Dinkar Lal Mehta, J.
1. This appeal arises out of the judgment of learned Addl. Sessions Judge No. 2, Jaipur City dated 30th March, 1981. Learned District Judge convicted the appellant Under Section 366, in Sessions Case No 94/80 and sentenced both the accused to undergo rigorous imprisonment for three years and a fine of Rs. 500/-. In default of payment of fine, it was further directed that both the accused will undergo six months rigorous imprisonment.
2. Brief facts of the case, as alleged by the prosecution are that on 30th August, 1980, about 12 in noon, accused appellant Mal Singh went at the house of prosecutrix and committed rape. It is an admitted position that no first information report about the commission of the rape has been lodged separately. It is further alleged that at about 8 to 9 p.m. in night, when prosecutrix Sarju and her mother were sitting outside the house, both the accused lifted prosecutrix Sarju and took her away. First Information Report Under Section 366 was lodged at the police station Jothwara at 11.30 p.m. on the same day by Smt. Manoo, the mother of the prosecutrix. In this first information report Ex. P. 5, also there is no reference about the incident of rape when the prosecution has come with a specific case that Smt. Munni after hearing the cry reached her house. It is also alleged that the prosecutrix informed Smt. Munni about the commission of rape.
3. On behalf of the prosecution PW 1 Salim, PW 2 Moihudeen Shah, PW 3 Rajendra Prasad, PW 4 Sarju the prosecutrix; PW 5 Manoo the mother of the prosecutrix; PW 6 Gopal PW 7 Prahlad Rai and PW 8 Ganpat Lal the Investigating Officer have been examined.
4. Learned counsel for the appellant argued both the cases simultaneously but it was pointed out that evidence of one case cannot be read in another case and as such both the cases were heard separately.
5. PW 1 is the witness of the site-memo PW 2 has been declared hostile, PW 3 Rajendra Prasad has also been declared hostile. PW 4 is the prosecutrix and PW 5 Smt. Manno is the mother of prosecutrix. Their statements will be considered separately. PW 6 Gopal is the witness in whose presence it is alleged that Smt. Sarju was recovered by the prosecution at the house of Mal Singh accused. PW 7 Prahlad Rai is the SHO and he has recorded the first information report. He also arrested accused Jugraj Singh on 14-8-80 and prepared the arrest memo. PW 8 Ganpat Lal was the Sub-Inspector, Jothwara Police Station and he has investigated the case. This witness has stated that after the investigation of this case, he has added Section 376 in the diary and wanted to submit the charge sheet but the Assistant Public Prosecutor suggested that the case relating to rape is altogether a different case and so the first information report should be lodged and a separate case should be registered on the basis of investigation. He submits that on the basis of investigation he lodged the first information report at the Police Station Jothwara on 7-10-1980.
6. Learned counsel for the appellant has assailed the finding of the court below on the following grounds:
(1) That the evidence of PWs 4 and 5 is untrustworthy and conviction cannot be based on their testimony.
(2) It was also submitted that PW 6 Gopal Lal does not support the prosecution and he has not stated that Smt. Sarju was recovered from the house of Mal Singh. He points out that this witness has not been declared hostile and evidence of this witness should not be discarded. He has also submitted that PW 2 Moihuddeen has not supported the case of the prosecution. He submits that ordinarily the first information report of the rape will be lodged on the same day by the prosecutrix or her mother. It has come on record that the prosecution allegation is that about 12 in noon, accused Mal Singh entered in the house of prosecutrix, committed the rape and after hearing the cry, Rajendra Prasad PW 3 came and informed the mother of prosecutrix. It has also come on record that PW 5 Munni came to the house and the story was narrated by PW 4 Sarju to the mother. The contention of learned counsel for the defence is that if that part of the statement is correct, then it will find place in the first information report, which has been lodged at 11.30 p.m. by the mother of prosecutrix PW 5 Munni, at the police station Jothwara.
7. Learned counsel for the appellant has also alleged that the prosecution has failed miserably to prove the case of abduction.
8. Learned Public Prosecutor has supported the judgment.
9. Heard learned counsel for the parties.
10. The first part of the story that prosecutrix PW 4 was raped at about 12 in noon at her house is completely untrustworthy. The prosecutrix PW 4 has stated in her statement that she was raped by Mal Singh at her house. She has also stated that Rajendra Prasad came there and subsequently her mother came. Rajendra Prasad has not supported the case of the prosecution at all. PW 5 mother of the prosecutrix Smt Munni has also stated that when she came, the accused ran away. She has also stated that her daughter Mst. Sarju was crying. She has further stated that Sarju intimated her about the rape. Ex. P 5 the first information report has been lodged at 11.30 p.m. i.e. after about the eleven hours of the occurrence. In this FIR the fact that Mst. Sarju was raped in noon has not been mentioned. In the FIR Ex. P 5, it has only been mentioned that at about 9 p.m. accused Mal Singh and Jeev Ram Singh came, lifted Mst. Sarju and took away against her will. The commission of the fact of rape is very material contradiction and this part of the story of rape cannot be relied upon and this testimony of these two witnesses cannot be accepted.
