ORDER G.S.N. Tripathi, J.
1. Om Prakash alias Omi has been convicted by the Sessions Judge, Pithoragarh, vide his judgment dated 7-5-90. He was sentenced to undergo 7 years' R.I. on the charge under Section 376, I.P.C. He was also held guilty on the charge under Section 363, I.P.C. under which he was sentenced to undergo 5 years R.I. Both the sentences were ordered to run concurrently.
The prosecution case started on the basis of written F.I.R. lodged by Banarasi Das, P.W. 2 at P.S. Kotwali. Pithoragarh. on 23-1-89 at 15.40 P.M. He alleged that he originally hails from Rajasthan but was working at the premises of the contractor as a labourer. His family including his minor sons and minor daughter Km. Subhawati alias Babi, also resides with him. His wife also worked with him. The male children including the daughter Km. Subhawati alias Babi were left at home. Raten Lal a distant relation of the complainant also resided nearby. His brother-in-law was accused Omi alias Om Prakash. He had been residing with Ratan Lal for some time. He also visited the house of the complainant. On 21-8-89 the accused Om Prakash alias Omi came to the house of the complainant, when the complainant and his wife were away. He by pretext sent the complainant's minor sons towards the cattle and enticed away Km. Subhawati. When the complainant's son Raj Kumar returned, he did not find Km. Subhawati aged about 10.12 years. He immediately informed the complainant. The complainant started searching for his daughter but he could not succeed. Some people told him that they had seen the accused taking away Km. Subhawati with him at about 10 A.M. on that date. The complainant also contacted Ratan Lal, but they did not give any suitable reply. They asked him not to be worried and said that in case she had gone with the accused, she would return. For nearly a week the complainant's search for his daughter as well as the accused could not bring any result. Then he lodged this report raising an accusing finger towards Ratan Lal and his wife and believing that they were in collusion with the accused.
2. It transpires from evidence that the accused had taken Km. Subhawati alias Baby to Rajasthan, where he retained her for 3-4 days. He committed rape on her there and was bringing back Km. Subhawati to the place from where she was allegedly enticed away, then he was arrested by the police on 4-2-89.
3. Km. Subhawati was sent for medical examination on 4-2-89, where she was examined by lady Doctor Smt. Usha Upreti, P.W. 4 on 4-2-89. She prepared the following report:--
M 11. An old scar 1 cm below from nasion about 1/2 cm in length.
On Examination -- Auxiliary hair very scanty just started growing.
Breasts -- Very small, just started developing nipples small.
Abdomen soft -- No external mark of injury etc. On Examination of her Private Part Pubic hairs started growing few in numbers and brown in colour.
Labia/minorao/developing making apart of 1. Vaginal smear from posterior parts sent labia minora, hymen seen torn. There was old for spermatozoa examination-4-2-89/9-2-89.
5. The prosecution examined Km. Subhawati alias Baby as P.W. 1. She has narrated the story that the accused was distantly related to her. She called her 'Mama' although he was not her real Mama. She used to come to see television at the house of the accused. He also visited her quite often. On the date of occurrence, her parents had gone out to work. Her minor sisters and brothers were present at home. It was around 10 A.M. when the accused came to her and asked her to bring biris for him. For that, he paid money to her. She left her minor brothers and sisters at home and left towards the Chungi. The accused closely followed her. He asked her to sit in a vehicle and took her to Pithoragarh. When she objected, he told her not to worry. Then he took her in another vehicle to Delhi and from there he took her to Rajasthan. On the way she resisted but he prevailed upon her. Thus after 3 days journey, she reached Rajasthan, where she remained for 3 days. During all these 3 days, the accused committed rape upon her. She felt pain and at times blood came out from her vagina. The accused changed the bloodstained clothes and gave other clothes to her and brought her near the place from where he abducted her. Then he was over-powered by the police and arrested.
