Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 495 (RAJ)

Jagdish v. State of Rajasthan

2012-02-21

NISHA GUPTA

body2012
Hon'ble , J.—This appeal has been filed against the judgment and order dated 4.4.2007 whereby the present appellant has been convicted for the offences under Sections 363, 366 and 376 IPC and has been sentenced as under:- Section 363 IPC: Three ears' rigorous imprisonment together with a fine of Rs. 100/-. Section 366 IPC: Four Years' rigorous imprisonment together with a fine of Rs. 100/-. Section 376 IPC: Seven Year's rigorous imprisonment together with a fine of Rs. 100/-. In default of payment of fine, to further undergo three months' rigorous imprisonment with regard to each fine. All the sentences were ordered to run concurrently. 2. The short facts of the case are that on 4.9.2006, Parmeshwar Thakur lodged a missing report regarding her daughter Aarti. Thereafter, on 6.9.2006, he lodged another report stating therein that her daughter is minor one and present appellant Jagdish has taken her away. It was also stated that Jagdish was used to call his daughter and he has taken Aarti to Almora. On this report, FIR No. 330/2006 was registered at P.S. Sodala, Jaipur under Sections 363, 366 and 376 IPC. 3. On receiving information, the police recovered Aarti from the custody of Jagdish at Village Belaf, District Almora and after usual investigation, challan was filed against the present appellant for under Sections 363, 366-A, 376 and 120-B IPC and for co-accused Smt. Sunita Rai for the offences under Sections 363/120-B and 366/120-B IPC. After hearing both the parties and considering the material on record, the present appellant has been charged for the offences under Sections 363, 366 and 376 IPC and Smt. Sunita Rai has also been charged for the offences under Sections 363/120-B and 366A/120-B IPC. 4. The prosecution examined as many as 15 witnessed and exhibited 21 documents in supports of its case. Statement of accused under Section 313 Cr.P.C. were recorded. No witness was produced in defence and exhibited 4 documents. The accused-appellant did not plead guilty and claimed to be tried. After considering the material on record, the accused-appellant has been convicted and sentenced as aforesaid. Co-accused Sunita Rai has been acquitted of the charges. Hence, this appeal. 5. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the impugned judgment. 6. The contention of the present appellant is that the prosecutrix is major one and she went with him on her own will. Co-accused Sunita Rai has been acquitted of the charges. Hence, this appeal. 5. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the impugned judgment. 6. The contention of the present appellant is that the prosecutrix is major one and she went with him on her own will. She was 19 years old at the time of incident. They wanted to solemnize marriage with each other and the prosecutrix has consented the whole incident. This contention has also been made in the statement of the accused-appellant recorded under Section 313 Cr.P.C. and the contention of the present appellant is that when the prosecutrix is major one and she has consented to marry with the present appellant, no offence has been committed by the present appellant and hence he should be acquitted of the charges. 7. Per contra, the learned Public Prosecutor has submitted that the prosecutrix is minor. According to her school certificate, her date of birth is 19.11.1992 and she was minor at the time of incident and the medical opinion also discloses so and when the prosecutrix is minor, her consent is of no avail and the appellant has rightly been convicted. 8. The key witness in the case is prosecutrix Aarti herself. She has stated in her examination-in-chief that she was of 14 years of age at the time of incident. Her date of birth is 19.11.1992. She has stated that Jagdish was known to her as they were living in a same house and Jagdish used to sent her letters. She has also replied to some letters but Jagdish has threatened here that he will die and due to this pressure, she went with the appellant, in her cross-examination, she has admitted the fact that Jagdish has written her three letters and she had also replied the said letters. She went with the appellant. The appellant was not having any weapon. They lived with each other for a long time. She phoned to her uncle from Almora at the instance of Jagdish. She has also admitted the fact that many times she was having occasion to run away but she remained with the appellant. 9. On the strength of the above, learned counsel for the appellant has submitted that this is a case of consent. The statement of Aarti goes to show that Jagdish was known to the prosecutrix. She has also admitted the fact that many times she was having occasion to run away but she remained with the appellant. 9. On the strength of the above, learned counsel for the appellant has submitted that this is a case of consent. The statement of Aarti goes to show that Jagdish was known to the prosecutrix. He wrote several letters to prosecutrix and on his enticement she went with him. It is not in dispute that the prosecutrix remained with Jagdish- present appellant for a pretty long time but when the prosecutrix is minor, her consent is certainly of no value. 10. Learned counsel for the appellant has further submitted that according to medical opinion, the age of the prosecutrix is above 15 years and below 17 years and hence the benefit of this should go to the accused and the prosecutrix should be treated as above 16 years but PW.12 Dr. Sumant Dutta, who conducted the medical examination of prosecutrix Aarti for determination of her age, has stated that at the time of examination Aarti's age was above 15 years but below 17 years and in his cross-examination, has stated that there can be variance of two years in determination of age, which has already been stated in the report and hence the opinion given about the age is 15 to 17 years. Looking at the above, it cannot be said that further two years' relaxation either plus or minus, can be given in the age is 15 to 17 years. Looking at the above, it cannot be said that further two years relaxation, either plus or minus, can be given in the age. Hence, according to the medical opinion, the age of the prosecutrix was above 15 years but below 17 years but this does not suggest that the prosecutrix was above 16 years of age at the time of incident. 