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Yuvraj Singh vs State on 16 January, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 358 / 1990
Yuvraj Singh
—-Appellant
Versus
State
—-Respondent

__
For Appellant(s) : Dr. P.C. Jain with Mr. Amit Sharma
For Respondent(s) : Mr. NS Dhakad PP
__
HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Judgment
ORAL
16/01/2018

The present appeal has been filed to assail the

impugned judgment dated 8.10.1990 rendered by the court of

Additional Sessions Judge No.1, Alwar in Sessions Case

No.66/1989. The said court vide impugned judgment convicted

the appellant Yuvraj Singh for the offence under Section 376 IPC

and vide a separate order of even date sentenced him to undergo

seven years RI and to pay a fine of Rs.50,000/-, in default thereof

to undergo additional three years RI. Fine of Rs. 50,000/- was

ordered to be paid to the prosecutrix (name withheld to protect

her identity).

Aggrieved against his conviction and sentence, the

appellant has filed the present appeal in the year 1990. The said

appeal was admitted. Thereafter, appeal was listed for final

hearing and disposal but none appeared on behalf of the appellant
(2 of 8)
[CRLA-358/1990]

on 29.5.2014, 17.6.2016, 27.6.2016. On 7.12.2017, Dr. P.C. Jain

caused appearance for the appellant and pleaded no instructions.

Thus, this Court had issued non-bailable warrants. The appellant

in pursuance of non-bailable warrants was taken into custody.

Since the appellant is in custody, appeal was ordered to be listed

today.

Today, the learned counsel for the parties have

addressed the arguments. Before arguments are dealt with, it will

be necessary to notice brief facts of the case.

On 27.5.1989, prosecutrix submitted written report

(Exhibit-P/1), on the basis of which, a formal FIR (Exhibit-P/2)

bearing No. 306/1989 was registered. The written report (Exhibit-

P/1) when translated into English, reads as under:-

“To

Shriman Kotwal Saheb,
Kotwali, Alwar.

Sir,

It is submitted that I (name withheld to protect her
identity) is resident of Gwalior. In 1984, I had come from
Gwalior to attend marriage at Alwar. Then Yuvraj Singh
son of Prabhu Singh, by caste Rajput, resident of Kala
Kuwa, Housing Board, 1 Ch 4, Alwar, had kept me in his
house as wife. He told me to stay with him and he will
marry me. I am carrying a pregnancy of three months
from the loins of Yuvraj Singh. On 15.5.1989, Yuvraj Singh
had performed another marriage and now after giving
beating, he has turned me out of the house. He has kept
me as wife for 5-6 years. He has performed bad act with
me due to which I am carrying his child. He has performed
another marriage and has turned me out of the house. I
have been left with no option, hence, it is prayed that legal
action be taken against him. I have been turned out of the
(3 of 8)
[CRLA-358/1990]

house by giving beating by Yuvraj Singh and his father
Prabhu Singh. They have told me to return to Gwalior.
Therefore, strict legal action be taken against them.

Applicant

Prosecutrix”

After the FIR (Exhibit-P/2) was registered, appellant

was charged for the offence under Section 376 IPC. The charge

stated that in the year 1984, appellant had kept the prosecutrix as

his wife and was having continuous sexual relationship with her,

due to which prosecutrix became pregnant. It was further stated

in the charge that the prosecutrix was minor.

The prosecution in all examined thirteen witnesses.

The prosecutrix appeared in the court as P.W.1 and

reiterated as to what was stated by her in written report (Exhibit-

P/1). In examination-in-chief she stated that abortion was carried

by one Dr. Devyani. Yuvraj Singh accused was employed at

Bhilwara and she had accompanied him there. She further stated

that from Bhilwara, they came to Alwar, where they stayed for six

to seven months and later Yuvraj Singh got service at Kherthal

and she went alongwith him. In the court, prosecutrix stated that

on 15.5.1989, Yuvraj Singh had performed another marriage and

his elder sister had turned her out of the house. She further stated

that when Yuvraj Singh performed second marriage, she was

having pregnancy of three months and at the time of deposition in

the court, she was having full grown pregnancy of nine months.

She further stated that she and accused Yuvraj Singh stayed as

husband and wife.

Mahendra Singh (P.W.2) in the court deposed that the
(4 of 8)
[CRLA-358/1990]

prosecutrix was known to him and she was staying with the

accused. However, this witness stated that he is not aware in

which capacity accused had kept the prosecutrix.

Heera Lal (P.W.3) had not supported the prosecution.

He was declared hostile to the prosecution.

Dr. Raj Kumar Mishra (P.W.4) had medico-legally

examined the prosecutrix and had found seven simple injuries on

her person. This Court need not notice the injuries on the person

of prosecutrix, as no charge regarding beating was framed against

the appellant. In examination-in-chief, this witness stated that he

had carried ossification test of the prosecutrix and as per report,

she was aged 22 years and thus, in the year 1984, she was about

17 years of age. In cross-examination, this witness stated that the

age of the prosecutrix can be 23 years also.

Dr. Harish Manocha (P.W.5) in the court stated that as

per Radiological examination, the prosecutrix was aged 19 years

and in the year 1984, she may be about 14 years of age.

Lekhraj Singh (P.W.6) had partly investigated the case.

