JUDGMENT M.C. Jain, J.
1. The State has preferred this appeal against the judgment and order dated 15.11.1980 passed by Sri B.N. Srivastava, the then I Additional Sessions Judge, Gorakhpur in S.T. No. 168 of 1978. The sole accused respondent Jalal Ahmad alias Ashraf Jalal has been acquitted of the charges of Sections 363, 366 and 376 I.P.C. He absconded during the pendency of the appeal and Sri R.B. Sharma, Advocate was appointed as amicus curiae under order dated 28.2.2005 to argue the appeal on his behalf. We have heard Sri K.P. Shukla, learned A.G.A. from the side of the State and the said amicus curiae for the sole accused-respondent. The record has been summoned which we have perused carefully.
2. The background facts may be related shortly so far as they are necessary for the decision of the appeal. Prosecutrix Km. Sushila PW 3 was the eldest daughter of Ram Naresh Prasad PW 1 from whose house at a distance of about two furlongs towards north the accused resided. The accused Jalal Ahmad alias Ashraf Jalal often visited and used to sit at the dispensary of one Dr. Shukla situated near the house of the complainant. At a little distance from the house of complainant towards west Chhunni Devi Kanya Junior High School was situated where Km. Sushila was a student of class VII. She had gone there are usual at about 10 O'Clock on the fateful day of the incident-25.8.1977. She was aged about 12 years. The mother of the prosecutrix was unwell preceding the day of the incident. During the lunch recess on 25.8.1977, the prosecutrix had come out of the school building to take her lunch or some eatables when the accused respondent met her and told her that her mother was unwell and she should return back to her home after giving an application to leave the school. An application for permission was given by her to the Principal, whereafter she came out of the school building. In order to quench her thirst, she asked for water which was brought to her by the accused. After drinking water, she engaged a rickshaw to return to her home and the accused also seated himself on the rickshaw with her. Soon after drinking water, she swooned in a state of unconsciousness from which she recovered next day in the morning. Regaining her consciousness she found herself in a khaprail house. The accused was also present there. She learnt from him that the house was in Bhairahwa (Nepal). He requests to him for being restored to her parents went unheeded. She was detained there for about 28 days. The accused discussed for her sale with his friends. During the period of her captivity, she was ravished by the accused three or four times.
3. Because of her kidnapping, she had failed to return to her home on the day of the incident in question-25.8.1977. Her father, Ram Naresh Prasad after some inquiries learnt that she was seen being taken away by the accused from her School at about 2.00 P.M. He made efforts to trace them out. He submitted report Ext. Ka 3 at 11.30 P.M. on 25.8.1977 at Police Station Cantt., District Gorakhpur. On his report, a case was registered. Investigation was taken up by S.I. Shiv Nath Tiwari PW 8. He made attempts to trace out the accused, who was named in the F.I.R., but to no effect. He informed the neighbouring Police Stations about he disappearance of the prosecutrix.
4. It was on 22.9.1977 that the prosecutrix Km. Sushila PW 3, after her detention at Bhairahwa, was taken by the accused to Sonauli some time in the evening (Sonauli being at a distance of 9 kms. from Bhairahwa). At Sonauli, there was some altercation between them on the road near the temple of Shantoshi Mata. In the meantime, on receiving some information from the informer, S.I. Incharge Vashishtha Misra PW 5 of the Police Outpost. Sonauli (Police Station Nautnawa-border of Nepal) with some constables and two public witnesses inclusive of Naseebdar Khan PW 7 rushed to the temple and noticed that a boy and a girl were talking each other nearby the temple. He accosted them and learnt that they were the wanted persons. Arresting the accused, he recovered Km. Sushila from his possession. Both of them were taken to the Police Station Nautanawa, reaching there at 8.45 P.M.
5. From Police Station Nautanawa, the prosecutrix Sushila PW 3 was sent to Police Station Cantt. On 23.9.1977. She was handed over to the custody of her father Ram Naresh Prasad. She was medically examined the same day at 4.00 P.M. by Lady Dr. C.M. Gupta PW 4 at Women Hospital Gorakhpur. She was 4'-7" tall and 34 kg. in weight with teeth 8/10 and developing breasts as also presence of pubic and axillary hairs. Her vagina admitted one finger. No mark of injury on her body or private parts was seen. Her hymen was found ruptured. For the determination of her age, she was subjected to X-ray under the supervision of Dr. S.C. Tripathi PW 6. Her age was assessed to be 12 to 14 years.
6. On the conclusion of the investigation, the Investigation Officer submitted charge-sheet and the accused respondent came to be tried.
