JAI NARAIN Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an appeal from the judgment and order of Sri I. P. Singh, Assistant Sessions Judge, Aligarh by which he convicted the appellants (Jai Narain, Rammo, Babu and Ramji Lal) under Sections 366 and 368 IPC and sentenced them to four years' RI each. Appellant Ramji Lal was further convicted under Section 376 IPC and was sentenced to one years RI.

(2.) THE prosecutrix in this case is one Km. Shushila. In March 1971, according to the medical evidence on record, she was about 18 1/2 years old. She is a resident of village Barsaur P. S. Bolangir in the State of Orissa. She worked as a labourer for the construction of a bridge in Barsaur. It is alleged that some time in February 1971 she went to Raigarh (Orissa) to see Ramlila. This Raigarh, as would appear from the evidence on record, was very far away from Barsaur. After seeing Ramlila at Raigarh, Km. Shushila wanted to return to Barsaur, but she had no money to go back to her home town. She was in distress and was found weeping at Raigarh Bus Stand. One Ramji Lal belonging to village Ratangarhi in district Aligarh, U. P., saw her weeping and enquired from her about the cause of her weeping. On being told of the same, he took Km. Shushila under his protection saying that he would take her to her home town. However, instead of taking her to her home town he brought her by train to his village Ratangarhi in Aligarh. THEre he confined her in his house for about 15 days. THE prosecution case is that while she was being confined there, the appellants often visited that place. On 2-3-1971 they were said to have taken Km. Shushila from the house of Ramji Lal to village Kapura P. S. Hathras. THEre they kept her in the house of appellants Rammo and Babu on the night of 2/3rd March 1971. During that night appellant Ramji was said to have committed rape on her. On the mornning of 3-3-71 all the appellants took Km. Shushila to Hathras. In Hathras Km. Shushila saw constables Jagpal Singh PW 4 and Ram Lakhna PW 6 and complained to them that the appellants were forcibly taking her against her will. Those constables with the help of Jiwa Ram PW 2 and Chhotey Ram PW 3 apprehended the appellants. On interrogation the appellants were said to have told the constables that they had purchased Km. Shushila from Ramji Lal of village Ratangarhi for Rs. 800/-. Those constables took the appellants and Km. Shushila to Kotwali Hathras and there the appellants were put under arrest. Km. Shushila made a report there. THEreafter she was sent to Civil Hospital Hathras for medical examination. She was grown up girl. Dr. Kohli also found that she was used to sexual intercourse and her vagina admitted of three fingers easily. 3. THE investigation of this case was done by S. I. Gajraj Singh. He sent Km. Shushila to women's Protective Home, Agra. He then recorded the statements of material witnesses and after completing the investigation submitted a charge sheet against the appellants. A. THE appellants pleaded not guilty and repudiated the truth of the allegations made against them. Appe llant Ramji Lal stated that he knew Ramji Lal of Ratangarhi well. One day Ramji Lal of Ratangarhi came to his village and inquired from him as to whether he was married or not. On being told that he was still unmarried, he invited him to his house saying that he could marry a girl who was staying at his house. He then went to village Ratangarhi along with Ramji Lal and stayed with him for the night. On the next day Ramji Lal handed over Km. Shushila to him. He was bringing Km. Shushila to his village and when he passed through the town of Hathras, two constables apprehended him. He then sent for appellants Rammo and Babu from village Kapura and when they arrived in Hathras, they were also put under arrest. Appellant Jai Narain was also said to have been put under arrest in more or less similar circumstances. 5. Appellants Jai Narain, Rammo and Babu stated the same thing as stated by appellant Ramji Lal. 6. THE learned Assistant Sessions Judge held that all the four appellants had abducted Km. Shushila from the house of Ramji Lal Ratangarhi. THE learned Assistant Sessions Judge also held that the appellants had confined Km. Shushila at the house of appellants Rammo and Babu on the night of 2/3rd March 1971; when appellant Ramji Lal committed rape on her. Accordingly, the learned Assistant Sessions Judge convicted and sentenced them as indi cated above. Aggrieved, they have come up in appeal to this Court. 7. I have heard the learned counsel for the parties at sufficient length and after doing so I am firmly of the view that the appeal must be allowed. THE learned Assistant Sessions Judge did not appreciate the facts of the case in their correct perspective and manifestly erred in convicting the appellants under the various Sections referred to above. Obviously the entire case hinges on the evidence of Km. Shushila. As stated above, she is not a child but a well grown up woman more than 18 years old. She has stated that some time in February 1971, she had gone from her village Barsaur to Raigarh to witness Ram Lila and there she I ell short of money. At Raigarh Bus Stand she was weeping on her plight when one Ramji Lal met her and took pity on her. He promised to take her to Barsaur, but instead he played fraud on her and took her to his village Ratangarhi in district Aligarh. At Ratangarhi he kept her confined at his house for 15 days and then against her will he handed her over to the appellants. THE story given by her is too fantastic to be accepted as true. Aligarh is hundreds of miles away from Raigarh. According to Km. Shushila she had to travel for two days in train before she reached Aligarh. During these two days she must have known that she was not being taken to her home town Barsaur and yet she wants us to believe that Ramji Lal of Ratangarhi had played deceit on her. Obviously she had accompanied Ramji Lal to Ratangarhi of her own free will. She accompanied him to Ratan garhi because she was a woman of loose morals and had deviated from the path of rectitude I say so because the medical evidence shows that she was used to sexual intercourse. 8. Now the question is whether the appellants had abducted Km. Shushila from the house of Ramji Lal of Ratangarhi or she had gone with them of her own accord. Abduction implies forcible compulsion or induce ment by deceitful means. I have gone through the statement of Km. Shushila very carefully and t find that nowhere she has stated that the appellants either by forcible means or by playing deceit on her had taken her away from the house of Ramji Lal of Ratangarhi. That being so, I fail to understand how the learned Assistant Sessions Judge held that the appellants had abducted Km. Shushila. Merely because she was recovered from their custody, it cannot be presumed that they were taking her by force or by playing fraud on her. Seeing the facts as they stand, I am certain that she was going with the appellants of her own free will. Whatever she did, she did of her own accord, first she came to Ratiangarhi along with Ramji Lal and then after staying with Ramji Lal for some time, she agreed to go away with the appel lants. That being so there could be no question of the appellants having committed any offence under Section 366, IPC. THEre can also be no question of their having committed any offence under Section 368 IPC because she had stayed at the houses of the appellants of her own free will. 9. Now we have to see whether appellant Ramji Lal bad committed any offence under Section 376 JPC or not. It is quite possible that he may have had sexual intercourse with Km. Shushila, but this was done with her consent. She was more than 18 years old and if she consented to have sexual intercourse with him, he could not be said to have committed any offence under Section 376 IPC. Ramji Lal has stated that she was given to him in marriage by Ramji Lal of Ratangarhi and this may not be incorrect. 10. Thus, from a perusal of what I have mentioned above, it is clear that the prosecution has not succeeded in making out any case against the appellants. THE learned Assistant Sessions Judge definitely fell in error when he recorded a conviction against them under Sections 366, 368 and 376 IPC. 11. In the result, I allow the appeal and set aside the conviction and sen tences passed against the appellants. THEy are on bail, their bail-bonds are discharged and they need not surrender to them.