6. P.W. 2 Banarasi Das is the complainant. He has narrated the story as contained in the F.I.R. as noted above.
7. P.W. 3 H.C. Afsar Khan has proved the chik FIR and other documents related thereto.
8. P.W.S.I. Man Singh has proved the documents prepared by the I.O. as the I.O. himself was not available.
9. P.W. 4 lady Dr. Usha Upreti has proved the injury report and has given no opinion regarding rape.
10. The accused in his statement under Section 313, Cr.P.C. has denied the allegations against him and has alleged that he has been falsely implicated.
11. After examining the evidence and circumstances on the record, the learned Sessions Judge found the prosecution case to be true. He accordingly convicted the accused and sentenced him to undergo R.I. as noted above.
12. Feeling aggrieved, the accused has filed this appeal.
13. I have heard learned Counsel at stretch and gone through the record. 1 find much force in this appeal. It deserves to be allowed.
14. It appears that the learned Sessions Judge has acted on the basis of the imagination and has thrown to the winds all the recognised principles of criminal law that the prosecution has to prove its case beyond a shadow of reasonable doubt. Mere suspicion does not take the place of evidence.
15. The medical report coupled with the statement of the lady Dr. Upreti clearly shows that the girl Km. Suhawati was minor and aged between 10-12 years but she had ceased to be virgin long long ago. Her hymen had been torn and the tears had healed edges. Private parts were smooth and healthy. There was no bleeding and no laceration. The vagina permitted more than one finger. It was used and smooth. She was used to sexual intercourse as the vagina permitted more than one finger easily and it was quite loose. There was no resistance in penetrating the fingers. No laceration was detected. The smear examination as well as spermatozoa examination revealed negative. There was no fresh sign of sexual inter course. This type of condition of the vagina could not be obtained only after 3 or 4 inter courses and that too quite recent.
16. The incident took place on 21-1-89 and the recovery was effected on 4-2-89 and thus the girl remained in the custody of the accused, if at all for nearly 13 days. Before the girl reached Rajasthan, she was not subjected to sexual intercourse even according to her.
17. Km. Subhawati in paragraph 5 of the statement states that it took 3 days for reaching Rajasthan. So the girl reached Rajasthan, if at all on 24 or 25-1-89. In paragraph 7, she states that she was subjected to sexual inter course only 3 times during her stay in Rajasthan. As the return journey would also take about 3 days, so between 25-1-89 and 1-2-89, she was subjected to intercourse only for 3 days. The last intercourse might be taken to be on 30 or 31st January, 89. Therefore, when the girl was medically examined on 4-2-89, the rape was quite recent. Had she been raped only for 3 times as per her version, the vaginal condition would be quite different. So I can say that the girl was used to sexual intercourse for a pretty long time. The vaginal tears which were healthy at the time of examination would have obtained that condition at least a month or two earlier.
18. I want to make it clear that from this position of the vagina, I do not want to conclude that the girl was the consenting party, because admittedly she was a minor below 16 years of age and her consent, even if any, would be the material and would not be helpful to the accused in any manner whatsoever. I simply want to say that this was a girl with loose morals and her uncorroborated statement alone will not be sufficient to record a conviction.
19. On the point of abduction/kidnapping or on the point of rape, there is solitary statement and evidence of Km. Subhawati alone, Banarasi Das, her father is not an eyewitness of fact. He was told by his son Rajendra about the suspected kidnapping of the girl at the instance of the accused on the same date i.e. 21-1-89. The complainant started a search in right earnest. He came across several persons whose names are still a closely guarded secret. They had allegedly seen the girl going along with the accused but none has been examined to prove that they saw that the girl going with the accused. Complainant's son Raj Kumar who conveyed the information to the complainant on the basis of which he launched the prosecution machinery has not been examined. So the evidence on the point of abduction/kidnapping as totally missing. The learned Sessions Judge has relied upon the so-called evidence without any legal serutny and that is the most unfortunate aspect of the case.
20. Now we have to see how far the prosecution case can stand on its own legs on the solitary statement of Km. Subhawati. But before that I would like to point out certain bunglings in the lodging of the report itself.
