MOHD.SARTAJ @ VIKKY @ SONU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment dated March 26, 2007 of the learned Special Judge, (Women Atrocities and Dowry Cases) Jaipur, whereby Mohd. Sartaj @ Vikky @ Sonu, the appellant has been convicted and sentenced as under:-

(2.) IT is the prosecution case that on August 3, 2006 the complainant Moinuddin (Pw.8) submitted a written report (Ex.P-26) at Police Station Brahmapuri, Jaipur wherein it was stated that his daughter Samreen (Pw.7), aged 14 years, was missing since 21-7-2006 (of which a missing person report was lodged on 25-7-2006) and recovered from Mujaffarpur on 3-8-2006 by him, the police, his brother Naimuddin and Hamid Gafur. Thereafter his daughter on recovery had stated to him that she was enticed by the appellant Mohd. Sartaj and taken away to Mujaffarpur via Ajmer, Delhi and Patna during the period 21-7-2006 to 1-8-2006 during which period the accused had also committed rape on her. On the report, FIR No.154/2006 under sections 363, 366 and 376 IPC was registered and investigation commenced. Statements of witnesses were recorded and necessary memos were drawn. On completion of investigation challan was filed against the appellant under Sections 363, 366, and 376 IPC. In due course the case came up for trial before the learned Special Judge Jaipur. Charges were framed under sections 363, 366 and 376 IPC against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined 11 witnesses and exhibited 31 documents. In the explanation under Sec.313 Cr.P.C., the appellant claimed innocence. He further stated that the prosecutrix, known to him for a while, herself persuaded him to marry her under threat of suicide. Thereupon the two travelled to Mujaffarpur, Bihar where Nikah with the prosecutrix was done on mutual consent. No witness in defence was examined. The accused however exhibited the statement of Moinuddin (Ex.P-20) recorded by the police in support of his defence. On hearing final submissions the learned trial Judge, on basis of its appreciation of evidence before him, convicted and sentenced the appellant as indicated herein above.

(3.) AS against the prosecution evidence, the defence before the trial court was that the relationship between the appellant and the prosecutrix was a consensual sexual relationship and has resulted into a marriage (Nikah). It was stated that the relationship was sought to be criminalised on false evidence and the entire investigation was a frame up to obtain the conviction of the accused. It was stated that in the first instance when the statements of the prosecutrix were recorded u/s.161 Cr.P.C., the prosecutrix had admitted that she had known the accused appellant Sartaj for a reasonable length of time and on his proposal to marry she had married him on 27-7-2006 in Mujafarpur, though without permission or authority of her parents. It was submitted that the prosecutrix eloped -the first move being her's -with the accused and married him (performed Nikah ceremony) and lived with him as wife. It was submitted that in the context of the aforesaid first version of the prosecutrix, to the police no offence whatsoever against the accused appellant either of threatening or of kidnapping or of raping the prosecutrix was made out and that entire story by her as set up before the court was fabricated, quite apparently under pressure of her parents. It was stated that medical evidence with regard to age of the prosecutrix based on dental, physical examination and x-ray of the joints of the prosecutrix indicated her to be 15 to 17 years of age with two years variation legally recognised. The variation in the case at hand ought to have been towards the higher side upto 19 years owing to the general physical development of the prosecutrix, such as fully developed breasts and the fact of the prosecutrix being habituated to sex. In this view of the matter it was submitted that with the prosecutrix being over 16 years of age -probably over 18 years of age -and her conduct evidencing consensus for sex with the appellant no charge as framed could be made out and the accused appellant deserved acquittal.