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2000 DIGILAW 904 (RAJ)

Varda v. State of Rajasthan

2000-07-26

SUNIL KUMAR GARG

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Judgment Sunil Kumar Garg, J.-This appeal has been filed by the accused appellants against the Judgment and order dated 7-9-1982 passed by the learned Sessions Judge, Udaipur, by which: 1. he acquitted the accused Varda of the offence under Section 376, IPC and further acquitted two other accused Jarnail Singh and Kalu Maharaj of the offence under Section 366, IPC, but 2. convicted accused appellants Varda and Hariya under Section 366, IPC and sentenced each of them to two years Rigorous Imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further undergo for two months R.I. 2. It arises in the following circumstances:- .P.W. 7Udailal lodged an oral report Ex. P/il on 25-7-1980 in the Police Station Mavli District Udaipur to PW. 10 Umar Khan with the allegations that his son Chunni Lal was married with Mst. Kailash, P.W. 6 (prosecutrix) before 6-7 years back and since then she has been living as the wife of his son. On 23-7-1980, he went to Tarawat and in the house, his son and Mst. Kailash, P.W. 6 and his another daughter P.W. 1 Kamla were there. On 24-7-1980 when he returned back, he found her daughter alone and he asked about P.W. 6 Mst. Kailash from her. She told to P.W. 7 Udailal that one Pappu came to the house and he told to P.W. 6 Mst. Kailash that her father is ill and she has been called by her father and upon this, P.W. 6 Mst. Kailash went with Pappu. On being enquired, it was told by Kasiram that he was told by Arjun and Narayan, P.W. 2 that accused Varda was taking her on his bicycle and Pappu, Hariya and Kalu were also there. In the report, the age of PW. 6 Mst. Kailash has been stated to be 17 years and thus, accused persons have abducted P.W. 6 Mst. Kailash. Upon this, police registered a case and started investigation and on 25-7-1980 through Ex. P110, P.W. 6 Mst. Kailash was recovered from the hotel at Udaipur from the possession of the accused Varda and, thereafter, the police submitted a challan against four accused persons in the Court of Magistrate and against accused Pappu in the Children Court. The learned Sessions Judge framed charges against accused appellant Varda for the offence under Sections 366 and 376, IPC and against three accused persons Hariya. The learned Sessions Judge framed charges against accused appellant Varda for the offence under Sections 366 and 376, IPC and against three accused persons Hariya. Jarnail Singh and Kalu for the offence under Section 366, IPC. All the accused denied charges and claimed trial. In all, 12 witnesses were examined by the prosecution and, thereafter, statements of accused persons under Section 313, Cr. P.C. were recorded. The learned Sessions Judge vide his Judgment and order dated 7-9-1982 acquitted accused Jarnail Singh and Kalu for the offence under Section 366, IPC and also acquitted accused Varda of the charge under Section 376, IPC, but convicted and sentenced accused Varda and Hariya for the offence under Section 366, IPC, as stated above. Against the said Judgment and order dated 7-9-1982, the present appeal has been filed by the accused appellants. .3. In this appeal, it has been argued by the learned Counsel for the accused appellants:- .1. That there is an overwhelming material on record to show that PW. 6 Mst. Kailash accompanied the accused persons on her own will or otherwise to say that the prosecution has failed to establish that .P.W. 6Mst. Kailash was taken out of lawful guardianship and she was abducted with the intention to marry her or to compel her to deduce to illicit intercourse. .2. That since accused appellant Varda has been acquitted of the charge under Section 376, IPC, the charge under Section 366, IPC against him also goes off 4. On the other hand, the learned Public Prosecutor supported the impugned Judgment and order. 5. I have heard the learned Counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. .6. The learned Sessions Judge vide his Judgment dated 7-9-1982 has come to the following conclusions:- 1. That on the date of occurrence, the age of PW. 6 Mst. Kailash was found to be 18 years. 2. That PW. 6 Mst. Kailash was not acquainted with accused Varda before the alleged incident. 3. That no case of abduction is made out against the accused Jarnail Singh and Kalu. 4. That no case of rape is made out against accused appellant Varda. 5. That the prosecution has proved beyond reasonable doubt the charge under Section 366, IPC against the accused appellants Varda and Hariya. .7. 3. That no case of abduction is made out against the accused Jarnail Singh and Kalu. 4. That no case of rape is made out against accused appellant Varda. 5. That the prosecution has proved beyond reasonable doubt the charge under Section 366, IPC against the accused appellants Varda and Hariya. .7. In my opinion, the findings of the learned Sessions Judge that both accused appellants have committed the offence under Section 366, IPC cannot be sustained. The reasons are as follows:- 1. That there is no dispute on the point that on the date of occurrence, P.W. 6 Mst. Kailash was major one. 2. That from the statement of PW. 6 Mst. Kailash, it appears that in the hotel at Udaipur, accused Varda had sexual intercourse with her twice. 3. That when she was being taken on bicycle by accused party, many people met on the way. 4. That when she was brought to hotel, she did not tell anybody about her abduction or kidnapping. 5. That she saw cinema in the company of the accused and she sit there for three hours and she did not tell to anybody. 6. That she had stated that she did not know Varda earlier, but she has admitted that Kalu Maharaj, who used to tell her for going with Varda, but she did not tell this thing to anybody. 7. That she saw Varda 2-3 days before the occurrence. 8. Fromthe above, the findings of the learned Sessions Judge that PW. 6 Mst. Kailash was not acquainted with the accused Varda before the incident are not acceptable. The fact that she knew accused Varda before the alleged incident might be 2-3 days earlier, but the fact remains that she knew Varda and the fact that Kalu used to tell her to go with Varda also goes to show that some conversations between Kalu Maharaj, Varda and P.W. 6 Mst. Kailash were going on before the incident and in such circumstances, when she has left the house of her father in law, in his absence and has gone with accused party from Mavli to Udaipur, where she stayed in the hotel, all things go to show that she was consenting party even for abduction. 9. Kailash were going on before the incident and in such circumstances, when she has left the house of her father in law, in his absence and has gone with accused party from Mavli to Udaipur, where she stayed in the hotel, all things go to show that she was consenting party even for abduction. 9. In order to prove the charge under Section 366, IPC, two ingredients must be established; (i) that she was kidnapped or abducted from the custody of her lawful guardian, and (ii) that she was kidnapped or abducted with the intention of compelling her to marry any person against her will or in order that she may be forced or deduced to illicit sexual intercourse. 10. In the present case, the learned Sessions Judge has already acquitted the accused of the charge under Section 376, IPC meaning thereby it cannot be said that PW. 6 Mst. Kailash was forced or deduced to illicit sexual intercourse with accused Varda. 11. Sofar as the abduction of P.W. 6 Mst. Kailash from the custody of lawful guardianship is concerned, as stated above, it cannot be held from the statement of PW. 6 Mst. Kailash that she was forcefully abducted and since she has gone with the accused party at so many places, therefore, the element of consent is there and thus, the fact that she was taken out of lawful guardianship cannot be said to be proved by the prosecution. Hence, the findings of the learned Sessions Judge, on the basis of which accused appellants were convicted under Section 366, IPC, cannot be sustained. Hence, for the reasons stated above, the appeal filed by the accused appellants Varda and Hariya is allowed and they are also acquitted of the charge under Section 366, IPC and the impugned Judgment and order dated 7-9-1982 passed by the learned Sessions Judge Udaipur are set aside. Since the accused appellants are on bail, they need not surrender and their bail bonds stand cancelled.