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2013 DIGILAW 1187 (RAJ)

Gopal v. State of Rajasthan

2013-07-05

AMITAVA ROY

body2013
JUDGMENT 1. - The subject matter of challenge is the judgment and order dated 29.11.1989 passed by the learned Additional Sessions Judge No. 2, Kota in Sessions Case No. 48/89 convicting the appellant under Sections 363 & 366 of the Indian Penal Code (hereafter referred to as 'IPC') and sentencing him to suffer rigorous imprisonment for three years on each count and to pay a fine of Rs. 250/- for each of the offences, and in default of payment of fine, to suffer rigorous imprisonment for further two months. 2. I have heard Mr. Sanjay Mehrishi, learned counsel for the appellant and Ms. Alka Bhatnagar, learned Public Prosecutor, Rajasthan. 3. A verbal report was lodged by one Shri Raghuvir on 3.6.1988 with the Police Station, Gumanpura, Kota to the effect that on the previous day at about 6:30 p.m., his daughter Bhoori aged about 14-15 years had gone to the house of Moti Maharaj, and he being under the impression that she had gone to see television, waited for her return. But as his daughter did not return till 10:00 p.m., he and his wife went out for searching her, but in vain. It was disclosed in the information that the appellant had earlier been a tenant of the informant, who on noticing about his (appellant's) proximity with his daughter Bhoori, got the house vacated of him, where after he (appellant) started residing in the house of one Khumar nearby. In view of this background, the report disclosed that the informant also went to the house of the appellant and came to learn that he was also missing. He thus, lodged the information with the police alleging that the appellant had enticed away his daughter. He mentioned in the report that it had been noticed that one pair of silver paijeb belonging to her daughter and an amount of Rs. 150/- was missing from the house, which he anticipated, might have been carried by her. 4. On the basis of the report, the same was recorded and a case was registered under Sections 363, 366 & 376 IPC. On the completion of the investigation, charge-sheet was laid against the appellant under these provisions of law. He having pleaded "not guilty" to the charge under the aforementioned provisions of the IPC, he was made to stand trial. On the basis of the report, the same was recorded and a case was registered under Sections 363, 366 & 376 IPC. On the completion of the investigation, charge-sheet was laid against the appellant under these provisions of law. He having pleaded "not guilty" to the charge under the aforementioned provisions of the IPC, he was made to stand trial. The prosecution examined several witnesses, including the prosecutrix, the doctor who had medically examined her and her parents, besides the investigating officer. The statement of the appellant was recorded under Section 313 Cr.P.C., in course of which, he denied the charge and claimed that the prosecutrix who, at the relevant time, was aged above 18 years, had voluntarily accompanied him, and that, they had consensual sexual intercourse. He however, declined to adduce any evidence in defence. On the basis of the materials on record, the learned trial court acquitted the appellant of the charge under Section 376 IPC, but convicted him for the offences under Sections 363 & 366 IPC and sentenced him as above. 5. Mr. Mehrishi has emphatically argued that it being apparent on the face of the evidence adduced by the prosecution that the prosecutrix was a major at the relevant point of time, and that, she on her own volition, had accompanied the appellant and willingly engaged in sexual intercourse with him, the impugned judgment and order is patently illegal and is liable to be set aside. The learned counsel has argued that as the learned trial court, on a correct appreciation of the evidence on record, had acquitted the appellant of the charge of Section 376 IPC, it grossly erred in law and on facts in holding him guilty of the offence of Sections 363 & 366 IPC, on the basis of the same materials. To reinforce his arguments, Mr. Mehrishhi has inter alia drawn the attention of the Court to the evidence of Shri Hari Mohan Mathur, DW-1 who testified that the prosecutrix had appeared before him to swear an affidavit, and that he, in the capacity of the Advocate & Notary, Bundi, on due execution of the said document, had recorded her solemn affirmation on oath vis-a-vis the contents thereof. 6. 6. Per contra, the learned Public Prosecutor has argued that as the medical evidence adduced by the prosecution would testify that at the relevant time, the prosecutrix was a minor aged below 16 years, her consent is wholly irrelevant in law and thus, the conviction and sentence recorded by the learned trial court, does not warrant any interference. 7. Even assuming, without admitting that the prosecutrix was above 16 years, considering her rustic and illiterate background, her purported consent can by no means be an extenuating circumstance to exonerate the appellant of the charge, of which he has been convicted, she urged. 8. The learned Public Prosecutor maintained that having regard to the tender age of the prosecutrix, it is clear that the appellant had induced her to come to his company and thereafter, had sexual intercourse with her. In the attendant facts and circumstances and on the basis of the evidence, the learned trial court had rightly convicted him under Sections 363/366 IPC, and that, the appeal lacks in merit and ought to be dismissed, she insisted. 9. Before noticing the arguments as advanced, apt it would be to oversee the evidence on record to the extent necessary. 