Rakesh Tiwari, J.@mdashHeard learned Counsel for the Appellants Sri. Manoj Kumar Rajvanshi, Sri. Y.K. Sinha, Sri. Apul Mishra, Sri. K.N. Bajpai, learned A.G.A. for the State and perused the record.
2. Criminal Appeal No. 5078 of 2006 has been preferred challenging the validity and correctness of the judgment and order dated 29.8.2006 passed by Sri. Ashok Kumar Pathak, Additional Sessions Judge, Court No. 6, Muzaffarnagar in Session Trial No. 1079 of 2003, State of Uttar Pradesh v. Chunnu alias Avinash and Anr. both sons of Chintamani, resident of Police Lines, district, Muzaffarnagar, u/s 363/366/376, I.P.C., sentencing the Appellants to undergo five years R.I. with a fine of Rs. 2,000 u/s 363 of I.P.C. and 7 years R.I. with a fine of Rs. 5,000 u/s 366, I.P.C. and life imprisonment with a fine of Rs. 5,000 u/s 376, I.P.C. All sentences were directed to run concurrently.
3. Criminal Appeal No. 5699 of 2006 has been filed by co-accused Vinod against the validity and correctness of the judgment and order dated 2.8.2006, passed by Sri. Ashok Kumar Pathak, Addl. District and Sessions Judge, Court No. 6, Muzaffarnagar in Session Trial No. 1079 convicting and sentencing the Appellant under Sections 363/366 and 371, I.P.C.
4. Since both appeals arise out of the same incident and transaction they are being decided by this common judgment.
5. The aforesaid appeals have been filed by the Appellants on the ground that the order passed by the court below is bad in the eye of law as there is no evidence to prove the guilt of the Appellants. It is also challenged on the ground that the medical report and the prosecution version are contradictory and that the trial court has failed to consider that the F.I.R. was lodged with delay of more than one month for which there is no proper explanation by the prosecution, as such order of conviction and sentence passed by the court below is too severe.
6. The complainant has stated that delay in filing the F.I.R. was caused due to the reason that the family members were trying to search the girl privately on their own without involving the police due to fear of stigma on her character.
7. The facts of the case, culled out from the record are that F.I.R. was lodged on 24.5.2001 at about 9.45 p.m. by Smt. Satto, w/o Rajvir Singh, r/o House No. 1/17, Police Line Quarter, P.S. Civil Lines, district Muzaffarnagar inter alia that Chunnu alias Avinash, S/o late Chintamani, Vinod, S/o Jhargarh Singh, Narendra, S/o late Chintamani and Doli, R/o Police Line, Gandhi Colony, P.S. Nai Mandi, district Muzaffarnagar, have enticed away her minor girl aged about 16 years while she was returning after giving her last paper of English II from S.D. Girls Inter College, Gandhi Colony, Muzaffarnagar on 21.4.2001 of Intermediate Examination conducted by U.P. Board. Her disappearance came to the notice of her parents when she did not come in the evening, and after making efforts for her search, the family member of the girl came to know that Chunnu alias Avinash, S/o late Chintamani, Vinod son of Jhargarh Singh, Narendra son of late Chintamani and Vinod who also lived in police lines were also missing from the same day. In the meantime Vinod returned after about two weeks and upon an inquiry being made from him by father of the girl, he informed them that he had returned back with Narendra after two weeks and the girl was with Chunnu alias Avinash and Doli alias Arvind.
8. The girl was thereafter recovered on 13.6.2001 with the Appellant Chunnu alias Avinash and Doli alias Arvind. After recording the statement of the girl and conducting medical examination on her by Dr. Shushma Sharma, she was given in the supurdgi of her parents on 21.6.2001.
9. The victim Km. ''R'' P.W. 1 gave her statement before the Court on 7.10.2004 inter alia that she was a student of class XII at the relevant time and aged about 16 years; that after giving her English II paper examination of U.P. Intermediate Board on 21.4.2001, she came out from the college at about 5.00 p.m. whereupon Doli alias Arvind met her at the college gate, she was made unconscious by him. Regarding as to how she came into their clutches, she stated that before she was kidnapped, she had gone to prepare her photographs at the shop of Vinod where she was forced to take some intoxicating liquid and her photographs in compromising position were taken on the basis of which she was being blackmailed. She produced the original mark sheet of her High School examination in which her date of birth is recorded as 24.6.1985 and also submitted attested copy of the same. She also stated that she had been taken to Meerut in a car where she was kept in a rented room and thereafter was taken to Kanpur after 15 days in the night hours; that she was taken by a train so that she could not attract the attention of any person as she was threatened. Similarly, she was taken in the night to Agra where a friend of Chhunnu lived with his family and Chhunnu told his friend that she is his wife. He had not told any body that she had been enticed away as she was threatened with life of her brother. In Agra they lived about 8-10 days and there she was given a room to sleep with Chhunnu-Appellant who told her that he would marry her.
