Mahendra Kumar vs State & Ors on 16 May, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. CRIMINAL APPEAL NO. 1200 / 2016

Mahendra Kumar

……….Appellant
VERSUS

1. The State of Rajasthan

2. Munna @ Mahendra son of Shri Mangla Ram, by caste Mali,
resident of Bheru Ji Ki Dhani, Raas, Kalu Police Station,
District Pali, presently resident of Riya Badi, District Nagaur.

3. Om Prakash son of Sohan Lal, by caste Mali, resident of Bala
Ka Dhaba, Aalaniyawas, Thanwla Police Station, District
Nagaur.

………….Respondents

_
Counsel For Appellant(s) : Mr. Jangsher Khan
Counsel For Respondent(s) : Mr. J.P. Bhardwaj, PP
__

HON’BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order
16/05/2017

This criminal appeal has been preferred on behalf of the

appellant being aggrieved with the judgment dated 19.7.2016

passed by the Addl. Sessions Judge, Merta, Distt. Nagaur (for

short ‘the trial court’) in Sessions Case No.86/15 (11/2007),

whereby the trial court has acquitted the accused respondents for

the offences punishable under Sections 363, 366-A, 376 and

120-B IPC.

(2 of 7)

Learned counsel for the appellant has submitted that the trial

court has erred in giving the finding that the prosecution has failed

to prove that on the date of incident, the prosecutrix (PW-1) was

less than 18 years of age. It is contended that the prosecution has

produced transfer certificate (Ex.P-27) and the school register

(Ex.P-28/1) and in both the documents, the date of birth of the

prosecutrix was mentioned as 1.7.1989. It is contended that the

Head Master of the school namely Shyam Sunder (PW-15) has

appeared in the witness box and verified the exhibits (P-27) and

(P-28/1). It is argued that there is no reason to disbelieve the said

documentary evidence, however, the trial court without

appreciating the evidence in right perspective has illegally held

that the prosecution has failed to prove that on the date of

incident, the prosecutrix was less then 18 years of age.

Learned counsel for the appellant has further argued that

from the statement of the prosecturix (PW-1), it is proved that the

accused respondents Munna @ Mahendra and Om Prakash had

kidnapped her and thereafter kept her in illegal confinement at

Jaipur in a hotel, where accused respondent Munna @ Mahendra

committed rape upon her. It is contended that the trial court has

illegally disbelieved the testimony of the prosecutrix (PW-1) and,

therefore, the impugned judgment passed by the trial court

acquitting the accused respondents for the offences punishable

READ  Hunny vs State on 6 June, 2017

under Sections 363, 366-A, 376 and 120-B IPC is liable to be set

aside.

Per contra, learned Public Prosecutor has opposed the prayer

made by learned counsel for the appellant and argued that as a
(3 of 7)

matter of fact, there is no evidence available on record to connect

the accused respondents with the commission of offence

punishable under Sections 363, 366-A, 376 and 120-B IPC and,

therefore, the trial court has not committed any illegality in

acquitting the accused respondents from the aforesaid offences.

Heard learned counsel for the parties and carefully

scrutinized the record.

Appellant – Mahendra Kumar vide Ex.P/7 has filed a written

complaint at the Police Station Padu Kalan on 12.11.2006 alleging

that on 11.11.2006, when his sister went to ease herself in open

at about 5 AM near their house, then, the accused respondent

Munna @ Mahendra had abducted her. It is alleged that despite

search, his sister was not found. The date of birth of the

prosecutrix was mentioned as 1.7.89 and it is also alleged that it

was informed by one Hempuri that Munna @ Mahendra has

abducted his sister with the aid of his brother Sri Kishan, Raju

Ram, his sister Manju Devi and brother-in-law Devi Lal.

On the basis of the said complaint, the Police Station Padu

Kalan has registered an FIR No.177/2006 for the offences

punishable under Sections 363 and 366-A IPC against the accused

persons Munna @ Mahendra, Sri Kishan, Raju, Devi Lal and Manju

Devi. In the meantime, the prosecutrix had appeared at the Police

Station Padu Kalan on 13.11.2006 and given her statement

Ex.D-1, wherein she has stated that she went with accused

respondent Munna @ Mahendra on her own free will and stayed

with him for quite some time. The custody of the prosecutrix was

handed over to her parents and her statement was recorded under
(4 of 7)

Section 164 Cr.P.C. before the concerned Magistrate on

16.11.2006, wherein she has stated that accused persons Munna

@ Mahendra, Sri Kishan, Tulsi Ram, Om Prakash and Baldev etc.

had abducted her and thereafter took her to Jaipur, where she

stayed with accused respondent Munna @ Mahendra in a hotel and

he committed rape upon her.

