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2012 DIGILAW 7 (RAJ)

State of Rajasthan v. Kailash Chandra

2012-01-02

R.S.CHAUHAN

body2012
JUDGMENT 1. - The State is aggrieved by the judgment dated 11.11.2010 passed by Additional Sessions Judge No. 2, Chittorgarh, whereby the learned Judge has acquitted the accused-respondent, Kailash Chandra for offences under Sections 366 and 363 I.P.C. 2. Briefly the facts of the case are that on 1.2.2008, Bheru Lal (PW-1) submitted a typed report before the police wherein he cleared that his daughter, aged about 13-14 years was married to one Devilal. However, as his daughter was minor, she was stayed at the parental home. About ten days prior to the filing of the report, he and his wife were not available at home. Around 4.00 P.M., Kailash, the accused before this Court, along with his friend Bheru and Kamli enticed and took away his daughter. While taking his daughter, he took few ornaments, namely, Kandora, weighing 11/zkg of silver, one Ramnami weighing 1 tola of gold, one Mandalia weighing 8 gram of gold. He further claimed that they have taken his daughter for the purpose of marrying her. On the basis of said report, a formal F.I.R., F.I.R. No. 37/2008 was chalked out for offences under Sections 363, 366 and 380 I.P.C. 3. In order to support its case, the prosecution examined twelve witnesses and submitted sixteen documents. In defence, the accused-respondent did not examine any witness, but did submit a single document. After going through the oral and documentary evidence, vide judgment dated 11.11.2010, the learned Judge acquitted the accused-respondent. Hence, this criminal leave to appeal before this Court. 4. Learned Public Prosecutor has vehemently contended that learned Judge has failed to appreciate the evidence in proper perspective. According,to Bheru Lal (PW-1) the prosecutrix's father, Smt. Nausar (PW-3) prosecutrix's mother, at the time of incident prosecutrix was 13-14 years old. Therefore, she was a minor at the time of incident. Moreover, according to Suresh, (PW-10), Ratan (PW-12) the witnesses who have proved the school record, the date of birth of the prosecutrix was 5.6.1994. Thus, both according to oral and documentary evidence, the prosecutrix was a minor. Hence, the learned Judge has committed an illegality by acquitting the accused-respondent for offences under Sections 363 and 366 I.P.C. 5. On the other hand, learned counsel for the accused-respondent has vehemently contended that the learned Judge has meticulously examined the evidence and has given cogent reasons for acquitting the accused-respondent. Hence, the learned Judge has committed an illegality by acquitting the accused-respondent for offences under Sections 363 and 366 I.P.C. 5. On the other hand, learned counsel for the accused-respondent has vehemently contended that the learned Judge has meticulously examined the evidence and has given cogent reasons for acquitting the accused-respondent. The prosecutrix had revealed her age as 16-17 years old in the statement given by her before the police under Section 161 Cr.P.C. Moreover, the learned Judge has noticed the fact that Bheru Lal (PW-1), does not provide any information with regard to the prosecutrix's record of admission for the first time in the school. Moreover, the concerned Principal of the said school has not been examined as a witness by the prosecution. The learned Judge has also noticed that Ratanlal, (PW-12) claims that the document does not contain the signature of the Principal. However, he has also admitted that he has never worked with the Principal. Lastly, Ratanlal (PW-12) has also admitted that admission register (Ex.P-12), was not filled up before him. Thus, the learned Judge was certainly justified in concluding that the prosecutrix was major at the time of incident. Lastly, according to the prosecutrix, she had accompanied the accuse respondent, had stayed with him for over two months without a whisper of protest. Hence, the learned Judge was justified in concluding that the offences under Sections 363 and 366 I.P.C. have not been proved by the prosecution. 6. Heard learned counsel for parties and perused the impugned judgment. 7. Needless to say, it is the duty of the prosecution to establish the case beyond reasonable doubt. The distance between "may be true" and "must be true" is a long distance which the prosecution is required to cover. Lastly, suspicion no matter how so strong cannot take place of proof. 8. In the present case, it was for the prosecution to prove that the prosecutrix was minor when she was taken away or enticed from the guardianship of the parents. A bare perusal of the record clearly shows that Ratanlal, (PW-12) has not been able to prove the contents of the admission register. In his cross-examination, he has admitted that admission register was not filled up by him. Moreover, he has clearly stated that the register was not filled up in front of him. Furthermore, the signature of the Principal could not be verified. In his cross-examination, he has admitted that admission register was not filled up by him. Moreover, he has clearly stated that the register was not filled up in front of him. Furthermore, the signature of the Principal could not be verified. Therefore, the documentary evidence is insufficient to prove the age of the prosecutrix. Moreover, the prosecutrix herself she had claimed that her age was between 16-17 years in the statement given by her before the police. Thus, the learned Judge was certainly justified in concluding that the prosecutrix was major on the date of incident. 9. In her cross-examination the prosecutrix has also admitted that she had walked with accused to Chittorgarh, that she stayed with the accused along with his three brothers, for a period of two months. She had continued to stay with the accused without a whisper of protest, and without making any attempt to run away from his clutches. Considering the fact that prosecutrix was major, considering the fact that she had voluntarily resided with accused for a period over two months, obviously, it is a case of elopement. The prosecution had failed to prove the offences under Sections 363 and' 366 I.P.C. Thus, learned Judge has given cogent reasons for acquitting the accused-respondent. 10. Thus, this Court does not find any illegality or perversity in the judgment dated 11.11.2010. Hence, the criminal leave to appeal is devoid of any merit, it is, hereby dismissed.Leave to appeal dismissed. *******