MANOHAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Being aggrieved by the judgment dated 26.8.1988 passed by the Sessions Judge, Jodhpur, whereby the learned Judge had convicted the appellant for offence under Section 363 I.P.C. and had sentenced him to one year rigorous imprisonment and had imposed a fine of Rs. 50/- and had further convicted the appellant for offence under Section 366 I.P.C. and sentenced him to two and half years of rigorous imprisonment and had imposed a fine of Rs. 50/-, the appellant has approached this Court. Brief facts of the case are that on 17.1.1986 around 11.00 a.m. Ram Singh (P.W. 1) had lodged an oral report at the Police Station, Shastrinagar, Jodhpur, wherein he had claimed that he lives behind the Christian cemetery and works as a coolie at the Jodhpur Railway Station. According to him, he reaches the station at 5.00 a.m. comes back for lunch and goes back to the railway station, from where he returns back to his house around 10-11.00 p.m. On 17.1.86, he left his daughter in his house; around 12.00 a.m. his brother-in-law informed him that his daughter, Manohar Kanwar, has been kidnapped by the appellant, Manohar Singh. According to the complainant, the appellant had been visiting his house for quite some time and had been expressing his desire to marry his daughter. However, the complainant refused to do so. According to him, his daughter had taken clothes with her. On the basis of the report, a formal FIR was registered for the aforementioned offences. During the course of investigation, after a period of one month, Manohar Kanwar was recovered from Jaipur. After a thorough investigation, a charge-sheet was filed against the appellant for the aforementioned offences.

(2.) In order to support its case, the prosecution examined six witnesses and submitted few documents. In his statement under Section 313 Cr.P.C., the appellant had claimed that Manohar Kanwar had informed him that she was more than eighteen years old, and she had willingly accompanied him. But after going through the oral and documentary evidence, the learned Judge has convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court.

(3.) Mr. P.D. Bohra, the learned counsel for the appellant has contended that the learned Judge has mis-read the evidence with regard to the age of the prosecutrix. According to Ram Singh (P.W. 1), he as married in Samvat 2020 and the prosecutrix was born one year thereafter i.e. in Samvat 2021. Since, the occurrence had taken place in 1986 which is equivalent to Samvat 2042-2043, obviously the prosecutrix was twenty-one years old. Secondly, the learned Judge erred in relying on the medical evidence according to which prosecutrix was anywhere between 14-15 years old. According to learned counsel, the age determined by the medical doctors is an approximate age which is subject to a variation of two years. Thus, the prosecutrix would approximately be 17 years old. Hence, she would be borderline case. The learned counsel has relied upon the cases of S. Varadarajan vs. State of Madras, 1965 AIR(SC) 942, and the case of Shyam Sunder vs. The State of Rajasthan, 1991 CrLR 555. In the case of S. Varadarajan the Hon'ble Supreme Court and had opined that a girl who was on borderline of being an adult, she would be mature enough to understand the consequences of her own act. Moreover, in the S. Varadarajan , the Hon'ble Supreme Court has also opined that in case a prosecutrix were to go on her own with the accused persons, then the element of "enticing" or "taking away" does not exist. Learned counsel for the appellant has emphasized on the testimony of Smt. Manohar Kanwar, (P.W. 6), wherein she has clearly stated that when she had left the house, she had taken clothes with her. Although, she claims that she was forced to travel with the appellant from the medical college to the Rai-ka-Bagh Station, but from Rai-ka-Bagh Station at Jodhpur, she had traveled to Jaipur without any protest. Moreover, she further admits that she lived with the appellant's relatives and their children at Jaipur without any protest. According, to the learned counsel, these admissions clearly prove that she had gone with the appellant out of her own free will. Thus, the elements of "taking away" or "enticing" do not exist. Hence, the learned trial Court erred in convicting the appellant for the aforementioned offences.