Raj Kumar Bajaj alias Raja vs State of M.P.

Hon''ble Shri Pritinker Diwaker, J.—As these two appeals arise out of the same judgment and order dated 24.9.1997 passed by Special Judge/Additional Sessions Judge, Raipur in Special Criminal Case No. 426/1996 convicting the accused/appellants under Sections 363/34, 366/34 and 506-B IPC and sentencing each of them to undergo rigorous imprisonment for 3 years with fine of Rs. 150/- u/s 363/34, rigorous imprisonment for 5 years with fine of Rs. 200 u/s 366/34 and rigorous imprisonment for 3 years with fine of Rs. 150 u/s 506-B IPC, plus default stipulations, they are disposed of by this common judgment. Facts of the case in brief are that on 26.10.1996 FIR Ex. P-3 was lodged by the prosecutrix (PW-3) aged about 16 years at the relevant time that on 21.10.1996 at about 4 p.m. when she was going to her mother who was selling vegetable in the market, on the way accused/appellants whose names she came to know later, met her, accused Raja who was having a knife threatened her, took her to Danitola and confined her in a room which was bolted from outside. Thereafter, both the accused/appellants left the spot. As both the accused/appellants were calling each other by name, she came to know about their names. Before taking her to Danitola, they collected the key of the said house from another house at Gokulpur and on the way while sitting in rickshaw, accused/appellant Raja was pressing her breasts showing her knife. In the evening accused Raja came there and committed forcible sexual intercourse with her and he remained with her for the entire night and during this period he threatened her too. She was kept in confinement for three days and when accused Raja used to go out, lock was put on the door and in the night he used to commit sexual intercourse with her. On 25.10.1996 accused Raja left the place after informing her that he was going to Nagpur and at about 1-1.30 in the midnight, her father, mother and neighbour came there and called her by name and after the latch of the house was opened by someone, she came out of the house and informed the incident to her mother and father and then the report was lodged. Based on this FIR, offences under Sections 363, 366, 376, 34, 342, 506-B IPC and 3(1)(xii) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act (for short the "Special Act") were registered against the accused/appellants. Prosecutrix was medically examined on 26.10.1996 by Dr. (Smt.) Asha Tripathi (PW-8) who gave her report Ex. P-6. After completion of investigation, charge sheet was filed by the police on 13.11.1996 for the offences under Sections 363, 366, 376, 34, 342, 506-B IPC and 3(1)(xii) of the Special Act. Court below framed the charge against accused/appellant Pappu under Sections 363/34, 366/34, 342/34, 376/34, 506-B IPC and 3(2)(v) and 3(1)(xii) of the Special Act and under all the Sections except 506-B IPC against accused Raja also.

In support of its case, prosecution has examined 12 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties, the Court below has acquitted the accused/appellants of the charges under Sections 376, 342 IPC as also the charges under the Special Act but convicted and sentenced them as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellants submits that there is no legally admissible evidence available on record with respect to the age of prosecutrix and the only piece of evidence against the accused/appellants is Ex. P-15-A i.e. the photocopy of Kotwari register in which date of birth of the prosecutrix is mentioned as 20.7.1980. He submits that this document has merely been filed by the investigating officer (PW-12) but has not been proved by the prosecution as required under the law. He submits that even the original Kotwari register was not produced before the Court and therefore the same has no legal sanctity. He submits that in the document Ex. P-15-A date of birth of the prosecutrix is mentioned as 20.7.1980 but on what basis and by whom it is recorded, has not been proved by the prosecution. He submits that prosecutrix was in the company of accused/appellants for five days without offering any resistance and during this period though she used to roam around freely, no complaint was made by her to anyone. Counsel for the accused/appellants further submits that after taking the house on rent the prosecutrix started living with the accused/appellants and though she was already married, she refused to live with her husband and all this shows that she was a consenting party and wanted to live in the company of accused Raja.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the Court below are based on due appreciation of the evidence of the witnesses and therefore no interference with the same is called for.

Heard counsel for the parties and perused the material available on record.

