01 November 1996
Supreme Court


Case number: Appeal Criminal 369 of 1987






DATE OF JUDGMENT:       01/11/1996




JUDGMENT:                       J U D G M E N T G.N.RAY.J.      This  appeal   is  directed   against  judgment   dated 11.6.1986 passed  by the  Indore Bench of the Madhya Pradesh High Court  in Criminal  Appeal No.15 of 1983 arising out of judgment  dated  1.11.1963  passed  by  the  learned  Fourth Additional Sessions Judge, Ujjain Division in Sessions Trial No.154 of  1982.   By the impugned judgement, the High Court has upheld the conviction of the appellant under Section 366 and 376  of the Indian Penal Code and consequential sentence of rigorous  imprisonment for three years on each count with a direction  that oath  the sentences would run concurrently as ordered by the learned Additional Sessions Judge.      The appellant  was tried  along  with  another  accused Jabbar for  offences under  Sections 363,366.  A or  in  the alternative under  Section 366  IPC. The  appellant was also charged for offence under Section 376 IPC and the co-accused was charged under Section 376 read with Section 109 IPC.  It may be  stated here that the co-accused was acquitted by the learned Additional  Sessions judge  of all the charges.  The accused appellant Ranvir Singh was a driver of a truck.  The prosecution  case   in  short   is  that  on  4.6.1982,  the prosecutric   Annubai aged  below 18  years and  then living under the  guardianship of  her father  Dayaram  at  village Biloank had  gone to  village Satrunda  along with Kamla and Anandi of  the said  village Biloank.   At  Satrunda, all of them were waiting for a transport for going to Khacnrand. At about 10  to 11  A.M. a  truck No.6313  MPU came there being driven by  the appellant  Ranvir Singh.  on the assurance of Ranvir Singh  that the  truck was going to Khacnrand all the three ladies  sat on  the front  side of  the truck  and  it started moving.   About a kilometer away from village Runija towards west  the accused  Ranvir Stopped the truck and told that the  engine had become hot and asked the ladies to take water.   The prosecutrix   Annubai being unwell and also not being thirsty  then, did  not get  down out the other ladies out down  from the  truck and  proceeded towards  the  well. Initially, Ranvir  and the helper in the truck also got down but with  in a  few minutes  Ranvir came back and inside the truck committed  rape on  Annubai. Annubai  told about  such



incident of  raping to  the other  two ladies when they came back but  the place being lonely, they could not do anything and decided  to take  up the  matter at  Runija.   The truck thereafter  proceeded   and  stooped  near  Railway  Station Runija.   Kamla and  Anadi oat  down from the truck and when the prosecutrix  Annubai tried  to got  down, she was pushed back by  Ranvir and  the truck  started moving.   Kamla  and Anandi being  certified informed  the matter  to the Station master of  Runija  Railway  Station.    The  Station  Master telephoned to  the police  station Badnagar.    Annubai  was found inside  the drivers  cabin in  the truck.  The accused persons were  taken to  police custody  and  the  truck  was seized.  Annubai lodged a report in the police station house Barnagar.   The police  Barnagar handed over the case to the police  station  Bhatpanchala.    The  police  of  the  said Bhatpanchala P.S.  registered the  offence  and  seized  the ghagra of  the prosecutrix and the underwear of Ranvir Singh which he was wearing then.      Both  the  prosecutrix  and  the  accused  Ranvir  were medically examined.   The  seized cloths  of the prosecutrix and Ranvir  were sent for chemical examination and they were found to be stained with semen and spermatozoa.  The accused denied the  guilt.  According to accused No.2 Jabbar, he had no knowledge  of rape  and he was sitting on the dala of the truck.   Annubai (PW  4) gave  deposition in  support of the allegation of being raped by the accused Ranvir.  The age of the prosecutrix was determined with the help of ossification test. Dr.  Vikas Choudhary, Asst, Surgeon, Civil Hospital of Ujjain after  examining X-Ray report of the prosecutrix gave opinion that  the age of Annubai was between 17 to 19 years. Annubai stated  that her age was about 16 years. Considering the said  evidences, the  learned Additional  Sessions Judge held that  the age of the prosecutrix was below 18 years and as such  question of  her being  under the  custody  of  her father  Dayaram   and  her   abduction   from   the   lawful guardianship of  her father  did not  arise. PW 3 Dr. Rajmal Jain had examined the accused on 5.6.1982 on the requisition Ext.P-3A and  Dr. Jain’s  report is Ext.P-3.  Dr. Jain found Ranvir Singh capable of performing sexual intercourse. PW 14 Ramchandra Mishra.  A.S.I.Badnagar has  deposed that  on the basis of  information received  from P.W  5  Station  Master Runija Railway  Station which  was recorded in the Roznamcha (Ext.P-10) of  the police  station he  apprehended the  said truck and  arrested the  accused and  also recovered  at the prosecutrix form inside the driver’s cabin of the truck.  PW 5 has deposed that being told by the two ladies, he informed the police.  A.S.I Ramchandra  Mishra has  also deposed that when by  waiving his  hand, he  signalled the truck to stop, the truck  did not  stop.   But because there was a Toll Tax barrier about  15 paces  ahead, the truck had to stop there. Sri Ramchandra  Mishra has  also deposed that accused Ranvir was than  driving the  truck and on search of the truck, the prosecutrix was  found  underneath  the  sleeping  coach  in driver’s  cabin.   PW  4  Annubai  has  corroborated  PW  14 Ramchandra Mishra  as to the place from where the police had found her  inside the  truck. PW  9 Kamla  has supported the prosecution case  that in  the assurance  of Ranvir that the truck was  going to Khachrand all the three ladies got in to truck and  after some  time the  truck stooped and they were told by  Ranvir that  the engine  had become hot. As Annubai was not  feeling thirsty and was not also feeling well.  She had stayed  back out  all others  including the  driver  got down.   Thereafter the  driver came  back to the truck. When Kamla and  Anandi came  back   Annubai told them that Ranvir had raped  he in  the driver a seat and they decided to take