21. The F.I.R. which is on the record, shows that it was lodged on 28-1-89 at 15.40 P.M., in which the date of occurrence is said to be 21-1-89. P.W. 2 Banarasi Das states in paragraph 6 that he lodged the report on the same date on which the occurrence took place. That FIR dated 21-1-89 has not seen light of the day, for the reasons best known to the prosecution. It has been concealed. Not only this, there is no trace of it so far. It means that an adverse inference can be drawn against the prosecution that in the first FIR dated 21-1-89 lodged by the complainant on the date of occurrence itself, the story of the prosecution was something quite different from the one brought before the Court. The court is equally likely to believe that the accused in that case might be somebody else and that person has escaped the noose set by the complainant for the reason best known to him, for which we can only make surmises that the complainant might have taken some money from that accused and let him off. The victim Km. Subhawati has stated in paragraph 12 that her parents wanted money from the accused and they insisted for that. A suggestion was denied by the complainant but the accused has stated that the complainant demanded money from him, vide his reply to question No. 22 under Section 313, Cr.P.C. Apart from it, it is clear that the economic condition of the complainant was not sound. He had admitted this fact clearly in paragraph 15 that after loss of his job, the economic condition of his family is very bad and it is very difficult to maintain him at all. He had no money with him. He had been convicted and sentenced to undergo 7 years' R.I. by the court, as has been admitted by P.W. 1 Smt. Subhawati in paragraph 11. That was a case resulting on account of an assault made by the complainant upon Madan Lal. He is a man of the accused fraternity (vide P.W. 1 para 11). Even the complainant in paragraph 12 says that he was employed in M.E.S. He has been turned out of job and people like the accused had got him implicated in that case. Thus this probability cannot be ruled out that this financially striken complainant has chosen people to extract money somehow or the other under the threat to implicate him in a case like this. The most unfortunate aspect of the case is that he has staked the honour of his allegedly virgin daughter (PW 1) although she was anything but a virgin on the alleged date of occurrence.
22. In paragraph 13, the complainant admits that he lives near Bill Chungi in village Bharkatya. The accused also resides in the same village. There is a police outpost situate hardly at a distance of 2 Kms. from there. So the normal course would have been for the complainant to have lodged the report without any delay but he did not do so despite this facility being available to him.
23. In paragraph 18, the complainant admits that the S.I. had obtained his signature only on a paper. It means that the F.I.R. is not the brain-child of the complainant, rather it is or it may be the product of a calculation made by the I.O. himself. So it is impossible to place reliance upon such a F.I.R.
24. In paragraph 16, the complainant says that he had got mentioned in the F.I.R. that the accused had sent his daughter for purchasing biris. But this fact is not mentioned in the F.I.R. Further in paragraph 17, he has admitted that he does not recall whether he had mentioned the date of the kidnapping of his daughter in the F.I.R. Thus there is no FIR in this case upon which any reliance can be placed. The document exhibit Ka 2 in the shape of the FIR is totally disowned by the complainant. It may be the F.I.R. lodged by anybody else, prosecution case falls on this very ground and the entire building of the prosecution case crumbles.
25. A clear cut suggestion was made to the complainant in paragraph 17 that since his economic condition was not good, he wanted to extort money from the accused under the threat of false implication. Although the complainant has denied it, but the circumstances clearly prove it. May, even the complainant's daughter, an alleged victim of the crime, has admitted this fact that her father was demanding money from the accused. Therefore, this probability cannot be ruled out that the accused had been implicated simply because he refused to fulfil the financial demands of the complainant and not because he was the actual culprit in this case.
