. C. No reasonable explanation is forthcoming as to why he was examined with so much delay. The witness says that he did not report the matter to any authority. His explanation that in order to preserve the prosecutrix's self respect he did not do so appears to be a mere pretext. In his statement Ex. D. 4 recorded under Section 161. Criminal P. C., at portion marked A to B, he had stated that he had informed the villagers of what had transpired. When the witness was set face to face with that contradiction, he could not furnish any plausible explanation. The witness did noted the police that he had gone to the girl's house and had narrated the story to her mother. But before the trial court he has said so. The witness says in the cross-examination that the prosecutrix made no complaint to him after the accused had left the place. This again appears to be an unnatural characteristic. Inderjeet Kaur (P. W. 4) says that when witnesses escorted her to her house, they did not tell anything to her mother. This appears to be at variance with what is natural. The witness has unequivocally stated in his cross-examination that the police first asked Jagat Singh to bring witnesses. Thereupon he was called by him at his residence. The police officials were also there. Jagat Singh then took him and Sukh Ram to the police station and both of them had been examined by the police. Thereafter the police recorded the first information report. This shows that the evidence of this witness is also cooked up.
6. The trend of the testimony of the aforesaid witnesses and the various contradictions and inconsistencies show that they are not dependable. They in fact have not given out truth and in the circumstances of the case, it would not be safe to rely upon what they have asserted.
7. I may now take up the statement of Mst Inderjeet Kaur (P. W. 4). She admits in her cross-examination that she was on visiting and speaking terms with accused Jarnail Singh. Had she been raped she would have made complaint to witnesses Sukh Ram and Chandan Singh, but both of them have categorically said that when they reached the scene of the crime, she kept mum. As has been observed in Underbill's Criminal Evidence, Fifth Edition Para 755, the failure to make outcry is significant and the conduct of the prosecutrix after the alleged assault may be considered as having a bearing on the question of consent. There is another striking feature in her statement. She has in the cross-examination admitted that she washed her 'salwar' and underwear in the absence of her mother. That reflects that she made an effort to wipe out on her clothes the traces, if any, of intercourse. In her examination-in-chief she has deposed that she tried to beat the accused with fists etc. and throw him away from her body. This is negatived by the absence of any injury mark on her person. In the examination-in-chief the witness says that she went to the field of the accused with a basket to fetch grass. This portion of her statement is in contrast with the testimony of the two eye-witnesses. Sukh Ram and Chandan Singh, who have deposed that the grass was seen wrapped with a bed-sheet and not in a basket. The witness says in the examination-in-chief that she had a 'Khurpi' (scythe) with her. Had it been so, there is no reason why that weapon was not made use of in the course of her strong effort to free herself from constraint. She could have well given one or two effective blows to the ruffian with that weapon. She says that witnesses Sukh Ram and Chandan Singh did not tell anything to her mother. This is also an improbability.
According to the medical evidence no marks of violence were found on her person, including her private part. There is a healthy scepticism as to the truth of her statement. It is a well established practice in a case of rape that the evidence of the complainant has to be corroborated, the nature of which depends upon the facts of each particular case, though it is true that at common law, the testimony of the prosecutrix in the trial of offences against the chastity of women, was alone sufficient to support a conviction : vide page 342, Wigmore on Evidence Vol. VII where rape is denied by the accused, the sort of corroboration one looks for is medical evidence showing injury to the private parts of the complainant, injury to her other parts which might have been occasioned in the struggle, seminal stains on her clothes or the clothes of the accused or on the places where the offence is alleged to have been committed; and in all cases, importance is attached to the subsequent conduct of the complainant. Whether or not she makes a charge promptly is relevant, In the case of R. v. Sawyer (1959) 43 Cri App. R. 187 the head note reads:
On a charge of a sexual offence it is essential that the summing up should contain a warning on corroboration...
In R. v. Campbell 1956-2 All E. R. 272 Lord Goddard, C. J., observed:
It is true that for very many years the courts have always warned juries that it is dangerous to convict on the uncorroborated evidence of a child, whether of tender age or not. but so also is a similar warning given in all sexual cases.
In R. v. Frigg 1963-1 All. E. R. 490 Lord Ashworth. J. said:
In sexual cases of rape or the like, the jury must be warned of the danger of acting on the complainant's evidence unless there is corroboration.
