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2015 DIGILAW 1195 (RAJ)

State of Rajasthan v. Kanhaiyalal

2015-06-30

SANGEET LODHA

body2015
JUDGMENT 1. - Heard learned Public Prosecutor and perused the record. 2. This leave to appeal u/s. 378 Cr.P.C. has been filed by the State, aggrieved by the judgment and order dated 29.11.14 passed by the Additional Sessions Judge (Women Atrocities Cases), Bhilwara, in Sessions Case No. 54/2010, acquitting the accused-respondent of the charges for the offences under Sections 363, 365 and 376 IPC. 3. The brief facts of the case are that the complainant filed a complaint before the Judicial Magistrate, Asind, on 15.12.09, stating that on 1.11.09, her daughter, who is 15 years and 6 months of age, had gone to her maternal home at Jagpura to attend a marriage. On 11.11.09, she had gone to forest for grazing the cattles but did not return. It was stated that on search being made, it was revealed that accused-Hagami Lal Sen and Smt. Gita Devi hatched a criminal conspiracy and kidnapped his daughter, who is in their custody. It was stated that they are threatening of dire consequences in case any proceeding is taken against them. According to the complainant, a report was lodged by him at Police Station, Badnor, however, no proceedings were taken by the police and therefore, an application was also submitted before the Sub Divisional Magistrate, Gulabpura under Section 97 and 98 Cr.P.C. 4. The complaint was sent by the learned Judicial Magistrate to the SHO, Police Station, Asind for investigation, whereupon, an FIR being No.21/10 was registered against the accused persons Hagami Lal and Gita Devi for offences under Sections 363,365 and 344 IPC and the investigation commenced. During the course of investigation, the prosecutrix was recovered and produced before the Sub Divisional Magistrate, Gulabpura. The statement of the prosecutrix was recorded and her custody was handed over to her mother on 30.12.09. 5. After due investigation, police filed charge sheet against the accused-Kanhaiyalal s/o Hagamilal for offence under Sections 366A, 366 & 376 IPC. 6. The trial court framed the charges for the offences under Sections 363, 366, 376 IPC, which were read over and explained to the accused. The accused denied the charges and claimed trial. 7. During the trial, the prosecution got examined five witnesses (PW-1 to PW-5) and tendered documentary evidence (Ex.P.1 to Ex.P.5). During the prosecution evidence, on behalf of the accused, the documents were exhibited as Ex.D-1 to D-3. The accused denied the charges and claimed trial. 7. During the trial, the prosecution got examined five witnesses (PW-1 to PW-5) and tendered documentary evidence (Ex.P.1 to Ex.P.5). During the prosecution evidence, on behalf of the accused, the documents were exhibited as Ex.D-1 to D-3. The statement of the accused was recorded under Section 313 Cr.P.C. No evidence was adduced on behalf of the accused in defence. 8. After due consideration of the evidence on record, the trial court arrived at the finding that on the basis of the evidence adduced, the charges are not proved against the accused beyond doubt and accordingly, acquitted the accused-respondent of the charges for offences under Sections 363, 366, 376 IPC. Hence, this leave to appeal. 9. Learned public prosecutor submitted that the learned trial court fell in error in acquitting the accused-respondent from the offences charged inasmuch there is ample evidence available on record which proves the charges against the accused beyond reasonable doubt. Learned Public Prosecutor submitted that the trial court has seriously erred in ignoring the deposition of the prosecutrix wherein the prosecutrix has deposed in unequivocal terms that she was forcibly taken away to Patan by the accused- Kanhaiyalal and was kept in a closed room for a period of 15 days and the accused committed rape on her repeatedly. Learned Public Prosecutor submitted that the prosecutrix has categorically deposed that from Patan she was taken to Beawar and thereafter, to the maternal home of the accused-Kanhaiya Lal where he again committed rape on her. It is submitted that the prosecutrix was recovered from the custody of the accused and the Sub Divisional Magistrate, Gulabpura, who having reached to the conclusion that the prosecutrix is minor, handed over her custody to her mother. It is further submitted that the trial court has erred in ignoring the mark sheet of class VIII of the prosecutrix which shows that at the time of commission of offence, the prosecution was only 15 years and 6 months of age. The Public Prosecutor further submitted that the trial court has failed to appreciate the evidence produced by the prosecution both oral as well as documentary in correct perspective, which has resulted in erroneous finding being arrived at. 10. I have considered the submissions of the learned Public Prosecutor, gone through the judgment of the trial court and the evidence on record. 