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2011 DIGILAW 937 (RAJ)

Ramkumar v. State of Rajasthan

2011-05-05

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The petitioner-complainant is aggrieved by the judgment dated 19.04.2008 passed by the Special Judge, Women Atrocities and Dowry Cases, Jaipur City, Jaipur, whereby the learned Judge has acquitted the accused/non-petitioner, Sharvan @ Vikram, for offences under Sections 363, 366 and 376 IPC. 2. The brief facts of the case are that on 05.02.2006, Ram Kumar (P.W.10), the complainant, lodged a written report that his daughter, Saroj (P.W.8), is staying with his elder brother Sohanlal for the last eight months at Udyog Nagar, Jaipur. According to him, his daughter was fifteen years old and had completed her tenth class. On 18.01.2006, his daughter left the house of his brother. Therefore, his brother Sohanlal lodged a FIR for a missing person. Subsequently, they discovered that Sharvan @ Vikram Singh has taken away Saroj. He has further claimed that two or three love letters were written by Sharvan to Saroj. However, as they cannot locate his daughter, therefore, a report was filed before the police. On the basis of the said report, a FIR was chalked out for offence under Sections 363 and 366 IPC. After Saroj was discovered, the offence under Section 376 IPC was added. In order to buttress its case, the prosecution had examined fifteen witnesses and had submitted twenty documents. In order to buttress its case, the defence had examined one witness and has submitted twelve documents. After going through the oral and documentary evidence, vide judgment dated 19.04.2008, the learned Judge had acquitted Sharvan for the offences mentioned above. Hence, this petition before this Court. 3. Mr. Biri Singh Senior Advocate, along with Mr. Mukesh Saini, the learned counsel for the petitioner, has vehemently that according to the school documents, Saroj was minor on the date of the incident. Therefore, the question of her giving consent for sexual intercourse does not arise. According to him, the learned Judge has ignored the school documents and has wrongly relied upon the medical evidence. Secondly, according to the prosecutrix herself, she was kidnapped by Sharvan and kept in a room and was ravished by him. Therefore, there is ample evidence to prove the commission of offence under Section 376 IPC. Hence, the learned Judge was not justified in acquitting the accused-respondent for the said offence. 4. Secondly, according to the prosecutrix herself, she was kidnapped by Sharvan and kept in a room and was ravished by him. Therefore, there is ample evidence to prove the commission of offence under Section 376 IPC. Hence, the learned Judge was not justified in acquitting the accused-respondent for the said offence. 4. On the other hand, the learned Public Prosecutor has contended that the learned Judge has given cogent reasons for disbelieving the school record and for relying upon the medical evidence in order to determine the age of the prosecutrix. Thus, his conclusion that the prosecutrix was major is well justified. Secondly, the prosecutrix has turned hostile during the course of the trial. Thirdly, she is an untrustworthy witness as she has changed her stand from her statement under Section 161 Cr.P.C., to her statement recorded under Section 164 Cr.P.C., to her testimony before the Court. Forthly, Sharvan and the prosecutrix happen to be cousin brother and sister. According to the complainant himself, there were certain love letters which were exchanged between them. Thus, a grave possibility that there is an intimate relationship between them, cannot be ruled out. Lastly, according to the prosecutrix, she had stayed with the accused in a room for over one month. According to the testimony of Mohd. Khalil (P.W.9), the landlord of the room, the prosecutrix never protested and, in fact, lived happily with the accused. Hence, the learned Judge was justified in concluding that it is a case of elopement, rather than of rape. 5. Heard the learned counsel for the parties and perused the impugned judgment. 6. The determination of age is rather a ticklish issue to be decided by the learned trial Court. Inevitably, on the one hand there are school documents which throw light on the said issue, and on the other hand, there is the medical evidence which reveals the age of the person. At times, there might be conflict between the two sets of evidence. 