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2013 DIGILAW 1632 (RAJ)

Arjun v. State of Rajasthan

2013-09-17

AMITAVA ROY

body2013
JUDGMENT 1. - Heard Mr.Harendra Singh Sinsinwar, learned counsel for the appellant as well as Mr.Nainu Ram, learned Public Prosecutor for the State of Rajasthan. 2. The present appeal has been preferred seeking interference with the judgment and order dated 15.09.1989 passed by learned Sessions Judge, Alwar in Sessions Case No.12/1988 convicting the appellant under sections 341 & 366 IPC. For the first offence, he was thereby sentenced to suffer 2 months simple imprisonment and for the second, to undergo 4 years simple imprisonment and pay fine of Rs. 200/-, in default thereof to further undergo 2 months simple imprisonment. Both the sentences were ordered to run concurrently. 3. The genesis of the prosecution case lies in the written report lodged on 10.10.1987 at about 7.35 A.M. at Police Station, Ramgarh by one Dharmvir alleging that in the previous night, while his daughter Nannu was sleeping on a cot alongwith others, 4. On this information police registered a case, started investigation and on the completion thereof, submitted a chargesheet against the appellant under sections 341 & 366 IPC. It is a matter of record that the police did recover the victim girl from the custody of the appellant later in the day i.e. 10.10.1987. The appellant denied the charge and therefore, was made to stand trial. The prosecution examined the prosecutrix, her parents and the doctors, who medically examined her, more particularly, to ascertain her age at the time of incident. The appellant also examined one witness to prove that there was an existing affair between him and the prosecutrix and that she had voluntarily accompanied him. He denied the charge as well in his statement under section 313 Cr.P.C. He was, however, convicted and sentenced as above. 5. Mr.Sinsinwar has argued that as it would be apparent on the face of the record that there was a love affair between the appellant and the prosecutrix and that she had on her own will accompanied him, no case under sections 341 & 366 IPC was made out and that the learned trial court, therefore, ought to have acquitted the appellant. Referring to the medical evidence, learned counsel has urged that at the time of the alleged incident the prosecutrix was aged about 18 years and thus, was a major. Referring to the medical evidence, learned counsel has urged that at the time of the alleged incident the prosecutrix was aged about 18 years and thus, was a major. He contended further that as it would be apparent from the arrest memo, Exhibit-P7 at the time when the prosecutrix was retrieved, she had alongwith her a bag containing an extra set of wearing apparel (Salwar Suit), if proves that she had on her own volition accompanied the appellant, thus, belying the charge levelled against him. 6. Learned Public Prosecutor, per contra, has argued that not only as per the medical evidence, the prosecutrix at the relevant point of time was below 18 years of age, the fact that the appellant had enticed her away from home late in the night, did unmistakably proved the offence, for which he had been charged. 7. It would be appropriate, before weighing the rival arguments to notice the evidence on record in brief. 8. PW1 Nannu, in her evidence, stated that in the night of the occurrence while she was sleeping at her home alongwith others, at about 11/12 hours, on feeling the natures call, she went out to ease herself, when the appellant, at the point of a dagger forced her to accompany him. The prosecutrix testified that they thereafter travelled on foot till 8/9 A.M. in the morning and that the appellant had threatened her with dire consequences, if she disclosed the incident. She stated that it was then that they were intercepted by the police and she was rescued from the appellant. In cross-examination, she admitted that she knew the appellant from before. She stated that on their way, while they walked in the night, they did not come across any village though, there were several agricultural fields. On being asked, she could not say with certainty as to whether the appellant had a dagger or something else. 9. PW2 Shyamwati, mother of the prosecutrix, deposed that for about 2 months before the incident, the villagers used to indicate that her (prosecutrix) ways were little unusual. She stated further that in the night of the incident, when the prosecutrix was not found on her cot, her father with the help of the villagers searched for her and not having found her, on the next date, lodged the information with the police. She stated further that in the night of the incident, when the prosecutrix was not found on her cot, her father with the help of the villagers searched for her and not having found her, on the next date, lodged the information with the police. The witness affirmed that later in the morning of 10.10.1987, the prosecutrix was recovered. In cross-examination, the witness further disclosed that they suspected the appellant as neighbours had earlier indicated that there was some affair between them. She mentioned that this was told to her by Dharam, Ramswaroop and Rajju etc. She claimed that at the time of the incident, the age of the prosecutrix was 16 years. 