11. 10. I have considered the submissions of the learned Public Prosecutor, gone through the judgment of the trial court and the evidence on record. 11. Indisputably, in view of clause (vi) of Section 375 IPC, sexual intercourse with a woman not related as wife below 16 years of age, with or without consent, is an offence of rape. But then, in the instant case, the prosecutrix in her statement (Ex.-D2) recorded before the Sub Divisional Magistrate, Gulabpura in the proceedings under Section 97, 98 Cr.P.C., stated in unequivocal terms that she is 18-19 years of age. She categorically stated that her date of birth as mentioned in the mark sheet of class VIII as 18th July, 1994 is incorrect. In the affidavit (Ex.D-3) prepared at the time of alleged marriage with the accused-Kanhaiya Lal also, the prosecutrix has disclosed her age to be 19 years. It is also a matter of record that after due examination, the Medical Jurist opined that the prosecutrix appears to be 18 years of age. That apart, the mother of the prosecutrix (PW2) in her deposition before the trial court while disclosing the age of the prosecutrix as 18 years, on a suggestion being put to her in cross examination, stated that she is not aware if the prosecutrix is 20-22 years of age. In this view of the matter, taking into consideration the evidence on record in its entirety, the conclusion arrived at by the trial court that the prosecutrix was 18 years of age at the time of commission of the offence by the accused, cannot be faulted with. 12. As per the deposition of the prosecutrix, in the first instance, she was forcibly taken away by the accused- Kanhaiya Lal to Patan where she was kept for a period of 15 days and thereafter, she was taken to Beawar and then to maternal home of the accused in a village. In the cross examination, the prosecutrix has stated in unequivocal terms that she was taken to the house of Kanhaiya Lal, situated at Bus Stand, Patan, which is a crowded area. She stated that during her stay at Patan, she made a noise many times but nobody listen to her. In the cross examination, the prosecutrix has stated in unequivocal terms that she was taken to the house of Kanhaiya Lal, situated at Bus Stand, Patan, which is a crowded area. She stated that during her stay at Patan, she made a noise many times but nobody listen to her. It is pertinent to note that in her statement (Ex.-D2) before the Sub Divisional Magistrate in proceedings under Section 97, 98 Cr.P.C., the prosecutrix had taken the stand that she had gone with Kanhaiya Lal at her own will and entered into marriage with him in temple at Patan, in accordance with the social customs and also expressed her desire to stay with accused-Kanhaiya Lal. Moreover, according to the prosecutrix, from Patan she was taken to Beawar and thereafter, to the maternal home of the accused in a village but while moving from one place to another place, the prosecutrix did not make any attempt to run away or to raise any noise. No medical evidence was produced on behalf of the prosecution to substantiate the allegation of rape being committed by the accused on prosecutrix. Thus, taking into consideration the material contradictions in the statement of the prosecutrix and in absence of any other cogent evidence on record, the conclusion arrived at by the trial court that the charge against the accused is not proved beyond reasonable doubt, appears to be just and proper. 13. In this view of the matter, in the considered opinion of this court, on sound and proper appreciation of the evidence on record, the trial court has rightly acquitted the accused respondent for the charges levelled for the offences under Sections 363, 365 and 376 IPC. 14. No case for grant of leave to appeal is made out. 15. The criminal leave to appeal is therefore, rejected.Leave to appeal dismissed. *******