7. In catena of cases, the Hon'ble Supreme Court has held that although the school documents may be admissible. But the documents need to be proved by a person from the school itself. Moreover, the testimony of the parents should be trustworthy. It is for the parents, or for the guardian of the child, who had admitted the child in the school to reveal the exact date of birth. But the documents need to be proved by a person from the school itself. Moreover, the testimony of the parents should be trustworthy. It is for the parents, or for the guardian of the child, who had admitted the child in the school to reveal the exact date of birth. The Hon'ble Supreme Court has also noted that it is a prevalent practice that the correct age is not revealed by the parents in order to derive certain benefits in the life of the child later on. 8. In the case of Pradeep Kumar vs. State of Rajasthan (2007 (6) WLC (Raj) 751) dealing with the offence under Section 376 IPC, this Court had also opined that the school certificate is not the final word on the question of age. In fact, the age should be determined by radiological test. 9. A bare perusal of the impugned judgment clearly reveals that the learned Judge has noted that admission letter of school (Ex.P/9), Scholar Register (Ex.P/10) and Mark-sheet issued by Board of Secondary Education (Ex.P/13) reveal the age of the prosecutrix as 05.07.1990. The prosecution had relied upon these documents to prove the fact that the prosecutrix was, indeed, minor on the date of the incident. However, the learned Judge has also noticed the fact that Bhanwar Singh (P.W.7) had clearly admitted that Exhibit-P/9 was neither recorded in front of him, nor while he was the member of the school. Therefore, he is not in a position to reveal whether the contents of the documents are true. Moreover, he is not in a position to tell the Court whether the signature in the document is that of the father or of the guardian. For, on the date of the admission of Saroj, he was not the principal of the school. 10. The learned Judge has also noticed that even the father of the prosecutrix, Ram Kumar (P.W.10) claims that it is he who had gotten her admitted in the school. Moreover, the signature of the father of the prosecutrix on Ex-P/9 is in English, whereas in the Court, he has signed the testimony in Hindi. Therefore, the learned Judge has clearly concluded that even the father has not been able to prove the actual date of birth produced by the prosecution. Most importantly, according to the voter list (Ex.D/1), Saroj is shown to be of nineteen years old. Therefore, the learned Judge has clearly concluded that even the father has not been able to prove the actual date of birth produced by the prosecution. Most importantly, according to the voter list (Ex.D/1), Saroj is shown to be of nineteen years old. Voters list is a Government document. Therefore, its authenticity and veracity cannot be doubted. 11. As far as the medical evidence is concerned, according to Dr. Prakash Bhandari (P.W.5) and Dr. R.K. Sharma (P.W.6), the prosecutrix was found to be between the ages of eighteen to nineteen. Moreover, in her testimony itself, the prosecutrix claims to be seventeen years. Thus, faced with the two sets of evidence, i.e., school documents and the medical evidence, faced with the school documents which have not been proved and faced with the medical evidence, which reveal the age of the prosecutrix and which is further corroborated by the voters-list, the learned Judge was certainly justified in choosing the medical evidence and the voter list as proving the correct age of the prosecutrix. Therefore, this Court does not find any illegality in the reasons given by the learned Judge, as far as the determination of the age of the prosecutrix is concerned. 12. Admittedly, the prosecutrix and the accused are cousin brother and sister. In her examination-in-chief, she clearly reveals that Sharvan happens to be her uncle's son. According to the prosecutrix, she was living with Sharvan in the house of Sharvan's parents. According to the complainant himself, there are love letters which have been exchanged between the accused and the prosecutrix. According to the case of the prosecution, the prosecutrix was taken to another place and yet she stayed with the accused for one month and nine days. According to Mohd. Khalil (P.W.9), the landlord of the room, the prosecutrix was living happily with the accused. She neither protested, nor complained about his conduct. Moreover, she has not tried to escape from his clutches. Considering her conduct, it seems to be more a case of elopement than a case of rape. 13. Lastly, the prosecutrix is certainly not a witness of sterling worth. For, in her statement recorded under Section 161 Cr.P.C., she has alleged that she was raped, yet in her statement recorded under Section 164 Cr.P.C., she is absolutely silent on this point. 13. Lastly, the prosecutrix is certainly not a witness of sterling worth. For, in her statement recorded under Section 161 Cr.P.C., she has alleged that she was raped, yet in her statement recorded under Section 164 Cr.P.C., she is absolutely silent on this point. Before the Court, in her examination-in-chief, she claims that no incident had occurred between her and Sharvan. Therefore, she was declared as a hostile witness. Moreover, as the prosecutrix changed her stand, ever so often, her statement cannot be relied upon to convict a person. Furthermore, her testimony is not corroborated by the medical evidence as according to Dr. Prakash Bhandari (P.W.5), “he is not in a position to express any opinion whether the prosecutrix was subjected to forceful sexual intercourse or not”. Therefore, the learned Judge was certainly justified in acquitting the accused-respondent. 14. Therefore, this Court does not find any illegality or perversity in the impugned judgment. Hence, this petition is devoid of any merit; it is, hereby, dismissed.