MAHENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) - The appellants were prosecuted in case FIR No. 80 of Police Station, Alwar Gate, Ajmer and were convicted under Section 366, IPC, vide judgment dated 5-7-82 passed a the learned Additional Sessions Judge, Ajmer, who vide order dated 8/07/1982, gave benefit of Probation to appellant Rajendra, but sentenced each of the three remaining appellants to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 250 /- or in default of payment of fine to undergo rigorous imprisonment for a further period of three months. The prosecution story, in short, was as under.- P. W. 6 Madhu was a minor, living with her father PW 1 Ramchandra and on the evening of 18-1-80. She came out of her house, when appellants Rajendra Girdhari and Gopal took her to a three wheeler Scooter standing nearby, in which appellant Mahendra was already sitting. Madhu was taken to the house of Gopal, from where she was taken in a car to Beawar and from Beawar, she was taken in a bus to Ahmedabad and from Ahmedabad, in a train to Sabarmati and Surendranagar. During that period, she was compelled to marry appellant Mahendra before the Registrar of Marriages, Ahmedabad and that Mahendra committed rape on her person during that period.

(2.) PW 7 Ramchandra did not find his daughter at his house on the evening of 18-1-80 and after searching her for two days, he lodged report Ex. P/1 at the Police station on 20/01/1980, stating that his daughter was acquainted with Mahendra and they had earlier also planned to run away from the house and stating that he doubted that Mahendra has taken away his daughter. The police registered the case, but information about the presence of Mahendra and Madhu was received by Ram Chandra, who went to Surendra Nagar and brought Madhu along with him. The prosecution alleged that Madhu was minor under the age of 18 years having been born on 26/01/1963, which was also the date of birth recorded in the record of Saraswati Balika Vidyalaya, Ajmer. The I.O. also got the prosecutrix medically examined, Dr. Nirmala Gupta (P.W. 4) conducted the medical examination on the person of Madhu and opined that Madhu was used to sexual intercourse. Madhu was also referred to Radiologist for determination of her bonny age and vide report Ex. P/ 10, the Radiologist opined that Madhu was aged between 19 to 21 years. The prosecution also alleged that after taking Madhu from her house, appellant Mahendra and his co-accused Rajendra had taken her 'Tika' (an ornament) without her consent and had committed theft in respect thereof. After investigation, the police submitted the challan against the four appellants as also against one Lachho, in his house, the clothes of Madhu were changed before she was taken to Registrar's Office. After completion of investigation, the police filed the challan against the four appellants as well as Lachho. The learned trial Court did not find any case against Lachho and discharged her. Appellant Girdhari was charged with an offence punishable under Section 366 and Section 379, IPC, appellant Mahendra was charged with an offence punishable under Ss. 366, 376 and 379, IPC and other two appellants were charged with an offence punishable under Section 366, IPC. After trial, the learned trial Court found that Madhu was minor under the age of 18 years, but had not been forcibly taken away by the appellants and also that no case under Section 379 or Section 376, IPC, had been made out. It was held that though Madhu was a consenting party, but she being a minor, the appellants had committed an offence punishable under Section 366, IPC. The appellants were, thus, convicted and sentenced, as noted above. Feeling aggrieved, the appellants have approached this Court by filing this appeal under Section 374 of the Code of Criminal Procedure.

(3.) I have heard the learned counsel for the accused appellants, the learned Public Prosecutor and have also perused the record of the case. The finding of the learned trial Court that Madhu had gone with the appellants with her free consent, has not been challenged by the learned Public Prosecutor and, in my view, rightly as the evidence fully supports the conclusion arrived at by the learned trial Court in regard to the consent of Madhu.