up the matter at Runija.  She has also deposed that when the truck stopped near Runija Railway Station she and Anandi has got down  out the  prosecutrix was  prevented by the accused form getting down and the truck moved away. She then went to the station  master of Runija Railway Station and sought his held.      The learned Additional Sessions Judge after considering the evidence  adduced in  the case  and also considering the fact that  the prosecutrix was found below the driver a seat in the truck when the same was intercepted by the police and also considering  the fact  that both  on the ’ghagra of the prosecutrix and  on the  underwear of Ranvir Singh semen and spermatozoa had been found on chemical examination, accepted the prosecution case that the accused had forcibly taken the prosecutrix in  the truck  being driven  by him   and he had also committed  rape on  the prosecutrix.   Accordingly, the said order  of conviction and sentence for the offence under Section had  and  376  IPC.  was    passed  by  the  learned Additional Sessions  Judge.  The learned Additional Sessions Judge did not accept the case of the accused Ranvir that the prosecutrix was  a women  of easy  virtue and she on her own accord wanted  to go  to Ujjain and as such did not got down at Runija  and also hid herself beneath the driver a seat so as to  avoid detection by the police and thus prevented from going to  Ujjain and  by her own consent she had allowed the accused to  have sexual intercourse with her.  As aforesaid, the High  Court has  also upheld the conviction and sentence passed against the accused Ranvir.      Mr. Bimal  Dave,  learned  counsel  appearing  for  the accused  appellant,  has  submitted  that  the  age  of  the prosecutrix was  found by the court as above 16 years at the time of incident.  It has also come out in the evidence that the prosecutrix  intended to do to Ujjain in the said truck. It is also an admitted position that the prosecutrix and her two companions  voluntarily got  in to  truck for  taking  a lift.   It has also come out in evidence that when the truck had to  be stopped  as the engine became very hot, every one in the  truck got down except the prosecutrix and she on her own will,  stayed back  and  remained  inside  the  driver’s cabin.   The prosecutrix  did not  suffer any  injury on her person even  scratches and  bruises  which  were  reasonably excepted if  one was  subjected to  race against her will by the accused  Ranvir.   It has  also come out in the evidence that the  prosecutrix was  a women  of easy  virtue.   It is therefore quite  likely that  in order  to induce  Ranvir to give her a free lift up to Ujjain, she voluntarily agreed to have sexual  intercourse with the accused.  Accordingly, the appellant was  not liable  to be convicted for either of the said offences,  namely under  Section 366  and 376 IPC.  The appeal should  therefore, be  allowed by  setting aside  the conviction and sentence passed.      After giving our careful consideration to the facts and circumstances of  the case  and the  submissions made by Mr. Dave. we are unable to accept the contentions of Mr.Dave. It has been  Clearly submitted that the prosecutrix and her two companions Kamla  and Anandi  got inside driver a cabin when they sought  a lift  up to  Khacnarnd in the truck driven by the accused  Ranvir after  being assured by the said accused that the  truck was  going to  khachrand. It  has also  been established that  when accused  stopped the truck by stating that the  engine became hot, excepting prosecutrix every one got down.   After  some time  when Kamla  and  Anandi  after taking  water   from  a   well  came  Back  they  found  the prosecutrix and  the accused  in the truck, immediately, the prosecutrix complained  to Kamla  and Anandi  that  she  was



raped by  Ranvir. As  the place  was lonely out of fear, the prosecutrix and  two other ladies decided to take the matter after reaching  Runija. It has been also clearly established by the  deposition of  Kamla that  although Kamla and Anandi could get  down near  Runija Railway  Station. Ranvir  drove away the  truck with  prosecutrix.  Immediately Kamla sought help of  the station  master at Runija who had telephoned to the police.   It has also come out in the evidence that when police wanted  to stop  the truck  being driven  by  Ranvir, Ranvir initially  did not  stop  at the signal of the police Officer but  had to stop little ahead because of barrier for collecting toll  tax.   The prosecutrix  was  found  by  the police inside  the driver’s  cabin under  the driver’s seat. Her ghagra  and the  underwear of  Ranvir were seized by the police and  on chemical  examination semen  and  spermatozoa were  found   on  both   the  said  garments.  Even  of  the prosecutrix was  a woman  of easy  virtue, she  could not at raped by the accused.  If she had voluntarily agreed to have sexual intercourse  with the  accused, she  would  not  have complained   immediately when  Kamla and  Anandi came  back. The  police  when  signalled  the  truck  did  not  see  the prosecutrix sitting  in  the  driver’s  cabin.  In  case  of voluntarily accompanying  the accuse for a lift up to Ujjain she was  expected to  be seated comfortably in the truck and not to be found out beneath the driver a seat.      In our view in the facts of the case, the conviction and sentence of the appellant are fully justified.  The appeal is, therefore, dismissed.  The appellant has been released on bail. His bail bonds stand cancelled. He would be taken to custody to serve out the sentence.