In the oft cited authority, in Sidheswar Ganguly v. State of West Bengal : 1958CriLJ273 their Lordships of the Supreme Court held : --
The nature of the corroborative evidence should be such as to lend assurance that the evidence of the prosecutrix can be safely acted upon.
In this case no effective corroborative evidence has been brought to light, nor did the prosecutrix make any complaint shortly after the alleged occurrence to the eye-witnesses. If the woman in this case has resisted to her utmost she would have probably borne marks upon her body, face neck, and limbs and she would have inflicted injuries on the body of her assailant. In view of all these incongruities I think there is justification in the comments of the learned Counsel for the accused that the prosecutrix has concocted a different version than what actually took place.
8. The prosecutrix Mst. Inderjeet Kaur at the very outset of her examination has given her age as 10/12 years. Her father Jagat Singh. P. W. 2, states that he was married twice. Mst. Inderjeet Kaur was from his first wife. His first marriage took place in 1950-51 at Hissar. He lived there for two or. three years. Inderjeet Kaur was born at Hissar. If two interpretations of a statement are possible in a given case, then the one which favours the accused has to be adopted. In the circumstances narrated above, it can safely be inferred that Inderjeet Kaur was born somewhere in the year 1952. The occurrence is alleged to have taken place on August 26, 1968, That shows that the girl at the time of the incident was about 16 year's old. According to the medical evidence given by Dr. Har Govind. P. W. 9 Inderjeet Kaur was between 14 and 15 years of age at the time of her examination. In the cross-examination the Doctor has ,aid that epiphyses of the elbow joint are fused at the age of 15 years. Metacarpal and head of the metacarpal are also fused at that age. Relyins upon Modi's Medical Jurisprudence and Toxicology the Doctor is of the opinion that the third molar erupts at the age between 17 and 25 years. As there was no space for the third molar it was concluded that the age must be below 17 years. The Doctor admits in the cross-examination that there can be a difference of a year or two in the age of an individual, who is subjected to medical examination. Her X-ray examination, the Doctor adds, revealed that epiphyses of the bones forming elbow joints were fused and the epiphyses of the first metacarpal were fused.
In Taylor's Principles and Practice of Medical Jurisprudence Twelfth Edition, page 141. it is given that the head of the radius and the lower end of the humerus are joined to the respective shafts at the age of 16 to 17. In Lyon's Medical Jurisprudence, Tenth Edition, page 109, it is mentioned that epiphyses join the shaft at metacarpal base at the age 16 1/2-17 1/2. The question of age of the prosecutrix in a case under Section 376 I. P. C. has got an important bearing. The only conclusive piece of evidence may be the birth certificate, but unfortunately in this country such a document is not ordinarily available. The court has. therefore, to base its conclusion upon all the facts and the circumstances disclosed on examining the physial features of the person whose age is in question, in conjunction with such oral testimony as may be available : vide Shidheswar Ganguly's case (supra). In this case the girl says that she was about 10 to 12 years of age. Her father tells the court that she was about 14/15 years' old. Her step-mother left her to her own fate. The Doctor is of the opinion that she is about 15 years of age. The Doctor further speaks that emphasis of the bones forming elbow joint was found fused, which, according to Taylor, means that she was 16 to 17 years of age. Dr. Har Govind also says that difference of one or two years in estimating the age of a person is always possible.
Placing the evidence pros and cons very fairly and fully and taking into consideration commonsense point of view, one can safely reach the conclusion that the girl might have well been above 16 years of age at the time of the occurrence and if that is so, in the absence of any mark of violence on her person, and keeping in view her subsequent conduct, it can be inferred that the sexual intercourse, if at all took place, did take place with her consent. As has been observed in Archbold's Pleadings. Evidence and Practice in Criminal cases (32nd Edn. P. 1055). it must be proved that the rape was committed on the prosecutrix by force and without her consent when she was of 16 years of age, and a person accused of rape may raise the question of consent without putting his own character in issue. But no such evidence is forthcoming in this case. If the woman consents prior to penetration, no matter how tardily and reluctantly, and no matter how much force had been used, the act is not rape. In the instant case the girl does not appear to be below 16 years and the prosecution has failed to bring home the use of force to overcome the prosecutrix's will to resist and the resistance to the utmost by her.
9. In the result, I accept this revision application and acquit the accused of the offence under Section 376, I. P. C. He shall be released forthwith, if not required in any other case.