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2001 DIGILAW 451 (RAJ)

Raju v. State of Rajasthan

2001-03-20

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This appeal from jail has been filed by the accused appellant against the judgment and order dated 10.3.2000 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases (Additional Sessions Judge), Pratapgarh by which he acquitted accused Smt. Munni Bai of the charges under section 366 IPC and 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the `SC/ST Act, 1989') and he also acquitted the accused appellant Raju of the charges under section 376 IPC and 3(2)(v) of the SC/ST Act, 1989, but convicted the accused appellant for the offence under section 363 IPC instead of 366 IPC and sentenced him to four years' RI and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo three months RI. 2. Since the accused appellant was not being represented by anybody, this Court vide order dated 18.10.2000 appointed Shri B.L. Khatri, Advocate as Amicus Curiae, who argued the case on behalf of the accused appellant, who is in jail. 3. The facts giving rise to this appeal, in short, are as follows:- On 6.9.1997 at about 1.00 PM, Onkarlal, PW 8 made an oral report Ex.P/8 with the Police Station, Nimbahera District Chittorgarh stating inter alia that on 4.9.1997 in the night he and his wife Bhagdibai, sons Pappu and Rameshwar and daughter Sugna, PW 5 (hereinafter referred to as the prosecutrix) were sleeping in the house after taking food and at about 4.00 AM he was told by his wife Bhagdibai that prosecutrix aged about 12 years was not in the house. Thereafter, prosecutrix was searched and it was found that the accused appellant, who was the tenant of the neighbour Nanuram, was also not found in that house and thereafter, PW 8 Onkarlal was told by one Khemraj that on the date of occurrence both prosecutrix and the accused appellant came to Tantarmala and the prosecutrix, who was handicapped by both legs, was being taken away on bicycle by the accused appellant with an intention that she may be compelled to marry any person. On this report, police registered the case FIR No. 432/97 Ex.P/8 and started investigation. On 10.6.1998 police came to know that prosecutrix had come back to the house of PW 8 Onkarlal and, therefore, fard of recovery Ex.P/3 was prepared by the police. On this report, police registered the case FIR No. 432/97 Ex.P/8 and started investigation. On 10.6.1998 police came to know that prosecutrix had come back to the house of PW 8 Onkarlal and, therefore, fard of recovery Ex.P/3 was prepared by the police. Thus, prosecutrix herself returned back to her house after living with the accused appellant for about eight months. The prosecutrix PW 5 Sugna was got medically examined for the purpose of ascertaining her age and for the purpose she has been raped or not and her medical examination reports are Ex.P/13 and Ex.P/12 respectively and Dr. Dilip Sharma, PW 10 has opined that age of the prosecutrix was between 15-16 years on the date of examination i.e. 10.6.1998. After usual investigation, the police submitted challan against the accused appellant Raju and his wife Smt. Munni Bai in the Court of Magistrate, from where the case was transferred to the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases, Pratapgarh. On 18.12.1998, the learned Special Judge, SC/ST cases, Pratagarh framed charges under section 366 IPC and 3(2)(5) of the SC/ST Act against accused Munni Bai and under sections 366 and 376 IPC and 3(2)(v) of the SC/ST Act against the accused appellant Raju. The charges were read over and explained to the accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused under section 313 Cr.PC. were recorded. However, no evidence was produced in defence by the accused. After conclusion of the trial, the learned Special Judge, SC/ST Cases, Pratapgarh through his judgment and order dated 10.3.2000 acquitted the accused Munni Bai of all the charges framed against her and also acquitted accused appellant of the charge under section 376 IPC and 3(2)(v) of the SC/ST Act, but convicted the accused appellant for the offence under section 363 IPC instead of 366 IPC and sentenced in the manner as stated above holding inter alia:- 1. That from all point of view, prosecutrix PW 5 Sugna was below the age of 18 years and thus, on the date of occurrence she was a minor. 2. That prosecution has not been able to prove that prosecutrix was abducted for the purpose that she may be compelled to marry any person or she may be forced to illicit intercourse. 3. 2. That prosecution has not been able to prove that prosecutrix was abducted for the purpose that she may be compelled to marry any person or she may be forced to illicit intercourse. 