26. Unfortunately this basic factor of the case was lost sight of by learned Sessions Judge.
27. As observed above, the complainant himself is not the eye-witness of abduction/ kidnapping. The complainant's son Raj Kumar, who could be the witness of this fact, has not been produced for the reasons best known to the prosecution. Other witnesses, who informed the complainant about the fact that they saw the accused taking away his daughter, have also been withdrawn, for which there is no explanation at all. So for all practical purposes, we have a solitary testimony of Km. Subhawati. As is clear from the medical report, she herself was not a virgin, although she was supposed to be so on the date of the alleged abduction. Therefore, her evidence has to be taken with care and pinch of salt. In this background, I proceed to analyse the statement of Km. Subhawati, P. W. 1. She journeyed for 3 days and 3 nights from Village Bhatkatya in Pithoragarh to Rajasthan. On the way she did not complain to anybody that she was being taken against her wishes. She was a minor child. If anybody was taking her against her wishes, she would have cried. She would be remembering her parents, minor brother and sisters all along. Therefore, tears were bound to roll out of her eyes, which would have been continuously wet and that would have invited the attention of the persons, but nothing of this sort happened. It shows that she was not taken in the manner alleged by her and the entire theory that she was taken to Rajasthan falls flat.
28. For the first time she invented the theory that the accused had asked her to bring biris from the Chungi and she left her brothers and sisters at home and went to bring biris herself. The accused closely followed her. Thereafter, he asked her to sit in the vehicle. She objected. Then the accused said that she need not to worry. Thus this tortuous journey up to Rajasthan consuming 3 days and 3 nights tells a lot of untold story that the girl was not at all taken to Rajasthan.
29. At what place she resided with the accused at Rajasthan is also not disclosed by her. She says that when the accused raped her, she felt pain in her private parts. Then she would have certainly cried, inviting the attention of the persons of the surroundings but that was not done. Why did she not cry is not clear. In paragraph 7 she says that her clothes were blood-stained. But the accused threw them away and replaced them by other clothes. This thing she did not disclose to the I.O. Thus it appears that the theory of rape is also not correct. Moreover, the condition of her vagina, as found by the lady Doctor, clearly shows that she would not have suffered pain at the time of sexual inter course because the passage had become quite smooth. This belies the theory of rape by the accused upon this girl. Again as per her vaginal condition, she would not have blood from her private parts. Therefore, the question of her clothes getting blood-stained does not arise and similarly the question of throwing away those clothes and substituting them by other clothes by the accused also did not arise. Hence this is clearly an after-thought and no reliance can be placed upon this improved and varnished version of this girl. It appears that the version, which she gave in the court, was tailored at the behest of some fertile legal brains. I accordingly reject the theory that the accused ever abducted this girl or committed rape upon her. The medical evidence totally belies the theory of rape.
30. The lady Doctor Smt. Upredi, P.W. 4 clearly states in paragraph 4 of her statement that the hymen was torn and it had old tears which had healed. The canal was healthy and there was neither any sign of laceration nor any bleeding. The vaginal canal was smooth. The vaginal smear also did not help her in coming to the conclusion that a rape had been committed upon this girl. At page 4, in paragraph 3, she says that there was a possibility that the girl had been used for sexual purposes but she is not conclusive about this fact. In paragraph 11, she says that the old tears of the hymen might be one or two months old. The girls who run and jump at times obtain this condition that the hymen gets torn. In paragraph 12, she says that she should not say either way whether the girl might have torn her hymen by penetrating her own fingers. This way a clear analysis of the medical evidence does not conclusively show that the girl had been the victim of recent rape within 10-15 days of her alleged recovery. Therefore, the story developed by the alleged victim Km. Subhawati regarding the rape by the accused upon her is not correct. It is not proved beyond a shadow of reasonable doubt that accused ever committed rape upon this girl.
