Inder Sen Israni, J.@mdashThis Criminal appeal u/s 374 Cr. PC has been filed against the conviction and sentence passed by the learned Sessions Judge, Bundi, on 20th October, 1981 In Sessions Case No. 34/1981, by which he convicted the accused appellants under Sections 342, 343 & 366 IPC and sentenced each of them to suffer rigorous imprisonment for one and half year and a fine of Rs 500/-. In default of payment of fine to further undergo three month''s rigorous imprisonment.
2. Briefly stated the facts of the case are that a report was lodged against the accused and one Panchu at Police Station Hindoli, district Bundi, on 29th November, 1980, by one Chotu that his daughter Mst. Rami was abducted and kept in wrongful confinement by the accused appellants. FIR No. 129/80 was registered and investigation commenced. During the course of investigation, the clothes of prosecutrix and she her-self was recovered. The prosecutrix was medically examined. The police recorded her statement u/s 164 Cr PC. After completing the investigation, a challan was submitted by police under Sections 366, 376 IPC against the accused appellants. The prosecution produced as many as seven witnesses in the Court of Sessions Judge and three witnesses were examined on the side of defence After examining the accused appellants u/s 313 and hearing the arguments the accused appellants were acquitted of the charge to have committed offence u/s 376 IPC but were convicted and sentenced as mentioned above
3. It is contended by Shri Pareek, learned Counsel for the appellants that the conviction has been based on sole testimony of prosecutrix Mst. Rami, PW 2 and there is no other witness to support her solitary statement It is contended that she cannot be termed to be a witness of sterling worth and several contradictions have came up in her statement, which shows that no reliance can be placed on her evidence. It is also contended that the trial court disbelieved her allegations regarding committing of rape and acquitted the accused appellants of the offence u/s 376 IPC There was hardly any evidence to convict and sentence the accused appellants under Sections 342, 343 and 366 IPC. It is pointed out by the teamed counsel that the incident is said to have taken place on Nov. 22, 1980, but FIR was lodged on November 29, 1980 after delay of as many as seven days. This delay has not been explained by the prosecution. It is also pointed out that even though prosecutrix is married, she was living in house of her father and she has clearly stated in her statement recorded under sec 164 Cr PC that she wants to stay with her father and in her statement recorded in court, she has stated that she is not kept properly in house of her husband. It is also painted out by learned Counsel that from her statement it is clear that she was taken to several places while she was sitting on back of cycle but she did not raise any hue and cry even while passing through bazars and from the pucca roads. It is also painted out that even though she stayed with her sister Pushpa, but she did not complain her that she has been forcibly taken by the accused appellants. It is, therefore, submitted that do offence is made out against the accused appellants under Sections 342, 343, 376, IPC.
4. It is contended by Shri Alvi, learned Public Prosecutor that in her evidence the prosecutrix has stated that she was forcibly taken away by the accused persons. Even though an offence u/s 376 is not made out and they have been acquitted by the trial court, still the offence under Sections 342, 343, 366 is clearly made out from her statement, It is pointed out that her statement is completely reliable and the trial court has rightly relied upon the same.