10. The evidence of PW3, the father of the prosecutrix is to the effect that in the night of the incident, Nannu went missing from the house. He called the neighbors, informed them thereof and in the next morning, lodged the written report with the police. 11. PW5 Dr.P.S.Agarwal testified that on 11.10.1987, she had examined the prosecutrix and on the basis of the radiological examination, opined that she was approximately 17 years of age. He proved Exhibit-P3 to this effect. In cross-examination, the witness stated that the age indicated by him was flexible by a margin of six months to one year either way. 12. PW9 Dr.M.K.Singhal proved the X-ray report Exhibit-P9 and also opined identically. 13. PW8 Dev Raj, the incharge of Bahadarpur Police Station outpost, stated that on receiving a wireless message from Ramgarh Police Station, he went out on patrol and found the appellant and the prosecutrix together side by side. He stated that then he brought the couple to the police station. In cross-examination, the witness stated to have recovered a bag from the appellant carrying one set of wearing apparel (Salwar Suit). This is also evident from the arrest memo, Exhibit-P7. 14. On a cumulative consideration of the evidence on record, I am constrained to conclude that the prosecution has not been above to prove the charge against the appellant. The version of the prosecutrix that she had gone out of her house late in the night to ease herself and that thereafter she was forcibly made to accompany the appellant on the point of a dagger is unconvincing. The version of the prosecutrix that she had gone out of her house late in the night to ease herself and that thereafter she was forcibly made to accompany the appellant on the point of a dagger is unconvincing. This is, more particularly, in view of the categorical admission of her mother that for a couple of months prior to the incident, the appellant and prosecutrix were seen to share a love affair. Her version that both of them did walk throughout the night till 8/9 A.M. in the morning is also unacceptable. 15. Noticeably, there is no allegation of her molestation by the appellant. The prosecutrix has not accused the appellant of having used any force on her. No imputation of any attempt to commit forcible sexual intercourse with her has been made. This is of significance in view of the fact that the prosecutrix was in the company of the appellant throughout the night and till they were intercepted by the police. No allegation whatsoever of this kind has been levelled against him. No injury on any part of her body has been detected in course of her medical examination. The mention of a bag carrying a set of wearing apparel (Salwar Suit) recovered from the couple is a factor that endorses the supposition that there was at all relevant times a love affair between them and that the prosecutrix might have accompanied the appellant on her own. This is also endorsed by the evidence of the defence witness Amar Singh, who affirmed that the prosecutrix had voluntarily accompanied the appellant. 16. Vis-a-vis the age of the prosecutrix, both the doctors have admitted that a margin of six months to one year could be permissibly added to the age indicated by them i.e. 17 years. The Hon'ble Apex Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others AIR 1982 SC 1297 had observed that the opinion of a doctor about the age of a person on the basis of radiological test admits a margin of error of two years on either side. Thus, the possibility of the age of the prosecutrix to be above 18 years cannot at the time of the incident be ruled out totally. 17. Thus, the possibility of the age of the prosecutrix to be above 18 years cannot at the time of the incident be ruled out totally. 17. On an overall consideration of the above aspects, I am of the view that the charge levelled against the appellant has remained unproved beyond all reasonable doubt. He is thus, entitled to the benefit of doubt. Having regard to the state of evidence and the law, the impugned judgment and order cannot be sustained. 18. Resultantly, the appeal is allowed. The impugned judgment and order is thus, set aside. The appellant is acquitted of the charge. He is thus, set at liberty. The bail bonds stand discharged. The office would remit the records. *******