7. The prosecution in all examined 8 witnesses, the most important of whom was the prosecutrix Sushila PW 3 herself. Ram Naresh Prasad (father of the prosecutrix) was a witness of fact, stating about the distance of his house from that of the accused as also the distance of the School (in which the prosecutrix was studying) from his house. The substratum of the prosecution case as detailed above is contained in the statement of the prosecutrix. The other important piece of the evidence is the medical examination of the prosecutrix. Yet another important witness is Naseebdar Khan PW 7 relating to the recovery of the prosecutrix from the possession of the accused. The rest of the witnesses comprised of the Head Constable, arresting officer-S.I. Vashishtha Misra PW 5, the Doctors named above and the Investigating Officer.
8. The defence of the accused respondent was of denial. He denied that he was arrested with the prosecutrix at Sonauli. He pleaded that he had actually been arrested at Nautanawa. According to him, he was falsely implicated in the case owing to enmity.
9. The prosecution case did not find favour with the court below and the impugned judgment of acquittal came to be produced as a result thereby.
10. The argument of the learned A.G.A. is that there was sterling evidence of kidnapping of the minor prosecutrix by the accused from the school and thereafter of commission of rape on her in the form of the testimony of the prosecutrix herself which was rejected by the trial court for no good reason. Secondly, he urged that the recovery of the prosecutrix from the possession of the accused was also proved to the hilt and there was no possibility whatsoever of false implication of the accused-respondent. Countering the said submissions from the side of the State, learned amicus curiae, has supported the acquittal recorded by the trial court.
11. We have perused the evidence on record. The trial Judge did hold that the prosecutrix was a minor living under the care and protection of her natural guardian i.e. her father, namely, Ram Naresh Prasad. He also held that she had gone to her school on the date of the incident where she was a student of class VIII and did not return back her home. The acquittal however, was recorded on the premise that she was a willing and consenting party to be taken away from the school and thereafter for having remained in the company of the accused-respondent for a number of days. The Judge reasoned that from the moment of leaving her school she maintained a studious silence and failed to solicit help to escape from the clutches of the accused. He also inferred from the letters Ext. Kha 1 to Kha 5 written by her to the accused that she was deeply attached to him and growing dissatisfaction with her family members because of their checks on her. She was persuading the accused from before to take her away from her family as her stay with the family members any longer was unbearable. It was therefore, she who left her parents on her own. The accused, according to the trial judge, eventually yielded to her persuasion. She prevailed upon him because of romantic and amorous disposition towards him and further because of utter disgust with the conduct of her family members. As regards rape, the trial judge observed, there was absence of any injury on her private parts, leading to an inference she might not have been subjected to sexual intercourse. He held that her sole testimony about alleged rape could not justify the finding that the accused committed rape on her.
12. In our opinion, the trial judge recorded acquittal on wholly wrong premise. The age of the prosecutrix was a very important factor in this case. She was a minor aged about 12-14 years when the incident occurred. Therefore, her consent or willingness was wholly meaningless in her alleged kidnapping and subsequent sexual intercourse by the accused. The testimony of her father Ram Naresh Prasad PW 1 was that she was aged about 111/2 years when the incident occurred. It was fortified by medical evidence after her recovery from the possession of the accused on 22.9.1977 near the temple of Santoshi Mata by S.I. Vashishtha Misra PW 5 accompanied by two constables and two public witnesses including Naseebdar Khan PW 7. On ossification test, she was found to be aged about 12 to 14 years.
13. It was stated by Ram Naresh Prasad PW 1 that the accused often visited the dispensary of one Dr. Shukla situated near his house. Therefore, they knew each other. It was there in the testimony of prosecutrix Sushila PW 3 that her mother was ill for 2 or 3 days before the day of the incident. On the day of the incident, when she came out of the school during the lunch recess to eat something, the accused accosted her and told her that her mother's condition had suddenly deteriorated. He advised her to return to her home after giving application for leave. An application for leave was given by her and when she again came out of the school building, the accused was still there. She felt thirsty and was given water by the accused. A rickshaw was engaged for return journey for her house. She and the accused boarded the rickshaw. Soon after she became giddy and lost her consciousness. On regaining consciousness next morning, she found herself in a house at Bhairahwa. Her statement is that the accused wrongfully detained her for about 25 days and committed rape on her 3-4 times.
14. The point of the matter is that the prosecutrix was a minor. Her taking away by the accused from her school on whatever pretext and even with her consent amounted to kidnapping her from her lawful guardianship. He thus, committed an offence of Section 363 I.P.C.
15. The letters written by the prosecutrix to the accused-respondent filed by him rather indicate that he was having liaison with her, unmindful of her tender age. He was having libidinous eye on her. He made no attempt to wean her away from him. Instead, her translated his evil design in reality by kidnapping her from her school and then raping her during the period of 28 days before she was recovered from his possession.
