1975 P Cr (PLP)

S. 376‑Rape‑Medical examination revealing no signs of violence or fresh intercourse but showing her used to sexual intercourse-- Prosecutrix's conduct suggesting her a willing party‑Conviction under section in circumstance set aside. Chiraghdin v. The State P L D 1967 S C 340 ref. S. A. Hassan for Appellant. Usman Ghani, A. A: G. for the State. Date of hearing: 18th June 1974. Appellant Banney Khan was tried in respect of offences punishable under sections 366 and 376, P. P. C., for allegedly kidnapping Mst. Akhtarun nisa and committing rape or, her, and was convicted by the learned City and Additional District Magistrate, Karachi, by her judgment delivered on 21‑6‑1973, of the said offences, and was sentenced on the first count to suffer three months' R. I. and to pay a fine of Rs. 2,000 or in default to undergo further R. I. for 1 year, and on the second count to undergo R: I. for four years and to pay a fine of Rs. 3,000 or in default to suffer further R. I. for two years, the sentences to run consecutively. The appellant has challenged his convictions and sentences. By a short order, recorded on 18‑6‑1974 I had allowed the appeal of the appellant. I now proceed to give reasons therefor. The prosecution case, in brief, is that the appellant is the son of the brother‑in‑law of the first informant, Muhammad Salim, who was at the relevant time residing with his family in Golimar. The appellant and his relations had been demanding from Muhammad Salim the hand of his daughter, Mst. Akhtarunnisa, in marriage for the appellant but' according to Muhammad Salim he was opposed to the marriage. On 9‑5‑1969, at sometime in the afternoon, Mst. Akhtarunnisa left her house in order to make some purchases. It is alleged that on the way the appellant accosted her and was able to pursuade her to accompany him, telling her that he would telephone her mother and obtain her permission for her to go with him. The appellant is first said to have taken Mst. Akhtarunnisa to a photo grapher's studio in Golimar where two photographs of her were taken, one with the appellant and the other alone. Thereafter, the appellant is said to have taken Mst. Akhtarunnisa in a rickshaw to his house, from where he picked up his sister‑in‑law and then both of them took Mst. Akhtarunnisa in the rickshaw to Korangi, where she was made to spend the night, and on the following day she was taken to a but in Drigh Colony. It is alleged that in that but the appellant in the night committed rape upon Mst. Akhtar unnisa after threatening her, giving her two or three slaps and putting a cloth into her mouth in order to prevent her from raising cries. On the following night, the appellant is said to have brought Mst. Akhtarunnisa to Golimar area, where they were seen at Lasbela bridge by a police party headed by Head Constable Mehdi Abbas, who arrested the appellant and took him and Mst. Akhtarunnisa to the police station. The police secured the shalwar which Mst. Akhtarunnisa was then wearing and also the shalwar and underwear of the appellant. The police also secured a bed sheet from the quarter of one Nanney Khan in Drigh Colony, which quarter was pointed out by the appellant. All these three articles were sent to the Chemical Examiner to the Government who has reported that semen stains were found on all these articles except on the shalwar of the appellant. Mst. Akhtarunnisa was also medically examined in regard to her age, and also for ascertaining whether she had any injury on her person or she had been criminally assaulted. The appellant in his 342, Cr. P. C. statement admitted that he had taken Mst. Akhtarunnisa to Korangi, but claimed that he had done so with the permission of her mother and that he had got her photographed on the way with the consent of Mst. Akhtarunnisa. He denied that he had used force or compelled the girl to accompany him or that he had committed rape on her or even had sexual intercourse with her. His defence was that first informant Muhammad Salim and his wife wanted to marry Mst. Akhtar unnisa to him, and because of this fact he bad been putting up in their house and he used to give them his earnings, but as they went on taking his earnings there was a dispute and because of this dispute, he has been involved in this case. In order to sustain the conviction of the applicant for the offence under section 363, P. P. C., it must be established that at the time of the incident Mst. Akhtarunnisa was below 16 years of age. The only evidence which has been led on the question of her age is medical evidence. Dr. Muhammad Umar, the then Police Surgeon, Karachi, has deposed that on the basis of the clinical and radiological examination of Akhtarunnisa he considered her to he between 15 and 16 years of age. It is well established that medical evidence alone, even if it is based on ossification test, is not a sure guide for determining the age of a person, as different charts have been prepared for such test and further the