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2025 DIGILAW 330 (RAJ)

KURDA RAM v. STATE AND ANR.

2025-02-12

BHUWAN GOYAL

body2025
JUDGMENT : BHUWAN GOYAL, J. 1. This criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner-complainant against Judgment and Order dated 21.07.2005 passed by the Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Cases, Sikar (Additional Sessions Judge No. 1, Sikar) in Special Case No.23/2004 (State of Rajasthan vs. Bajrang Lal & Anr.) acquitting accused-respondent No. 2 - Bajrang Lal for charges under Sections 363, 366, 366A & 376 of I.P.C. and Section 3(2)(5) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 and accused-respondent No. 3 - Shish Ram for charges under Sections 363, 366 & 366A of I.P.C. and Section 3(2)(5) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 by extending them benefit of doubt. 2. Brief facts of the case are that on 27.01.2004, petitioner- complainant - Kurdaram (P.W. 4) submitted handwritten report (Ex.P/4) before the Police Station Khandela, District Sikar, wherein it was alleged that on 21.01.2004, his wife and children were sleeping in his house. His daughter - Mst. "U" aged 15 years was also sleeping there. In the morning at 6 O'clock, when his wife woke up, his daughter was not found. His family members searched her but did not find her. Their neighbour Bajrang Lal and brother-in-law of Bajrang Lal's sister, namely, Shishram, who had also come, were absconding from that day, who had abducted his daughter by luring her. They had suspicion upon them. On the basis of said report, F.I.R. No.16/2004 was registered for the offences under Section 363 & 366-A of I.P.C. and investigation was commenced. After investigation, police submitted charge-sheet against accused-respondent No. 2 for the offences under Sections 363, 366, 366A & 376 of I.P.C. and Section 3(2)(5) of SC/ST Act and accused-respondent No. 3 for the offences under Sections 363, 366 & 366A of I.P.C. and Section 3(2)(5) of SC/ST Act. The trial court framed charges and trial was commenced. After conclusion of trial, the trial court passed judgment and order dated 21.07.2005 acquitting accused-respondents for the alleged offences. Hence, this criminal revision petition was preferred by the petitioner-complainant. 3. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the accused-respondents. 4. The trial court framed charges and trial was commenced. After conclusion of trial, the trial court passed judgment and order dated 21.07.2005 acquitting accused-respondents for the alleged offences. Hence, this criminal revision petition was preferred by the petitioner-complainant. 3. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the accused-respondents. 4. Learned counsel for the petitioner has submitted that from the evidence adduced on record, it has been established that accused-respondents abducted minor girl aged 15 years who belongs to S.C./S.T. community and forcibly subjected her to sexual assault. The prosecution story has been duly corroborated from testimony deposed by material prosecution witnesses including victim as well as FSL Report. But the trial court has erred in not rightly evaluating the evidence on record and passed the judgment impugned acquitting accused-respondents for the charges alleged against them. He has, therefore, prays that this criminal revision petition may be allowed and the accused- respondents may be convicted and sentenced for the offences charged against them suitably. 5. Learned Public Prosecutor has prayed for passing appropriate orders in this case. 6. Learned counsel for the accused-respondents while supporting judgment impugned has submitted that from the evidence available on record, the prosecution has not been able to prove age of the victim. She has also submitted that from the medical evidence which has come on record, it shows that victim was more than 16 years of age at the time of incident. She has contended that prior to Criminal Law (Amendment) Act, 2013, as per Section 375 of I.P.C., it was rape with or without consent, when the woman concerned was under sixteen years of age and it was only vide amendment of 2013 that this has been increased to eighteen years. But in the case in hand, when the alleged offence of rape is said to have been committed i.e. in the year 2004, age of victim was more than 16 years which has been proved from Ex.D/4 - TC Form of victim. She has thus submitted that prosecutrix being more than 16 years of age was a consenting party. She has also submitted that there is delay of almost six days in lodging the F.I.R. and no explanation has been given by the complainant for lodging the F.I.R. delayed. She has thus submitted that prosecutrix being more than 16 years of age was a consenting party. She has also submitted that there is delay of almost six days in lodging the F.I.R. and