31. The theory of alleged recovery of this girl in the company of the accused is quite whimsical, unreliable and unnatural. The girl according to her story, had suffered rape at the behest of the accused in Rajasthan for 2 or 3 times. She was not now objecting to that. No pressure was exerted upon the accused by the local or Rajasthan police. No person in the locality where the girl was lodged in Rajasthan, ever objected to her stay. So there was no difficulty for the accused in keeping this girl with him there for more days. But he did not do that. He could have left the girl there and run away. That would have saved his neck but he did not do either that. The accused endangered himself by bringing this girl from Rajasthan on the same Chungi, the place from where she was allegedly kidnapped and asked her to go home. All of a sudden, the S.I. appeared there and arrested him. Unfortunately that S. I. was not available to explain the circumstances in which he had effected the recovery of this girl from the custody of the accused. He is in service, no doubt, but he was not examined on a lame excuse that his place of posting could not be easily known. A substitute has been examined to prove the documents. His evidence during the lifetime of the concerned S. I. is inadmissible. No reliance can be placed upon it. The alleged conduct of the accused that he himself brought the girl right up to the Chungi does not appear to be natural, No person, who is guilt-conscious, could have brought her so close to her house. He could have left the girl from a distance from the Chungi, so that he could not have been arrested and this way he could have run away but he did not do that. People nearby the Chungi were known to him. The news regarding abduction of Km. Subhawati had already spread widely and the accused could normally have apprehended his arrest, not only by the police but also by the people of the locality in whose presence he had abducted the girl. So the accused would not have tried to involve himself in such a foolish manner. The conduct, as alleged, does not appear to be natural and reliable.
32. This way, the theory of recovery, as alleged by the prosecution, is not reliable.
33. There is another limb in the prosecution case. Km. Subhawati in paragraph 14 says that the police of Pithoragarh had brought her from Rajasthan. There were 4 or 5 Police personnel, sent. S. I. was also there and they directly brought her from Rajasthan to the police station, Pithoragarh. So the earlier version that the accused himself brought voluntarily this girl from Rajasthan right up to the Chungi has been given a go-bye and it is difficult to believe it. nay, it has become difficult to believe as to which of the two versions given by the girl herself is correct, that is whether the accused was brought by the police from Rajasthan itself or he voluntarily came from Rajasthan and brought the girl right up to the Chungi. The result is that this theory totally flops.
34. In paragraph 14 at page 6, she says that the police called her and her parents twice and thrice at police station. To top these absurdities, there is a statement of H. C. Afsar Khan, who has proved the documents prepared by the I.O. He was asked as to whether the police of Pithoragarh had gone to Rajasthan to bring the accused from Rajasthan and this girl. He was allowed to peruse the G. D. from 19-1-89 to 7-2-89 and on that basis he said that there was no mention during this period that any police party had left for Rajasthan.
35. Not only this, he admits at page 4 that there is no Furd recovery and arrest showing that on 4-2-89 the accused was arrested along with this girl and she was recovered from his custody. There is no mention of any such memo recovery in the G. D. It means that the girl was not recovered at the Chungi as alleged by her or as deposed by the prosecution. The result is that even this theory that the girl was recovered from the possession of the accused is totally blasted from the prosecution evidence itself.
36. P.W. S. I. Man Singh Rawat has admitted in paragraph 4 that he was not present when Sri B.L. Verma, I.O. conducted the investigation. He further says that no report before 28-1-89 was lodged at the police station. Therefore, the theory that the complainant had lodged an earlier report on the date of the occurrence itself is also disproved.
37. After a thread-bare analysis of prosecution evidence and circumstances on the record, I find that the prosecution has miserably failed to prove its case against the accused beyond a shadow of reasonable doubt. The accused deserves to be acquitted.
38. Before I part with the case, I wish to record that the learned Sessions Judge has displayed has colossal ignorance of law and the rules relating to appreciation of evidence. Even the basic principles of criminal law are not known to him. Not only this, I have glanced through questions put to the accused under Section 313, Cr. P. C. Almost all the questions are compound questions. An ordinary and semi-literate person like the accused cannot comprehend and properly reply to these questions. This is another aspect of the judgment showing total lack of knowledge of criminal law on the part of the learned Sessions Judge.
39. The appeal is allowed. The judgment and order passed by the learned Sessions Judge is set aside. The accused is in jail. He shall be let off without any delay unless he is required in some other case.
40. The observations made in paragraph 36 shall be communicated to the learned Sessions Judge by the Registry within 10 days from today.