GOPAL Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) THE subject matter of challenge is the judgment and order dated 29.11.1989 passed by the learned Additional Sessions Judge No. 2, Kota in Sessions Case No. 48/89 convicting the appellant under Sections 363 & 366 of the Indian Penal Code (hereafter referred to as 'IPC') and sentencing him to suffer rigorous imprisonment for three years on each count and to pay a fine of Rs. 250/ - for each of the offences, and in default of payment of fine, to suffer rigorous imprisonment for further two months. I have heard Mr. Sanjay Mehrishi, learned counsel for the appellant and Ms. Alka Bhatnagar, learned Public Prosecutor, Rajasthan.

(2.) A verbal report was lodged by one Shri Raghuvir on 3.6.1988 with the Police Station, Gumanpura, Kota to the effect that on the previous day at about 6:30 p.m., his daughter Bhoori aged about 14 -15 years had gone to the house of Moti Maharaj, and he being under the impression that she had gone to see television, waited for her return. But as his daughter did not return till 10:00 p.m., he and his wife went out for searching her, but in vain. It was disclosed in the information that the appellant had earlier been a tenant of the informant, who on noticing about his (appellants) proximity with his daughter Bhoori, got the house vacated of him, whereafter he (appellant) started residing in the house of one Khumar nearby. In view of this background, the report disclosed that the informant also went to the house of the appellant and came to learn that he was also missing. He thus, lodged the information with the police alleging that the appellant had enticed away his daughter. He mentioned in the report that it had been noticed that one pair of silver paijeb belonging to her daughter and an amount of Rs. 150/ - was missing from the house, which he anticipated, might have been carried by her.

(3.) MR . Mehrishi has emphatically argued that it being apparent on the face of the evidence adduced by the prosecution that the prosecutrix was a major at the relevant point of time, and that, she on her own volition, had accompanied the appellant and willingly engaged in sexual intercourse with him, the impugned judgment and order is patently illegal and is liable to be set aside. The learned counsel has argued that as the learned trial court, on a correct appreciation of the evidence on record, had acquitted the appellant of the charge of Section 376 IPC, it grossly erred in law and on facts in holding him guilty of the offence of Sections 363 & 366 IPC, on the basis of the same materials. To reinforce his arguments, Mr. Mehrishi has inter alia drawn the attention of the Court to the evidence of Shri Hari Mohan Mathur, DW -1 who testified that the prosecutrix had appeared before him to swear an affidavit, and that he, in the capacity of the Advocate & Notary, Bundi, on due execution of the said document, had recorded her solemn affirmation on oath vis -a -vis the contents thereof.