YOGESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused appellant Yogesh filed this appeal against the judgment and order dated July 29, 2006 of Addl. Sessions Judge, No.1 Bundi in Sessions Case No. 6 of 2006 whereby the accused appellant was convicted for the offence under section 366 IPC to undergo 10 Years RI with fine of Rs. 500, in default of fine to undergo additional imprisonment of three months, under section 366 A to undergo 10 years RI and fine of Rs. 500, in default of payment of fine to further undergo additional imprisonment of three months, under section 368 IPC to undergo Ten Years RI and fine of Rs. 500 in default of payment of fine to further undergo additional imprisonment of 3 months, under section 372 IPC, to undergo 10 years RI and fine of Rs. 500, in default of fine to further undergo additional imprisonment of three months and under section 376 IPC to undergo 10 years RI and fine of Rs. 500, in default to further undergo additional imprisonment of three months and under Section 3 of the Immoral Traffic (Prevention ) Act, 1956 to undergo one year RI with fine of Rs. 500, in default of payment of fine to further undergo additional imprisonment of three months under Section 6 of the Immoral Traffic (Prevention ) Act, 1956 to undergo Three Years RI with a fine of Rs. 500 and in event of default of payment of fine to undergo additional imprisonment of three months under Section 9 of Immoral Traffic ( Prevention ) Act, 1956 to undergo Seven years RI with fine of Rs. 500, in default to undergo three months additional imprisonment.

(2.) Brief facts of the case are that the complainant Sharda submitted a written report before the SHO Police Station Sadar, Bundi on Feb. 13, 2006 at 6. 10 p.m. alleging therein that fifteen to twenty days ago when she was going with her parents from Amrawati to Vardha then she fell asleep in the train. It was further stated that the parents of the complainant got down at Vardha. It was further stated that when the complainant woke up at Nagpur, she found that her parents were not with her then she started weeping. It was further stated that at that moment, one Yogesh Kanjar, resident of Rajasthan met her and told the complainant that he will leave the complainant at her house. It was further stated by the complainant that Yogesh brought her to Ram Nagar, Bundi and he forced the complainant to state before the Police that she is a resident of Gwalior and they have got married in a temple. It was further stated by the complainant that when she denied to do so then the accused appellant beat her and committed rape upon her without her consent. It was further alleged that about there or four persons also committed rape upon her and the accused appellant restrained her in his house. Upon this statement an FIR No. 72/ 2006 under sections 372, 373, 376, and 343 IPC was registered and investigation was started. After completion of the investigation a charge-sheet under sections 372, 373, 376, 343, 366, 354 IPC and Sections 3,5,6 and 9 of the Immoral Traffic (Prevention) Act, 1956 was submitted against the accused appellant Yogesh before the Judicial Magistrate No.3 Bundi. Because section 376 IPC is a sessions trial, the said case was committed to the court of Sessions Judge. The case was thereafter transferred to the Court of Addl. Sessions Judge No.1 Bundi by the Sessions Judge Bundi. Charge for the offence under sections 366, 366A, 376, 368 and 372 IPC and sections 3,6, and 9 of the Immoral Traffic ( Prevention ) Act, 1956 was framed against the accused appellant. The accused appellant denied the charges and claimed to be tried. The prosecution in support of its case examined as may as 14 witnesses and exhibited 23 documents in support of its case. The statement of the accused appellant under section 313 Cr.P.C. was recorded. The accused appellant denied the charges and pleaded that he was innocent. After hearing both the parties, the Additional Sessions Judge No.1 Bundi vide his judgment dated July 29, 2006 convicted and sentenced the accused appellant as mentioned above.

(3.) Mr. Kamlakar Sharma, learned counsel appearing for the accused appellant argued that the court below committed a gross error of law in convicting the accused appellant even though the prosecution has failed to prove the case beyond reasonable doubt against the accused appellant. The FIR was delayed by fifteen to twenty days. No specific reason was given for the delay by the complainant. The court below has failed to appreciate that the FIR lodged by the complainant was a false complaint. The court below erred in convicting the accused appellant while not considering the fact that the prosecutrix was not a minor but was a major. Dr. Manoj (PW.1) stated that the prosecutrix was not virgin but was habituate to sexual intercourse, for copulation. He stated that according to the opinion of the Radiologist the age of the prosecutrix was near about 16 years. It is a well established principle that there can be a difference of 2-3 years between the real age and the assessed age and no specific opinion can be given for the age in the ossification test. The learned counsel argued that as such it cannot be said that the prosecutrix was minor. The trial court failed to appreciate the statement of PW. 1 where he stated that there was no injury on the private parts of the body of the prosecutrix and there was no sign of resistance on the hands, thighs and other parts of the body. There was no evidence of independent witness regarding the incident. The statement was either of the prosecutrix herself or of the investigating officers and police persons. The prosecutrix in her statement stated that the accused appellant kept her in his house near about 20- 25 days and in the very beginning she did not face any problem. She stated that when they reached at Kota from Nagpur then she did not make any complaint of Yogesh to any of the passengers. She stated that she used to wash her clothes herself and she was living with the accused appellant happily in one room. The trial court failed to consider the statement of PW.4 Sushila wife of Ishwarlal and mother of accused appellant where she stated that the prosecutrix was living with the accused appellant happily. In her statement she stated that the age of the prosecutrix seems near about 18 or 19 years and the accused appellant never committed the alleged offence of prostitution. As per the statement of the prosecutrix herself it cannot be said that the accused appellant has kidnapped or abducted her or committed rape upon her or used his house for the prostitution purposes. It is hard to believe the story as narrated by the prosecutrix and the entire story seems to be concocted one and has been framed just in order to implicate the accused appellant. The court below did not appreciate the statements of PW.9 Rajendra Singh ASI, PW.10 Jugraj Singh. ASI, PW.11 Amba Lal. Constable where they all stated that they did not find any person or the accused appellant forcing the prosecutrix for prostitution. The trial court also failed to appreciate the fact that no single independent witness has ever stated against the accused appellant regarding prostitution. The accused appellant is living with his parents and brothers in a joint family and also living since a long time in the village. He has a very good reputation in his village, as such it was not possible for the accused appellant that he could commit any offence regarding rape or prostitution against the prosecutrix.