LALCHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant seeks to challenge the judgment dated 26.07.1986 whereby learned Sessions Judge, Jhunjhunu convicted the accused appellant for the offence under section 366 IPC and sentenced him to undergo rigorous imprisonment of one year with fine of Rs. 200/- and in default of payment of fine, sentenced him to further undergo three months R.I.

(2.) Learned counsel for the appellant while assailing the judgment passed by the trial court has argued that the learned trial court has erred in law in not correctly appreciating the evidence of the prosecutrix and her father. Though the appellant was charged both for the offences under section 376 as well as under Section 366 IPC but evidence which has come on record, clearly reveals that the prosecutrix remained with accused and went at different places with her own will. She has admitted in her statement that she went to Chirawa and thereafter to Hanumangarh alongwith appellant and from there, they came back to Chirawa. She further stated in her statement that since the accused appellant wanted to keep her as his wife, she accompanied him. Learned trial court has not believed that part of her statement where it is alleged that the appellant committed rape on her. At the same time, the trial court was not justified in discarding that part of the statement in which she has stated she did not raise any hue and cry nor did she complaint to anyone. She stated that she was married about an year ago and that even her sister was also married. She further stated that three of her elder brothers were respectively of 26 years, 24 years and 22 years. She was younger to the one who was 22 years old. There was one more brother younger to her, who was 16 years old. Learned counsel submitted that according to this, age of the prosecutrix would be 20 years and this version has been corroborated from the statement of her father PW-10 Sardara Ram who in his statement has clearly stated that he has six sons and two daughters. His eldest son is aged 24 years who was born in 1962. Prakash is younger to him by two years and thereafter is Rohtash who is younger to Prakash by two years. He further stated that prosecutrix Reshma was younger to Rohitas. According to this statement, she could not be less than of 18 years. Learned trial court committed error in law in blindfoldedly relying on the medical opinion which was procured and did not inspire confidence in any case. Medical evidence could be relied on to corroborate the oral evidence and when oral evidence on the issue categorically points to the fact that prosecutrix was major at the relevant time there was no question of convicting the appellant for offence under section 366 IPC. Learned trial court has otherwise found that the prosecutrix accompanied with accused appellant out of her own will and offence under section 376 IPC has been held to be not proved.

(3.) Learned Public Prosecutor opposed the appeal and submitted that when medical evidence which has been proved by PW-6 Dr. Naveen Chand Jain suggests that the prosecutrix is about the age of 15-16 years. The fact that she was married would not make any difference and that the minor contradictions in the statement of the prosecutrix and her father could not disprove the proof of age as furnished in medical opinion. Learned counsel further submitted that even if the prosecution has not been able to prove the charge of the offence under section 376 IPC against the appellant, the prosecution on other charge of the offence under section 366 IPC by itself would not fail on that count as the latter offence is proved beyond reasonable doubt on the basis of evidence on record.