1. This appeal is directed against the judgment dated 5.5.2004 and order dated 6.5.2004 passed by the learned Sessions Judge, Poonch in case No. 25/Sessions of 1997 whereby the appellant-accused Abdul Maroof was con­victed under sections 376, 366 and 342 RPC and was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year under section 376 RPC, to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo further rigorous imprisonment for six months under section 366 RPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo rigorous imprisonment for three months under section 342 RPC.

2. The prosecution story in brief is that one Mohd Yousaf lodged a written report with Police Station, Mendhar on 31.7.1997 alleging therein that on the intervening night of 28th and 29th of July 1997 the accused appellant animated with criminal intention entered into the residential house of the complainant Mohd Yousaf situated at Salwah and forcibly abducted the prosecutrix (name not disclosed) and took her to Jammu and Srinagar for seducing her to illicit intercourse and committed sexual intercourse with her against her wish. On this written report a FIR No. 134/1997 under sections 363/109 RPC was registered with Police Station Mendhar and the investigation in the case started. During investigation the prosecutrix was recovered from Hotel Rohit situated near Jewel Cinema, Jammu. The prosecutrix was examined medically and her state­ment under section 164 Cr.P.C. was also got recorded by the police. After completion of the investigation, a challan under section 366/376 RPC was produced in the court of Munsiff Judicial Magistrate 1st. Class, Mendhar, who committed the case to the court of Sessions for trial.

3. The accused-appellant was charged for commission of offence under sections 366/376 RPC by the learned Sessions Judge, Poonch on 18. 10. 1997.Thereafter the trial started on the plea of the accused that he has not committed any offence.

4. The prosecution has examined PW-1 Mohd Yousaf, PW-2 Mst. Salima, PW-3 Bagha, PW-4 Farid, PW-5 Mst. Tanzeem Akhtar, PW-6 Sikander Azam, PW-7, Vijay Kumar, PW-8 Romesh Singh, PW-9 Swaran Singh, PW-10 Manzoor Hussain, PW-11 Lady Dr. Renu Gupta, PW-12 Dr. Sadhu Singh Khajuria, PW-13 Dr. R.L. Gupta, PW-14 Muzaffar Hussain Shah, PW-15 Rajesh Kumar Sikri and PW-16 Mohd Rashid Malik in order to prove its case.

5. After conclusion of the trial the learned Sessions Judge, Poonch convicted the accused for the commission of offences under sections 366,376 and 342 RPC and sentenced as stated hereinabove.

6. Being aggrieved by the judgment/orders of conviction and sentence, the accused-appellant has preferred this appeal on the ground that the prosecutrix was the consenting party in the case and the accused has not committed any offence. It is also alleged that the accused has been convicted under section 342 RPC for which no charge was framed against him.

7. I have heard the learned counsel for the accused-appellant and learned Additional Advocate General. I have also perused the record on the file.

8. Mr. H. A. Siddiqui, learned counsel for the appellant, has argued that from the prosecution evidence it stands proved that the prosecutrix was willing person to elope with the accused-appellant. No case has been made against the accused because father of the prosecutrix has not fulfilled his promise of marrying the prosecutrix with the accused-appellant and wanted to marry the prosecutrix with other person. Mr. A.H. Qazi, learned AAG has submitted that the prosecution has succeeded in proving its case beyond reasonable doubt and learned Sessions Judge, Poonch has properly convicted and sentenced the accused-appellant for the commission of the offence.

9. Mohd Yousaf, PW is the father of the prosecutrix and has deposed that the prosecutrix was sleeping in a room situated on western side of the house along with minor female child and she was not found in the room next day morning by his family members. He has admitted that the room in which prosecutrix was sleeping was an internal room and prosecutrix could not be abducted from the main gate because in that event all family members would have seen the accused taking the prosecutrix. He has further deposed that the accused took her from the ventilator which is 1,1/2 feet in height from the floor. Similar is the statement of the mother of the prosecutrix namely, Mst. Salima. PW Bagha, is the uncle of prosecutrix and he has deposed that he was sleeping in the cattle shed which is situated in front of the room where the prosecutrix was sleeping. Similar is the statement of the prosecutrix.

