Judgment:
S.K. Chawla, J.
1. Appellant Betu, aged about 20 years, has been convicted under Sections 341,323 and 376, Indian Penal Code and sentenced to R. I. for 1 months, 6 months and 5 years respectively for the said offences by Sessions Judge, Gwalior, by judgment dated 2-3-1993 in Sessions Trial No. 59/89.
2. It may be mentioned at the very outset, without meaning to pre-judge the appellant's case, that the learned Sessions Judge was in error in convicting the appellant of the offence under Section 376, Indian Penal Code. After the year 1983, when original Section 376 was substituted by a new section, there can be no conviction of an accused of the offence under Section 376, Indian Penal Code as such. There has to be a conviction, if at all, either under sub-section (1) or under sub-section (2) of Section 376, Indian Penal Code. It will be seen that the offence under sub-section (2) is not only punishable with higher minimum sentence but presumption about absence of consent under Section 114A of the Evidence Act is also attracted to offences under various clauses of sub-section (2). Such a presumption under Section 114A of the Evidence Act is not at all attracted to offences under sub-section (1) of Section 376, Indian Penal Code. There is, therefore, an essential difference between offences under sub-section (1) and those under sub-section (2) of Section 376, Indian Penal Code. It is incumbent that in rape cases charges and conviction, if recorded, should be either under sub-section (1) or sub-section (2) and never under Section 376, Indian Penal Code as such. In the present case, the learned Sessions Judge committed another error in visiting the accused with sentence of 5 years' R.I. without giving any reasons for imposing lesser than the minimum sentence. If the learned Sessions Judge presumably meant to convict the accused of the offence under sub-section (1) of Section 376, Indian Penal Code, the minimum sentence which should have been imposed should have been 7 years' R.I., unless adequate and special reasons were mentioned in the judgment to impose a lesser sentence.
3. After the above digression, now the prosecution case. It was that on 22-10-1988, at about 8 a.m., one Mahadevi (PW 7), a girl in her teens, was going alone from her house in Gwalior to Dhobighat in the same town. She was carrying tiffin for her mother and brother, who are washermen, and who were at the Ghat. On way, near a Nullah, appellant Betu alias Kamaal Khan came from the opposite side. The appellant is a boy in 20s and of the same locality of Mahadevi. The appellant engaged Mahadevi in some talk and then forcibly dragging her in the Nullah, slapped her to overcome her resistance, felled her down and committed rape on her. One Narayan Dhobi (PW 9) who was at some distance behind, was attracted by the cries of the girl and reached the place of occurrence. The appellant then ran away. Narayan took Mahadevi to the Ghat to her mother Narayani Bai (PW 6). The mother and the daughter then reached back home. In the evening the girl was taken by mother and brother to Police Station, where she lodged a report, Ex. P-3.
4. The prosecution case mainly rested on the evidence of Mahadevi (PW 7). Narayan (PW 9), supposed to be an eye-witness or semi-eye-witness, turned hostile. The learned Sessions Judge has given a finding that Mahadevi was around 16 years of age. The learned Sessions Judge in arriving at the conclusion about age of the prosecutrix did not take into consideration the unproved report of Radiologist, Ex P-7, according to which the girl was above 16 years and below 18 years. But the prosecution could not be given advantage of its failure to prove its own document, Ex. P-7. The defence could make use of the said document although unproved. See Ramdayal v. State of M. P. in 1993 MPLJ 532. That apart, even on the finding of the learned Sessions Judge, the girl Mahadevi was not below the age of consent i.e., below 16 years.
5. The account given by the girl Mahadevi (PW 7) was most natural and ringed true. She stated that the appellant, who is well acquainted with her, being her neighbour, first asked her to help him lift a stack of wood. She declined. She did not also find any stack of wood nearby. It is evident that the appellant was engaging Mahadevi into talk by some ruse. Continuing her evidence, Mahadevi deposed that the appellant then suddenly dragged her to the Nullah. The appellant could obviously do so because the girl was lonely. It was further Mahadevi's evidence that the appellant then slapped her and felled her down and thereafter committed rape on her.