After investigation, the police has filed charge-sheet against

the accused respondents and the trial court has framed charges

against them for the offences punishable under Sections 363,

366-A, 376 read with Section 120-B IPC. During the course of

READ  Ranjeet vs The State (Nct Of Delhi) on 28 April, 2017

trial, the prosecution has produced as many as 15 witnesses and

has also got exhibited certain documents. The statement of the

accused respondents were recorded under Section 313 Cr.P.C. and

five documents were exhibited in defence.

The trial court after taking into consideration the evidence

available on record has acquitted the accused respondents for the

offences, for which, they have been charged vide impugned

judgment. Hence, this criminal appeal.

The trial court has taken into consideration the fact that

though the prosecution has produced documentary evidence

Exhibits (P-27) and (P-28/1) to prove that on the date of incident

i.e. 11.11.2006, the age of the prosecutrix was less than 18 years

and her date of birth is 1.7.89. The trial court is of the opinion

that the admission form submitted at the time of admission of the

prosecutrix in the school has not been produced and it has not

been proved that who has mentioned the date of birth of the

prosecutrix in the said admission form. The trial court has also
(5 of 7)

taken into consideration the statement of the father of the

prosecutrix namely Pukhraj (PW-4) as well as statement of the

brother of the prosecutrix namely Mahendra (PW-3). The trial

court has observed that as per the statement of the appellant

Mahendra Kumar, the age of the prosecutrix was around 20 years

on the date of incident and as per father of the prosecutrix

Pukhraj (PW-4), her age was 19 years on the date of incident. The

trial court has also taken into consideration the evidence of the

Dr.S.R.Inaniya (PW-12), who has medically examined the

prosecutrix and has opined that on the date of medical

examination of the prosecutrix, her age was between 17 to 18

years. After taking into consideration the above evidence available

on record, the trial court has given a finding that the prosecution

has failed to prove that on the date of the incident, the prosecutrix

was less than 18 years of age.

After pondering over the above evidence, this Court is also of

the opinion that the prosecution has failed to prove the fact that

on the date of the incident, the prosecutrix was less than 18 years

of age. Hence, the finding arrived at by the trial court on this point

is not liable to be interfered with.

READ  State vs Pintoo on 9 May, 2017

So far as the contention of the learned counsel for the

appellant to the effect that from the evidence of the prosecutrix

(PW-1), it is clearly proved that the accused respondent Munna @

Mahendra has committed rape upon her at Jaipur on 11.11.2006

and 12.11.2006 in a hotel is concerned, the trial court has held

that the prosecutrix has appeared before the police station on

13.11.2006 and her statement was recorded by the police as
(6 of 7)

Ex.D/1 and in those statement, the prosecutrix has specifically

stated that she met with accused respondent Munna @ Mahendra

at Aalaniyawas in a marriage on 1.5.2006 and she gave her

mobile number to him and has also gave him proposal of

friendship. The prosecutrix has also stated in her statement

(Ex.D/1) that she used to talk with accused respondent Munna @

Mahendra on mobile phone regularly. The trial court has observed

that the prosecutrix in her police statement (Ex.D/1) has

specifically stated that she want to marry with accused respondent

Munna @ Mahendra. The trial court after taking into consideration

the court statement of the prosecutrix has observed that she has

made certain improvements in her court statement, but at the

same time, she has also admitted certain parts of her statement

(Ex.D/1) given to the police.

The trial court has also taken into consideration that during

the course of investigation, the police has not collected any

documentary evidence or other evidence to the effect that the

accused respondents along with the prosecutrix had stayed in a

hotel at Jaipur. The trial court has therefore held that in the

absence of any such material available on record, it cannot be said

that the prosecution has proved the charge against the accused

respondents to the effect that rape was committed with the

prosecutrix in a hotel at Jaipur.

After scrutinizing the record of the case, particularly the

contradictions in the police statement (Ex.D/1) and the court

statement of the prosecutrix, this Court is of the opinion that the

trial court has not committed any illegality in acquitting the
(7 of 7)

accused respondents from the offences punishable under Sections

363, 366-A, 376 and 120-B IPC. Hence, no interference is called

for by this Court in the impugned judgment passed by the trial

court.

Resultantly, this criminal appeal being bereft of force is

hereby dismissed.

(VIJAY BISHNOI), J.

ms rathore/21

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