SITA RAM & ANR. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two Criminal Appeal and Criminal Revision are filed against the judgment of the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases cum Additional Sessions Judge, Merta, dated 03.05.2006, whereby the learned trial Judge convicted the accused appellant Sita Ram under 5 sections 366 & 376 Penal Code & sentenced him to seven years' R.I. & a fine of Rs. 2000.00 & in default, to further undergo three months' S.I. for the offence u/s. 366 Penal Code and seven years' R.I. & a fine of Rs. 3000.00 & in default, to further undergo three months' S.I. for the offence u/s. 376 IPC. Both the substantive sentences were ordered to run concurrently. Learned trial Judge however 1o acquitted accused Ramniwas for the offences u/ss. 363 & 366 Penal Code and accused Hema Ram u/s. 376. Appeal against conviction has been filed by accused Sita Ram and Revision against acquittal of accused Ram Niwas & Hema Ram has been filed by one Saku Singh, who lodged the F.I.R., therefore, they are being disposed of by this common judgment.

(2.) The story of the prosecution is that Saku Singh (PW 5) lodged the F.I.R. at the Police Station, Degana, on 30.03.2004 that when his younger brother's daughter prosecutrix Kiran Kanwar was going to bath room for making water on 24.03.2004 at night, accused Sita Ram caught hold of her arm and forcibly took her on motor cycle, which was driven by accused Ram Niwas. Accused Sita Ram put his hand on the mouth of the prosecutrix and they went to village Ren, from where they went to Jaipur in a jeep and stayed for three days in a hotel. They forcibly committed rape with her. After investigation, the police filed challan against accused Sita Ram and later on upon the application of the public prosecutor under Sec. 319 Cr.PC., cognizance was also taken against accused Ram Niwas and Hema Ram. Charges were framed against the accused Sita Ram u/ss. 366 & 376 IPC, against accused Ram Niwas u/ss. 363 & 366 Penal Code & against accused Hema Ram u/s. 376 IPC, to which they pleaded not guilty. The prosecution 1 examined 13 witnesses. The statements of the accused u/s. 313 Cr.PC. were recorded. They produced 8 witnesses in their defence. After hearing the arguments, the learned trial Judge passed the orders of conviction and acquittal as aforesaid.

(3.) It has been contended by the learned counsel for the appellant Sita 1 Ram that the prosecutrix is major and she left with the appellant at her own. If at all, it is a case of rape, it is with the consent of the girl. According to the learned counsel, while acquitting two other co-accused, learned trial Judge has discriminated with the appellant. Sita Ram while convicting him u/ss. 366 & 376 IPC. So far as the age of the prosecutrix is concerned, Kiran Kanwar (PW 2) has stated in her statement that she is 15 years of age but from the medical evidence, her age is shown to be 16 years approximately in Ex.R 7, whereas the learned trial Judge has considered the age of the prosecutrix to be between 19 to 20 years and as per the School Certificate Ex.D.12, date of birth of Mahendra Singh S/o Mohan Singh is 05.12.1987 and also as per the admission register Ex.D.11, the date of birth of Mahendra Singh recorded therein is the same, which has been proved by the Head Master of the School viz; Hapulal (DW 7) Mahendra Singh is the younger brother of prosecutrix. When the age of younger brother as per the School Certificate is more than 18 years, then naturally, the age of the prosecutrix cannot be less than 19 to 20 years and in this regard, the finding of the learned trial Judge requires no interference.