no explanation has been given by the complainant for lodging the F.I.R. delayed. She has also submitted that recovery of undergarments of victim as well as accused too does not inspire confidence. There is no report of blood grouping available on record and in absence of same, no reliance can be placed on the F.S.L. Report. She has also submitted that from the evidence on record, it has been established that victim who was major voluntarily left her parents' house and accompanied accused-respondents out of her own free will. She travelled with accused-respondents in public conveyance and stayed in hotels but still, she did not raise any alarm or tried to escape, which shows that she being major was a consenting party. She has therefore contended that no offence can be said to be made out against accused-respondents. Therefore, she has prayed that this revision petition may be dismissed. 7. I have considered the arguments advanced at Bar and have gone through impugned judgment and record of the trial court. 8. In the instant case, the prosecution has come with the case that accused-respondents abducted the victim, a minor girl of 15 years belonging to SC community, from her lawful guardianship and sexually assaulted her. A perusal of the record reveals that no documentary evidence much less school record of the victim has been produced by the prosecution in the present case to prove age of the victim. P.W.1 - mother of victim in her examination-in- chief has stated that she is having 5 children, out of which victim is elder one, whose age is 15 years. She has also stated that victim studied upto class VIII. In her cross-examination, she has admitted that horoscope of victim was prepared; they did not give horoscope of her daughter to the police. She has also stated that her daughter was got admitted in the school by her father or grand-father. She did not know as to whether horoscope of victim was given in the school or not. She did not know whether age of victim was mentioned by her father or not. She did not get written date of birth of victim in the school. She did not know as to whether horoscope of victim was given in the school or not. She did not know whether age of victim was mentioned by her father or not. She did not get written date of birth of victim in the school. She has also stated that 20-22 years had elapsed since her marriage and after 4 years of her marriage, victim was born. P.W. 4 - father of victim in his cross-examination has stated that victim was got admitted in school by his father, who got mentioned her date of birth. He has admitted that date of birth of victim was got written by his father by guess. In the case in hand, though, defence has produced on record T.C. Form of victim (Ex.D/4), a perusal of which reveals that same has been issued by the Principal, Government Secondary School, Dudhwalo Ka Bas, Sikar, wherein date of birth of the victim has been mentioned as 09.01.1987 and thus, according to Ex/D/4, age of the victim on the date of incident was more than 17 years. But said Ex.D/4 also appears to be doubtful in view of the statement of P.W. 4 - father of the victim. 9. It is pertinent to note that as per medical evidence produced by the prosecution regarding age of the victim more particularly ossification test report (Ex.P/8), it reveals that in the column of 'Physical Examination', height of victim has been mentioned as 5' 3'', weight 45 kg' and teeth 28' and as per opinion of the Medical Jurist, age of victim was about 18 years on the date of examination. P.W. 11 - Dr. Mohammad Farooque who prepared reports (Ex.P/8) shows that in his cross-examination, he has admitted that possibility of victim's age as 19 years too cannot be ruled out. A perusal of the MLC X-ray Report (Ex.P/16) reveals that in the radiological opinion of the Medical Officer (Radiology), Sri Kalyan Govt. Hospital, Sikar, age of victim was above 17 and below 19 years. 10. It would also be relevant to note that age of consent in a case of rape is the age at which a girl is considered capable of providing consent to engage in sexual activity. Hospital, Sikar, age of victim was above 17 and below 19 years. 10. It would also be relevant to note that age of consent in a case of rape is the age at which a girl is considered capable of providing consent to engage in sexual activity. As per amendment brought in Section 375 of I.P.C. by way of Criminal Law (Amendment) Act, 2013, rape would be with or without consent, when the woman concerned is under eighteen years of age. But prior to said amendment, required age of consent of a woman was sixteen years. In the case in hand, from the evidence which has come on record, it has been established that prosecution has not been able to prove age of the victim as 15 years, rather, it has been established from the medical evidence as well as statement of mother of the victim that she being more than 16 years was major on the date of incident. 