STATE Vs. KESAR SINGH

JUDGEMENT

(1.) KESAR Singh and Mst. Tejinder Kaur were tried for offences under Sections 363/376 R.P.C. in the court of Sessions Judge, Poonch. The trial ended in the acquittal of the accused.

(2.) BRIEFLY speaking the prosecution story is that Mst. Tejinder Kaur wife of accused No. 1 is alleged to have persuaded Veena Kumari aged 14/15 years daughter of Mohinder Nath P.W. to accompany her to a Nullah on the western side of Rajouri town, Kesar Singh, the accused No. 1 who was already waiting there caught hold of Veena Kumari and carried her to the house of one Hakim Hussain P.W. in the village of Kalali. Mohinder Nath finding Veena Kumari missing from the house set out on search. He came to know from one Balkrishan that the girl had been enticed away by Kesar Singh, the accused, an employee of B.S.F. He, thereupon, lodged report Exp. A with police Rajouri who registered case under Section 363 R.P.C. One Sansar Chand Sharma probationary AS! was deputed for search of the girl on the Rajouri -Poonch road. On the following day at about 5 A.M. the girl was recovered from the house of Hakim Hussain. On being interrogated she stated that she had been forcibly taken by Kesar Singh. She further stated that she had been raped by the said accused. Her trousers were seized and were sent for chemical examination. She was referred to a Doctor both for the purpose of ascertaining her age and also whether she had been raped. The lady doctor who examined her opined that the girl was of the age of 14/16 years and that she had been raped. Thereupon the police charge sheeted the accused under Sections 363 and 37i5 R P.C. A challan was laid before the Magistrate at Rajouri who committed both the accused to the court of Sessions at Poonch to stand their trial for the above -mentioned offences. In the course of trial the prosecution examined a number of witnesses including the lady doctor. The accused denied the occurrence. Accused No. 1 pleaded alibi and examined Madan Lal S. 1 of B.S.F. in defence in order to prove that he was posted on quarterguard duty on the material date. On appraisal of the evidence the learned Sessions Judge came to the conclusion that no offence either under Section 363 or 376 R.P.C. was established against the accused. The learned Judge further observed that the prosecution had failed to establish that the girl was only 14/15 years of age at the relevant time. She appeared to him more than that. The possibility that the girl had voluntarily left her fathers house and accompanied the accused could not be excluded. The girl was a consenting party. Therefore no case of kidnapping or of rape could be said to have been made out against the accused. He accordingly acquitted the accused. Against the order of acquittal the state has come up in appeal.

(3.) WE have heard the learned Addl. Advocate General appearing for the State and also Mr. S. D. Sharma, the learned counsel for the accused -respondents.