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2016 DIGILAW 553 (RAJ)

State of Rajasthan v. Khushalchand

2016-04-21

PANKAJ BHANDARI

body2016
JUDGMENT : Pankaj Bhandari, J. Heard learned counsel for the State and learned counsel for the accused-respondents. 2. On the request of both the parties, the matter is being decided at the stage of admission. 3. Counsel for the appellant-State has argued that the prosecutrix PW-6, in her statement, has specifically alleged that accused-Khushalchand took her by force in a car and then committed rape upon her in her maternal uncle's residence. From there she was taken to Mumbai, where also, rape was committed upon her. It is also argued that the date of birth of the prosecutrix, as per Ex.P-7, is 07.06.1993 and as per Ex.P-11, the age of the prosecutrix is said to be between 15-17 years. The question of consent, as per the counsel, does not arise, as the prosecutrix was a minor at the time of occurrence. 4. Counsel for the accused-respondents, on the other hand, stated that as per the School Certificate Ex.D-1, the date of birth of the prosecutrix was 07.06.1991. This document has been put to the investigating officer PW-21 Pokar Ram, who has stated that he received the School Certificate Ex. D-1 from the Principal of the School and as per the Certificate the date of birth of the prosecutrix is 07.06.1991. It is also argued that age of the prosecutrix, as per Ex.P.10 is stated to be 17- 18 years. The prosecutrix herself went before the notary, wherein she stated her age to be 19 years. The affidavit of the prosecutrix is being produced as Ex.D-4 and the photographs of the prosecutrix and the accused are exhibited as Ex.D-5 to Ex.D-9. It is also argued by counsel for the accused-respondents that the investigating officer PW-21, in his cross-examination, has stated that the prosecutrix knew the accused and the accused has gifted mobile phone to her. It is also argued that there is an inordinate delay in lodging the FIR and the fact that the prosecutrix had gone away with accused Khushalchand was known to her parents, but they did not file any report before the police. 5. I have perused the record and considered the arguments advanced before me. 6. It is also argued that there is an inordinate delay in lodging the FIR and the fact that the prosecutrix had gone away with accused Khushalchand was known to her parents, but they did not file any report before the police. 5. I have perused the record and considered the arguments advanced before me. 6. As far as age of the prosecutrix is concerned, as per the School Certificate the date of birth of the prosecutrix is 07.06.1991 and the investigating officer himself has admitted that he has obtained the School Certificate from the Principal of the School. 7. In Jarnail Singh's case, the Hon'ble Supreme Court has held that where there is School record available, the same has to be given preference over the medical report. 8. In the present case also, from the medical report, the age of the prosecutrix was 17-18 years. Hence, I deem it appropriate to consider 07.06.1991, as mentioned in the School Certificate, to be the date of birth of the prosecutrix. The prosecutrix was, therefore, a major at the time of the alleged incident. 9. As per the FIR Ex.P-5, the incident is stated to be of 15.10.2010, but the FIR of the incident was lodged on 01.11.2010. Prior to lodging of the FIR, a missing report was lodged on 17.10.2010, which has been exhibited as Ex.P-9. In the missing report, it was mentioned that the accused-respondent has taken away the daughter of complainant- Nirbhay Singh, but still there has been an inordinate delay in lodging the FIR. The prosecutrix, in her statement, has stated that she was taken by force from one place to another, but she has not made any complaint to any person, which creates doubt. Her statement before the court that she did not get the photographs clicked and the photographs are forged, also appears to be wrong. Since the photographs were produced before the notary and the affidavit has a photograph affixed to it, further there are five other photographs of the prosecutrix with the accused respondent. The prosecutrix was taken away from a Mela, also creates suspicion, because in that case, the persons in the locality would have observed forceful taking away of the prosecutrix and must have informed the police. 10. The prosecutrix was taken to Mumbai twice and to Ahmedabad. The prosecutrix was taken away from a Mela, also creates suspicion, because in that case, the persons in the locality would have observed forceful taking away of the prosecutrix and must have informed the police. 10. The prosecutrix was taken to Mumbai twice and to Ahmedabad. The prosecutrix has been confronted with regard to her statement recorded under Section 161 Cr.P.C. and on material particulars, she has refused giving such statement to the police. 11. The learned trial court has discussed in detail the evidence in this case and has taken note of the 16 days' delay in FIR, no injury on the body of the prosecutrix and has rightly passed the order of acquittal. 12. The learned Sessions Judge has not committed any illegality or irregularity in acquitting the accused, as no offence under Sections 363, 366 and 376 are being made out against the respondent. 13. In view of the above, I do not find any force in the present appeal and the same is accordingly dismissed.