6. I have heard both the parties gone through the judgment of the trial court as also the documents and evidence on record. PW 2 Mst. Rami, prosecutrix in her statement has stated that accused appellant Chagna told her that her sister Pushpa was calling her, therefore she accompanied Chagna She has made it clear in her statement that Mst. Pushpa is not her real sister but she calls Chagna as ''Jijaji, and in her statement u/s 161 Cr. PC she has stated that Chagna told her that she will have to live with accused appellant Harnath. She was taken to Mohanpura, where she stayed for one night and slept with her so called sister Pushpa Thereafter, she was taken to village ''Pade'' on cycle. In ''Pade'' she was made to live in house of Haranath. She alleges that Haranath committed rape with her while she stayed in his house She lived in Pade for seven-eight days. In her cross examination, she states that she had gone to attend a ''Mela'' (festival) where thousands of people had come Since Chagna told her that her sister Pushpa was calling, therefore, she accompanied him. The cycles were kept at quite a distance from place of Mela. She states that when she was forced to sit on cycle, she raised hue and cry She was confronted with her statement recorded u/s 161 Cr. PC, in which she does not mention that she raised hue and cry. In the first instance, she stated that when she was not prepared to accompany them she was given beating with sticks that thereafter, she says that she was not given beating with sticks but she was threatened that if she will not accompany, she will be beaten. She states that Chagna bad forced her to sit on the back of the cycle. She was confronted with her statement Ex. D 2, in which she hat stated that she was made to sit infront of the cycle and not in back. She states that she was not tied with anything on cycle nor her mouth was closed with any thing. She states that on the way-several villagers came but no one came for her help. When they reached a place ''Chavni'' all the accused appellants stopped for taking tea. She was not taken to shop and was made to sit in back of the shop where on Gopal was sitting. She says that Gopal was on her side and was telling Chagna and Harnath why were they taking her along with them. She states that she did not raise any hue and cry at that time From Chavni, she was taken to Mohanpura and on the way two villages come. At Deoli, she met some ladies also. She also says that she did not jump from the cycle while she was taken from one place to another. At one place she had jumped from the cycle but at that time there was no one on the road. She did not raise any hue and cry at Deoli, as none of her relatives lived in that village. She states that while in Mohanpura, she lived with her sister Pushpa and slept in her room. The door was closed from inside. She states that she could not sleep at the night even though her sister Pushpa went to sleep in normal course. When enquired why did not she go out-side the house, she replied how she could go out-side the house. She also stated that she was not tied in the house. When they reached village ''Pade'' she did not raise any hue and cry there, neither she impugned from the cycle on seeing several persons ground there. She say that there were two ladies in the house of appellant Harnath where she was made to stay. There is a well in the village of Harnath where she used to go daily for taking bath. On that well, several ladies from the same locality came for fetching water. She states that she did tell some of the ladies at the well that she has been brought forcibly here but could not give names of any of the ladies to whom she talked. She states that she is very unhappy in house of her in laws From this statement, it can be seen that she slept at night with her sister Pushpa, but she did not inform her or tell her that she has been brought forcibly,. neither walked out of the house The door was closed from inside and there was no lock either from the inside or outside During the day she used to go on the well for taking bath every day but she did not go away from the house of Harnath and prefer to go back and stay there till she was recovered.
6. PW 4 Chandra is brother of the prosecutrix. He says that prosecutrix had gone along with other members of the family to festival and after some time she went along with five-six ladies to a temple Other ladies came back after about 1/2 hour and informed that prosecutrix had gone with Chagna and Harnath. He says that he did not inform the Police that her sister bad gone away with Chagna and Harnath even though he came to know about this on Saturday evening. He further says that when he went to Pade, where he met Rami, she did not tell her that Chagna bad brought her forcibly. The prosecutrix after she reached Police Station, stated that she was forcibly brought by Chagna and Harnath. She did not say so while in village Pade. Prosecutrix also did not tell her where Harnath and Chagna kept her or she was allowed to move. She also did not tell him whether both the persons had committed sexual intercourse with her.
7. PW 5 is Gopal, who according to prosecutrix accompanied her when she was taken by Harnath, Chagna and Panchu. It may be stated that no challan was filed against Panchu and Gopal. This witness is brother of Pushpa, who is wife of Chagna, whom prosecutrix calls as her sister. In his examination-in-chief, this witness has stated that the prosecutrix inquired from him whether his sister Pushpa had come in the festival. He further states that prosecutrix told her that she would go with Harnath. Then, she on her own desire, accompanied with Harnath. He further states that he sat infront of the cycle and prosecutrix sat in back of the cycle, winch was driven by Har Nath. This witness was declared hostile by the prosecution. DW 1 Narain has stated in his examination-in chief that he and Ram Chandra accompanied Harnath Ram Chandra is brother of prosecutrix Ram Chandra served them tea and inquired from Harnath whether he will be prepared to marry with prosecutrix Harnath told him that be is unmarried and very poor person and further stated that no one will be prepared to marry him. DW 3 Heera Lal has stated that one year before, he invited Chotu, father of prosecutrix and his family for eating food, Harnath had also come.