Vikram Singh (P.W.7) had prepared the site plan

(Exhibit-P/4) of the house where the accused was residing.

Smt. Sushila Devi (P.W.8) in the court stated that she

was married with the accused from last one year and she had not

seen the prosecutrix staying with the accused.

Ashok Yadav (P.W.9) in the court stated that accused

had taken room on rent and he had disclosed that the prosecutrix

was his wife.

(5 of 8)
[CRLA-358/1990]

Rohitash (P.W.10) stated that the accused was working

in Annapurna Textile Mill. He was staying at the house of Ashok

Yadav (P.W.9) and Yuvraj Singh accused was a tenant in Room No.

2 and with him, the prosecutrix was residing, as wife.

Harprasad (P.W.11) stated that the accused was staying

in a rented room alongwith the prosecutrix.

Madan Sharma (P.W.12) stated that he was employed

in Annapurna Textile Mill as a Supervisor and accused Yuvraj Singh

@ Yogesh was working in the said Mill.

Munshi Singh (P.W.13) being SHO, Police Station

Kotwali, Alwar, has proved documents on the basis of which

investigation commenced.

Thereafter, the statement of the accused was recorded

under Section 313 Cr.P.C. The accused in his statement further

stated that the prosecutrix had come to his house to stay as a

domestic maid.

Dr. P.C. Jain, the learned counsel for the appellant has

submitted that the doctor who had carried abortion has not been

examined. Furthermore, no DNA Test was conducted to prove the

allegation that the prosecutrix became pregnant from the loins of

the appellant. The learned counsel for the appellant has submitted

that even if it is assumed that the prosecutrix was first wife of the

appellant, and later the accused performed another marriage, it

will constitute offence of Bigamy under Section 494 IPC. It is

contended that the said offence is non-cognizable. The learned

counsel for the appellant contended that in no case, offence under

Section 376 IPC is made out.

(6 of 8)
[CRLA-358/1990]

The learned counsel for the appellant relied upon the

case of Uday vs. State of Karnataka, AIR 2003 Supreme

Court 1639, wherein it is stated as under:-

“It, therefore, appears that the consensus of judicial
opinion is in favour of the view that the consent given by
the prosecutrix to sexual intercourse with a person with
whom she is deeply in love on a promise that he would
marry her on a later date, cannot be said to be given
under a misconception of fact. A false promise is not a fact
within the meaning of the Code. We are inclined to agree
with this view, but we must add that there is no strait
jacket formula for determining whether consent giveny by
the prosecutrix to sexual intercourse is voluntary, or
whether it is given under a misconception of fact. In the
ultimate analysis, the tests laid down by the Courts
provide at best guidance to the judicial mind while
considering a quesdtion of consent, but the Court must, in
each case, consider the evidence before it and the
surrounding circumstances, before reaching a conclusion,
because each case has its own peculiar facts which may
have a bearing on the question whether the consent was
voluntary, or was given under a misconception of fact. It
must also weigh the evidence keeping in view the fact that
the burden is on the prosecution to prove each and every
ingredient of the offence, absence of consent being one of
them.”

Mr. N.S. Dhakd, the learned Public Prosecutor has

submitted that it has come in evidence that the prosecutrix was

staying with the accused as wife.

To appreciate the arguments raised by the learned

counsel for the parties, first this Court has to determine the age of

the prosecutrix.

Dr. Raj Kumar Mishra (P.W.4) in examination-in-chief

has stated that as per Exhibit-P/7, the prosecutrix was aged 22
(7 of 8)
[CRLA-358/1990]

years and in the year 1984, she was aged about 17 years. It has

been rightly contended by the learned counsel for the appellant

that the margin of two years on either side is to be granted to the

report of ossification test to determine the age of the prosecutrix.

It is contended that the prosecutrix was thus, more than 18 years

of age, in the year 1984.

The prosecution was also examined by Dr. Harish

Manocha (P.W.5) Radiologist. He has stated that as per

Radiological examination (Exhibit-P/10), prosecutrix was aged 19

years and thus, in the year 1984, she was aged about 14 years.

In case, margin of two years on either side is granted

to the prosecutrix for determining the age of prosecutrix, then in

the year 1984, the prosecutrix was above 16 years of age. Under

the unamended Indian Penal Code, age of consent was 16 years.

Therefore, it is case of consensual sex.

The accused and the prosecutrix were having

continuous sexual relationship for a period of five years. From the

year 1984 to 1989, consensual sexual relationship remained

between the accused and the prosecutrix. It has come in evidence

that the prosecutrix had became pregnant and abortion was

carried, later she again became pregnant. Though the conduct of

the accused appellant may be morally bad, but same will not fall

within the ambit of Section 375 IPC which defines rape, as the

prosecutrix was herself a consenting party to the sexual

relationship. Therefore, taking totality of circumstances, this court

shall extend benefit of doubt to the appellant, as no offence of

rape is made out.

(8 of 8)
[CRLA-358/1990]

Consequently, the appeal is accepted. The conviction

pronounced and sentence awarded upon the appellant by the trial

court is set aside. He is acquitted of the charge.

The appellant who is in custody shall be released by the

trial court if he is not involved in any other case, after complying

with section 437A Cr.P.C.

(KANWALJIT SINGH AHLUWALIA)J.

Mak/-

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