MAHAVEER Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused appellants Mahaveer and Mukesh filed Appeal No. 689 of 2005, whereas the appellant Mukesh further filed Appeal No. 464 of 2005 against the judgment and order dated 15.07.2005 of Special Judge, SC/ST (Prevention of Atrocities) Kota in Sessions Case No. 43 of 2004 whereby the accused appellants Mahaveer and Mukesh were convicted and sentenced for offence under Sections 363, 366 and 344 IPC, to suffer 5 years RI with fine of Rs. 1,000.00 and in default to further suffer one month simple imprisonment, to suffer 5 years RI with fine of Rs. 1,000.00 and in default to further suffer one month simple imprisonment and one year RI with fine of Rs. 1,000 in default to suffer one month SI, respectively and further the accused appellant Mahaveer was convicted and sentenced under Sec. 376 Penal Code to suffer 7 years RI with fine of Rs. 1,000.00in default of payment of fine to further undergo one month SI. All the sentences were ordered to run concurrently. Since the accused appellant Mukesh is already represented by Mr. A.K. Gupta and Rinesh Gupta, Advocates in the joint appeal filed with the appellant Mahaveer, Smt. Kamla Jain, Advocate withdraws his appeal. The Appeal No. 464 of 2005 filed by Mukesh, is dismissed as withdrawn.

(2.) Brief facts of the case are that a report was submitted to the Inspector General of Police Kota on 15.04.2004 by Lalchand Meena. It was stated by him that Swadesh Kumari D/o Mukut Behari Meena was abducted and kidnapped by local boys namely Mahaveer and Mukesh with the assistance of one girl namely Rekha Yadav. On the basis of this information, FIR No. 70 of 2004 was registered against the accused appellants under Sections 363 and 366 Penal Code and Sec. 3 of ST/SC Prevention of Atrocities Act. During the course of investigation the accused appellants were arrested and victim was recovered. The victim as well as the accused appellants were medically examined. After completion of investigation, the police submitted challan under Sections 363, 366, 376, 344 and 120 B Penal Code and Sec. 3 of the ST/ SC Prevention of Atrocities Act before the Judicial Magistrate Ramganj Mandi and the offence being triable by Sessions Court was committed to the Special Court (ST/SC Cases) on July 14, 2004. Charges were framed against the accused appellants for the above offences. The accused appellants denied the charges and claimed to be tried. The prosecution in support of its case examined 16 witnesses. The accused appellants were examined under Sec. 313 Crimial P.C. After hearing both the parties and examining the record, the trial Court convicted and sentenced the accused appellants as mentioned above.

(3.) Mr. Rinesh Gupta, learned Counsel appearing for the accused appellants argued that the prosecution has not examined the prosecutrix in relation to her age. If medical examination of the prosecutrix had been conducted then certainly real truth regarding her age could have come on record. The prosecution has not given any explanation as to why the prosecutrix was not examined medically in determining her age. In the absence of determination of age of prosecutrix by medical evidence, the other evidence put forth by the prosecution have no worth or credibility. In absence of determination of age of prosecutrix by medical evidence, the inference should have been drawn in favour of the accused appellants that at the time of incident the prosecutrix was major and fully competent to take independent decision and give her free consent. The learned Counsel further argued that the marks sheet issued by the Board of Higher Secondary Education is not corroborated by any other evidence. The prosecution has not produced any other evidence like admission form when she had taken admission in the school and the enrollment register which could establish that the date of birth mentioned in the marks sheet is quite correct and could have been taken into consideration. In absence of any other such evidence the trial Court should not have come to the conclusion that the prosecutrix was below 16 year of age. The trial Court committed serious illegality in ignoring the letters written by the prosecutrix to the accused appellant. According to the language of the letter written by the prosecutrix it is revealed that she had provoked the accused appellant Mahaveer to take her away. The trial Court committed grave error in not relying upon the statements of PW.6 Kusum Kanwar and PW.7 Vikram Singh. Both the witnesses have categorically stated that the prosecutrix stayed with the accused appellants and it did not seem that accused appellants had taken away the girl from home without her consent. Dr. Babulal categorically stated that there was no injury on the private parts of prosecutrix. There was no iota of rape on the body of prosecutrix during physical examination. The learned Counsel place reliance on Zinder Ali SK Vs. State of West Bengal and Anr., JT 2009 (2) SC 253 .