process of ossification is dependent on a number of factors, such as climate, heredity, eating habits and even environment. In Sirajuddin v. Saghiruddin (1970 3 C M R 30) their Lordships of the Supreme Court held that a person whose age on X‑ray examination was estimated to be between 16 and 17 years of age was evidently a minor. Mst. Akhtarunnisa and her parents belong to Karachi and according to the evidence of her father, Muhammad Salim, he has been putting up in Karachi since partition. In the city of Karachi registration of births is compulsory. In the circumstances it should not have been difficult for the prosecution to have produced an extract from the Municipal Register of Births showing the age of Mst. Akhtarunnisa. The absence of such certificate suggests that if it had been produced it may not have been favourable to the pro secution. In any case, the estimation of the doctor that Akhtarunnisa was between 15 and 16 years of age cannot be considered to be accurate and the possibility of her having crossed the 16th year of her age cannot be excluded. As such, the conviction of the appellant for the offence under section 363, P. P. C. cannot be sustained. In support of the conviction on the charge of rape, there is only the testimony of the prosecutrix, Mst. Akhtarunnisa. She has deposed that the appellant had come in the night to her bed, while she was sleeping in the but in Drigh Colony, where the appellant had taken her, and the appellant, after threatening her, giving her two or three slaps and stuffing a cloth into bar mouth in order to prevent her from raising cries, forcibly committed rape on her. The medical evidence does not lend support to her testimony' on this point. It shows that there were no marks of injuries or violence on her person. The absence of injuries clearly indicates that no struggle was put up by Mst. Akhtarunnisa. The medical evidence further show that she was used to sexual intercourse and there was complete absence of any material or sign suggesting fresh intercourse. If the appellant bad forcibly had sexual intercourse with Mst. Akhtarunnisa there would have been some redness, swelling or some other sign on her private parts. The conduct of Mst. Akhtarunnisa also suggests that she was a willing party, that this was not a case of kidnapping or abduction but apparently one of elopement and that if the appellant did have sexual intercourse with her, it was very likely with her consent. The photographer, Aijaz, has been examined and according to his testimony Mst. Akhtarunnisa raised no objection to her being photographed with the appellant nor did she com plain that the appellant had brought her by force or deceitful means. P. W. Noor Ahmed, to whose but in Korangi Mst. Akhtarunnisa had been taken by the appellant, has deposed that he had seen the appellant and Mst. Akhtarunnisa sitting on the same cot and when he questioned her as to why she was sitting on the same cot as the appellant, she replied that she loves the appellant. The testimony of Head Constable Abbas, who had secured Mst. Akhtarunnisa and arrested the appellant, also suggests that Mst. Akhtarunnisa was not subjected to any force but she was with the appellant of her free will and consent. According to him he saw the two together going on foot on the Lasbela bridge and when he enquired about their presence they could not give any satisfactory account of themselves. The Head Constable has not stated that Mst. Akhtarunnisa complained to him against the appellant, which would certainly have been the case if the appellant had taken her by force or deceitful means and had committed rape on her. All these circumstances clearly cast a doubt upon the testi mony of Mst. Akhtarunnisa in regard to the alleged rape by the appellant. In Chiraghdin v. The State (P L D 1967 S C 340) their Lordships of the Supreme Court con sidered the question as to how far the evidence of the prosecutrix should be relied upon in a rape case. The dictum laid down by their Lordships was that the evidence of the prosecutrix in such a case is customarily received by the Court with some suspicion and that in certain jurisdictions it is the rule that the solitary evidence of the prosecutrix, being a woman of full age, is not accepted as sufficient, but requires corroboration in order to be believed. In the instant case, as already pointed out, not only there is no corroboration to the testimony of Mst. Akhtarunnisa that she bad been subjected to rape but on the contrary the circumstances seem to suggest that if the appellant did have sexual intercourse with her it was very likely that she was a consenting party. The conviction on the charge of rape, under the circumstances, also cannot be sustained. In the result, I would accept the appeal of the appellant, set aside his convictions and sentences and direct that he be set at liberty forthwith, if not required in any other case. The notice for enhancement of sentence also stands discharged. Order accordingly.