10. The girl has given statement to the Sub-Inspector that all the aforesaid four persons were blackmailing her from the day she had gone to the shop of Vinod for getting photographs prepared for affixing it on her examination form but apart from her photographs for the purpose of examination some more photographs were also taken in compromising position after forcing her to drink some intoxicating liquid. She also stated that she could not cry for help as she was threatened. She denied the suggestion that she has not been abducted by Chhunnu and others and that she was not above 18 years of age at the time of her abduction.
11. P.W. 2 Smt. Satto Devi wife of Sri. Rajbir Singh, has stated that at the time of incident, her daughter was studying in Class XII. She had gone to give her Intermediate final examination on 21.4.2OO1 at Sanatan Dharm Inter College. When she did not return from the, college after the examination in the evening a search was made but she could not be traced out; that Chhunnu, Narendra and Vinod were also not present in the police lines, i.e., at their residence. After some time when Vinod returned, he on inquiry informed her that if any legal step is not taken against him, he may inform her about her daughter. In these circumstances, after knowing the full facts the F.I.R. was lodged after about a month of actual date of incident. She also denied the fact that her daughter was above 18 years of age.
12. P.W. 3-Dr. Sushma Sharma, Medical Officer, Nagriya Pariwar Kalyan Kendra, Saharanpur, gave statement on 18.4.2006 and confirmed the entries in the injury report. In her cross-examination she stated that if unmarried girl is raped by one or more than one person(s), there would be some injury on her body as well as on internal private parts of her body.
13. P.W. 4-R. K. Malik, P.S. Nakud, district Saharanpur, stated that he had investigated Case Crime No. 211 of 2001 u/s 363/366/376, I.P.C. on 13.6.2001 as he was posted at that time at P.S. Civil Lines, Saharanpur. He further stated that the girl, the accused Chhunnu and Doli were brought to the police station, Civil Lines after arrest by head constable Rakesh Sharma and Constable 734 Rajnish Kumar. In his cross-examination he stated that the girl gave statement that Vinod had taken some obsene photographs of her in his photoshop in compromising position.
14. Similarly, P.W. 5-S.I. Virendra Singh, P.S. Kotwali Dehat, district Bulandshahr, proved the chick report and copy of G.D. report as Annexures-Ka-7 and Ka-8. In his cross-examination, he has stated that case was registered at 9.45 p.m. on 24.5.2001.
15. The accused Vinod, Chhunnu alias Avinash and Narendra were examined u/s 313, Code of Criminal Procedure on 24.7.2006 who denied the prosecution case. The judgment was. delivered by the Addl. Sessions Judge on 29.8.2006 whereby the accused Chhunnu alias Avinash, Narendra Kumar and Vinod were convicted under Sections 363/366 and 376, I.P.C., Doli alias Arvind had died during the trial. The question of sentence was decided on 29.8.2006 and by his order of the same date, the Addl. Sessions Judge, sentenced Chhunnu alias Avinash, Narendra Kumar and Vinod under Sections 363, 366 and 376, I.P.C. to undergo five years R.I. with a fine of Rs. 2,000 u/s 363, I.P.C. and 7 years R.I. with a fine of Rs. 5,000 u/s 366, I.P.C. and life imprisonment with a fine of Rs. 5,000 u/s 376, I.P.C. All sentences were directed to run concurrently.
16. The contention of learned Counsel for the Appellant is that from the medical examination of the girl which was conducted on her on 13.6.2006, it appears that the girl was 19 years of age and there was no medical corroboration of the alleged rape.
17. The last contention of learned Counsel for the Appellant is that the mark sheet of the prosecutrix was not proved, hence unproved certificate cannot be relied upon for determination of age of prosecutrix which is always of importance. He relied upon paragraphs 7 and 8 of a judgment delivered in the case of
18. Learned Counsel for the Appellants has placed reliance upon a judgment rendered in the case of Lalliram and Anr. v. State of Madhya Pradesh (2009) 1 SCC 17 : 2008 (3) ACR 3002 (SC), wherein it has been held that absence of any injury is an important factor and in case where testimony of prosecutrix found to be self-contradictory and also inconsistent with testimony of other P.Ws. as well as with medical evidence, the accused cannot be convicted on the basis of her version.
