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2013 DIGILAW 832 (RAJ)

Chhotu v. The State of Rajasthan

2013-04-29

AMITAVA ROY

body2013
JUDGMENT 1. - The subject matter of challenge is the judgment and order dated 10.11.1989 passed by the learned Additional Sessions Judge, Deeg, Bharatpur in Sessions Case No. 32/1988 convicting the accused-appellants under sections 363, 366 & 376 IPC and sentencing him to suffer rigorous imprisonment and fine mentioned herein. 2. I have heard Mr. Shiv Charan Gupta, learned counsel for the appellants and Mr. Javed Choudhary, learned Public Prosecutor for the State. 3. The prosecution story as unfolded by the materials on record is that victim Mst. Mumtaz, who at the relevant time was a minor, was brought by the accused-appellant No. 1 from Hyderabad to his village Peeproli, whereafter he forcefully committed sexual intercourse with her. Further allegation is that the accused-appellant No. 1 thereafter sold the victim girl to the accused-appellant No. 2 who also committed repeated sexual intercourse and eventually she could somehow escape from his clutches, where after an FIR was lodged in the concerned police station and a case was registered against the appellants. On the completion of the investigation, charge sheet was laid against the accused-appellants under sections 363, 366 & 376 IPC. Charges were framed against the accused-appellants by the learned trial court for the offences to which the accused-appellant pleaded "not guilty". The prosecution thereafter got examined several witnesses including the prosecutrix PW-1, Dr.P.P. Singhal PW-2, who conducted the radiology examination on her and the Investigating Officer. The accused appellants in course of the examination under section 313 Cr.P.C. denied the charges. By the impugned judgment and order, they were convicted and sentenced as above. 4. Mr. Gupta has argued that it being apparent from the testimony of the prosecutrix that she was given in marriage (Natha) to the accused-appellant No. 1 by her parents, the charges levelled against him are unfounded. Not only at the relevant point of time, the prosecutrix was above the age of 15 years as is apparent from the evidence of Dr.P.P. Singhal PW-2, thus ruling out the offence of rape against the accused-appellant No. 1, she being his wife, in absence of any evidence, the alleged sale of her by him (accused-appellant No. 1) and the imputation of rape on her by the latter is also a myth, he argued. The learned trial court having convicted the accused-appellant on conjectures and surmises, the impugned judgment and order is liable to be interfered with, he urged. The learned trial court having convicted the accused-appellant on conjectures and surmises, the impugned judgment and order is liable to be interfered with, he urged. 5. Learned Public Prosecutor has argued that the age of the victim is less than 16 years and the prosecution has been able to prove the charge of kidnapping, abduction and rape against the accused-appellants and thus no interference is called for in the interest of justice. 6. A plain reading of the evidence of the prosecutrix PW-1 would clearly reveal the following facts (1) at the relevant time before accompanying the accused-appellant No. 1 from Hyderabad, she had been given in marriage to him (accused-appellant No. 1) by her parents, (2) she had accompanied the accused-appellant No. 1 voluntarily following the marriage, (3) the accused-appellant No. 1 cohabited with her on the basis of the marriage, (4) the accused-appellant No. 1 had sold her to the accused-appellant No. 2 who thereafter committed forceful sexual intercourse with her repeatedly, (5) she was kept in the house of the accused-appellant No. 2 when she found found her way to a police personal located mere by. 7. Though, in the cross-examination, this witness tried to show her consent with regard to the marriage (Nikah) to the accused-appellant No. 1, her testimony as a whole does not, in my opinion, cast any doubt on this fact. Noticeably, the victim was declared to be hostile by the prosecution. 8. Dr.P.P. Singhal PW-2, who had done radiological examination on the victim, in his deposition stated in clear terms that she at the relevant point of time was above 15 years and less than 16 and half years. The age in the face of the admission of the prosecutrix that she was given in marriage to the accused-appellant No. 1 does not advance the case of the prosecution. Her age also takes out the accused-appellant from the purview of rape if cohabitation was by accused-appellant with his wife as she was said to be above 15 years. A bare reading of the judgment and order in challenge discloses that the learned trial court has recorded absence of direct evidence of forceful sexual intercourse by the accused-appellant No. 2 on the prosecutrix. The fact that the victim was confined in the house of the accused-appellant No. 2 was taken note to infer that the latter had committed such offence on her. 9. The fact that the victim was confined in the house of the accused-appellant No. 2 was taken note to infer that the latter had committed such offence on her. 9. On totality of the consideration of the materials on record, I am of the view that in the face of the evidence of the prosexutrix PW-1 and Dr.P.P. Singhal PW-2, it cannot be said with certainty that the charges under sections 363, 366 & 376 IPC have been proved beyond all reasonable doubt against the accused-appellants. 10. In the above view of the matter, the judgment and order impugned is interfered with. The appellants are acquitted and are hereby discharged from the bail bonds.The appeal is allowed.Appeal allowed. *******