JUDGMENT
Garg, J.
1. These two appeals are being decided by this common judgment as both have been preferred against the common judgment and order dated
6.2.1999 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh in Sessions Case No. 29/96 by which he acquitted the accused respondents Shanker Lal, Mangilal, Suresh Chandra and Nanuram for the offence under Sections 366/149, 376/149, 379, 379/149 1PC and he also acquitted the accused appellants Mohan for the offence under Section 376/149, 379/149 and Udailal for the offence under Section 376 IPC, but convicted accused appellants Mohan for the offence under Section 366 and Udailal for the offence under Sections 366 and 379 IPC and sentenced them in the following manner:-
Name of accused appellants
Convicted u/Sec.
Sentence awarded
1. Mohan
366 IPC
Three years’ RI and to pay fine of Rs.1000/-, in default
of payment of fine, to further undergo SI for six months.
2. Udailal
366 IPC
Three years’ RI and to pay fine of Rs.1000/-, in default
of payment of fine, to further undergo SI for six months.
379 IPC
One year RI and to pay fine of Rs.500/-, in default of
payment of fine, to further undergo SI for two months.
Both the substantive sentences were ordered to run
concurrently.
2. The facts giving rise to these appeals, in short, are as follows:-
On 7.11.1995, PW13 Mst. Naru widow of Bhawanlal, aged 21 years (hereinafter referred to as the prosecutrix) lodged an oral report (Ex.P/15) with the Police Station Beghu District Chittorgarh before PW12 Netrapal Singh stating inter-alia that before 8 days, her maternal uncle in-law Mohan (accused appellant) took her from her in-laws’ house to Upreda for the purpose of giving lugari and left her on the same day, after giving lugari to her. It was further stated in the report that 4 days back, he again came back in the evening and asked her to go to Joganiya Mata, but she refused to go there. However, when he told her that there were so many ladies, then she agreed to go with him and then a Jeep came there and she sat in the Jeep and in that Jeep, some accused persons were also there. The driver of the Jeep was Mohammedan. It was further stated in the report that she reached Joganiya Mata at about 2.00 a.m., where one Chowkidar also met and when she reached there, accused appellant Mohan and accused respondent Suresh asked her that she would be married with accused appellant Udailal, upon this, she refused, but she was threatened and her marriage was performed with accused appellant Udailal and she was allowed to remain in a room, where accused appellant Udai Lal had sex with her against her will. Thereafter, they left her to Muroli in the morning and from where she went to her parents’ house and told the whole incident to her mother PW4 Mst. Noji and brothers PW5 Devilal and PW3 Kishan.
On this report, police registered the case for the offence under Sections 366, 376 and 379 IPC and started investigation.
During investigation, the prosecutrix PW13 Mst. Naru was got medically examined by PW8 Dr.Gorurarn and her medical examination report is Ex.P/8, where no injury was found on her person and there was no evidence of fresh penetration and her age was mentioned above 18 years.
After usual investigation, police submitted challan against the accused persons in the Court of Magistrate, from where the case was committed to the Court of Session.
On 21.6.1997, the learned Addl. Sessions Judge No. 2, Chittorgarh framed charges against the accused persons in the following manner:-
Name of accused persons
Charges framed
(1) Udai Lal
366/149, 376, 379 IPC
(2) Nanuram
366/149, 376/149, 379 or 379/149 IPC
(3) Suresh Chandra
(4) Mangilal
(5) Shankarlal
(6) Mohan
During trial, the prosecution in support of its case examined as many as 14 witnesses and got exhibited some documents. Thereafter, statements of the accused persons under Section 313 Cr.P.C. were recorded. In defence, no evidence was led by the accused persons.
After conclusion of trial, the learned Addl. Sessions Judge No. 2, Chittorgarh through his judgment and order dated 6.2.1999 acquitted the accused respondents Shanker Lal, Mangilal, Suresh Chandra and Nanuram for the offence under Sections 366/149, 376/149, 379, 379/149 IPC and also acquitted the accused appellants Mohan for the offence under Sections 376/149, 379/149 IPC and Udailal for the offence under Section 376 IPC, but convicted accused appellants Mohan for the offence under Section 366 and Udailal for the offence under Sections 366 and 379 IPC and sentenced him in the manner as indicated above holding inter-alia:-
1. That since on the spot broken bangles were not found nor any signs of forcible rape were found on the spot and the prosecutrix PW13 Mst. Naru did not receive any injury though she has admitted that she was dragged and got injuries on her buttock etc., therefore, this aspect of the prosecution i.e. she was raped by the accused appellant Udailal against her will, was not found favourable by the learned Addl. Sessions Judge.
2. That, however, the learned Addl. Sessions Judge came to the conclusion that so far as the accused appellants Mohan and Udailal are concerned, they have committed the offence of abduction of prosecutrix PW13 Mst. Naru by deceitful means and thus he convicted and sentenced them in the manner as stated above.
Aggrieved from the said judgment and order dated 6.2.1999 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh, the accused appellants have preferred appeal No. 117/99 and another appeal No. 436/99 was filed by the State of Rajasthan.