3. That accused appellant took prosecutrix on bicycle from guardianship of her father and thus, by doing so, he committed the offence under section 363 IPC instead of 366 IPC. 4. That for the offence under section 363 IPC, consent of the kidnapped girl i.e. prosecutrix in the present case is immaterial. Aggrieved from the said judgment and order dated 10.3.2000 passed by the learned Special Judge, SC/ST Cases, Pratapgarh, this appeal has been filed by the accused appellant from jail. 4. In this appeal, the learned counsel for the accused appellant has mainly argued that in the present case it is wrong to hold that prosecutrix PW 5 Sugna was kidnapped by the accused appellant and since the age of the prosecutrix was near about 18 years therefore, she was a consenting party right from the very beginning and this fact is very much clear from the fact that she has remained for about eight months in the company of the accused appellant. Therefore, it was submitted that the learned Special Judge, SC/ST Cases has wrongly convicted the accused appellant for the offence under section 363 IPC and the accused appellant should be acquitted of the charge under section 363 IPC also. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, SC/ST Cases, Pratapgarh. 6. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. 7. For kidnapping, the prosecution must prove:- 1. That the person in question was at the time of the offence in India. 2. That the accused conveyed that person beyond the limits of India. 3. That he did so without the consent of that person, or of some person legally authorised to consent on that persons behalf. 4. That the person in question was at the time of the offence a minor under sixteen years of age (if a male) or under eighteen years of age (if a female) and that person was at the time in lawful guardianship and the accused took or enticed such minor without the consent of such guardian. 8. 4. That the person in question was at the time of the offence a minor under sixteen years of age (if a male) or under eighteen years of age (if a female) and that person was at the time in lawful guardianship and the accused took or enticed such minor without the consent of such guardian. 8. Whether the prosecution has been able to prove the above four points or not, for that first the age of the prosecutrix on the date of occurrence should be ascertained. 9. In this case, the occurrence took place on 4.9.1997. In FIR Ex.P/8 lodged by PW 8 Onkarlal, father of the prosecutrix, the age of the prosecutrix has been mentioned as 12 years. PW 10 Dr. Dilip Sharma through his statement has proved the certificate Ex.P/13 by which the age of the prosecutrix was determined and has further stated that from clinical examination and on the basis of X-ray report, he came to the conclusion that she was aged about 15-16 years. However, in cross-examination, he has admitted that in this age there may be a variation of two years on either side. 10. PW 5 Sugna, prosecutrix has stated in her court examination on 3.4.1998 that her age was 13-14 years. 11. PW 8 Onkarlal has stated in his court examination that the age of the prosecutrix was 15-16 years. In cross- examination, he has admitted that the fact that prosecutrix was 15 years of age has been been stated by him on guess. He has further admitted that his elder son is 30 years old and after the birth of his elder son, prosecutrix PW 5 Sugna was born after ten years and he has further admitted that he does not know the exact date and year of birth of his children. 12. In the above facts and circumstances, the age of the prosecutrix PW 5 Sugna has to be determined and keeping in mind that no School Certificate has been produced in this case. 13. It may be stated here that doctors opinion as to the age is not of much value, as doctors statement as to the age of the girl is an opinion based entirely on such particulars as her height, weight, teeth, radiological examination etc. Thus, such opinion in real sense is nothing but mere opinion and not conclusive proof of age. 14. Thus, such opinion in real sense is nothing but mere opinion and not conclusive proof of age. 14. It may further be stated here that conclusive evidence of the girl age may be the birth certificate with such oral testimony as may be available and in such circumstances, conclusion has to be based on oral facts and circumstances, including the result of examination of alia physical features of the girl. 15. The age of the prosecutrix in cases under sections 366 and 376 IPC is always of importance. It may further be stated here that margin of error in age ascertained by radiological examination is two years on either side, as held by the Honble Supreme Court in Jaimala v. Home Secretary, Government of Jammu and Kashmir ( AIR 1982 SC 1297 ). 16. Looking to the oral statement of PW 5 Sugna, prosecutrix herself, statement of PW 8 Onkarlal, father of the prosecutrix and the statement of Dr. Dilip Sharma, PW 10 where he has determined the age of prosecutrix 15-16 years and further stated that in this age there may be variation of two years on either side, it can be said that though prosecutrix PW 5 Sugna may be a minor, but had attained the age of discretion and on the verge of attaining majority. Hence, the age of the prosecutrix in the present case is determined accordingly. 17. The next question is whether the charge under section 363 IPC, which has been found proved by the learned Special Judge, SC/ST Cases, can be sustained or not and for that, evidence of two main witnesses, namely, PW 5 Sugna prosecutrix herself and PW 8 Onkarlal, father of the prosecutrix, has to be looked into. 18. PW 5 Sugna (prosecutrix) has stated in her examination-in-chief that accused appellant was living in her neighbour in the house of Nanuram alongwith his wife Smt. Munni Bai and he took her to Mataji and at that time, his wife was also there and from there, he took her to Kashiya Khan where they lived and thereafter, she came back to her parents house after living for about eight months in the company of the accused appellant. In cross-examination, she has admitted the following facts:- 1. That it is correct to say that she used to go to the house of accused-appellant and accused-appellant used to come to her house. 2. In cross-examination, she has admitted the following facts:- 1. That it is correct to say that she used to go to the house of accused-appellant and accused-appellant used to come to her house. 2. That she went on bicycle with the accused appellant and, thereafter, she went in motor alongwith the accused-appellant. 3. That in Kashiya Khan, they lived for two months and at that time, accused appellant used to go for labour work alongwith his wife and she used to remain in the house alone. 4. That in neighbour, there were so many houses. 5. That after nine months, she came to the house of her father. 6. That in these nine months, she did not tell any body that she has been kidnapped by the accused appellant. 19. PW 8 Onkarlal has admitted the following facts in his cross-examination: 1. That he searched his daughter for nine months. 2. That after coming of prosecutrix to his house, she did not make any complaint about the conduct of the accused-appellant and his wife. 3. That previous to incident, PW 5 Sugna prosecutrix used to go to the house of the accused appellant and accused-appellant used to come to his house. 20. The intention of the accused is the basis and the gravemen of an offence under this Section. The violation, the intention and the conduct of the accused determine the offence. Consent may take the act out of this section where the girl is above the age of consent and where the girl is of bordering age, it would also take the act out of this section. 21. The violation, the intention and the conduct of the accused determine the offence. Consent may take the act out of this section where the girl is above the age of consent and where the girl is of bordering age, it would also take the act out of this section. 21. Looking to the entire facts and circumstances of the present case, it appears that the prosecution PW 5 Sugna was very much familiar with the accused appellant before the alleged incident; prosecutrix used to go to the house of the accused appellant and accused appellant used to come to the house of the prosecutrix; at the time of alleged incident, prosecutrix was at the age of discretion that is to say on the verge of attaining majority; prosecutrix went on bicycle with the accused appellant and remained with the accused-appellant for about either months, where not only she lived in the company of accused-appellant, but wife of the accused-appellant was also there and she has made no complaint about the conduct of the accused-appellant during that period; there is no evidence that accused-appellant tried to molest her or seduce her to illicit intercourse; there is also no evidence that when she went on bicycle with the accused-appellant, any inducement or force was used by the accused-appellant. In these circumstances, it cannot be said, by stretch of any imagination, that accused-appellant has taken the prosecutrix from lawful guardianship of her father i.e. PW 8 Onkarlal. On the contrary, it appears that her desire of accompanying accused appellant was always implicit. 22. Under these circumstances, no inference can be drawn that the accused-appellant was guilty of taking away the prosecutrix PW 5 Sugna out of the keeping of her father. She has willingly accompanied him and law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. 23. It may be stated here that where the girl of maturing age leaves her father's protection knowing and having the capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from keeping of her lawful guardian. 24. 23. It may be stated here that where the girl of maturing age leaves her father's protection knowing and having the capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from keeping of her lawful guardian. 24. In the present case also, PW 5 Sugna prosecutrix has left the house of her father PW 8 Onkarlal without any inducement by the accused appellant, who merely allows her to accompany him and thus, the accused-appellant has not committed the offence under section 363 IPC also. Hence, the findings of the learned Special Judge, SC/ST Cases, Pratapgarh convicting the accused-appellant for the offence under section 363 IPC cannot be sustained and the accused-appellant is entitled to be acquitted of the charge under section 363 IPC.Accordingly, this appeal filed by the accused-appellant Raju is allowed and the judgment and order dated 10.3.2000 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases (Addl. Sessions Judge), Pratapgarh are set aside and the accused appellant is acquitted of the charge for the offence under section 363 IPC. Since accused appellant is in jail, he be released forthwith if not required in any other case.Appeal Allowed. *******