16. As we pointed out above, there was clinching testimony of S.I. Vashishtha Misra PW 5 and the public witness Naseebdar Khan PW 7 that she was recovered from the possession of the accused on 22.9.1977 at a place in Sonauli. The prosecutrix, thus, remained in his captivity from 25.8.1977 till her recovery on 22.9.1977 from Sonauli. Under the circumstances, there could be no other witness of rape committed on her by the accused. The categorical statement of the prosecutrix is there that during her captivity, the accused raped her 3 or 4 times. At the time of her medical examination on 23.9.1977, her hymen was found absent and she was found to be addicted to intercourse. The absence of injury on her body or private parts did not negate the commission of rape on her by the accused at intervals during the period he kept her in his captivity. She was completely under his control. She was miserably helpless and wholly incapable of offering any resistance. And, this way the absence of injury on her body or private parts stands well explained. She had no option but to resignedly suffer sexual atrocity thrust on her by the accused.
17. There could be no point in the accused keeping the prosecutrix in captivity for about 28 days, if he did not mean to indulge in sexual intercourse with her. All the circumstances in which the prosecutrix was recovered from the possession of the accused are to be taken note of. Sushila PW 3 stated that after 28 days, the accused had brought her to Sonauli from Bhairawan on a joy visit. At Sonauli, she asked him to take her to her parents. There was an altercation between the two near Santoshi Maa temple in Sonauli. At that very time, the police came and apprehended them. The statement of the recovering S.I. Vashishtha Misra PW 5 is also there that the accused and prosecutrix were covering with each other when he arrested them.
18. The trial judge, in our opinion, wrongly laid emphasis on the aspect of the alleged consent or willingness of the prosecutrix in her kidnapping by the accused and to all that happened subsequently. It is settled position of law that the testimony of rape victim does not require corroboration. There is no rule of law that statement of the prosecutrix cannot be accepted without corroboration in material particulars. Her testimony has to be accepted on the test of probabilities.
19. To recapitulate, in the present case the prosecutrix was a minor aged about 12 to 14 years and had been taken away by the accused from her school. She being a minor, the question of her alleged consent or willingness is immaterial. She was recovered from the possession of the accused 28 days later on 22.9.1977. She emphatically stated to have been subjected to sexual intercourse by the accused 3 or 4 times during her captivity. The same is supported by the medical evidence also, since her hymen was found missing and she was found to be addicted to sexual intercourse. Absence of any other injury on her body or private parts stands explained as we have dealt with earlier.
20. Murder destroys the physical frame of the victim, but a rapist degrades the soul of a helpless female whereof the victim suffers and dies every day.
21. So, in view of the above discussion, the accused did commit the offence under Sections 363 and 376 I.P.C. The trial judge has wrongly acquitted him. The finding of acquittal based on her alleged consent or willingness is perverse.
22. The learned counsel for the accused-respondent has cited the case Jinish Shaha v. State of Bihar 2003 SCC (Crl.) page 395. We have gone through this ruling which is of no help to the accused-respondent for the reason that in that case the prosecution had failed to establish that the prosecutrix was less than 18 years of age as on the date of the incident and further she had willingly gone away with the appellant. Another case relied upon by the learned counsel for the accused-respondent (amicus curiae) is Sudhansu Shekhar Sahoo v. State of Bihar 2003 (SCC) page 1484. The ratio of the said case is that the sole testimony of the victim of an offence of rape can be the basis for conviction provided it is safe, reliable and worthy of acceptance and that courts should be strict and vigilant to protect the society from this evil. It is equally important that there must be fairness to all sides. This decision also, under the facts and evidence of the present case, cannot render any help to the accused-respondent in escaping the consequences of the offence of kidnapping and rape committed by him in respect of a minor girl aged about 12 to 14 years.
23. Resultantly, in view of the above discussion and different facets of the case in the light of the evidence on record, we allow this appeal and reverse the judgment of acquittal recorded by the trial judge. The accused Jalal Ahmad alias Ashraf Jalal is found guilty of the offences punishable under Sections 363 and 376 I.P.C. and he is convicted for the same. He is sentenced under Section 376 I.P.C. for seven years rigorous imprisonment (which is the minimum). For the offence of kidnapping under Section 363 I.P.C. he is sentenced to undergo rigorous imprisonment for five years which shall run concurrently with the sentence of seven years' rigorous imprisonment imposed on him under Section 376 I.P.C.
24. The accused-respondent- Jalal Ahmad alias Ashraf Jalal is on bail. The Chief Judicial Magistrate, Gorakhpur shall cause him to be arrested and lodged in jail to serve out the sentences passed against him.
25. Sri R.B. Sharma, who argued out the appeal on behalf of accused respondent Jalal Ahmad alias Ashraf Jalal, shall get Rs. 1000/- as his fee.
26. The judgment be certified to the lower court immediately for reporting compliance to this Court within two months from the date of receipt.