SHAHBUDDIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner has challenged the judgement dated 23.07.2009 passed by Additional Sessions Judge (Fast Track) No.3 Ajmer, Camp Kishangarh, whereby the learned Judge has acquitted the respondents No.2 to 5 of the charges under sections 363, 366, 376 and 120B IPC.

(2.) In a nutshell, the facts of the case are that on 04.11.2001, the petitioner had lodged a report at Police Station Madanganj, Kishangarh, wherein he had claimed that on 22.10.2008 respondents No.2 to 5 had kidnapped his minor daughter, Gulshan. The police registered a FIR, FIR No.528/2008 for offences under sections 363 and 366 IPC. However, after Gulshan was recovered, offences under sections 376 and 120B Penal Code were added against respondents No.2, 3 and 4. Subsequently, a charge sheet was filed against respondents Nos.2 to 5. In order to prove its case, the prosecution examined fourteen witnesses and exhibited twenty seven documents. In defence, the accused did not examine any witness, but did exhibit a document. After going through the oral and documentary evidence, the learned trial judge, as mentioned above, acquitted the accused respondents No.2 to 5 of all the charges. Hence, this petition before this Court.

(3.) Mr. Neeraj K.Tiwari, the learned counsel for the petitioner, has vehemently contended that according to petitioner's testimony his daughter was a minor. Secondly, even if there is a conflict, within the prosecution evidence, with regard to age of the pro secutrix, the testimony of her parents, and the date of birth as reflected in the school certificate should be relied upon by the Court in order to determine the pro secutrix's age. According to the school certificate, the pro secutrix was, indeed, minor. In order to support his contention the learned counsel has relied upon Vishnu @ Undrya Vs. State of Maharashtra, 2006 ACJ 713 (SC) : 2006 (1) Criminal Court Cases 493 (SC) : 2006 (1) WLC (SC) Cri 103 : 2006 (1) SCC 283 and on State of Maharashtra Vs. Gajanan Hemant Janardhan Wankhede, 2009 (1) CCC 204 (SC) : 2008 (8) SCC 38 . He has further contended that in her testimony the prosecutrix has vividly described the gang-rape to which she was subjected. On the basis of her testimony, the learned trial Judge should have convicted the accused respondents.