K.D. Sharma, J.
1. This is an appeal filed by Laxmi Narayan alias Laxman and Mst. Sayari against the judgment of the Assistant Sessions Judge, Pali, dated Jan 22, 1974, by which the two appellants were convicted & sentenced to imprisonment and fine as follows:
Laxmi Narayan under Section 366, IPC Rigorous imprisonment
for six years and a fine
of Rs. 100/-, in default
1 month's further R.I.
under Section 376, IPC Rigorous imprisonment
for 8 years and a fine
of Rs. 100/-, in default
1 month's further R.I.
Both the sentences, however, were ordered to run corcurrently.
Safari under Section 368, IPC Rigorous imprisonment
for 5 years and a fine of
Rs. 100/-, in default 1
month's further R.I.
2. The prosecution case against both the appellants was as follows : Mst. Sushila, a minor girl, used to live with her parents in the first floor of quarter No. 98, situated within the precincts of the Meel Chali Mohalla, Pali. Laxmi Narayan appellant also lived in the ground floor of the same quarter. On April 3, 1973, at about 3 p.m. Mst. Sushila was all one in her quarter. Her father had gone for work to the Mill while her mother was discharging her duties as a Nurse in Bangur Hospital, Pali. Her brother also had gone to attend his classes in the College. At that time Mst. Dhagalai, sister of Laxmi Narayan appellant, visited Sushila Devi and informed that her mother met an accident. On hearing the news, Sushila came down-stairs to go to the place of accident. As soon as she came down, she found Laxmi Narayan appellant standing there. Laxmi Narayan asked her to sit on his bicycle so that she might be taken to her mother without loss of time. Sushila Devi sat on the carrier of the bicycle and Laxmi Narayan took her towards labour colony. Mst. Sushila was unwilling, in the 1st instance, to go towards the labour colony, but when she was informed by Laxmi Narayan that her mother had met an accident in the said colony, she raised no objection. In the labour colony Sushila Devi was taken to the house of Mst. Sayari, wherein she was detained in a locked room. The appellant held out threats to her that in case she raised a hue and cry, she would be done away with Mst. Sushila kept quiet in the room out of fear. In the evening the appellant opened the room and asked Sushila to take in liquor. Sushila refused to drink the wine, but she was forced by Laxmi Narayan to take it. As soon as she took the liquor, she felt giddiness and Laxmi Narayan appellant then committed rape on her despite her resistance. Mst. Sushila was kept confined in the room through out the night. On the next day in the morning, Laxmi Narayan appellant gave her a 'Sari' of blue colour to wear on her body. Sushila wore the 'Sari' out of fear and thereafter she was taken to the courts where her signatures were obtained on a paper. From the court she was brought back to the house of Mst. Sayari and kept confined in the room. In the night she was again raped by Laxmi Narayan appellant. On April 5, 1973, while she was sitting in the house of Mst. Sayari along with the appellant, her brother Vasudeo accompanied by Badri Kalal & Atma Singh came there all of a sudden & took her to the house of her parents. In the way she related to them the whole of the incident. Latter on, her brother took her to the police station, Pali for making a report of the occurrence. At police station Pali, Mst. Sushila Devi lodged a verbal report with the Station House Officer, on the basis of which a criminal case under Sections 366, 376 & 342, IPC was registered the very day, i.e. on 5-4-1973. The Station House Officer made usual investigation into the case and arrested the appellant. After his arrest, Laxmi Narayan appellant gave an information to the Station House Officer that he find given a blue coloured 'Sari' to one Mishri Lal and that he was prepared to get it recovered from the latter. The Station House Officer recorded the above information and thereafter recovered a blue coloured 'Saree' from Mishri Lal The 'Saree' so recovered was put up for identification in a test-parade and it was correctly identified by Sushila Devi to be the same 'Sari' which she was asked by the appellant to wear on her body. After collecting other necessary evidence in the case, the Station House Officer filed a charge sheet against both the appellants and Mst. Dhaglai in the court of the Munsiff and Judicial Magistrate, pali, under Sections 366, 376 and 368, I.P.C. The Munsiff and Judicial Magistrate, upon finding a prima facie case exclusively triable by the Court of Sessions, committed the accused persons to the court of the Sessions Judge, Pali, for trial for the aforesaid offences. The Sessions Judge, Pali, transferred the case to the court of the Assistant Sessions Judge, Pali, for trial in accordance with law. The Assistant Sessions Judge tried the accused persons and found Laxmi Narayan appellant guilty of the charges under Sections 366 and 376, I.P.C. Mst. Sayari was found guilty by him under Section 368, IPC only while no charge was held to be proved against Mst. Dhaglai. The Assistant Sessions Judge, therefore acquitted Mst. Dhaglia of the charge under Section 366, IPC, and convicted and sentenced the two appellants in the manner stated above. Aggrieved by their conviction and sentences, the two appellants have come up in appeal to this Court.