Appeal No. 117/99 Mohan and Anr. v. State of Rajasthan
3. In this appeal, the following submissions have been made by the learned counsel appearing for the accused appellants Mohan and Udailal:-
(1) That prosecutrix PW13 Mst. Naru had gone to Joganlya Mata temple on her own accord and without any resistance and she had tied her knot with accused appellant Udailal on her own consent and, therefore, the findings of the learned Addl. Sessions Judge convicting the accused appellants for the offence under Section 366 IPC are erroneous one and the same are liable to be set aside.
(2) That once the learned Addl. Sessions Judge has come to the conclusion that no offence of rape was committed, consequently, the offence under Section 366 IPC should not have been held to be proved, especially when the prosecutrix PW13 Mst. Naru was above 18 years of age.
Hence, it was prayed that this appeal be allowed and the impugned judgment and order dated 6.2.1999 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh be set aside and the accused appellants be acquitted of the charges framed against them.
Appeal No. 436/99 State of Rajasthan v. Mohan and Ors.
4. In this State appeal, it has been submitted by the learned Public Prosecutor that the charges for the offence under Sections 376, 376/149IPC should have been held to be proved against the accused persons by the learned trial Judge as there is sufficient evidence on record to hold the accused persons guilty for the said offences and thus, the findings of acquittal are erroneous and perverse and the same are liable to be set aside.
5. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case.
6. So far as medical evidence is concerned, the same is nil in this case and no injury either on private part or other parts of the body of the prosecutrix PW13 Mst. Naru was found.
7. So far as the age of the prosecutrix PW13 Mst. Naru is concerned, she was above 18 years of age and there is no dispute on this point
8. Before proceeding further, it may be stated here that prosecutrix PW13 Mst. Naru was earlier married to one Bhagwanlal and on the date of occurrence, she was widow and there is custom of Nata prevalent in their caste and there is also no dispute on this point.
9. PW1 Brij Behari has been declared hostile.
10. PW2 Mst. Mangi, who is the mother-in-law of the prosecutrix PW13 Mst. Naru, has clearly stated that both accused appellants Udaital and Mohan used to visit to her house and meet prosecutrix PW13 Mst. Naru and she has been declared hostile.
11. PW4 Mst. Noji, who is mother of the prosecutrix PW13 Mst. Naru, has also been declared hostile and she does not say about the offence charged and proved.
12. PW3 Kishan, who is brother of the prosecutrix PW13 Mst. Naru, states that his sister prosecutrix PW13 Mst. Naru was forcibly married with accused appellant Udaifal. He has further admitted that still his sister is living with him.
13. The best evidence in this case is that of prosecutrix PW13 Mst. Naru herself where she has narrated the story as put in FIR to some extent and in cross-examination, she has admitted:-
(1) That she received so many injuries, but that fact has not been found proved by the medical evidence.
(12) That since her mother-in-law and father-in-law used to say that she should run away, therefore, she did not narrate the whole incident to them.
(3) That accused appellant Udailal had sex with her till he discharged his semen.
14. In my opinion, looking to the entire facts and circumstances of the case and that when the learned Addl. Sessions Judge has come to the conclusion that no offence of rape was committed meaning thereby he found the case of consent so far as the offence of rape is concerned, therefore, when element of consent is there, the findings of the learned Addl. Sessions Judge that prosecutrix PW13 Mst. Naru was forcibly abducted or kidnapped by the accused appellants Mohan and Udailal cannot be sustained, especially when the prosecutrix PW13 Mst. Naru was above the age of 18 years on the date of occurrence. The fact that these two accused appellants used to visit her house also goes to show that she was familiar with them and that is why, she went with them in night to Joganiya Mata temple in the Jeep. The fact that she did not
complain to anybody on the way up to Joganiya Mata Temple, also goes to show that she was a consenting party. From the evidence on record, it does not appear that prosecutrix PW13 Mst. Naru was in any manner forced or compelled to go with the accused appellants and on the contrary, it appears that she was a consenting party and all the activities right from the very beginning were going on with her consent.
15. For the reasons stated above, the findings of the learned Addl. Sessions Judge No. 2, Chittorgarh convicting the accused appellants Mohan for the offence under Section 366 IPC and Udai Lal for the offence under Section 366 and 379 IPC cannot be sustained and the same are liable to be set aside and the appeal filed by them deserves to be allowed and they are entitled to acquittal.
16. In view of the discussion made above, the appeal filed by the State of Rajasthan is liable to be dismissed.
In the result:-
(1) The appeal No. 117/99 filed by the accused appellants Mohan and Udai Lal is allowed and the judgment and order dated 6.2.1999 passed by the learned Addl. Sessions Judge No. 2, Chittorgarh convicting and sentencing accused appellants Mohan for the offence under Section 366 and Udai Lal for the offence under Sections 366 and 379 IPC are set aside and they are acquitted of the said charges. Since they are on bail, they need not surrender and their bail bonds stand cancelled.
(2) The appeal No. 436/99 filed by the State of Rajasthan is dismissed.