1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1) MAHAVEER AND ANR. VS. STATE OF RAJASTHAN. S.B.Cr. Appeal No. 689 of 2005 under Section 374 Cr.P.C. against the judgment and order dated July 15, 2005 of Special Jusdge, SC/ ST ( Prevention of Atrocities ) Kota in Sessions Case No. 43 of 2004 whereby the accused appellants Mahaveer and Mukesh Kumar were convicted and sentenced for offence under sections 363, 366 and 344 IPC to suffer 5 years RI with fine of Rs. 1,000/- and in default to further suffer one month simple imprisonment, 5 years RI with fine of Rs. 1,000/- 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 section 376 IPC to suffer 7 years RI with fine of Rs. 1,000/-in default of payment of fine to further undergo one month SI. All the sentences were ordered to run concurrently. 2) MUKESH KUMAR VS. STATE OF RAJ. S.B.Cr. Appeal No. 0464 of 2005 under Section 374 Cr.P.C. against the judgment and order dated July 15, 2005 of Special Jusdge, SC/ ST ( Prevention of Atrocities ) Kota in Sessions Case No. 43 of 2004 whereby the accused appellant Mukesh Kumar was convicted and sentenced along with Mahavee accused for offence under sections 363, 366 and 344 IPC and sentenced for for 5 years RI with fine of Rs. 1,000/- and in default to further suffer one month simple imprisonment, 5 years RI with fine of Rs. 1,000/- and in default to further suffer one month simple imprisonment and one year RI with fine of Rs. 1,000 /- and in default to further suffer one month SI respectively. 2 Date of Order : August 18 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Rinesh Gupta for the appellants Mahaveer and Mukesh Mrs. Kamla Jain for the appellant Mukesh Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT : The accused appellants Mahaveer and Mukesh filed appeal No.689 of 2005, whereas the appellant Mukesh further filed appeal No. 0464 of 2005 against the judgment and order dated July 15, 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/- and in default to further suffer one month simple imprisonment, to suffer 5 years RI with fine of Rs. 1,000/- 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 3 section 376 IPC to suffer 7 years RI with fine of Rs. 1,000/-in 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. 0464 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 April 15, 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 IPC and section 3 of ST/SC Prvention of Atrocities Act. During the course of investigation the accused appellants were arrested and victium was recovered. The victim as well as the accused appellants were medically examined. After completion of investigation, the police submitted challan 4 under sections 363, 366, 376, 344 and 120 B IPC and section 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 section 313 Cr.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 5 evidence putforth 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 admissison 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 6 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). 4. The learned Public Prosecutor on the other hand opposed the submissions of learned counsel for the appellants and stated that the court below after considering all the evidence, documents and record passed the order of conviction, and rightly sentenced the accused appellants. This impugned judgment of the trial court is just and proper and no interference is required to be called for in the impugned judgment. 5. I have heard the learned counsel for the parties and gone through the entire record and 7 judgment of the trial court. 6. Before proceeding further, it is necessary to have a look at the evidence produced by the prosecution. PW.1 Chandra Shekhar stated that on April 13, 2004, her mother, elder sister Chitralekha and sister Swadesh Kumari all were sleeping at their residence in a room. His father was sleeping in a shop. When his father came inside residence for drinking water he found that Swadesh Kumari was not there. He waited for some time and thereafter all family members were alerted. They all searched her in the residence and thereafter they came to know that Mahaveer and Mukesh taken her away. PW.2. Mukut Behari, who is father of Swadesh Kumari also stated that he was sleeping in the shop and when in the night he came inside his residence for drinking water he came to know that Swadesh Kumari was not there. He waited for some time and searched her but she was not available. All the family members were alerted. He sent his son Chandra Shekhar to Police Chowki. On 27th Swadesh Kumari found at Jaipur. On April 14, 2004 he lodged report at Police Station Modak about the missing of 8 Swadesh Kumari. He stated that the accused appellants