3. I have carefully perused the record and heard Mr. N.P. Gupta, learned Counsel for the appellants and Mr. H.N. Calla, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellants that there was considerable delay in lodging the first information report and the delay resulted in introduction of coloured version and connection of a false story about kidnapping and rape. The above contention has no force. From a bare perusal of the statements of the parents and brother of the girl it appears that they were searching Sushila Devi after she was not found in their house. The delay, no doubt, may be fatal to the prosecution case in the absence of a satisfactory explanation, because in that case possibility of introduction of a coloured version cannot altogether be ruled cut, but where the delay is not deliberate and where, for it, there is a satisfactory explanation, it is of no material significance. In the instant case, as soon as Vasudeo, brother of the girl, came to know from Sheonarayan, P.W. 2, on April 5, 1973, that a girl wearing green 'Sari' was being taken away by Laxmi Narayan towards Mst. Sayari' appellant's house, he accompanied by Atma Singh and Badri Narayan rushed to the house of Mst. Sayari and recovered the girl the very day. The parents and the brother of Mst. Sushila could not make a report to the police earlier than April 5, 1973, because they were making a search for the girl as they did not know that she had been kidnapped by any person. The explanation given by them for the delay in making the first information report is quite satisfactory in the circumstances of the case and, in my opinion, it has no adverse effect on the prosecution version.
4. Another contention put forward by the learned Counsel for appellants is that the prosecution could not adduce positive proof about the age of the girl, although the burden of proving that Sushila Devi was below the age specified in Section 361, IPC was on the prosecution. It was further urged that it is highly doubtful whether Sushila Devi was below 18 years of age at the time when the offence was alleged to have been committed by the two appellants. The above contention also is devoid of substance. Babu Lal, father of Sushila Devi, stated in his cross-examination that he was married to the mother of Sushila in the year 1945 or 1946. Two or two and half years after his marriage, his wife gave birth to a daughter. Then a son was born after two or two and a half years of the birth of the daughter. After an interval of two or two and a half years, his wife gave birth to another son and then after a gap of two or two and a half years, Sushila was born. Similar is the evidence of Mst. Laxmi Devi, mother of Mst. Sushila, who also stated in her deposition that Sushila was born about 8 or 10 years of her marriage which was celebrated in the year 1946. The evidence of the girl's father and the mother relating to the age of their daughter is wholly unsatisfactory aad so it cannot be the basis for determination of correct age of Mst. Sushila Devi The parents of the girl could not make a positive statement about the age of their daughter. They even could not state in which year & on which date their marriage was performed and their sons and daughters were born after the marriage Consequently, the evidence of the parents is not at alt helpful far determination of the correct age of Sushila.
