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2018 DIGILAW 1639 (RAJ)

Girdhari Lal Mali v. State of Rajasthan

2018-08-03

PANKAJ BHANDARI

body2018
JUDGMENT : PANKAJ BHANDARI, J. Learned Public Prosecutor accepts notice on behalf of the State. 2. Appeal is admitted. As record has been received, I deem it proper to dispose of the appeal at this stage. 3. Appellant has preferred this criminal appeal aggrieved by judgment dated 05.06.2018 & order dated 06.06.2018, passed by Sessions Judge, Jhunjhunu, whereby, appellant has been convicted for offence under Section 376 I.P.C. and has been sentenced to seven years rigorous imprisonment and fine of Rs. 10,000/- and in default of fine to further undergo six months additional rigorous imprisonment and has been acquitted for offence under Section 366 of I.P.C. 4. It is contended by counsel for the appellant that prosecutrix in this case is married to the appellant. Her marriage with the appellant took place on 27.04.2012, before Arya Samaj Sansthan New Bajar, Purani Mandi, Ajmer. Photographs of marriage have been exhibited as Ex.D-3 to Ex.D-8. Marriage Certificate issued by Arya Samaj Santhan New Bajar, Purani Mandi, Ajmer has been exhibited as Ex.D-9. 5. My attention has also been drawn towards Marriage Certificate issued by Municipal Corporation, Ajmer, which has been exhibited as Ex.D-10. Letters written by the prosecutrix has been exhibited as Ex.D-11 to Ex.D-15. 6. It is contended by counsel for the appellant that after marriage with the appellant, prosecutrix was again getting married with some other person, on which a civil suit for permanent injunction was filed by the appellant on 07.08.2012. A stay order was granted in favour of the appellant on 08.08.2012. After grant of stay order, present F.I.R. was lodged on 10.08.2012, against the present appellant and three other persons. Police after investigation submitted charge-sheet only against the present appellant for offence under Section 366 and 376 of I.P.C. Court below after hearing charge arguments framed charges against the present appellant. 7. As many as eleven witnesses were examined on behalf of the prosecution and sixteen documents were exhibited. Explanation of appellant was recorded under Section 313 Cr.P.C. and defence witnesses were examined on his behalf as DW-1 and DW-2. Documents Ex. D-1 to Ex.D-24 were exhibited on behalf of the defence. Court after hearing the arguments has acquitted the appellant for offence under Section 366 I.P.C. and has convicted him for offence under Section 376 I.P.C. and has sentenced him for seven years of rigorous imprisonment and fine of Rs. Documents Ex. D-1 to Ex.D-24 were exhibited on behalf of the defence. Court after hearing the arguments has acquitted the appellant for offence under Section 366 I.P.C. and has convicted him for offence under Section 376 I.P.C. and has sentenced him for seven years of rigorous imprisonment and fine of Rs. 10,000/-, on non payment of fine to further undergo six months of rigorous imprisonment aggrieved by which the present appeal has been preferred. 8. It is contended that appellant had produced the relevant documents from which it was established that prosecutrix was married to the appellant. Prosecutrix in her statement admitted that her photographs were there in the documents produced by the appellant. She has also admitted that letters were written in her hand writing. It is contended that in view of the documentary evidence, marriage of the appellant with the prosecutrix was established. 9. It is also contended that there is an inordinate delay in lodging of F.I.R. and present F.I.R. was lodged to counter blast the civil suit filed by the appellant. 10. Learned Public Prosecutor has opposed the criminal appeal. His contention is that prosecutrix in her Court statement has alleged that the appellant entered into her house and committed rape upon her. 11. I have considered the contentions. 12. Prosecutrix (PW-1) in her examination in chief has stated that she was raped in January, 2012. She has also alleged that she was again forcefully raped in a hotel in April, 2012 and was forced to sign on blank papers. She has stated that as she did not marry the appellant she did not inform her family members. 13. In her cross-examination she has admitted that her marriage was fixed on 10.08.2012. Appellant by filing civil suit for permanent injunction has obtained the stay on her marriage. After the stay was vacated in August, 2012, she entered into a marriage and went to her in-laws house. Prosecutrix is a major girl aged 23 years who has admitted that she has not received injury as a result of rape committed by the appellant. She has also admitted that in photographs produced by the defence she is seen with the appellant, she is also seen with the appellant in front of sacred fire and in photograph in which petitioner and complainant are garlanding each other. She has also admitted that in photographs produced by the defence she is seen with the appellant, she is also seen with the appellant in front of sacred fire and in photograph in which petitioner and complainant are garlanding each other. She has also admitted that Ex.D-5 to Ex.D-8 are her photographs with appellant in the Arya Samaj Sansthan New Bajar, Purani Mandi, Ajmer. She has also admitted that Marriage Certificate (Ex.D-10) issued by the Municipal Corporation, Ajmer, bears her photograph and her signatures but she has refused the factum of going to Municipal Corporation, Ajmer for obtaining the Marriage Certificate. She has also admitted that letters (Ex.D-11 to Ex.D-15) are written by her. 14. The allegations of rape appears to have been falsely levelled as prosecutrix wanted to marry someone else and the appellant was creating hurdles in her marriage. Court below has in a cursory manner ignored the arguments and convicted the appellant for offence under Section 376 of I.P.C. 15. In view of the admission of the prosecutrix offence under Section 376 I.P.C. is not made out against the appellant. The present appeal deserves to be and is accordingly allowed. The conviction of the appellant for offence under Section 376 I.P.C. is quashed and set-aside. Application for suspension of the sentence stands disposed. Record of the Court below be sent forthwith. The appellant Girdhari Lal S/o Richpal is acquitted for the charges levelled against him. He is in jail, he be set at liberty forthwith, if not required in any other cases or for any other purpose. 16. Appellant is directed to forthwith furnish personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.