KAMLESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is filed against the judgment of Additional Sessions Judge (Fast Track), Gangapur City in Sessions Case No. 16/2001 dated 9.7.2001. The prosecution case is based on an FIR lodged at Police Station Gangapur City bearing FIR number 286/97 under sections 376, 323 and 342 Indian Penal Code. After investigation, police filed challan against the appellant under sections 376 and 511 Indian Penal Code. After conclusion at the trial, the trial Judge framed charges against the appellant under sections 376 and 342 Indian Penal Code.

(2.) Prosecution examined as many as twelve witnesses and exhibited twenty documents. In defence, the accused examined one witness Hema DW-1 and produced documents DW-1 to DW-9. After considering the case of the prosecution, the trial Court came to the conclusion that the accused is guilty of the offences charged and sentenced the accused for offence under section 376 Indian Penal Code for five years rigorous imprisonment and a fine of Rs. 2,000.00 and under section 342 Indian Penal Code for six months rigorous imprisonment.

(3.) Assailing the conviction and sentence, the accused-appellant's counsel submitted that it is not a case where it can be said with certainty that the accused was guilty of the offences as alleged. The age of the prosecutrix is said to be between 15 to 17 years. Taking medical case to be true, it would be considered to be on higher side and looking to the age, it was the age of discretion and, therefore, she had capacity of giving consent. The prosecutrix in her statement while she was being examined, expressed that she had gone with her consent though under rage and subsequently withdrew the words spoken by her, may be under temper. She admitted to have consented. She also stated that at Gangapur the accused used to come to her house. This is also indicative of the situation that she was a consenting party. The medical evidence also deposes that there were no marks of violence or injuries on the person of the accused. Not only this, certain letters have been exhibited in defence and the defence witness Hema has been produced as DW-1, who in her statement stated that she used to write letters at the instance of the prosecutrix. When the prosecutrix used to write letters to the accused, then it cannot be said that this was a case of rape.