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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
JUDGMENT
S.B. Criminal (Jail) Appeal No.423/2014
Ajay Khan son of Namalum, by caste Musalman, resident of
Village Rauthhadiya, Police Station Mahuwa, District Dausa.
….Accused-Appellant
Versus
State of Rajasthan through Public Prosecutor
…Respondent
Date of Judgment ::::::: 23.03.2017
PRESENT
HON’BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr. D.K.Dixit for the appellant.
Mr. R.R.Gurjar, Public Prosecutor for the State.
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BY THE COURT:
The accused-appellant has preferred this Criminal
Appeal under Section 374 Cr.P.C. against the judgement of
conviction and order of sentence dated 22.08.2012 passed by the
Additional Sessions Judge, Bandikui Camp Mahua (District Dausa)
in Sessions Case No.72/2011 whereby the learned trial Court after
holding the appellant guilty for offence under Section 366 IPC
sentenced him to undergo rigorous imprisonment for seven years
and to pay a fine of Rs.5,000/- and in default thereof to further
undergo rigorous imprisonment for three months and also holding
the appellant guilty for offence under Section 376 IPC sentenced
him to undergo rigorous imprisonment for seven years and to pay a
fine of Rs.5,000/- and in default thereof to further undergo rigorous
imprisonment for three months. It was also directed that both the
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substantive sentences would run concurrently.
Brief relevant facts for the disposal of this appeal are
that complainant-Shri Umedilal, father of the prosecutrix,
submitted written report Ex.P1 at Police Station Mahua on
25.6.2011 with the allegation that on 24.6.2011 when he was away
from his home for his work his daughter prosecutrix aged about 16
years was at home alone, one Smt.Madina wife of Shri Gani took
her away alongwith her at about 11-12 a.m. and accused-appellant,
who at that time was residing in the house of Shri Gani as tenant,
abducted her daughter. It was further alleged in the report that
when he came back to his house on 25.6.2011, above incident
came into his knowledge. On the basis of this written report, FIR
No.306/2011 came to be registered for the offence under Section
366-A IPC and investigation commenced. During the course of
investigation prosecutrix was recovered on 23.8.2011 in the
company of appellant from Katni (Madhya Pradesh) where they
were residing together. After investigation charge-sheet was filed
against the appellant and charges for offences under Sections 366
and 376 IPC were framed against him. In order to prove the
charges, prosecution produced oral as well as documentary
evidence whereas appellant in his statement recorded under
Section 313 Cr.P.C. denied the evidence produced on behalf of the
prosecution and further stated that prosecutrix called him to
Gangapur and took him with her initially to Bhopal and
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subsequently to several other places. Although, in defence no oral
evidence was produced but during the cross-examination of
prosecution witnesses statements under Section 161 Cr.P.C. were
exhibited as D1 to Ex.D4. Learned trial Court after considering the
submissions made on behalf of the respective parties and the
evidence available on record convicted and sentenced the appellant
as already stated.
Assailing the findings of learned trial Court counsel for
the appellant submitted that from the evidence available on record
it is more than clear that at the time of the alleged incident
prosecutrix was above the age of 16 years and if sexual intercourse
took place between appellant and prosecutrix it was with her free
will and consent and, therefore, no offence was committed by the
appellant, but the learned trial Court did not consider this aspect of
the case in a proper perspective. It was submitted that opportunity
was available to the prosecutrix at several occasions to resist the
act allegedly done by the appellant to raise hue and cry, to escape
from the company of the appellant and to complain about the act
of the appellant but she did not do so, which is clear indication of
the fact that she with her own free will and consent went away
with the appellant and physical relation between them took place
with her consent. It was also submitted that during the period
between 24.6.2011 and 23.8.2011 appellant and prosecutrix
resided as husband and wife.
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On the other hand, learned Public Prosecutor defending
the findings of trial Court, submitted that prosecutrix in her
statement in clear words has alleged that appellant took her away
after threatening her with dire consequences and committed rape
upon her several times against her will and without her consent.
After considering the submissions made on behalf of the
respective parties and the evidence available on record it is clear
that at the time of the incident prosecutrix was more than 16 years
of age and she was a consenting party and she went away
alongwith the appellant at her free will when her parents were not
at home. It is not the case of the prosecutrix that appellant
threatened her with dire consequences and in absence of the same
her conduct not to raise hue and cry, not to resist the alleged act of
the appellant, not to try to escape from the company of the
appellant and not to complain to anybody despite several
opportunities were available to her shows that she was a
consenting party. To prove the age of the prosecutrix, prosecution
has relied upon Ex.P17 age certificate issued by the Government
Girls Upper Primary School, Hadiya and as per this certificate the
date of birth of prosecutrix is 20.6.1994 and, therefore, at the time
of alleged incident she was more than 17 years of age. It is further
clear that the above date of birth was mentioned in the certificate
on the basis of admission form and the entry made in this regard in
the school register maintained by the school and, therefore, the
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date of birth as mentioned in the certificate cannot be discarded
merely by the reason that it has not been clarified on what
information this date of birth was entered in the register
maintained by the school more particularly in view of the fact that
prosecution has produced this document. From the admission form
Ex.P19, it is further clear that the father of prosecutrix submitted
this form in the aforesaid school for the admission of prosecutrix on
13.7.1999 and in the form also date of birth was mentioned as
20.6.1994. PW5-Dr.Anjana Bhardwaj in her statement has said that
on the examination of prosecutrix on 25.7.2011 she found her age
about 16 to 17 years. It is thus clear from the evidence produced
by prosecution itself that at the time of alleged incident prosecutrix
was above the age of 16 years and she was competent to give her
consent for sexual intercourse with appellant. From the evident
made available on record it is also clear that appellant was working
at some road side Hotel situated near the village of the prosecutrix
for several past years and he was a regular visitor to her house due
to which friendship and intimacy developed between them. It is
further clear from the evidence that both appellant and prosecutrix
lived together at several places as husband and wife during the
period between 24.6.2011 and 23.8.2011 when she was recovered
from Katni (Madhya Pradesh). The conduct and behavior of
prosecutrix is clear indication of the fact that it is not a case of
mere passive submission by her but she was a willing party. It has
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been admitted by prosecutrix that during the aforesaid period she
was taken by the appellant to several places and the appellant
committed rape upon her several times. In absence of active
resistance on the part of the prosecutrix in my opinion intercourse
repeated on several times is indication of consent on the part of the
prosecutrix. It has been alleged by the prosecutrix that appellant
took her to a field situated in the village on 24.6.2011 and
committed rape upon her against her will and without her consent
and after doing so took her away from there to several places
including Mahua, Hindaun, Sawai Madhopur and then Bhopal. It
cannot be believed that after having sexual intercourse against her
will on 24.6.2011 in a field situated in the village of prosecutrix, it
was possible for the appellant to take her with him without her
consent by a tempo to Mahua, from Mahua to Hindaun by Bus,
then to Sawai Madhopur by a train and then to Bhopal. As already
said, not only during this period but also subsequently till 23.8.2011
when appellant and prosecutrix resisted together at several places,
no active resistance was made by the prosecutrix, no alarm was
raised, she did not try to escape and even did not complain to
anybody. In her cross-examination the prosecutrix has admitted
that when appellant was out from the house to earn and doing job
she alone remained at the house and when the police came to their
house she was alone and was washing clothes. From the material
available on record it is further clear that prosecutrix improved her
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version of incident regarding several material facts in comparison to
her statement recorded under Section 161 Cr.P.C. From the overall
facts and circumstances of the case, I agree with the learned
counsel for the appellant that it is a clear case of consent on the
part of the prosecutrix and she being above the age of 16 years at
the time of incident no offence can be said to have been committed
by the appellant, but learned trial Court failed to appreciate and
consider this aspect of the matter in a right perspective and,
therefore, appellant is entitled to be acquitted for the offences for
which he has been convicted by the Court below.
Consequently, the appeal is allowed and the judgment
and order dated 22.08.2012 passed by the Additional Sessions
Judge, Bandikui Camp Mahua (District Dausa) in Sessions Case
No.72/2011 is set aside and the appellant is acquitted for the
offences for which he has been convicted by the trial Court.
Presently the appellant is undergoing the sentence awarded by the
trial Court and, therefore, he is ordered to be released forthwith, if
not required in any other criminal case.
(PRASHANT KUMAR AGARWAL) J
teekam
Reserved order
