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Ajay Khan vs State Of Rajasthan Through Pp on 23 March, 2017

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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.

****
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

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