RAMPHOOL Vs. STATE

JUDGEMENT

(1.) RAMPHOOL was convicted by the learned Assistant Sessions Judge, Jaipur District, Jaipur, by his judgment dated September 18, 1971 under Sections 368 and 376, Indian Penal Code, and sentenced to two years rigorous imprisonment under each count, along with others. On appeal, the learned Sessions Judge, Jaipur District, Jaipur, acquitted the other accused persons but maintained Ramphool's conviction unde Section 376, Indian Penal Code. He has come up in revision.

(2.) THE story of this case which concerns a young girl Mst. Shanti is as long as it is lamentable. Way back in 1964, Mst. Shanti, said to be about 10 years age, with her sister -in -law Mst. Basanti, another girl of almost the same age, used to be live in Raipur (M.P. ). Mst. Shanti's parents were far from being affluent and Mst. Shanti used to work as a domestic servant in the house of some Tehsildar. It is not exactly known how, but one Mohar Singh and another Babu Singh, found these two girls vulnerable and managed to take them away fiom Raipur to Nahri Khudadi, District Bulandsahar With what promise, threats, inducement or hopes these girls accompanied these two people do not come out very clearly but it is certain that these two girls were left with one Mst. Shakun who divulged to the two girls, presumably in confidence, that they would meet the same fate of being sold as the had met For 5 or 6 days they lived there and then both these girls were brought to Khirni Manpur There both these girls were separated by Mohan Singh and Babu Singh. But thereafter, we are not aware of what happened to Mst. Basanti and we shall, therefore, treat that chapter as closed. Mst. Shanti, however, was given to one Moti Meena who came to own her as wife by some ritual of a customary marriage described as 'jhadfera' and presented to her solid silver anklets in recognition of that status. According to the story trotted out by Mst. Shanti, she lived there for about five Diwalis, which will bring us in the neighbourhood of about five years, but she resisted all endeavours on the part of Moti Meena to exercise his martial rights. One Babu Shanker Das who used to come for farms to the house of Moti Meena managed perhaps got scent of the desire of Mst. Shanti to escape from the ill -matched arrange meet Mst. Shanti fell a prey to his persuation and he took her away to Dausa and one of the things that he did was to sell away the silver 'kadas' of Mst. Shanti and transform them into thin silver anklets. Thereafter, he palmed off this girl to Babu Badri Das, probably another pretender of some spiritual status, and Badridas' 40 year -old son Kalyan, it appears, was in need of a wife, and the Baba passed off this girl to meet his need. It appears that Kalyan got scent that the police was pursuing the whereabouts of Mst. Shanti and rather than be caught in the net of a criminal case, he thought it discreat to smuggle her away to come quiet corner so that the link may not be established Thus Mst. Shanti traveled to village called ' Kutabpura near Chaksu where there was another Babu Rarrdas with an assistant called Ramphool. While Baba Ramdas kept the a girl in custody it was the duty of Ramphool to play the sentry. At village Kutubpura, serveral attempts were made to dispose of this girl to some prospective purchaser but the deal never got through and the girl remained at hand as the prosecution story here is that the sentry Ramphool raped the girl day after day. The period that Mst. Shanti spent here was about six months. When one day according to the prosecution story, Bhima Mali erst -while Chairman of Municipal Board, Chaksu along with a few other persons feeling intrigued about the presence of strange young girl with Baba went to investigate into the matter. While Baba Ramdas was in the process of denial, the girl knocked the door from within and the concealment could not last any longer and the girl was brought out and with the consent of Bhima Mali's companions was entrusred to Bhima Mali for safe custody. Bhima Mali wrote seven registered letters at the addresses given by the girl of her father but because the girl had given wrong name of her father namely, 'Chhotulal' the letters returned without serving the purpose.

(3.) THE learned Counsel for the petitioner Ramphool has urged, firstly that the ingredient of penetration under Section 376, Indian Penal Code, has not been proved and he relied on in re Karichiappa Goundan AIR 1942 Mad. 285 and Kana v. The State 1955 RLW 513. Secondly, be argued that the Radiologists opinion about the age of Mat Shanti amounts to a process of elimination, namely, that she was about 14 years and below 16 years and when this is read in conjunction with the evidence of the mother Mst. Ramvati (PW/3) and the father Bago (PW/4) her age is anywhere near 18 or 20 with a reference to the offspring's of the union and the intervals between their arrivals Thirdly, be submitted that Mat. Shanti is an unabashed liar who consistently gave wrong name of her father and it was unsafe to convict Ramphool on the uncorroborated testimony of such an unreliable prosecutrix. This coupled with her conduct that she was being kept in apartments without coercion with opportunities of complaining her conduct in any event amounts to consent.