LADDU GOPAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Jai Laxmi @ Suraiya, a retarded woman, was admitted to Retarded & Child Rehabiliation Home Sethi Colony Jaipur. On a letter bearing No. 861 dated August 5, 1994 (Ex.P-15) forwarded by Superintendent & Principal, of the said Rehabilitation Home in regard to rape committed with Jai Laxmi, FIR No. 223/1994 was registered at Police Station Jawahar Nagar Jaipur under Section 376 IPC and investigation commenced. Jai Laxmi was medically examined and her statement under Section 164 Cr. P.C. was recorded by the Magistrate, other necessary memos were drawn and on completion of investigation charge-sheet was filed. Laddu Gopal, the appellant herein, along with Asha Devi and Poonam Chauhan were placed on trial before Learned Additional Sessions Judge No. 1 (Fast Track) Jaipur City, who vide judgment dated February 26, 2002 convicted the appellant under Section 376(2)(c) IPC and sentenced him to suffer rigorous imprisonment for ten years and fine Rs. 1,000/- in default to further suffer one month simple imprisonment. Co-accused Asha Devi and Poonam Chauhan were however acquitted. Against this judgment of the learned trial Judge that this appeal has been filed by the appellant

(2.) It is contended by Mr. Praveen Balwada, learned counsel for the appellant that although Jai Laxmi was competent to depose at the trial but she was not examined by the learned trial Judge. In absence of the statement of prosecutrix the prosecution thus failed to establish the charge under Section 376 IPC against the appellant beyond reasonable doubt. Per contra, Mr. M.L. Goyal, learned Public Prosecutor supported the impugned judgment and urged that on the basis of the evidence adduced at the trial the appellant was rightly convicted and sentenced.

(3.) Having scanned the material on record I find that the learned trial Judge did not make proper attempt to examine Jai Laxmi @ Suraiya, although it was incumbent upon learned trial Judge to play an active role in the evidence collecting process i.e. to arrive at just decision. Since Jai Laxmi was examined by the Magistrate under Section 164 Cr. P.C. during investigation, she could have testified even at the trial. The learned trial Judge did not make sincere efforts to ensure fair trial. In Zahira Habibulla H. Sheikh v. State of Gujrat (known as 'Best Bakery case') the Apex Court indicated that Section 311 of the Code of Criminal Procedure and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. The efforts should be made to ensure fair trial where the accused and the prosecution both acted in an unfair deal.