Ram Bali vs State of U.P.

Under challenge in this appeal is the judgment and order dated 8112006, convicting the appellant Ram Bali under Section 376 I.P.C. and sentencing him to undergo rigorous imprisonment for 7 years with a fine of Rs. 5000/, in default of payment of fine further to undergo additional imprisonment for three months but acquitting the remaining two accused namely Smt. Laxmi and Smt. Vidyawati under Sections 363, 366 I.P.C.

The facts wrapped in brevity are that on 2972004 at about 4:00 p.m. while the father of the prosecutrix had gone to market his daughter Gudiya aged about 1415 years was enticed away by Smt. Vidya and Laxmi (sister and niece of the appellant Ram Bali). Thereafter, the appellant Ram Bali also joined and they went to Delhi where she remained for about 89 days and then she came back on 982004 on her own to her father''s house situated at Village Sahab Khera, Majra Adgaon Pasa Khera, TehsilPurwa, District Unnao. The report was lodged on 182004 at 12:15 p.m. She was medically examined on 982004 at 5:30 p.m. (Ext. Ka1). As per supplementary report (Ext. Ka2) her age was found to be about 17 years. After completion of the investigation the charge sheet was submitted against three persons including the present appellant and as usual after taking cognizance by the Magistrate these accused were committed to the Court of Session. All the accused denied the charges and claimed trial.

3.In support of its case the prosecution examined PW1 Dr. P. Niranjan, PW 2 Km. Gudiya, the prosecutrix, PW3 Hari lal, PW4 Constable Ram Rekha, PW5 S.I. Uma Shanker Singh.

In the statement under Section 313 Cr.P.C. it was said that the witnesses were giving false statements.

After hearing the arguments from both the sides the learned court below found that the prosecution has proved the charge under Section 376 I.P.C. beyond any shadow of doubt and convicted the appellant in the aforesaid manner. However, in respect of Sections 363 & 366 I.P.C. two accused namely Smt. Laxmi and Vidya it was found that throughout her long journey the prosecutrix though had ample opportunity to raise alarm or to tell anybody about her abduction or to slip away from the clutches of the accused but she did not make even a fragile effort. Therefore, the learned court below acquitted both the lady accused under Sections 363 & 366 I.P.C.

I have heard the arguments advanced by Sri Raghu Nath Prasad, learned Amicus Curiae and Sri Amar Singh, learned A.G.A. and perused lower court record.

At the outset it may be mentioned that the very genesis of the prosecution case has been shattered by the evidence of none other than the prosecutrix herself as has been observed by the court below. According to the prosecutrix she was enticed away by Laxmi (the niece of the appellant) and Vidya (the sister of the appellant). They went to Mangat Khera, a place at a distance of about two kilometers. The appellant also joined them out side the village and then all of them went to Unnao and then went to Delhi by different conveyances including bus and train. There were several opportunities when she could have raised alarm because in the bus and train there were several passengers. At one stage the accused had gone to purchase ticket. At that time also she had ample opportunity but she neither raised any alarm nor cried for help nor made any complaint to anybody nor tried to slip away from there. After all she was quite grown up lady aged about 17 years as per radiological report prepared by the doctor. Considering, all these facts the court below found and rightly so that there was no question of any kidnapping or abduction. Accordingly, both the ladies namely Laxmi and Vidya were acquitted of the charges under Sections 363 & 366 I.P.C. Nevertheless, the appellant was convicted under Section 376 I.P.C.

In fact the prosecution story constitutes a couple of events comprising alleged kidnapping/abduction with ulterior motive'' and then commission of rape. In both the offences adultness of the girl and her consent are important factors. As already discussed above, initial part of the sequence i.e. kidnapping and abduction has been found to be doubtful on account of her age (17 years) and conduct (she went along with the accused willingly without making any hue and cry). In the circumstances, the other part of the event i.e. alleged commission of rape by one of the accused i.e. the appellant itself becomes doubtful because of the implied consent keeping in view her age and conduct. Nevertheless, it has to be scrutinized separately.

Learned amicus curiae submits that the radiological age of the girl has been assessed about 17 years which if interpreted even slightly on the higher side then she was more than 17 years old i.e. about 18 years. It is a settled law that there can be variation of two years in age on either side. It is submitted that if a favourable interpretation of only one year is made in favour of the convict/appellant her age comes to 18 and, as such, she being an adult was capable of giving consent. He further submits that her being a consenting party is apparent from her entire conduct from the day she left her house and went along with the aforesaid two ladies namely Laxmi and Vidya (niece and sister of the appellant respectively) and reached Mangat Khera along with present appellant and then went to Unnao by bus and then to Delhi by train and then stayed there for about 78 days in the company of both the above ladies as also the appellant in a room belonging to one Hanuman Prasad a relative of the appellant. Thereafter the appellant got a railway ticket purchased for her. Then she came back to her village on her own on 982004. Then only the recovery memo (Ext. Ka8) is said to had been prepared by the police when coincidental the police when coincidental the come in that village and found that she has returned back on her own. In her examination no injury was found either in the internal part or anywhere. Even any spermatozoa was also not found. Thus, nothing was found to show any sexual assault or alleged rape. In her medical examination she was rather found to be habitual of sexual intercourse. These arguments have substance. The learned court below has not taken into consideration these significant points properly. It only observed that if prosecutrix had given consent for going along with two ladies and the appellant up to Delhi it does not mean that she had given consent for sexual intercourse also. It is true but we cannot ignore some significant facts and surrounding circumstances. The lady went on her own after covering such a long distance with the appellant and two aforesaid ladies. Then she stayed in Delhi for about a week or so with them without making any objection. During that period she also had sexual intercourse with the appellant and that too in a room where at least five persons were staying i.e. both the ladies Laxmi and Vidya, prosecutrix herself, the appellant and the owner of the room namely Hanuman Prasad. From these facts and circumstances and her conduct it can be safely inferred that she was a consenting party for sexual intercourse also if any she had with the appellant. There was no question of her being allegedly raped and that too repeatedly during those seven days of her stay. The absence of any mark of injury or spermatozoa or symptom of sexual assault also suggest that she was a consenting party. The defence has even suggested that her uncle Hanuman also lived in the same room of Ram Bali in Delhi, but this suggestion has been simply denied by the prosecutrix. She did not say that either Ram Bali was not her uncle or he lives elsewhere. Be that as it may, but it appears that prosecutrix went along with the appellant on her own sweet will to Delhi and stayed there for about a week. Then she came back on her own after about a week. But after her coming back probably under the pressure of her guardians she made allegation of alleged rape upon her. Human beings may tell lies but circumstances never tell lies. In any case a ring of doubt is definitely created and the benefit of doubt has always to go in favour of the accused. Therefore, in view of the discussions made hereinabove I intend to give at least benefit of doubt to appellant and allow his appeal and set aside the conviction.

Accordingly, the appeal is allowed. The conviction and sentence is set aside.

The appellant be released from jail, if not wanted in any other case.

Lower court record be remitted back to the court below forthwith for necessary compliance.