STATE OF RAJASTHAN Vs. ROSHAN KHAN

JUDGEMENT

(1.) THESE are appeals by way of Special Leave under Article 136 of the Constitution against the judgment dated 21.11.2003 of the Rajasthan High Court, Jodhpur Bench, setting aside the judgment of the trial court convicting the respondents of the offences punishable under Sections 366 and 376(2)(g) of the Indian Penal Code, 1860 (for short 'IPC'). Facts

(2.) THE facts very briefly are that on 28.04.1999 Ruliram lodged a complaint at the Bhadra Police Station in District Hanumangarh, stating as follows: There was a marriage of the daughter of his brother Gyan Singh for which a feast was arranged by him on 27.04.1999. His 15 - 16 years old daughter, who was slightly weak -minded, disappeared. When she did not return for quite some time, he and others started searching her. At about 9.00 p.m., a milkman informed him that he had seen six boys taking away a girl towards Kalyan Bhoomi. About 1.00 a.m. on 28.04.1999, when Ruliram was on a scooter with Gyan Singh still looking for his daughter, he noticed five boys in the light of the scooter near the old dilapidated office building of the Sheep and Wool Department and all the five, seeing the light of the scooter fled. When they went into the old building, they found Akbar having sexual intercourse with his daughter and she was shouting. They caught hold of Akbar who later informed them that all the remaining five had also performed sexual intercourse with his daughter and they knew the remaining five persons. The police registered a case under Sections 147 and 376, IPC, and carried out investigation and filed a charge -sheet against the six respondents under Sections 376/34, IPC, and the case was committed for trial.

(3.) THE respondents filed criminal appeals before the High Court and the High Court held in the impugned judgment that the deposition of the prosecutrix (PW -2) was not believable and the evidence of Dr. Ramlal (PW -7) did not corroborate the prosecution story in some respects. The High Court further held that the evidence given by Ruliram (PW -1) that the prosecutrix was only aged 14 years cannot be believed and that she could be aged up to 19 years and there were circumstances to suggest that she went with the respondents on her own. The High Court was also of the view that the delay on the part of Ruliram (PW -1) to lodge the FIR on 28.04.1999 at 11.00 a.m. when the incident came to his knowledge at 1.00 a.m. cast serious doubts on the prosecution case. The High Court accordingly set aside the judgment of the Additional Sessions Judge, allowed the appeals and acquitted all the six respondents of the charges. Contentions of learned counsel for the parties: