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2005 DIGILAW 1855 (RAJ)

Darshan Singh v. State of Rajasthan

2005-07-21

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This appeal under Section 374 of the Criminal Procedure Code has been directed against the Judgment of conviction and order of sentence dated 13.03.1981 passed by learned Sessions Judge, Sri Ganganagar in Sessions Case No. 35/1980 whereby the accused-appellants have been convicted as under : Accused appellants Sentence awarded Mahendra Singh, Hari Singh, Balora Singh, Makhan Singh Convicted under Sections 366 IPC and sentenced for 18 months R.I. and fine of Rs.100/-each, in default, further to under go one months R.I. Basant Kaur, Convicted under Sections 366 IPC and sentenced for one years simple imprisonment. and fine of Rs.100/-in default, further to under go one months S.I. Dara Singh, Darshan Singh Convicted under Sections 368 IPC and sentenced for 18 months R.I. and fine of Rs.100/-each, in default, further to under go one months R.I. .2. Briefly stated, the facts giving rise to the present case are that PW-5 Banta Singh son of Malla Singh presented a written report (Exhibit-P/9) in the police Station Kotwali, Sri Ganganagar on 210.1979 at about 10.00 AM inter alia stating therein that his daughter Shanti aged about 14 -15 years had gone to meet her mother at Ganganagar. When she was alone at the home as her mother had gone on job, neighbourers Hari Singh,Balora Singh, Mahendra Singh, Makhan Singh, wife of Mahendra Singh and wife of Balora Singh came in the house of Shanti and took her away. On this report, a regular FIR Exhibit-P/10 was chalked out and investigation commenced. During the course of the investigation, accused were arrested. The prosecutrix was medically examined. After investigation, a charge-sheet was filed against the accused appellants and in due course of time, the matter came for trial before the learned Sessions Judge, who framed the charge under Sections 363, 366 and 368 IPC against the accused appellants. The accused denied the charges and claimed trial. In all the prosecution produced 8 witnesses. After close of the prosecution evidence, in the statements recorded under Section 313 CrPC, the accused denied the prosecution case and claimed themselves to be innocent. Learned trial Judge after hearing both sides convicted and sentenced the accused appellants as indicated hereinabove. .3. Heard learned Counsel for the parties and perused the material available on record. 4. After close of the prosecution evidence, in the statements recorded under Section 313 CrPC, the accused denied the prosecution case and claimed themselves to be innocent. Learned trial Judge after hearing both sides convicted and sentenced the accused appellants as indicated hereinabove. .3. Heard learned Counsel for the parties and perused the material available on record. 4. It has been contended by learned Counsel for the accused appellants that the matter has become quite old as the incident is of the year 1979 and more than 26 years have passed, therefore, it will be in the interest of justice not to send the appellants in jail after such a long time. On merit, it has been contended that the learned trial Court has found that she was a willing partner to go with the accused persons. It has also been contended that as per the medicial examination she was not below 16 years of age. Her age according to Exhibit-P/1 X-ray report of elbow joint etc. was between 16 -17 years. 5. During the course of the arguments, it has been contended that accused appellant No.1 Dara Singh and No.4 Basant Kaur died, therefore, appeal against them does not survive. .6. On the other hand, learned Public Prosecutor submits that learned trial Judge has rightly convicted and sentenced the accused appellants. .7. I have considered the rival submissions made before me. .8. The point requires consideration in the present case is as to whether the prosecutrix had attained the age of discretion on the date of commission of the offence and whether the prosecution has been able to prove the case against the accused appellants. .9. I have carefully securtinised the evidence available on record. 10. The learned trial Court found that the prosecutrix was a willing partner to go with the accused appellants and thus finding in this regard has not been challenged, therefore, the only point which remains to be considered is as to what was the age of the prosecutrix on the date when the offence is alleged to have been committed. 11. PW. 1 Dr. S.L. Kaushik is Radiologist and PW. 2 Dr. Rajendra Gupta is Medical Jurist. Both were posted at the relevant time at the District Hospital, Sri Ganganagar. Their opinion on the basis of X-ray of pelvic, palm and elbow joint etc, the age of the prosecutrix was between 16 to 17 years. 11. PW. 1 Dr. S.L. Kaushik is Radiologist and PW. 2 Dr. Rajendra Gupta is Medical Jurist. Both were posted at the relevant time at the District Hospital, Sri Ganganagar. Their opinion on the basis of X-ray of pelvic, palm and elbow joint etc, the age of the prosecutrix was between 16 to 17 years. She had 30 teeth and she was fully grown up girl. She also had space for third molar. Other evidence in regard to the age of the prosecutrix is of PW. 5 Banta Singh father of the prosecutrix. In his statement, he stated that the prosecutrix took birth on 02.05.1964 and in the cross-examination, in the last he stated that age of the prosecutrix in the school told by him was on his estimation. The evidence of PW. 6 mother of Shanti Devi is not of any help in this case. PW. 4 Laxmi Narain, Head Master of the school produced the School Certificate which discloses date of birth of the prosecurtix to be 02.05.1964. In the cross-examination, he admitted that he had not brought the record on the basis of which the certificate was issued. 12. In view of above evidence, it appears that oral evidence is not clinching in relation to the age of the prosecutrix and medical evidence says that she was between 16 to 17 years. Thus, it can safely be said that she had attained the age where she could understand about her welfare. The learned trial Court has found that the prosecutrix had gone with the accused at her own will and this finding has not been challenged. Regarding age, a fluctuation is available upto 3 years upwards as well as 3 years downwards. In my view, taking into consideration the medical evidence in the case, she could not be considered below 18 years of age and was not minor at the time of alleged incident. Hence, the benefit of doubt is required to be given to the accused appellants and the accused appellants are liable to be acquitted of the charges framed against them. My view finds support by a decision rendered by this Court in Shyam Sunder vs. The State of Rajasthan, reported in 1991 CrLR 555 (Raj.). 13. Hence, the benefit of doubt is required to be given to the accused appellants and the accused appellants are liable to be acquitted of the charges framed against them. My view finds support by a decision rendered by this Court in Shyam Sunder vs. The State of Rajasthan, reported in 1991 CrLR 555 (Raj.). 13. In view of forgoing discussion, the appeal of accused-appellants is allowed and the Judgment of conviction and order of sentence dated 13.03.1981 passed by learned Sessions Judge, Sri Ganganagar in Sessions Case No. 35/1980 is hereby set aside and the accused appellants are hereby acquitted of the charges framed against them. The accused appellants are on bail. Their bail bonds stand cancelled.