RAJENDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) - The petitioner has challenged the order dated 28.08.2009 passed by the Addl. District & Sessions Judge Bandikui (Dausa), whereby the learned Judge has framed charges for offences under Sections 363, 366A and 376 , IPC.

(2.) Mr. Umesh Vyas, the learned counsel for the petitioner, has contended that according to the medical evidence, the prosecutrix is between 17 to 19 years. Secondly, in her statement, under Sec. 161 Crimial P.C., she did not mention anything about the commission of rape, except two lines which seem to be added later on. Furthermore, she clearly states that she had left her house while other members of the family were fast asleep. Thirdly, in her statement, under Sec. 164 Crimial P.C., she does not utter a single word about the commission of rape upon her by the petitioner. Moreover, she clearly states that she had gone with the petitioner out of her own volition and of her free will. Therefore, clearly this is a case of consent and a case of elopement, rather than a case of kidnapping and of rape.

(3.) On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has contended that according to the evidence, the prosecutrix happens to be a minor. Therefore, question of "consent" and "free will" is irrelevant in this case. Hence, she has supported the impugned order.