10. From the evidence of the family members of the prosecutrix including prosecutrix it is clear that she was taken by the accused from a window in the room because the room is situated on the back of the house and has no outlet to go outside except through main gate. Site plan EXPWMR prepared by the Investigating Officer shows that the room had ventilator of 2 1/2 feet from where prosecutrix was alleged to be taken away. It is also admitted that in case the prosecutrix had made noise, family members would have come on spot to save her. In explaining as to why noise was not made by the prosecutrix, she has deposed that her mouth was gauged with a cloth and the accused dragged her from a window and took her outside. But during cross-examination she changed her version and deposed that when the accused took her she raised an alarm but neither her father or mother could hear her. This evidence of the prosecutrix does not inspire confidence of the court as to whether she was stating truth because it is not easy job to drag a person by a single person and to take that person out of the house from a ventilator of 2 1/2 feet dimension.

11. It is settled position that the commission of offence of rape is an offence against the dignity of the women and society which is taken seriously. It is also settled that such offences are committed in lonely places and not in the presence of others and as such no corroboration or supporting evidence is available. However, statement of the prosecutrix is very material and if it inspire the confidence of the court, then conviction can be based ort the sole evidence of the prosecutrix. Keeping in view this principle in mind, the statement of the prosecutrix is required to be scrutinized.

12. It is pointed out here that the accused-appellant is son of sister-in-law of the father of the prosecutrix. Being near relation, father of the complainant had promised to marry the prosecutrix with the accused and for that the accused had been working in the house of the father of the prosecutrix. Thereafter some dispute arose and the father of the prosecutrix refused to marry the prosecutrix with the accused. During the trial, the prosecutrix was married with another person. This fact is also required to be kept in mind while scrutinizing the statement of the prosecutrix because this can also be a motive for implicating the accused in this case.

13. After deposing that as to how she was taken out of the room the prosecutrix has stated that the accused threatened to kill her and her parents in case she raised any alarm and took her with him. She accompanied the accused because she was frightened. The accused took her to his house through the fields where maize had been sown. The accused took his belongings from his house and both of them came to Surankote from where they boarded a bus for Jammu. In Jammu they stayed for a night in a Hotel where she was subjected to sexual intercourse. Next day, the accused took her to Srinagar in a bus where they stayed in a House Boat for six days. There, also the accused forcibly committed sexual intercourse with her. After six days the accused took her back to Jammu where they stayed in a Hotel for the night and there also accused committed sexual intercourse with her. From Jammu police recovered her from a Hotel. During cross-examination she contradicted her earlier statement stating that her mouth was gauged with cloth and deposed that she raised alarm when the accused took her, but her father and mother could not hear her. She has further deposed that she raised alarm at Surankot, but nobody came to her rescue. People enquired from the accused as to why she was crying and the accused replied that the prosecutrix was mad. The bus they were travelling was checked by the Army and Identity Card of the accused was also checked. There were number of passengers in the bus and she informed them that the accused had forcibly abducted her. Accused told them that she was mad and he was taking her to Jammu for treatment. Prosecutrix further deposed that the driver of the bus was also informed and at Jammu in Hotel she complained before the Police and the people that the accused had brought her forcibly from her village, but nobody came to her rescue. She has further deposed that she complained before the owner of the House boat. This deposition of the prosecutrix is self contra­dictory and does not inspire confidence of the court for convicting the accused for the offence. It is not believable that the accused took her from their village to Suankote and then to Jammu and later on to Srinagar. She complained about her abduction before number of persons including the police, but nobody came to her rescue as the accused told that she was mad. Had she complained to any person in case and if she was not willing party and had been forcibly abducted by the accused-appellant,she could have been saved from the clutches of the accused-appellant, she did not complain to any person although she had lot of opportunities and occasions to do so. This deposition of the prosecutrix thus raises a doubt in the mind that she was a consenting party to accompany the accused and the prosecutrix with her consent eloped with the accused-appel­lant.