5. Another piece of evidence relied upon by the prosecution for determination of the age of Sushila is a school certificate given by Mst. Rajnish Kumari, Headmistress, Mukand Chand Balika Girls Higher Secondary School, Pali. In this certificate the date of birth of Sushila is recorded to be 9th August, 1960. This certificate Ex. P. 5 is proved by the evidence of Rajnish Kumtri, P.W. 12, who stated in her deposition that she looked into the school record and then mentioned the date of birth of Sushila as 9th August, 1960 According to her version. Sushila Devi was a student of Class VIB of the said School Her name was removed from the rolls of the school on July 20, 1971, on account of her long absence. The evidence of Rajnish Kumari, Headmistress, P.W. 12, is not entitled to much weight, because she did not produce the Scholars' Register or the admission form in which the date of birth of Sushila Devi was recorded as August 9, 1960. The parents of the girl could not say in their depositions that in the admission form they had mentioned the date of birth of their daughter as August 9, 1960. The prosecution failed to call for the Scholars Register or the admission form and to prove the entries made therein relating to the date of birth of Sushila Dew. Therefore, on the basis of this certificate I am unable to hold that Sushila Devi was born on August 9, 1960, and her age was below 13 years on the date of occurrence.
6. The prosecution has of course led medical evidence as to the age of Sushila. Dr. Har Govind, who had examined Sushila Devi as to her age on 7-4-1973, observed as follows upon examination of her physical characteristics and development of her body:
Weight 40 Kilograms
Teeth 28 - all permanent. No space present
Axillary hair blackish
Public hair - black, partially shaved
Breast - fully developed
No mark of injury seen on body or ulna
No discharge, Hymen - showed marked congestion and a fresh tear at 6 o'clock position
Vagina - admitted one finger.
He took skiagrams of the epiphyses of all her bones around elbow joint and epiphyses of first metacarpal and lower end of radious and ulna. The result of the ossification test was that epiphyses of ill the bones around elbow joint were fused while the epiphyses of the first meta carpal were fused, while no fusion was detected of the lower end of radious and ulna. On the basis of the physical characteristics and development of her body and on the ossification test of her bones, the Doctor was of the opinion that her age was between 15 and 16 years. The evidence of the Doctor about fusion of banes based on ossification test is a surer ground for determination of the age of Sushila. The Doctor has given out reasons which made him to come to the conclusion stated in his report. Relying upon his evidence, it may be safely held that Sushila was below 18 years of age at the time when she was kidnapped from her quarter.
7. The next question that requires determination is whether Sushila Devi was taken away by Laxmi Narayan out of the keeping of her lawful guardian without the latter's consent at the time alleged by the prosecution. On this point, there is the evidence of Sushila herself, who clearly stated in her deposition that on April 3, 1973, at about 3p.m. when she was all alone in her quarter, Mst. Dhaglai came to her and informed that her (Sushila's) mother had met an accident. Upon hearing these news, Sushila came down-stairs and saw Laxmi Narayan appellant standing there on a bicycle. Laxmi Narayan asked Sushila to sit on the carrier of his cycle so that he might take her to the place of accident Sushila Devi reposed confidence in his words and sat on the carrier of his bicycle. Then Laxmi Narayan took her towards labour colony. On the way Mst. Sushila asked Laxmi Narayan why he was going toward) labour colony, to which he replied that her mother had met an accident in the said colony Laxmi Narayan then brought Sushila to Sayari's house. Sayasri was inside her house at that time. In the house of Sayari, Laxmi Narayan held out threats to Sushila that in case she cried, she would be done away with. Then he closed the room from outside and went away after confining Sushila Devi inside the room.
