Raj Kumar vs State
1996 Latest Caselaw 108 Del

JUDGMENT

Jaspal Singh, J.

(1) Guru Nanak Pura, Tilak Nagar is three kilometers away from Nihal Vihar, Nangloi. Raj Kumar lived in Guru Nanak Pura but was no stranger to Nihal Vihar where used to live his friend Surinder Kumar. In the neighbourhood of Surinder Kumar lived Narain Singh with his wife and a daughter by the name of Pushpa who had already crossed the age of minority. On April 17, 1988 at about I p.m. when Narain Singh came back home he found Pushpa missing. Failing to locate her he went to the house of Raj Kumar at about 1.30 or 2 p.m. Raj Kumar said he knew nothing. He then lodged a report with the police. On the 23rd she was back home. The next day she was taken to the police authorities who got her medically examined and later produced her before a Metropolitan Magistrate who recorded her statement under section 164 of the Code of Criminal Procedure. WHERE had she been?

(2) This is how Pushpa unfolds the story. On April 17, 1988 at about Ii a.m. Raj Kumar came to her on a two wheel scooter, took her to the Inter State Bus Terminal and from there to Ghaziabad. This part of the journey was completed in a bus. From the bus stop she was taken to a Jhuggi where the other inmates served them lunch. And then exits Raj Kumar from the scene giving way to his friend Surinder Kumar to occupy the centre-stage. Surinder Kumar keeps her in the Jhuggi for three days, violates her body repeatedly and then leave her for good at the Inter State Bus Terminal, Delhi.

(3) The learned Additional Sessions Judge has accepted her version, without hesitation. As a result Raj Kumar stands convicted and sentenced under section 366 while Surinder Kumar has been convicted and sentenced under section 376. RAJKumar has appealed

(4) Let me repeat. At the relevant time, that is, April 1988 Pushpa was not a minor. She had attained majority. This is borne out from the evidence. This is accepted by the learned trial Judge. This is conceded by the State. She was thus a grown up woman and if medical evidence is any guide she had known the ways of the world having already lost her virginity. And, let us also remember that she was living in a congested locality amidst cluster of houses. And yet she wants to make us believe that she was taken away forcibly in broad day light from her house on a two wheel scooter first to the Inter State Bus Terminal which is miles and miles away from her house and then from there in a public transport to Ghaziabad. AND what did she do all along?

(5) One might justifiably expect such a person to spare no effort to resist, to seek help or to escape. However, here we have this healthy grown up woman who does nothing of the sort. She meekly leaves her home, makes herself comfortable on the pillion of her abductors' two wheel scooter and silently watches him steer through one congested locality after the other with men and women, in pairs and groups and swarms.

(6) Those who have been even once in their life time to the Inter State Bus Terminal would find it difficult to forget the experience. It is perhaps the only place where cycles vie with rickshaws and tongas have a brush with buses. Hawkers run after the passengers and the passengers after the overcrowded buses or truant coolies. And, in this sea of humanity, tired, harassed, overworked and mostly dissipated, one may easily pick up our hawk-eyed policemen moving uncomfortably under the weight of their bulging waistlines, displaying with rare dexterity the batons, perhaps their only visible insignia of authority.

(7) Is it not strange that even at such a place our lady made no effort either to escape or to seek help?

(8) And then, she goes all the way to Ghaziabad in a public bus and from there to a jhuggi. Once again she does not stir, makes no protest. She enjoys her lunch with her abductor and her hosts. She lives in that jhuggi for three days and during this period visits the market and thankfully accepts gifts purchased there for her, this time by a person who had been violating her body. What is to be made of this conduct? Does it show forcible abduction or a willing rendevouz?

(9) There is something more which needs to be noticed. In her statement under section 164 of the .Code of Criminal Procedure, Pushpa stated that she had come back to Delhi the same evening. And what is more important, she made no complaint of having been raped. However, when she entered the witness-box, she came out with a totally different version. She alleged having been kept in the Jhuggi for three days and having been raped by Surinder Kumar, though, as noticed above, she also claimed having visited the market and Surinder Kumar having purchased on that visit some gift items for her. Can we afford to rely upon the uncorroborated testimony of such a person?

(10) This still is not the end. It appears from the statement of Pushpa that it had taken them three hours from her house to arrive at the jhuggi in Ghaziabad. While at one place she states that she had been taken from her house at 11 a.m. at another she gives out the time at 9 a.m. They also took their lunch in the jhuggi. This must also have consumed some time. Thus, even if we take it that they had reached the jhuggi in Ghaziabad at about 12 noon, Raj Kumar could not have reached back home before 3 or 3.30 p.m. However, the father of Pushpa tells us that he had met him at his house the same day at about 1.30 p.m. How does one explain it?

(11) True, there is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand but I do feel that in a case like the one in hand, the advisability of corroboration should have been present in the mind of the learned trial judge. He surely lost sight of this rule of prudence.

(12) And, above all how can the conviction under section 366 be sustained on a mere finding of abduction? We all know that further finding that the accused abducted the woman for any one of the purposes mentioned in section 366 is also necessary. There is no such finding and in any case the evidence of the prosecutrix being what has been discussed above, no such finding can be safely returned.

(13) The appeal is allowed. The judgment of conviction and the order of sentence stand set aside. Let the appellant be released forthwith if not required in any other case.