present in the court took her daughter Swadesh Kumari, whose age is 16 years. She was reading in 12th class. He stated in his statement that he produced the certificate of school wherein age of her daughter is written 08 May 88, in Ex. P.1 A. He lodged the written report Ex.P.2 at Police Station where in he has put his signature A to B. The FIR was chalked and the same is Ex. P.3 where he has also put his signature A to B. On April 24, 2004 he was called at Police Station Modak, where he found her daughter Swadesh Kumari. He has put his signature on Ex. P.4 which is her identification done by him. The police handedover her daughter vide Ex. P.5 to him where he has also put his signature A to B. PW.3 Shantibai, mother of Swadesh Kumari also stated about the incident of taking away her daughter Swadesh Kumari. In the night her daughter was missing and they searched her but they could not find her. The police personnel who were on patrolling duty informed them that Mahaveer and Mukesh taken away Swadesh Kumari. After 13 days her daughter came her residence. She stated the age of Swadesh Kumari to be 16 years as she was born in 1988. The police 9 personnel handedover Swadesh Kumar vide Ex. P.5 where she has put her signature C to D. PW.4 Chitra Rekha, who is sister of Swadesh Kumari stated in her statement about the missing of Swadesh Kumari and thereafter she came to know from police personnel that Mahaveer and Mukesh taken her away. PW.5 Swadesh Kumari, prosecutrix, stated in her statement that Mahaveer and Mukesh came at her residence and when she opened the door they taken her away after shutting her mouth with clothes. They threatened her not to open her mouth. They taken her in a Tanker to Arodram Circle and thereafter boarded Bus where from they came to Jaipur. At Jaipur they stayed for 10-13 days in Surajpole are, where rape was committed on her. On April 18, they boarded train to Kota and reached Kota on April 19, where Court marriage was performed. Again they came to Jaipur and resided at Surajpole for five -six days. Thereafter police arrested them and taken to Kota. PW.6 Kususm Kanwar stated about the room taken on rent by Mahaveer and Mukesh and one 10 girl was with them. They paid rent Rs. Six hundred rupees. She stated that she did not know anything about them and thereafter it has come to her knowledge that Mahaveer and Mukesh ran away with the girl. PW.7 Vikaram Singh, also stated about the room taken on rent at Surajpole by Mahaveer and Mukesh and they stayed for 15 days in the room. Thereafter police arrested them and taken away. PW.8 Sarvan Singh, who is uncle of Vikram Singh stated about Ex. P.8 Naksa Moka prepared in his presence,where he has put his signature C to D. PW.9 Dhanrajsingh, Constable stated about the deposit of 7 sealed packets of prosecutrix, 6 packets of accused Mahaveer and further six packets of accused Mukesh, total 19 packets in sealed condition in the Malkhana and thereafter handing over of 19 sealed packets to Narendrasingh constable for delivering them to FSL. PW.10 Dharamveer is witness of Naksa Moka of house of Mukutbehari Ex. P.13, where he has 11 put his signature A to B. PW.11 Hansraj is also witness of Naksa Moka where he has put his signature on Ex. P.13 at C to D. PW.12, Rajeev Gupta, investigating officer, who investigated the matter stated about the investigation done by him and thereafter filing of challana by him. PW.13 Dr. Babulal, who has examined the prosecutrix, stated that rape was done on prosecutrix, but he found no injury on her body. While examining prosecutrix lady doctor Savita Singhal was with him. He also examined the accused appellant Mahaveer about his potency. He stated that he was fully potent to do intercourse. PW.14 Lalchand Meena who is brother of Mukut Behari stated about the handing over of written report to Inspector General of Police Kota Ex. P.2 where he has put his signature C to D. PW.15 Narendra Singh Rajawat, Constable 12 stated about deposit of 19 packets in sealed condition with the FSL after getting forwarding letter from the SP office. PW.16, Bhagwan Singh, stated about the seizing of undergarmet of Swadesh Kumari vide Ex. P.5 where he has put his signature A to B. Thus it is clear from the evidence of the prosecution that the accused appellant Mahaveeer committed rape with Swadesh Kumari at Jaipur for 10- 15 days. It is also clear from the evidence that accused appellants Mahaveer and Mukesh abducted and kidnaped prosecutrix Swadesh Kumari from Kota and thereafter they stayed at Jaipur. The police arrested them from Jaipur. The finding of the trial court is based on the evidence produced by the prosecution. 