10. The prosecutrix Bhoori Bai, PW-3 stated on oath that she knew with the appellant from before as he used to be the tenant in the house of her maternal aunt, which was located near her house. She alleged that the appellant had taken her to Chambal Garden representing that he would take her around. According to her, there he, on the point of a dagger, he forced her to accompany him, where-after they boarded a bus towards Nimach, and eventually to Indore. She deposed that there, the appellant offered her a pan, which had some intoxicant, for which she went to a trance-like state. She stated that there, the appellant sold off her nose-stub and silver paijeb. They thereafter, came to Ahmedabad and therefrom to Bundi. She stated that she was not aware as to when he also got their joint photographs taken. This witness initially stated that she was unaware as to whether the appellant did any wrong act with her. She later alleged that he had forcible intercourse with her. She admitted of having been recovered by the police when she was in his custody at Sheopur. This witness initially stated that she was unaware as to whether the appellant did any wrong act with her. She later alleged that he had forcible intercourse with her. She admitted of having been recovered by the police when she was in his custody at Sheopur. She did not deny of the execution of the affidavit Ex.D-1, but denied to have stated therein to have gone with the appellant on her own, and that, she had been residing with him voluntarily. She also denied the suggestion that she was aged 18 years and alleged that her photograph with the appellant's with vermilion on her forehead, had been taken by show of force. 11. PW-4 Mohanibai, the mother of the prosecutrix reiterated that before the incident, the appellant used to stay on rent in the house of her brother-in-law, and that, she (prosecutrix) had intimacy with him (appellant). She also admitted that on seeing this, the appellant was made to vacate the said house, where-after he used to stay in the same neighbourhood, but with one Mahaveer. The witness stated that about a fortnight thereafter, the prosecutrix who was aged about 14 years, left the house, and at that time, she was wearing a golden nose-stub, a pair of silver paijeb and that she had also taken with her, a pair of wearing apparel. In cross-examination, this witness stated that she suspected some affair between the two, and that, the people of the locality also, had informed her of the same. 12. The evidence of PW-5 Raghuvir, the father of the prosecutrix, is substantially in the same lines as narrated in the verbal report to the police. In cross-examination, he reiterated that before the incident, he had been reported by the people of the neighbourhood that they had seen his daughter and the appellant talking to each other, and that, they suspected some affair between them. 13. PW-1 Dr. C.M. Shrivastava deposed that he had medically examined the prosecutrix on 18.7.1988 and opined that she was then aged between 15-16 years. He further deposed in categorical terms that there was not injury on her body, external or internal. He testified as well that the vaginal swab of the prosecutrix was collected for chemical examination. In cross-examination, this witness stated that the age of the prosecutrix could also be between 17-18 years. He further deposed in categorical terms that there was not injury on her body, external or internal. He testified as well that the vaginal swab of the prosecutrix was collected for chemical examination. In cross-examination, this witness stated that the age of the prosecutrix could also be between 17-18 years. He also stated that before her medical examination, on being queried, she had disclosed that she had consensual sexual intercourse with the appellant. 14. DW-1 Hari Mohan Mathur stated that at the relevant time, he was Notary, Bundi, and that, on 9.6.1988, the prosecutrix had appeared before him to execute an affidavit to the effect that she had been staying with accused-appellant Gopal on her own will and not as a result of any threat, coercion or undue influence. This witness stated that the contents of the affidavit having been read out to her, she admitted the correctness thereof and put her thumb impression thereon. The witness stated as well that at that time, the prosecutrix appeared to be cheerful and content. He proved the affidavit Ex.D-1. 15. On an analysis of the evidence on record, as summarily recited herein-above, I am of the view that the accusation that the appellant had induced or lured away the prosecutrix to accompany him and thereafter, had forced her to cohabit with him is unsustainable. From the evidence of PW-1 Dr. C.M. Shrivastava, the likelihood that at the relevant time, the prosecutrix was above 18 years, cannot be ruled out. Noticeably, her age was recorded in the affidavit Ex.D-1 to be 19 years as on 9.6.1988. That the prosecutrix and the appellant, had an affair from before the incident is more than apparent from the evidence of her parents, which referred as well to the speculation to that effect, of the inhabitants of the locality based on their intimate movements in public. That the prosecutrix at the time of her departure from her house, had taken with her a pair of clothes, is also suggestive of the fact that she had voluntarily accompanied the appellant. The learned trial court noticing the evidence to that effect, had acquitted him of the offence of Section 376 IPC. Taking of the photograph of the couple Ex.D-2, has not been denied by the prosecutrix. Her allegation that the same was taken by force, is belied by it. The learned trial court noticing the evidence to that effect, had acquitted him of the offence of Section 376 IPC. Taking of the photograph of the couple Ex.D-2, has not been denied by the prosecutrix. Her allegation that the same was taken by force, is belied by it. Understandably, in the face of the overwhelming evidence on these counts, the testimony of the prosecutrix does not appear to be acceptable and presumably had been made under some pressure from her parents during the trial. Her evidence read as a whole, does not unmistakably demonstrate that the appellant had prevailed upon her to accompany him and had thereafter subjected her to forcible sexual intercourse against her consent. Though she alleged that such an act was committed repeatedly, she did not mention use of force. No injury has been detected on her body or her private parts. Further, there is no persuasive reason to disbelieve the contents of the affidavit Ex.D-1, which fits in substantially with the evidence on record. 16. On a cumulative consideration of all above, I am of the un-hesitant opinion that the conviction of the accused-appellant under Sections 363 & 366 IPC cannot be sustained in law and on facts. 17. Resultantly, the appeal is allowed. The impugned judgment and order is set aside. The accused-appellant is set at liberty. His bail bonds stand discharged.Appeal allowed. *******