Prosecutrix (PW-3) has stated in her evidence that on the date of incident while she was going to her mother to sell vegetables, on the way accused/appellants met her and took her to a house situated at Danitola locality after being threatened by knife where she was subjected to forcible sexual intercourse by accused/appellant Raja and at that time accused Pappu remained out of the house by bolting the door from outside and that he did not do anything with her. As both the accused/appellants were calling each other by name, she could know their names. According to this witness, she stayed in the said house along with accused/appellant Raja for four days and during this period accused Pappu also used to visit there. She has stated that when accused Raja went out, he used to lock the door from outside and make physical relations with her on return. Four days thereafter her parents came there and took her with them in the absence of accused Raja and then the report was lodged. According to this witness, about a year prior to the date of incident her marriage had taken place with one Manoj resident of Bhandara and that she stayed in her matrimonial home only for three days but during this period she never slept with her husband and was sleeping with her mother-in-law and that after marriage, her husband never took her to her matrimonial home on account of insufficient dowry being given to him. There are several contradictions and omissions in paragraphs No. 17, 18, 19 and 23 of the evidence of this witness if compared to her case diary statement and the FIR. This witness has admitted that when she was kept in the house, on account of threats given by accused/appellant Raja she did not raise any hue and cry nor did she call anyone for help. Sukhauram (PW-1) - father of the prosecutrix has stated that about a prior thereto marriage of the prosecutrix had taken place and she was sent to her matrimonial home. He brought his daughter (prosecutrix) back on the occasion of Tija festival and when his son-in-law visited his house to bring her, she was not sent with him and he got back alone. On the date of incident, according to this witness, the prosecutrix left the house saying that she was going to her mother to take vegetable and when her mother returned home at about 8 p.m. he asked her about the prosecutrix, she (his wife) told him that she (prosecutrix) did not go to her. This witness has further stated that on the third day his nephew Sangeet (PW-11) came to him and told that he had seen the prosecutrix standing at the door of one house. Thereafter, he along with other persons went to the said house and on being called aloud for 3-4 times, she came out and then the report was lodged. In respect of her age, this witness has stated that he did not remember the date of birth of the prosecutrix but it was recorded in the Kotwari register. This witness has stated that no missing report of the prosecutrix was lodged by him. Smt. Memin Bai (PW-2) - mother of the prosecutrix has stated that on or around Dashera festival she had gone to the market to sell vegetable and in the evening when she returned home, her husband asked her about the prosecutrix and she told him that she did not go to her and then search was made for her. Thereafter, according to this witness, it was informed by Sangeet (PW-11) that he saw the prosecutrix at the door of one house and when she along with her husband and other persons went there and as the door was shut from inside, it was pushed open and the prosecutrix came out and disclosed the incident to her. Dhaniram (PW-4) - the owner of the house where prosecutrix was allegedly kept by the accused persons has stated that on the date of incident accused Raja and prosecutrix came to him on rickshaw for taking his house on rent. According to him, at that time the prosecutrix was sitting in rickshaw and on being asked by him about her, accused Raja told him that she was his wife. According to this witness, he knew accused Pappoo since before and accused Raja had come to him with his reference. This witness has further stated that one day when he went to the room of accused Raja for settling the rent, prosecutrix who was combing her hair by sitting in the verandah told him that he (accused Raja) had gone to Nagpur. Anjore (PW-5) is the witness who accompanied Sukhauram (PW-1) and Memin Bai (PW-2) to the house of Dhaniram (PW-4) but he has not stated anything specific. Yashwant (PW-6) is the witness to seizure of underwear and nail cutter made under Ex. P-4. Nanda Gwal (PW-7) is the witness who has proved caste certificate of the prosecutrix Ex. P-5. Dr. (Smt.) Asha Tripathi (PW-8) is the witness who medically examined the prosecutrix and gave her report Ex. P-6 opining that she was habitual to sexual intercourse, no external or internal injury was there on her person and that two fingers easily entered her vagina. Though medical report Ex. P-6 shows that for determination of age the prosecutrix was referred for x-ray. no such report is on record. Smt. Laxmi Bai (PW-9) has stated that she saw the prosecutrix and accused Raja living in the house of her brother-in-law on rent. She has stated that prosecutrix used to go out for answering the call of nature and to the nearby hand pump to fetch water. Prosecutrix is also stated to have roamed here and there freely and talked to her also but did not make any complaint to her regarding the fact that she was confined in a room by accused Raja. Maniram (PW-10) is the neighbour of Dhaniram (PW-4) who has stated that the house where the prosecutrix was kept by accused Raja was never locked and that she used move freely without making any complaint. Sangeet (PW-11) - cousin of the prosecutrix has stated that he came to know from the father of the prosecutrix that she was missing. According to him, one day he saw the prosecutrix standing at the door of one house and accordingly he informed the same to her father. C.P. Singh (PW-12) is the investigating officer who supporting the case of the prosecution has stated that during investigation he seized one Kotwari register Ex. P-15 and photocopy of the relevant page Ex. P-15A. Ex. P-15-A reflects the date of birth of the prosecutrix as 20.7.1980. However, the original Kotwari register was not produced before the Court and there is no evidence to show as to on what basis her date of birth was recorded in the Kotwari register as 20.7.1980.

Minute examination of the evidence of the witnesses particularly that of the prosecutrix (PW-3), her parents (PW-1 and PW-2) and Laxmi Bai (PW-9) goes to show that she (prosecutrix) was a consenting party. Evidence further shows that the prosecutrix lived in the house of Dhaniram (PW-4) along with accused Raja for five days and used to go out for answering the call of nature and fetching water from the hand pump but during this long period she, in spite of having full opportunity, did not make any complaint to anyone about her being confined by the accused/appellant Raja. This conduct of the prosecutrix also makes it clear that she was a consenting party to the act of accused/appellant Raja. Now the only question is regarding her age. Prosecution has filed photocopy of the Kotwari register (Ex. P-15-A) but even this document has not been proved by the prosecution in accordance with law. Original Kotwari register has not been produced in the Court by the prosecution nor there is any evidence to show as to on what basis the date of birth of the prosecutrix was entered in the said Kotwari register as 20.7.1980. Even the parents of the prosecutrix have not stated anything regarding the age of the prosecutrix. Moreover, the doctor (PW-8) who medically examined the prosecutrix has stated that she was a fully grown up woman. Though the record shows that prosecutrix was referred for x-ray for determination of age, there is no such report on record. Thus in view of the aforesaid discussion, this Court is of the considered opinion that the findings of the Court below are not based on just appreciation of the evidence on record and that being so the judgment impugned is not sustainable in the eye of law. Accordingly, the appeals are allowed. Accused/appellants in both the appeals are acquitted of the charges levelled against them. They are reported to be on bail. Their bail bonds stand discharged.