11. PW.7 Aarti has stated that her date of birth is 19.11.1992 and to support this, prosecution has placed reliance on Ex. P/17 - transfer certificate of prosecutrix from a primary school wherein her date of birth is stated as 19.11.1992. Ration card Ex. P/18 is also on record, wherein the age of prosecutrix is entered as 7 years on 2001. According to this, the prosecutrix was only 13 to 14 years at the time of incident in the year 2006. P/17 - transfer certificate of prosecutrix from a primary school wherein her date of birth is stated as 19.11.1992. Ration card Ex. P/18 is also on record, wherein the age of prosecutrix is entered as 7 years on 2001. According to this, the prosecutrix was only 13 to 14 years at the time of incident in the year 2006. Hence, looking at the above two documents, coupled with medical opinion, it can safely be inferred that the prosecutrix was minor at the time of incident. 12. Learned counsel for the appellant has submitted that father and mother of the prosecutrix has not stated anything about the actual date of birth of the prosecutrix. 13. PW.10 Anari Devi, is the mother of the prosecutrix and she has stated that Aarti was 14 years of age. She could not make out the actual date and year of birth but she has stated that Aarti is 14 years of age and she has studied up to 6th Standard. 14. PW.13 Parmeshwar Thakur is the father of the prosecutrix and he has also stated that Aarti is 14 years of age and her date of birth is 19.11.1992 and he has also stated that ration card Ex. P/18 has been issued to him. 15. There are some minor variance in the statement of above witnesses regarding the age of prosecutrix but the transfer certificate issued from school and ration card both go to show that the prosecutrix was minor at the time of incident and this fact is also corroborated by the medical evidence, which also goes to show that the prosecutrix was below 17 years of age. This fact has also further been corroborated by Ex. D/2, birth certificate of the prosecutrix, which was placed on record by the appellant himself. Hence, it is a document on which the appellant has also placed reliance. It was stated that it was issued after the incident. It is true that this birth certificate has been issued on 30.11.2006, after the said incident but when the present appellant has placed reliance on Ex. D/2, it can be looked into and according to this birth certificate, the date of birth of prosecutrix is 19.11.1992. 16. PW.9, Jyoti, who is the younger sister of Aarti, has stated that she is 12 years of age and Aarti is her elder sister. 17. D/2, it can be looked into and according to this birth certificate, the date of birth of prosecutrix is 19.11.1992. 16. PW.9, Jyoti, who is the younger sister of Aarti, has stated that she is 12 years of age and Aarti is her elder sister. 17. It was stated by the counsel for the appellant that in the missing report Ex. P/10, the age of prosecutrix has been shown as above 16 years and hence she should be treated as 16 years but in Ex. P/10, no such mention has been made that the prosecutrix is above 16 years of age and her father PW.13 Parmeshwar Thakur has stated that in Ex. P/10, he has stated the age only on estimation. 18. In the statement of the present appellant, he has stated that Aarti was 19 years of age at the time of incident but no evidence has been produced to establish this fact. 19. Per contra, the evidence produced by the prosecution, i.e. the transfer certificate, ration card and medical opinion, clearly establish that the prosecutrix was below 16 years of age at the time of incident and it has been rightly been pointed out by the prosecution that when the prosecutrix was below 16 years of age at the time of incident, her consent is of no value. 20. Learned counsel for the appellant also does not dispute about this legal position. The appellant himself has asserted that he has taken Aarti with him and she remained with him. The statement of Aarti establishes sexual intercourse with her and hence these facts go to show that the present appellant has taken away Aarti on the pretext of marrying her from the lawful guardianship of her father and admittedly then he raped her. Admittedly, he had sexual relations with the prosecutrix and looking to the age of prosecutrix that she was below 16 years of age at the time of accident, her consent is of no avail as per the provisions of Section 375(6) IPC, which reads as under:- "375.- A man is said to commit `rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- xxx xxx xxx xxx xxx xxx xxx Sixthly- With or without her consent, when she is under sixteen years of age." 21. Looking at the above, when the appellant had sexual intercourse with the prosecutrix, who was below 16 years of age, her consent or no consent is immaterial and the learned trial Court has considered the above fact and came to the conclusion that the present appellant has taken the prosecutrix from the lawful guardianship of her father and had sexual intercourse with her and further rightly came to the conclusion that the present appellant has committed offence of kidnapping and rape. 22. Looking at the above, the reasoning and conclusion arrived at by the learned trial Court are well founded and needs no interference by this Court. The appeal is, therefore, accordingly, dismissed.