8. Thus, from the evidence discussed above, it can be seen that while prosecutrix was going on cycle with Chagna and Harnath, she had occasion to pass through several villages on the way, where she could have got down from cycle and informed the people that she was taken away by force Apart from that when she said that she did not complain even to Pushpa, whom she calls car sister that she had been brought forcibly by Harnath and Chagna. She had been visiting every day the well in the village where several ladies came & she had occasion to raise hue & cry that she had been brought forcibly by accused appellants. PW 4, her brother also states that when for the first time he met her sister at village Pade she did not tell him that she had been brought forcibly by the accused appellant or that the accused persons had committed rape upon her. From the statement of PW 2 the prosecutrix, it cannot he said that she is a witness of sterling-worth.
9. In Bondal and Ors. v. State of Madhya Pradesh 1983 Cr. LJ 607 it was held that when the house in which prosecutrix was detained had not remained lonely and the prosecutrix was found to be telling lie regarding attempt to commit sexual intercourse with her during her detention inside the house, in such situation, offence u/s 366 IPC is not made out against the accused appellants. In this case also the story of the prosecutrix regarding committing of offence u/s 376 IPC has not been made out and the trial court has acquitted the accused appellants of the charge u/s 376 IPC By the statement of prosecutrix herself, she was not detained forcibly nor she was lonely, she lived with her sister Pushpa but did not complain her regarding her bringing forcibly against her wishes by the accused appellants Babu v. The State of Rajasthan 1982 Cr. LR (Raj.) 298 was a case where the prosecutrix did not raise and hue and cry inspite of opportunities. It was held that had she been compelled by force to go from one place to another or had she been induced by any deceitful means to go from one place to another she would have surely raised a hue and cry especially when she knew it well at the house of her girl friend Jhamku that the appellant was negotiating with others for her sale. Her conduct in going with the appellant from one place to another without raising any hue and cry shows that she was a consenting party to her removal by the appellant.
10. In Santram v. The State 1983 RLW 429 offence under Sections 366 and 376 was considered It was observed by this Court that in the circumstances the prosecutrix did not raise any alarm even while passing from Mandi, nor she sustained any injuries, go to point out that in the entire affair, she was a willing party.
11. In Mustaq Ali v. State 1977 Cr. LR 127 was a case in which the appellant was charged to have committed offence under Sections 366, 376 and 342 IPC. It was observed in this case that had the prosecutrix struggled or put up any resistence at the time when he was ravished by the appellant,, she would have received some injuries on her body because such injuries were likely to have been caused in a struggle. It appears that she was a consenting party to the sexual intercourse. Since she was a consenting party, it was held that there was no wrongful confinement, when it was consented to by the person affected. The accused was acquitted of the charges levelled against him
12. In Munshi Ram v. State of Raj (1983 Cr. LRj 274 while considering the offence under Sections 363 and 366, it was observed that when the prosecutrix visited several places in the company of accused, it can be held that consent was obtained by force of fraud or was induced by any deceitful means, hence no offence was committed.
13. From the law discussed above, therefore it can be said that in the case under consideration also the prosecutrix was taken from place to place and passed through several villages while she was sitting on the cycle in the back but she did not raise any hue and cry at any place, although she has aft one place said that she jumped on the road where no one was present bet statement does not inspire any confidence. She was never restrained from moving about and even passed night with her sister Pushpa but she did not make any complaint to her. She did not make any complaint to her brother PW 4 Chandra, when he met her at village Pade regarding bringing her forcibly or committing rape by the accused appellant She has also stated that she is unhappy to live with her in-laws, and, therefore, she stayed with her parents. To my mind, therefore, after considering all the circumstances and evidence on record, she was a consenting party and no force was used by the accused appellants in taking her away along with them from festival. I therefore, do not find any offence to have been made out under Sections 342/343, 366 IPC against the accused appellants. The judgment of the trial court dated 20th October, 1981, passed in Sections Case No. 34/1981, is set aside and the accused appellants are acquitted of the charges levelled against them. The bail bonds of the accused appellants shall stand discharged.