7. The only question to be determined in the instant case is about the age of the prosecutrix. The prosecution witnesses in clear terms stated in their oral evidence that the age of the prosecutrix is 16 years on the date when she ran away from the residence. It is also true that the father of the prosecutrix produced the certificate of Board of Secondary Educaion 13 wherein age of the prosecutrix is shown to be 8 May, 1988. Since the prosecution produced the certificate of Board of Seconary Education certifying date of birth of the prosecutrix coupled with the oral evidence produced by the prosecution, the prosecution did not think it proper to further get the age of the prosecutrix certified from the medical evidence. Thus the arguments of the learned counsel for the appellant that the prosecutrix was not meidcally examined by the prosecution in respect of age, the inference should have been drawn in favour of the accused appellants is rejected. The evidence produced by the prosecution is sufficient. Since the prosecutrix was aged 16 years and she was not major and not capable of taking any decision, the accused appellants were rightly convicted and sentneced by the trial court. 8. The findings arrived at by the trial court is also based on the rulings relied upon by the prosecution and I am in agreement with the findings recorded by the trial court that the age of the prosecutrix was 16 years at the time when she was abducted from her residence by the accused appellants. 14 9. Only appellant Mahaveer committed rape with the prosecutrix, the trial court rightly convicted the accused appellant Mahaveer under section 376 IPC. The findings of the trial court for conviction and sentence of the appellant Mahaveer under Section 376 IPC is confirmed. Further the case cited by the learned counsel in the instant matter is not applicable as the age of the prosecutrix in that case was not 16 year. In the instant case the age of the prosecutrix is 16 years. The trial court sentenced the accused appellant for this offence under Section 376 IPC is only 7 years and fine of Rs. 1,000/-. Besides this the accused appellants has also been convicted for other offences under sections 363, 366 and 344 IPC. In the cited case the offence was only under section 376 and looking to the fact that the accused in that case was behind bars for more than 5 years and sentence awarded was 10 years. The Apex court in those circumstances reduced the period of sentence already suffered by the accused. 10. So far as offence under sections 363, 366 and 344 IPC by the accused appellants 15 Mahaveer and Mukesh are concerned, I am in agreement with the findings recorded by the trial court. It is an admitted fact that the prosecutrix was kidnapped and taken away by the accused appellants. The prosecutrix was recovered from the accused appellants. Thus the findings of the trial court for the offence under sections 363, 366 and 344 IPC are also confirmed. The accused appellant Mukesh has remained in custody for more than 2 years and three months. The learned counsel averred that for the offence under sections 363, 366 and 344 IPC, the trial court sentenced the accused appellants for the period of 5 years with fine, 5 years with fine and one year with fine respectively. The accused appellant Mukesh, in these circumstances may be sentenced for the period already undergone by him in confinement. The accused apellant Mukesh, who is on bail, can be sentenced for the period already undergone by him in confinement. 11. In the result: (a) the appeal filed by the appellant Mukesh No.0464 of 2005 is dismissed as withdrawn. (b) the joint appeal No. 689 of 2005 filed by the accused appellants Mahaveer and Mukesh is 16 disposed as under : i) The conviction of the accused appellant Mahaveer for the offence under section 376 IPC is maintained. For section 376 IPC he was sentenced to 7 years RI with fine of Rs. 1,000/-. He remained in custody for more than 5 years, 2 months and 6 days, the State Government is directed to recommend his case for remission under section 432 Cr.P.C. in accordance with law. ii) Further the conviction of the accused appellants Mahaveer and Mukesh for sections 363, 366 and 344 IPC is also maintained. The accused Mukesh has remained in custody for more than 2 years and 90 days in confinement, his sentence for offence under sections 363, 366 and 344 IPC is reduced to the period already undergone by him in confinement. He is on bail, he need not to surrender.The accused appellant Mahaveer has already undergone sentence for more than 5 years, there is no need to pass any further order in his respect for these offences. 17 iii) The judgment of the trial court is modified to the extent stated above. (Mahesh Chandra Sharma) J. OPPareek/