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2013 DIGILAW 1250 (RAJ)

Radu @ Rodu v. State of Rajasthan

2013-07-11

AMITAVA ROY

body2013
JUDGMENT 1. - In challenge, is the judgment and order dated 19.12.1987 passed by the learned Sessions Judge, Bundi in Sessions Case No. 129/1984 convicting the appellants under Section 366 of the Indian Penal Code (hereafter referred to as 'IPC/Code') and sentencing them to suffer rigorous imprisonment for two and a half years and to pay a fine of Rs. 50/-, in default, to undergo simple imprisonment for further one month, however, acquitted the appellant No. 4-Kadu of the offence under Section 376 IPC. 2. I have heard Mr.S.K.Jain, learned counsel for the appellants and Mr.Javed Choudhary, learned Public Prosecutor, Rajasthan. 3. Recorded facts reveal that verbal information was lodged by one Jetu to the effect that Ms.Kanwari, daughter of his uncle, Pangla, had been forcibly taken away by the appellants and three others, while she alongwith one Shah Bai was proceeding towards her home. When persons there sought to intervene, the miscreants became violent. The informant however mentioned that the victim had been so taken to make her the wife of the appellant No. 4-Kadu. Though the victim raised alarm and did cry, but nobody could save her. On this information, the police registered a first information report and a case under Sections 366 & 376 IPC against the appellants and on the conclusion of the investigation, charge-sheet was submitted under the aforementioned provisions of the Code. Eventually, the appellants were charged under Section 366 IPC to which they pleaded "not guilty" and thus were made to stand trial. The appellant No. 4 was additionally charged under Section 376 IPC. 4. At the trial, the prosecution examined several witnesses including the informant Jetu (PW-7); Kanwari (PW-6), the victim; her father, Pangla (PW-4); her companion Shah Bai (PW-8) and Dr.B.L.Chobisa (PW- 3), who had medically examined her. In course of the examination under Section 313 Cr.P.C., the appellant denied the charge. They also adduced defence evidence and examined two witnesses. On the basis of the materials on record, the appellants were convicted and sentenced as above. 5. A brief survey of the evidence on record is necessary before adverting to the rival submissions. PW-4 Pangla, the father of the prosecutrix is not an eye witness to the incident, but supported the information lodged and also stated that his daughter was eventually recovered from the custody of the appellant No. 4-Kadu. 5. A brief survey of the evidence on record is necessary before adverting to the rival submissions. PW-4 Pangla, the father of the prosecutrix is not an eye witness to the incident, but supported the information lodged and also stated that his daughter was eventually recovered from the custody of the appellant No. 4-Kadu. In cross-examination, this witness stated that in their community, three types of marriages were recognized, and one of these is, where the boy and the girl flee together and solemnize the same. He however, denied the suggestion that the prosecutrix had voluntarily accompanied the appellant No. 4. He however, admitted that he knew the miscreants even before the incident. PW-7 Jetu, the informant however, stood by the narration provided to the police on which the investigation was started. The prosecutrix PW-6 also stated that she had been forcibly taken away by the appellants alongwith others. In cross-examination, she stated that she was intercepted by them when she had gone to purchase firewood from a nearby shop. She deposed further that there were shops about 50- 60 feet away from the place of occurrence. She stated that she was then accompanied by Shah Bai (PW-8), and that, both of them had screamed for help. She admitted that there were several shops nearby, and that, many persons were also present. She admitted that the appellant No. 4 had taken her to make his wife. She however denied the suggestion that she had voluntarily accompanied the appellant-Kadu. PW-8 Shah Bai however, stated that when the prosecutrix was being dragged away by the appellants, she did not say anything. She reiterated as well that the victim had been taken away to make her the wife of the appellant-Kadu. PW-3 Dr.B.L.Chobisa stated that on the date of the medical examination i.e.22.2.1983, the prosecutrix was aged approximately between 14-15 years. He mentioned about abrasions on her body and also on her private parts. He deposed that her hymen was torn, but the wound had healed. He stated that no human semen was found in her vaginal swab. 6. The learned counsel for the appellant has argued that having regard to the different types of marriage recognised in the community of the prosecutrix, no case of abduction has been made out by the prosecution, and thus, the impugned judgment and order is liable to be set aside. 6. The learned counsel for the appellant has argued that having regard to the different types of marriage recognised in the community of the prosecutrix, no case of abduction has been made out by the prosecution, and thus, the impugned judgment and order is liable to be set aside. Stoutly refuting the allegation that the victim had been forcibly taken away by the appellants, Mr.Jain has argued that the failure of the prosecution to examine any disinterested witness, there being several shops around the place of occurrence, the learned court below ought to have exonerated the appellants of the charge of abduction. Referring to the evidence of PW-8 Shah Bai in particular, the learned counsel has urged that the allegation of abduction is wholly unfounded. Further the accused-appellant No. 4, having been acquitted of the charge under Section 376 IPC, the impugned judgment and order, in the interest of justice, ought to be set aside. 7. The learned Public Prosecutor, on the other hand, has argued that on the date of the occurrence, the prosecutrix was a minor and her forcible abduction having been amply proved by the prosecution witnesses, no interference with the impugned judgment and order is warranted. 8. I have duly considered the materials on record and have as well analyzed the arguments advanced. 9. From the evidence assayed as above, it is apparent that the alleged incident had taken place in the evening at a public place, near which several shops were located. As a matter of fact, the evidence of the prosecution witnesses hint at the presence of several persons at that time. Though the prosecutrix stated that at the time of her forcible abduction, she alongwith her companion Shah Bai (PW-8) screamed for help, the latter has belied this version of her. To this extent, the evidence of PW-1 Gopi Singh (though declared hostile) who had stated that on being asked by the police, the prosecutrix had disclosed that she is happy and contented with the appellant-Kadu in significant. To this extent, the evidence of PW-1 Gopi Singh (though declared hostile) who had stated that on being asked by the police, the prosecutrix had disclosed that she is happy and contented with the appellant-Kadu in significant. Having regard to the fact that one of the types of marriage recognised by the community of the prosecutrix, is at the instance of the couple, I am of the view, in the face of wavering and inconsistent version of the prosecution witnesses on the aspect of alleged abduction of the victim, that the conviction of the appellants under Section 366 IPC ought not to be sustained. Ordered accordingly. The impugned judgment and order is set aside. The appeal is allowed. The appellants stand discharged from their bail bonds.Appeal allowed. *******