6. Certain discrepancies and contradictions appeared in the evidence of Mahadevi (PW 7) but they do not undermine her credibility. For instance, she said, contrary to her police statement, that she did not initially complain to her mother at the Ghat but, after regaining composure, could complain to her mother only after both reached home. That conduct exhibited the mental frame of a girl of the age of the prosecutrix. She must have got a stunning effect on being subjected to a sudden trauma involving her honour. Nothing prevented her to say in line with her police statement that she had complained to her mother even at the Ghat. The fact that Mahadevi did not toe the line of her police statement, which was after all the handiwork of a police officer, enhances rather than detracts from the reliability of her evidence. To give another instance, Mahadevi denied, contrary to her FIR, that Narayan's wife was accompanying Narayan, when the latter reached the place of occurrence. In all probability, Mahadevi was speaking the truth in Court. Even Narayan (PW 9), the hostile witness, who showed reluctance to implicate the appellant, admitted that his wife was not accompanying him when he reached the place of the occurrence. The defence argument, therefore, that Narayan's wife, a possible eye-witness, was withheld by the prosecution, holds no water. Mahadevi deposed that she had not complained about the incident to her' brother Ramesh nor taken him to the police station at the time of lodging of the report. This was contrary to the FIR, Ex. P-3, lodged by her, wherein it was stated that she had complained to her brother Ramesh and reached the police station along with him. Mahadevi explained that there was on her part a slip of name, in that she mentioned the name of Ramesh for her another brother named Nandkishore. It is not known how Mahadevi stood to gain by telling in her evidence that the correct name was Nandkishore instead of Ramesh. If she was so minded or was so tutored, she could have stuck to her version in the FIR by telling in her evidence the name of Ramesh.
7. The evidence of Narayan (PW 9), although a hostile witness, afforded corroboration to the story of the prosecutrix. He admitted at least the fact that he heard the wails of a girl coming from the shrub. When he went there he saw Mahadevi weeping. He also saw a boy running away, whom he could not recognise. This evidence of Narayan affords corroboration to the prosecution story that Mahadevi was a victim of some outrage.
8. The FIR, Ex. P-3, also afforded corroboration to the story of the prosecutrix. It was not lodged after undue delay, as argued by the appellant's counsel. It was lodged in the evening itself on the date of the incident. The father of the prosecutrix was out of town and did not return till the report was lodged. It is a known fact that considering the conditions in our society, a rape-victim would not atonce rush to lodge a report. After consultation with her relatives and after struggling with factors inhibiting the making of a report, the rape-victim decides to go to the police station and make a report. The following observations of Supreme Court in State of Rajasthan v. Shrinarayan in (1992)3 SCC 615 are pertinent :
'True it is that the complaint was lodged two days later but in Indian Society the victims of such crime ordinarily consult relatives and are hesitant to approach the police station since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police........'
In the above decision, report of rape was lodged 2 days after the incident.
9. It is however doubtful if the appellant actually committed rape on the girl. The report of the lady doctor Ex. P-6, in this regard is that she found no marks of injury over the perenium of the girl. Hymenal membrane was small and ill-developed but intact. Only index finger could be admitted in vagina with difficulty. The report also says that it could not be said that rape was committed. In the context of what has appeared in this report, it is unsafe to accept the version of prosecutrix Mahadevi that appellant had actually inserted his virile member into her person, resulting in profuse bleeding from her vagina. It has already been noticed from the lady doctor's report that she found no injury at all on private parts of the girl, muchless any bleeding.
10. It will be proper to hold on the entire evidence already noticed, that the appellant had committed at least the offence of outraging the modesty of Mahadevi punishable under Section 354 Indian Penal Code, if not the offence of rape. The conviction of the appellant for the offences under Sections 341 and 323, Indian Penal Code was well merited.
11. The appeal is partly allowed. The conviction of the appellant Betu is altered from Section 376, Indian Penal Code to Section 354, Indian Penal Code. His convictions under Sections 341 and 323, Indian Penal Code are maintained. The appellant has already undergone sentence of 6 1/2 months. That would appear to be sufficient sentence for the offence under Section 354, Indian Penal Code, provided he is also made to pay some fine. The sentence of appellant Betu to R.I. for one month for the offence under Section 341, Indian Penal Code and to R.I. for 6 months for the offence under Section 323, Indian Penal Code are maintained. With regard to the offence under Section 354, Indian Penal Code, he is sentenced to imprisonment already undergone by him and is further sentenced to pay a fine of Rs. 500/-, in default to further undergo R.I. for 2 months. The substantive sentences of imprisonment visited on the appellant shall run concurrently. The appellant is given 2 months' time from the date of this judgment to pay the fine. The sentence of imprisonment in default of payment of fine shall come into operation only after the expiry of the said two months. In the result, the appellant shall for the present be released forthwith from jail, if not required in any other offence.