High Court · 2011

No.2 in the affirmative. In the course of its lengthy discussion of the material facts. the Court below has placed reliance on the evidence of the victim, the evidence of P.W.1O and P.W.17. C.W.19 was an independent witness at whose house the accused and the victim are said to have stayed over night. on the very first night. on which the accused said to have kidnapped the victim P W. 17 was the maternal uncle of the accused who had advised the accused to take the victim home and that he should not seek to marry her as he was already a married man. In so far as the other witnesses are concerned, their evidence had not supported the case of prosecution The Court below ias negated the medical report S r- tb,•1.I; —q I +11 I I

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11. As the conduct of the accused and the circumstances would on the face of it indicate that there was no force used at any point of time in so far as the alleged custody and the alleged forced sex that the appellant is said to have had with victim, it is pointed out that there is no medical evidence of any such forcible sexual intercourse or repeated sexual intercourse having been committed by the accused on the victim. The medical opinion that the hymen of the girl was ruptured and therefore it could be presumed that she was accustomed to sexual intercourse, is opposed to established medical opinion that the hymen of a woman could be ruptured even without having sexual intercourse and this fact has been casually stated in the medical report though it has been challenged in cross- examination. The learned counsel would seek that the Court take judicial note of the assertion by the medical practitioner which is not totally acceptable. If the victim had sex which was consensual sex with the accused it could not be said that the offence under Section 366 was established beyond all reasonable doubts against accused.

12. On the other hand, the learned Government Pleader would submit that the judgment of the Court below is well reasoned and all aspects of the mattet’ have been addressed at length It ‘s on a I) detailed hearing and a close examination of evidence of 19 witnesses that the Court below has opined that the evidence of the victim coupled with that of independent witnesses, P W. 10 and P.W.17, that the Court has held that the case of the prosecution is certainly established. The theory of the appellant to the effect that there was consensual sex and that the victim had willfully accompanied him and stayed at various places in the face of the fact that the appellant was the uncle of the victim and that he would have sufficient influence over her to ensure that she did not protest at any point of time during the entire period of 45 when she was forced to have sex. The details of their stay during the entire period of 45 days has been indicated and the independent witnesses viz the maternal uncle of the accused himself has spoken to the fact that he had been informed of the victim having been kidnapped by the accused and that he intended to marry her and that the said witness had advised the accused not to do so. This clinching evdence indicated that the act of the accused was well within the scope of Section 366 of the Code This coupled with the evidence of P.W.12 an independent witness who had spoken about the sneaky manner in which accused had brought the victim to his home and slept outside the house are statements of witnesses. which are totally unimpeachable and there cannot be better S 12 evidence of commission of the offence of kidnap and forcible sex by the accused with the victim. The fact that the appellant was already married is yet another circumstance to indicate that the appellant could not have married the victim in the eye of law and any such marriage would have been invalid and therefore it is established beyond all reasonable doubt that the appellant had forcibly taken away the victim and kept her in confinement under mortal fear and thereby prevented her from disclosing to anybody of the situation. Notwithstanding they stayed together for 45 days is not unusual if the accused had sufficient influence over the victim to have silenced her during the entire period and therefore, the Government Pleader seeks to justify the judgment of the Court below and would point out that notwithstanding the seriousness of the offence the Court has been extremely liberal, having regard to the age and status of the accused in having restricted the punishment to 3 years and a nominal fine amount and would submit that there is no warrant for interference by this Court.

13. In the light of the above rival contentions. it is not in dispute that it is the evidence of P.W. 1-the complainant, P.W 13-the victim, P.W.1O and P.W.17-two independent witnesses, that the trial court has held that the evidence against the accused would establish I- d 3 L. i ‘. c SI ‘. p it: s — a’ r’-’. —•..‘.- .. ia- A - -‘.s-i’:n’ .2T’.V •,t I ‘ -‘ri ‘. r J Ph i-’c’ r-. v. n N Tb. e Th1 ccmg”j’rIan; src4cIr’rl • •jj’ •j )‘ .19 ;ade- -‘1 ‘-a 1..? ‘ jitjb V( C t4.” “ t I) “t’i” na’s’ [‘ •1 I-’ :5 t• ‘i. •l•• ..i— 3et. I’ I 4 • Ljr ts r — ,, tr-n ‘ u”. 1e’r. 3 Ii t ‘1 ;ruc.-. I.”.) —r’t- ! -,.:_. ••— ., —: 1 ,t’.”i’. .fl.t! •.-j.—._ :-l.1 j • ‘I .g U •‘•- $ ‘1 tJ eltI t IC ‘3. —.• .-: It 4 • IT 4 14 being together It is unusual that word which would have spread of a girl having disappeared. from village to village in the vicinity, that the said witness did not choose to inform the girl’s parents, or any body else and is only after the appellant was taken into the custody that the statement of the said witness has been recorded. It is therefore apparent that C.W 19 could identify the accused as well as the victim and was aware of their presence on the date of the incident and as there is no indication as to why the said witness has kept quiet though the record would disclose that there was a continuous search for accused and victim and it is by virtue of such continued search they were finally discovered at Alnavar. Hence that aspect of the matter has not been taken into account by the trial court. Secondly. the other independent witness viz. P.W.17 the maternal uncle of accused, admittedly, having known of the fact that girl was forcibly taken away by the accused though he was also aware that the accused and the victim closely related and were on the run and that the family of the victim was looking out for her but yet remained silent, till his statement was recorded by the police. This aspect of the matter is over looked by the trial court as well. Cs / ‘5

15. When viewed from any angle, the events for the next 45 days when accused had moved the victim from place to place by way of public transport and having stayed in a rented house for more than 45 days would make one wonder as to how she was kept confined without the victim being seen by any other person when it is not the case of the victim that she was kept tied up during the entire period and it is also not disclosed as to how she was staying, whether she was cooking the food or the accused used to bring the food from outside. It is not disclosed as to how they continued to live for 45 days without moving outside and it is also not possible to imagine that the accused could keep the victim in silence for over 45 days and watch over her at all points of time. It is unusual that the accused had kept the victim under mortal fear. The long period of time would have numbed any such mortal fear that the victim was placed under to seek aid, if she was infact forcibly kept by the accused. This aspect of the mailer has not been considered by the Court below and it was possible to hold that a person can have adequate influence over other and commit forcible sex on her if the period of such confinement and force is used to a limited or short period. Whereas in the instant case, the accused and victim having remained together at various places for over 45 days and then to presume that she was forcibly kidnapped SF .1 I’) and kept under confinement and accused had forcible sex is not readily acceptable.

16. In any event, it cannot be said that the charges against the accused have been proved beyond all reasonable doubt and the benefit of doubt would certainly go in favour of the accused. The trial court in its rather lengthy judgment has thrown up several infirmities, but has held that ultimately on the evidence of the complainant the victim and two independent witnesses it could still be held that the charges have been proved beyond reasonable doubt. This cannot be accepted.

17. Having regard to the circumstances of the case. the charges not being proved beyond all reasonable doubt the appeal allowed. The judgment of the Court below is set aside. The fine amount shall be refunded to the appellant. Sd/a JUDGE