11. Now adverting to prosecution story regarding subjecting the victim to sexual assault by accused-respondents, a perusal of the statement of victim (P.W. 5) reveals that she in her examination- in-chief has stated that accused-respondents took her to Govindpura, from where they took her to Mandha Madani and then, Khatu Shyamji. Thereafter, they brought her to Danta, from where she was taken to Ajmer in a roadways bus. They stayed in a hotel in Ajmer for a day. They went from Ajmer to Surat in a bus and stayed for 1-2 days and thereafter, she was taken to Maleganv in Maharashtra, where they stayed in a hotel for two days and then, she was taken to Nasik, where they stayed in a hotel for two days. From Nasik, she was taken to Puna, where they stayed for 3 days and then, she was taken to Satana, where they stayed in a hotel for two days. Thereafter, she was taken to Gujarat. Thus, from perusal of the statement of victim (P.W. 5), it has been established that victim had visited various places with accused-respondents and travelled in different conveyance and stayed in different hotels but neither she made any complaint nor raised any alarm and nor tried to escape from the custody of accused. Thereafter, she was taken to Gujarat. Thus, from perusal of the statement of victim (P.W. 5), it has been established that victim had visited various places with accused-respondents and travelled in different conveyance and stayed in different hotels but neither she made any complaint nor raised any alarm and nor tried to escape from the custody of accused. In the opinion of this Court, if the victim was forcibly taken away by the accused, then she would have certainly resisted and informed about incident to the persons travelling in public transports or staff present in the hotels, which was not done by the victim. 12. With regard to F.S.L. Report (Ex.P/17), it is pertinent to note that as per conclusion of chemical examination, human semen was detected in Exhibits No. 4, 6 i.e. underwear and salwar of victim and Exhibit No. 8 i.e. underwear of accused. A perusal of recovery memo of underwear, Samij, Salwar and Kurta of victim (Ex.P/2) would show that marks of mensuration bleeding only was found on the underwear of victim. Similarly, underwear of the accused Bajrang Lal was recovered vide recovery memo (Ex.P/3). In the said recovery memo, there is no mention of any blood or semen found on the underwear of the accused. However, a perusal of the Ex.P/2 & Ex.P/3 reveals that no date and time has been mentioned on said recovery memos to show as to when clothes of the victim and accused were recovered. Even, no malkhana register has been produced on record to show as to when seized articles were deposited in the Malkhana. P.W. 12 - Banshidhar, who is one of the witness of aforesaid recovery and P.W. 13 - Dr. Farooque, have admitted in their cross-examination that there was mensuration bleeding present on the underwear of the victim and nothing else was present on it. They have further stated that there was no substance and marks on the underwear of the accused. It is not understood that when no substance or mark or semen was found on the underwear of the accused at the time of recovery then, as to how any semen could have been detected in the F.S.L. A perusal of the FSL Report (Ex.P/17) reveals that there is no report regarding blood grouping to prove that semen found on the clothes of victim was of accused Bajrang Lal and none else. Therefore, entire proceedings regarding recovery of undergarments and clothes of the victim and the accused so also FSL Report (Ex.P/17) come under clouds of suspicion. Thus, from the evidence available on record, the prosecution has not been able to establish the prosecution story and the fact that victim was forcibly subjected to sexual assault by accused-respondents beyond all reasonable doubt. 13. In the case in hand, the victim was stated to be abducted by the accused-respondents in the midnight of 21.01.2004, whereas the FIR has been got instituted by the complainant as late as on 27.01.2004 i.e. after six days of the incident. There is no explanation forthcoming on the record with regard to delay in lodging the FIR which further raises serious doubt regarding entire prosecution story. 14. In view of the above discussion, this Court finds that the trial court after appreciation of entire evidence on record has rightly passed judgment and order dated 21.07.2005 acquitting accused- respondents for the charges alleged against them, which does not warrant any interference. 15. Consequently, this criminal revision petition is dismissed and the judgment and order dated 21.07.2005 passed by the trial court is affirmed. 16. The record of the learned trial court be sent back forthwith.