11. The second part of case relates to the abduction of Mst. Sarju PW 4. In the first information report Ex. P 5 it has been mentioned that Mst. Sarju and Mst. Munni PWs 4 and 5 respectively were sitting on the chabutri of the house. It has also been mentioned that Rajendra came on the spot and he followed the accused. It has also been mentioned that Rajendra came back and no one in Mohalla came to her rescue.
12. Mr. R.N. Sharma learned counsel for the appellant has pointed out that PW 4 Mst. Sarju has stated in her statement that she was all alone in the chowk and her mother was preparing food inside the house. This part of the statement that her mother was inside the house, is inconsistent with the theory that the mother was also on the chabutri. She has stated that accused Mal Singh brought her in his Guhadi and left her with his wife. She has further stated that she cannot state the notice for the commission of the abduction. She has been confronted with her statement Ex P 1 part A to B and she has denied that part of the statement. The suggestion on behalf of the accused side that Bholu Ram, Samundar Bhagi and others generally visit her and she is leading an immoral life, has been denied. A suggestion has also been made that the accused party is objecting being the persons of locality. It has also come on record that there are about 300-400 houses of Muslims and in addition to that there are some houses of Thakurs. She has stated that just after an hour also she was recovered. PW 5 Mst Munni has also stated that both the accused lifted Sarju and took her away. She has also stated that Samundar Singh is the Police Constable and Bholu Singh is their relative. She has denied that Samundar Singh Constable visits Sarju. It was also pointed by learned counsel for the petitioner that the prosecution has come with a clear case that Mst. Sarju was recovered from the house of accused Mal Singh on 14-8-1980 at 4.30 p.m. In the recovery memo Ex. P 3 it has been pointed out that she was putting an Orni, which was blood stained; our Learned counsel for the appellant submits that the Orni was not sent for chemical examination and this fact cannot be looked into. He has further submitted that there are two witnesses namely Gopal and Moinuddin relating to the recovery of Mst. Sarju from the house of Mal Singh PW 2. Moinuddin has turned hostile and has not supported the case of the prosecution. PW Gopal has stated that police was bringing Mst. Sarju and he saw Mst. Sarju near her house. Gopal has stated that Ex. P 6 the site-memo was also prepared in his presence. It has been mentioned in Ex. P 6 at page 8 that the broken bangles were found. It was submitted that no question was put whether bangles were produced by the petitioner but the learned Public Prosecutor is not in a position to answer or to assist the Court as he is having no file. He submits that file has not been received and is not available in his office also PW 6 Gopal has further stated that Mst. Sarju is his niece. He has further stated that recovery memo of Sarju was also prepared at the house of Sarju. This witness has not been declared hostile and there is no reason why this witness should not be believed. The theory that Mst. Sarju was recovered from the home of Mal Singh cannot be accepted in the light of statement of Gopal PW 6 who is the near relative of Mst. Sarju. Now there remains the testimony of two witnesses viz. PW 4 Mst. Sarju and PW 5 Mst. Munni. I have already rejected a part of the testimony of these witnesses relating to the rape for the reasons mentioned above. It will have to take a cautious approach in appreciation of the testimony of these two ladies, specially when the defence has come with a case that Mst. Sarju is leading immoral life and police officers and others visit her and the appellants have objected about her life. There is no material to substantiate the version of defence except the statement given by them and a suggestion made to the prosecution witness. It is alleged that Mst. Sarju was abducted at about 9 p.m. in night from a Mohalla in which there are about 400 houses. No motive for abduction has been brought on record. The testimony of these two witnesses do not inspire confidence, Specially, there is nothing on record to hold that she was abducted for the purpose of sexual intercourse. Mst. Sarju herself has stated that she cannot say for what reason, she was abducted. It is the case of prosecution that she was lifted and taken to the house of Mal Singh and she was handed over to the wife of Mal Singh and the accused have done nothing to outrage her modesty thereafter.
13. In the facts and circumstances of the case, no case under Section 366 is made out.
14. The appeal is accepted. The conviction of both the accused Under Section 366 IPC is set aside.
15. Learned counsel for the appellant submits that the accused has already served the sentence awarded, as such no release order is necessary. The judgment of the lower court is set aside. However to avoid any mistake the release order may be issued.