14. The Apex Court in case Shyam & another v. State of Maharashtra reported in AIR 1995 SC 2169 has held in para-3 as under:-

"3. In her statement in court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called

taking"

, it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the at the scene abruptly to commit the offence of kidnapping by “taking” her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who h ad yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother. The culpability of neither Shyam, A-l nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366, I.P.C. would thus fail.” Further the Apex Court in case Kuldeep K. Mahato v. State Of Bihar. reported in AIR 1998 SC 2694 has held inpara-11 as under:-

"11....The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of neighbours from the said village. The medical evidence of Dr. Maya Shankar thakurnP.W.2 also indicates that there were no injuries on the person of the prosecutrix including her private part. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376, IPC cannot be sustained...."

15. In the instant case as stated above, the prosecutrix has admitted that she came by foot from her village to Surankote town from where they boarded a bus and came to Jammu and stayed in a Hotel. Next day they went to Srinagar by bus and stayed there in a House boat for six days. Thereafter they came back to Jammu by bus. Although she has deposed that she made hue and cry and also informed number of persons including the police but nobody came to her help. This deposition of the prosecutrix is unnatural and unbelievable. On the other hand, the conduct of the prosecutrix clearly shows that she was a willing party and she eloped with the accused-appellant. She is major as per medical record and admitted by the Investigating Officer. Although mother of the prosecutrix has stated that she is minor. Being major, the prosecutrix is a consenting/willing party to accompany the accused and having sexual interr course with the accused. The prosecutrix had sufficient opportunities to raise hue and cry and get the accused arrested in case she had been forcibly taken away by the accused. She has admitted that the Army checked the bus in which they were travelling and also checked the Identity Card of the accused at Naka while they were travelling from Surankote to Jammu in a bus. The prosecutrix had not availed opportunity and raises an inference that she was a consenting party. In such circumstances, it cannot be said that the accused has committed any offence.

16. Besides this, the report has been lodged by the complainant on 31.7.1997 and the alleged occurrence took place on the night intervening 28th/29th July 1997. In explaining the delay, it is alleged that the members of the family kept on searching the prosecutrix as such the report was not lodged with the police. On the other hand, it is admitted by Farid Ahmed that Mohd Yousaf told them that the accused had taken Rs. 25,000/- from Mohd Elias and the accused was not available in his house. It was also talk of the town that the prosecutrix has been abducted by the accused Abdul Maroof. This evidence shows that the complainant had the knowledge that the accused had abducted his daughter and inspite of that he did not lodge report with the police immediately and waited for more than two days. This raises an adverse inference that the complainant might have been consulting someone to involve the accused in the case. The explanation given by the complainant for delay is not convincing and it is negatived by the uncle of prosecutrix Bagha PW and Farid Ahmad PW.

17. For the foregoing reasons, I would hold that the conduct of prosecutrix in this case does not rule out that the prosecutrix was a consenting party to elope with the accused and having sexual intercourse with him. The statement of the prosecutrix is unnatural and unbelievable. It does not inspire confidence of the court to convict the accused for the alleged offences. It is not safe to rely upon the improbable and unbelievable deposition of the prosecutrix for convicting the accused for such serious offences. Also, the delay in lodging the report in the case is material and raises an adverse inference in the case for want of proper explanation.

18. There is a motive for the complainant and to avoid the marriage of prosecutrix with the accused as promised, the accused might have been involved in this case. The improbable and unbelievable evidence of the prosecutrix, coupled with conduct of prosecutrix showing that she was willing party and the delay in lodging the report, raise reasonable doubt in the mind that the accused might have involved in the case. Thus the accused is entitled to the benefit of doubt.

19. Accordingly, the appeal of the accused-appellant is accepted and the conviction of the accused-appellant under sections 376, 366 and 342 RPC and the sentences awarded there under as stated above, by the learned Sessions Judge, Poonch are set aside and the accused-appellant is acquitted of the charges framed against him. Bail bond and personal bond furnished by the accused/ap­pellant in the case shall stand discharged. Record be returned back.