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2012 DIGILAW 288 (RAJ)

State of Rajasthan v. Hari Ram and Harish

2012-02-06

R.S.CHAUHAN

body2012
JUDGMENT 1. - The State is aggrieved by the judgment dated 29.07.2010 passed by the Sessions Judge, Jaisalmer, whereby the learned Judge has acquitted the accused respondent, Hari Ram @ Harish, for the offences under Sections 363 and 366 IPC. 2. In short, the facts of the case are that on 01.02.2008, Achlaram (P.W.2) filed a written report before the Police Station Ramgarh, wherein he has claimed that he is the resident of 21 SC Murabba No. 104/60. He lives there with his family. On 23.01.2008, the farmers were on strike. Therefore, he went to Jaisalmer. He received a call from his wife informing him that their daughter, the prosecutrix, is missing from the house. Therefore, he came back to his home on 24.01.2008. His neighbours told him that at night the accused-respondent Hari Ram had come along with four to five persons and had taken away his daughter. His neighbour, Premaram, had assured him that he will bring back his daughter. However, he failed to do so. Thus, the complainant approached the police. On the basis of the report, a formal FIR was chalked out. The prosecutrix was recovered from Hari Ram. Subsequently, the police submitted a charge-sheet for offences under Sections 363 and 366 IPC. 3. In order to buttress its case, the prosecution examined ten witnesses, and submitted ten documents. In defence, although the defence did not examine any witness, but it did submit thirty documents. After going through the oral and documentary evidence, vide judgment dated 29.01.2010, the learned Judge acquitted the accused-respondent. Hence, this criminal leave to appeal before this Court. 4. Mr. O.P. Singharia, the learned Public Prosecutor has vehemently contended that the learned Judge has failed to appreciate the evidence in proper perspective. According to the prosecution, the prosecutrix was a minor. In order to buttress this plea, the prosecution had examined Smt. Paru (P.W.3), the mother of the prosecutrix. According to Smt. Paru (P.W.3), her daughter was about fourteen years old, at the time of the incident. Moreover, the prosecution had also submitted the school record which clearly shows that the prosecutrix's date of birth was 14.10.1994. Hence, on the date of incident, she was about thirteen years and four months. However, the learned Judge has erred in taking her age to be between fifteen to eighteen years. Hence, the learned Judge has erroneously acquitted the accused-respondent. 5. Hence, on the date of incident, she was about thirteen years and four months. However, the learned Judge has erred in taking her age to be between fifteen to eighteen years. Hence, the learned Judge has erroneously acquitted the accused-respondent. 5. On the other hand, Mr. Vikram Rajpurohit, the learned counsel for the accused-respondent, has strenuously contended that it was for the prosecution to establish beyond a shadow of doubt that the prosecutrix was, indeed, minor. However, the prosecution has failed to do so. Although Smt. Paru (P.W.3), the prosecutrix's mother, has been examined, but Achlaram (P.W.2), the prosecutrix's father is absolutely silent with regard to the age of the prosecutrix. Moreover, though the prosecution had produced the school certificate, the same had not been proved. In fact, the prosecution has failed to examine the person who had filled the said documents. Therefore, the prosecutrix's date of birth cannot be taken as 14.10.1994. Hence, the learned Judge was certainly justified in relying upon the medical evidence. According to the medical evidence, the prosecutrix was anywhere from fifteen years to eighteen years old. Thus, she was major. Moreover, the learned Judge has considered the existence of an application (Ex.D/2) submitted by the proseutrix before the Judicial Magistrate, wherein she had clearly stated that she had gone with the accused respondent for the purpose of marrying him. Furthermore, the learned Judge has considered the photographs (Ex.D-6 to Ex.D/29) which clearly show that both the prosecutrix and the accused-respondent had married each other. Therefore, obviously the prosecutrix had eloped with the accused-respondent. Hence, the learned Judge was certainly justified in acquitting the accused respondent. 6. Heard the learned counsel, perused the impugned judgment and examined the record. 7. It is, indeed, trite to state that it is for the prosecution to establish its case beyond a reasonable doubt. Thus, it was the duty of the prosecution to establish that the prosecutrix was minor. The prosecution has submitted three different sets of evidence, namely Smt. Paru (P.W.3), Achlaram (P.W.2) the prosecutri's parents; secondly the school documents of Govt. Upper Primary School Dhokali Nadi Baytu Chimanji District Barmer dated 2nd February, 2008 wherein the date of birth of the prosecutrix is shown as 14.10.1994. Thirdly, Dr. R.P. Garg (P.W.5) and Dr. Ummed Singh (P.W.7) who in their testimonies stated that the prosecutrix could be anywhere between the ages of fifteen to eighteen years. Upper Primary School Dhokali Nadi Baytu Chimanji District Barmer dated 2nd February, 2008 wherein the date of birth of the prosecutrix is shown as 14.10.1994. Thirdly, Dr. R.P. Garg (P.W.5) and Dr. Ummed Singh (P.W.7) who in their testimonies stated that the prosecutrix could be anywhere between the ages of fifteen to eighteen years. In turn, the defence has submitted an application (Ex.D/2) which was submitted by the prosecutrix herself before the Judicial Magistrate, Jaisalmer wherein she has shown her age to be eighteen years and has submitted a certificate issued by the Medical Jurist, Mahatama Gandhi Hospital, Jodhpur wherein the prosecutrix has been shown to be eighteen years old. 8. A bare perusal of the testimony of Smt. Paru (P.W.3) clearly reveals that she has not been able to tell the exact date of birth of the prosecutrix. She has merely stated that she is about fourteen years old. Furthermore, school certificate has not been proven by the Principal of the school, or by any other officer of the school. Therefore, the Court does not know whether the date of birth recorded in the school document is genuine one or not? Thus, the learned Judge had only the medical evidence before him to rely upon. According to the testimony of Dr. Ummed Singh (P.W.7) after perusing the X-ray of the prosecutrix's body, he was of the opinion that she could be anywhere from fifteen to eighteen years old. In case, there are two different interpretations of a given fact, the interpretation in favour of the accused has to be adopted by the Court. Therefore, the learned Judge was justified in concluding that the prosecutrix was major on the date of the incident. 9. The learned Judge has also noticed the fact that according to the application given by the prosecutrix before the Judicial Magistrate, Jaisalmer, she had left the house in order to marry the accused-respondent. Moreover, the defence had also produced a series of photographs as well as the marriage certificate issued by Arya Samaj at Jodhpur clearly showing that the prosecutrix had married the accused-respondent. Thus, the learned Judge had critically analyzed the evidence produced by the prosecution and by the defence. After giving the cogent reasons, the learned Judge has acquitted the accused-respondent. 10. Hence, this Court does not find any illegality or perversity in the impugned judgment. Thus, the learned Judge had critically analyzed the evidence produced by the prosecution and by the defence. After giving the cogent reasons, the learned Judge has acquitted the accused-respondent. 10. Hence, this Court does not find any illegality or perversity in the impugned judgment. Therefore, this criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.Leave to appeal dismissed. *******