Vimla Singh Kapoor, J
1. Case put-forth by the prosecution in nutshell is that on 30.12.2007 at about 8 PM when the prosecutrix (PW-2) along-with her elder sister and
friends was enjoying village fair, the accused/appellant herein came there and caught hold of her hands. It is alleged that when she tried to free herself
from the clutches of the accused/appellant, he tied both her hands with the Saari worn by her and when this act of the accused/appellant was opposed
by her sister and friends, he threatened them all of being beaten. Thereafter, he took her to village Chhurawand and kept her in confinement in the
house of one Rasool (PW-4) and subjected her to forcible sexual intercourse twice on that day. She is alleged to have been held captive by the
accused/appellant in the house of PW-4 till 02.01.2008 and during all this period she was being sexually abused by him. On 02.01.2008 her father
Govind Rao (PW-3) came there and freed her. As is alleged by the prosecution, when no decision could be taken in the Panchayat meeting so
convened, the FIR (Ex.P-3) came to be lodged on 07.01.2008 i.e. about a week after the date of incident for the offences underS ections
363, 366, 342 and 376 IPC. After medical examination of the prosecutrix and completion of other investigation related formalities, charge-sheet was
filed against the accused/appellant under these sections followed by framing of charge accordingly.
2. On the basis of evidence adduced by the prosecution and considering the statement of the accused/appellant recorded under Section 313 Cr.P.C.
learned Court below convicted the accused/appellant under Sections 363, 366, 376 and 342 IPC imposing the sentence of RI for 3 years with fine of
Rs.100 U/S. 363; RI for 5 years with fine of Rs.500 U/S. 366; RI for 7 years with fine of Rs.500 U/S. 376 and SI for 6 months under Section 342 IPC
plus default stipulations. Hence this appeal.
3. Counsel for the accused/appellant submits that if over all evidence of the prosecutrix (PW-2) is seen in its entirety, she appears to have been a
consenting party to the act of the accused/appellant. He submits that the story of her abduction by the accused/appellant from a crowded place that
too in the presence of her elder sister and friends and then keeping her in the house of PW-4 for about 3 days and commission of sexual intercourse
with her appears to be highly improbable. According to the counsel for the appellant, the prosecution has not even proved by leading clinching
evidence that on the date of incident prosecutrix was below 18 years of age. The gist of the over all submission made by counsel for the
accused/appellant is that the prosecution has utterly failed to prove its case beyond all reasonable doubts and, therefore, the benefit has to go to the
accused/appellant in the form of acquittal.
4. State counsel however supports the judgment impugned and submits that the findings recorded by the Court below are fully based on the evidence
adduced by the prosecution and, therefore, the well written judgment impugned in this appeal does not warrant any interference by this Court.
5. First of all, it appears to be relevant for this Court to mention at the outset that there is delay of about a week in lodging the report Ex.P-3 on
07.01.2008 though the incident had taken place on 30.12.2007, and except attributing its reason to convening of Panchayat meeting, no satisfactory
explanation has been offered by the prosecution. Let us now turn to the factual aspect of the case, which unfolds that on 30.12.2007 at about 8 PM
when the prosecutrix was watching village fair in the company of her elder sister and the friends, the accused/appellant came there from behind, tied
her hands with her own Saari, and took her away to the house of PW-4, made her captive for about 3 days and all along sexually molested her many a
time. The version of the prosecutrix that the protest made by her sister and the friends did not yield any positive result, does not convince the judicial
mind of this Court because had the prosecutrix not readily agreed to this act of the accused/appellant of taking her away, it would have been next to
impossible for him to do all that from a huge gathering present in the village fair. The age disclosed by the prosecutrix comes to 17 years whereas her
father has disclosed it to be 15. However, there is no substantial piece of evidence as to on what basis such age has been arrived at. Father of the
prosecutrix (PW-3) has categorically stated that he himself had taken his daughter for admission in the school but he did not disclose her date of birth
and the same was recorded by the school teacher of his own. He has reiterated that he does not recollect the date of birth of the prosecutrix. Though
certain un-exhibited mark sheets of the prosecutrix of Class IV and VI disclose her date of birth to be 05.05.1992 but in the absence of the fact as to
on what basis or at whose instance it came to be recorded, the prosecution cannot derive any benefit of the same. Though the prosecutrix is stated to
have failed once in Class VI and once in Class VIII, she has not given the specific detail as to when she studied those two classes. She has not even
stated as to in which class she was studying on the date of incident. In these circumstances, where the prosecution could not prove the factum of the
prosecutrix being below 18 years of age on the date of incident, she would legally be treated above
18. What is more surprising here is that one of her friends namely Chitai (PW-7) who was the resident of the village of the prosecutrix and was
present along with her at the time of incident, has not supported the case of the prosecution and has been declared hostile. She is stated to have not
even identified the prosecutrix or the accused. All this apart, Dr. C. Rao (PW-5) who Medically examined the prosecutrix and gave her report Ex.P-8
has categorically stated that her hymen was old torn, her vagina easily entered two fingers, no external injury such as scratches etc. were found on
her body and that she was habitual to sexual intercourse.
6. In view of the aforesaid factual discussion, this Court has no hesitation to say that the prosecution has utterly failed to prove its case under any of
the sections for which the accused/appellant has been convicted by the learned trial Court below. At the same time, the Court below also appears to
have been heedless to the evidence of the prosecution witnesses while recording a finding of conviction against the accused/appellant under Sections
363, 366, 376 and 342 IPC and imposing the sentence of various descriptions given above. Being all this, the judgment impugned is liable to be set
aside and the appeal deserves to be allowed.
7. In the result, the appeal is allowed, judgment impugned is set aside and the accused/appellant is acquitted of the charges levelled against him. The
appellant who appears to be in jail consequent to cancellation of bail and issuance of non-bailable warrant, be set free forthwith if not required in any
other case.