8. Mst. Sushila was cross-examined at length by the learned Counsel for the appellants, but her evidence relating to the fact of her being taken away by the appellant from her quarter to the house of Mst. Sayari on false pretext has not been shaken at all. It is fully established by her testimony that the appellant by false representation induced her to have her quarter and to accompany him to labour colony. The deception practised upon the girl was that her mother had met an accident and that the appellant Laxmi Narayan would take her immediately to the place of occurrence on the carrier of his bicycle. The ant of inducing the minor girl to leave her home on a false pretext amounted to taking her away out of her lawful guardianship without the latter's consent. There is material on the record to show that the appellant Laxmi Narayan kidnapped Sushila in order that she may be forced or seduced to illicit intercourse Soon after the girl was taken to Sayari's house, she was wrongfully confined in a room for more than 20 days During this period she was taken to the court premises at Pali and her affidavit was got typed and attested by a Notary Public as is evident from the statements D.W. 2 Manohar Lal, Clerk of Shri Raghunath Singh, Advocate, and D.W. 3 Karni Dan, Typist. In the affidavit it was got written that Mst. Sushila had willingly married to Laxmi Narayan on March 30, 1973, at Pali and had been living with him as his wife since then. Mst. Sushila admitted in her deposition that she was made to sign one or two papers within the court precincts. These facts clearly indicate that at the time of kidnapping the girl the accused intended that she would be complied to marry him against her will or would be seduced or forced to ill cit course. Laxmi Narayan appellant took a plea at the trial that Sushila herself came to his house on April 3, 1973 and expressed her desire to have a marriage with him. Then she brought him to the court premises at Pali, purchased a stamp-paper, got it typed by Karni Dan, put her signatures thereto and went to her house The aforesaid plea appears to be false, because there is ample evidence on the record that she was recovered from the house of Mst. Sayan after two days As soon as she came out of the house of Mst. Savari, she related the whole of the incident to her brother Vasudeo. Vasudeo was examined by the prosecution. His evidence is that when he along with others reached the house of Sayari, situated in the labour colony, he asked Sayari where Sushila was, whereupon Sushila came out of the house weeping, He brought Sushila to his house where she disclosed to him that she was kidnapped by the appellant Laxmi Narayan on a false pretext that her mother had met an accident. Such a statement made by the girl shortly after her recovery from the house of Sayari complaining against the appellants is a corroborative piere of evidence which lends assurance to the testimony of the girl. Consequently, we have no hesitation in holding that the lower court rightly convicted Laxmi Narayan appellant for the offence punishable under Section 366, IPC.
9. As regards the sentence awarded to him for the offence under Section 366, IPC by the trial Judge, it may be observed that it is a bit severe, in the circumstances of the case. The appellant has undergone rigorous imprisonment for 4 years, 3 months and 20 days. He was sent to jail after his conviction on January 22, 1974 and his sentence was suspended by an order of this Court dated May 12, 1978. In my opinion, the ends of justice would be met, if the sentence of six years' rigorous imprisonment awarded to him by the trial court for the offence under Section 366, IPC is reduced to the term already undergone by him and the sentence of fine of Rs. 100/-, in default one month's further rigorous imprisonment is maintained
10. As regards the offence of rape, it may be observed that the prosecution could not prove beyond reasonable shadow of doubt that the age of Mst. Sushila was below 16 years at the time when she was alleged to have been raped by the appellant Laxmi Naravan For the reasons already stated above, the age as given in the certificate Ex. P5 issued by the Headmistress, Seth Mukand Chand Balia, Government Girls Secondary School. Pali, is not dependable for determinati jn of the precise date of birth of Sushila Devi. The parents of Sushila Devi, who got her admitted in the School did not say in their depositions that they had given out the date of birth of Sushila Devi as August 9, 1960. The age of Sushila Devi given at the time of her admission is, therefore, far from being precise. The medical evidence based on ossification test and physical characteristics and development of body relating to the age of Sushila Devi is that she was between 15 and 16 years of age. When the opinion of the Doctor was that the girl was between 15 and 16 years of age, it could not be said with certainty that she was below 16 years of age at the relevant time. The Doctor himself wrote in his report and stated on oath that epiphyses of Sushila's lower end of radious and ulna were not fused and the fusion takes place between the age of 16 to 17 years. It is therefore, unsafe to hold, relying on the testimony of Dr. Har Govind that Sushila was definitely 16 years of age at the time when she was subjected to sexual intercourse by Laxmi Narayan appellant.
