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
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
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.
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