19. The facts of the aforesaid case of Lalliram (supra) show that the prosecutrix was pregnant at the time of occurrence when she was gang raped, but the doctor who examined her stated that she was actually on menstruation period. She had stated that one of the accused had dragged her by catching her bunch of hair for a considerable distance, but the trial court noticed that if that was so there would have been injuries but she had not stated about this part in the F.I.R. She also deposed that her husband was also dragged by two persons and he had also suffered several injuries, but this part also was belied by the medical evidence.
20. Learned Counsel for the Appellant further relied upon a judgment delivered in the case of Radhu v. State of Madhya Pradesh (2008) 2 SCC 207. In that case the Court was considering the credibility and need of corroboration of facts required for conviction wherein it has been held that evidence of prosecutrix was full of discrepancies and did not inspire confidence. More other discrepancies were also found in her mother and father''s evidence in that case and her story was also not corroborated by medical evidence regarding sexual intercourse or rape. In these circumstances, the Apex Court came to the conclusion that finding of guilt in the case of rape can be based on uncorroborated facts of prosecutrix and her testimony should not be rejected on the basis of minor discrepancies. It was further held by the Apex Court that ''absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor can be construed as evidence of consent, nor the opinion of a doctor that there was no evidence of any sexual intercourse or rape sufficient to disbelieve the victim. However, the Apex Court further held that false charges of rape are not uncommon, and there are some rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Therefore, the question whether there was rape or not would depend ultimately on the facts and circumstances of the case.
21. Per contra, the learned A.G.A. submitted that the victim Km.R. deposed in the Court that on the date of incident she was 16 years old being her date of birth as 24.6.1985. He further stated that the girl Km.R. has gone to give her English grammar paper and when she left the college after giving the paper, Chhunnu alias Avinash, Narendra and Doli alias Arvind met her and made her unconscious and she was raped against her wish. They had threatened and intimidated her. She was being blackmailed by Chhunnu alias Avinash by giving assurance that he will marry her, but she could not skip due to threat of life of her brother.
22. After hearing learned Counsel for the parties, we are of the opinion that there is no reason to hold any contradiction between the medical examination and the age given in her High School Certificate for the reason that the medical examination for determination of age has an inherent variation undulating both the ways. Therefore, the specific age given in the High School certificate may normally be preferred unless facts and circumstances are compelling.
23. The prosecutrix appears to have been blackmailed, raped against her will and consent after the accused had taken some obsene photographs of hers. In our considered opinion the matter was more than one and half month old from the date she was raped, hence even if no injuries have been found on her body or she has been found to be accustomed to sexual intercourse would not demolish the allegation of rape, it would also be wholly immaterial whether later on she did not try to run for the reason that she had succumbed to the coercing pressure. She had not consented to sexual intercourse by all four persons even assuming that Chhunnu had promised to marry her.
24. Both the cases of Lalliram and Anr. v. State of Madhya Pradesh and Radhu v. State of Madhya Pradesh (supra) are not applicable to the facts and circumstances of this case in so far as the question regarding her statement in the aforesaid case regarding rape upon her was found to be false and uncorroborated with the evidence of other P.Ws. as well as from medical examination. In the instant case, solitary evidence of prosecutrix Km.R. is found to be believable and her statement inspires confidence.
25. There is no evidence of age except her certificate which shows that she is minor. She had brought her original mark sheet in the Court and had filed attested copy of the same. She has not been cross-examined on this point regarding her age in the High School mark sheet. Therefore, now at this stage, learned Counsel for the Appellant cannot say that certificate was unexhibited. In her statement, she has clearly stated that she has submitted attested copy of original mark sheet. Her mother has also accepted that she is minor and it cannot be said that there can be no error in the medical examination.
26. We find that no case has been made out for leniency in view of the facts and circumstances of this case where a minor girl has been made victim of blackmail and rape after abduction by number of persons by extending threat to her and her brother''s life.
27. In the circumstances, after hearing the arguments and going through the records, we affirm the view taken by the court below as there is no illegality or infirmity in the orders dated 29.8.2006 and 2.8.2006, passed by it. Accordingly, the order of conviction and sentence of the court below is confirmed and the appeals stand dismissed, accordingly.
Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.