11. The next question that crops-up for determination is whether Sushila Devi was raped by Laxmi Narayan appellant against her will and without her consent Mst. Sushila, no doubt, stated in her deposition that the appellant had forcible sexual intercourse with her twice or thrice during her stay with him in the house of Mst. Sayari, but from her evidence it does not appear that there was sexual intercourse against her will or without or consent. Consent or absence thereof can be presumed from the circumstances of a case. There is no material on the record to show that there was resistance on her part when sexual intercourse was forced upon her. There was no tearing of her clothes and no injuries on her body and on her private parts were noticed. No marks of semen or blood were found on her clothes, although she stated in her deposition that blood had come out of her private parts after sexual intercourse. Her medical examination clearly revealed that her hymen showed marked congestion and a tiny, fresh tear at 6 o'clock position, but no marks of injury were seen on her body or private parts. This merely showed that there had been sexual intercourse with the girl. Apart from this Sushila did not raise a hue and cry when she was taken by Laxmi Narayan to the court precincts for getting her affidavit typed and sworn before a Notary Public. If she was not a consenting party to the sexual intercourse, she would have surely raised an outcry in the house of Mst. Sayari or, thereafter, in the way when she was being taken to the court precincts for swearing an affidavit in favour of the appellant Laxmi Narayan. Mst. Sushila admitted in her deposition that she was left by herself by Laxmi Narayan appellant for sometime. There is no evidence of protest on her part during, the period she was left by herself in the house of Mst. Sayari. These circumstances indicated that if there was any sexual intercourse, it was with her consent. She was not proved beyond reasonable doubt to be below 16 years of age at the time when Laxmi Narayan appellant had committed sexual intercourse with her and so the circumstances showing her consent cannot be ignored in this case. Consequently, I am of the view that no case of rape beyond reasonable shadow of doubt has been made out by the prosecution against the appellant. The lower court did not consider this aspect of the case and wrongly convicted the appellant for the offence of rape.
12. It has been further contended by Shri N.P. Gupta that there is no evidence against Mst. Sayari appellant that she wrongfully concealed or confined Sushila Devi knowing that Laxmi Narayan appellant had kidnapped her with intent that she would be compelled to marry against her will or would be seduced to illicit intercourse. The above contention is not devoid of substance. It is undoubtedly true that there is evidence on the record that Sushila was kidnapped by Laxmi Narayan appellant and taken to Mst. Sayari's house wherein she lived for 2 days till she was recovered therefrom by her brother and others, but to constitute an offence under Section 368, IPC the prosecution is bound to establish that Mst. Sayari must have knowledge that Sushila had been kidnapped by Laxmi Narayan. Even Mst. Sushila did not say in her deposition that she disclosed the fact of her having been kidnapped by Laxmi Narayan to Mst. Sayari during her Slaying the latter's house. She did not state that when she was taken to Laxmi Narayan's house Laxmi Narayan told Sayari that he had kidnapped Sushila. It does not transpire from the evidence of Mst. Sushila that Sayari helped Laxmi Narayan in wrongfully concealing or confining her. There is no other evidence on the record to dispute knowledge of kidnapping Sushila to Mst. Sayari. Section 368, IPC requires on the part of Mst. Sayari knowledge of kidnapping of not merely her belief or having reason to believe that Sushila had been kidnapped. Consequently, the conviction of Mst. Sdyari under Section 368, IPC is clearly unsustainable.
13. The result of the above discussion is that I accept the appeal of Mst. Sayari, set aside her conviction and sentence and acquit her of the offence punishable under Section 368, IPC. She is on bail and need not surrender to her bail bonds which are hereby cancelled. Further, I partly accept the appeal of Laxmi Narayan and, while setting aside his conviction and sentence for the offence under Section 376, IPC and acquitting him of the aforesaid offence, maintain his conviction for the offence under Section 366, IPC but reduce the substantive sentence of six years' rigorous imprisonment to the term already undergone by him. The sentence of fine of Rs. 100/-, in default to undergo one month's further rigorous imprisonment under Section 366, IPC is, however, maintained. Laxmi Narain an appellant is on bail. He need not surrender to his bail bonds, which are hereby cancelled. Two months' time is given to Laxmi Narayan appellant to deposit, the amount of fine in the court of the Chief Judicial Magistrate, Pali, failing which necessary action under the law shall be taken against him.