1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT STATE OF RAJ. vs. OMPRAKASH AND ANR. SB Criminal Appeal No. 618 of 2007 under Section 378 (i)(iii) Cr.P.C. against the judgment dated March 26, 2002 of Additional Sessions Judge, (Fast Track) No.1 Bundi in Sessions Case No. 312 of 2001 whereby the accused respondents have been acquitted from the offence under sections 363, 366, 376, 120 B IPC. Date of Order : May 22, 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Peeyush Kumar, Public Prosecutor. Mr.Ram Sharan Sharma, for the accused respondent. BY THE COURT : The State of Rajasthan filed Criminal Leave to Appeal against the judgment dated March 26, 2002 of Additional Sessions Judge, (Fast Track) No.1 Bundi in Sessions Case No. 312 of 2001 whereby the accused respondents have been acquitted from the offence under sections 363, 366, 376, 120 B IPC. and this court vide order dated March 2, 2007 allowed the application and the leave to appeal was ordered to be treated as appeal. Notice of appeal was issued to the 2 accused respondents. As accused respondent No.5 Durgalal died, appeal against him was abated vide order dated August 6, 2007. Hence this appeal. 2. Brief facts of the case are that a Parcha Bayan of Smt. Anita daughter of Bherulal by caste Dhakad (Ex.D.1) was recorded by Kamlesh Sharma, ASI Police Station Nagar Fort, Camp Gordhanpura stating therein that after her marriage she stayed with her husband for one year and thereafter he refused to keep her and her father in-law kept her at the residence of brother of mother-in-law at Bamangaon. From Bamangaon nephew of Jagdish Sarpanch taken her in a jeep after staying for 5-6 days and sold her to Om Prakash in an amount of Rs. 15,000/- . As Om Prakash and Anita were of same Gotra Om Prakash refused to keep her. Thereafter she was taken away by Satyanarain Dhakad. Satyanarain Dhakad in order to rape her consumed liquor at the road side. Anita ran away from there and entered in the house of Stayanarain Sharma. Satyanarain Dhakad tried forcibly to take Anita but she refused to go with him. Thereafter Satya Narain ran away. Anita stated that Om Prakash and Sayanaraian Dhakad raped her. On the basis of this parcha bayan FIR under section 363, 366 3 and 376 IPC was lodged at PS Nenwa Distt. Bundi. Anita was produced before the Judicial Magistrate at Kota and her statement under section 164 Cr.P.C. was recorded. In her statement under section 164 Cr.P.C. she has taken the names of Satnaraian and Ganesh for raping her in Sugarcane field. Thereafter again she has taken the names of Satyanarain, Ganesh and Durga Patel and Sheoji Gurjar. It was stated that they taken her in a jeep where from she ran away and taken shelter at the residence of Sayanarain Brahmin.. It appears that on May 2, 2000 Anita gave an affidavit that she has lodged a false report against all these persons. The police filed challan against the accused respondents under sections 363, 366 and 376,120 B IPC. The trial court framed charge against the accused respondents for offence under sections 363, 366, 376/120 B IPC. The accused respondents denied the charge and claimed to be tried. The prosecution in support of its case recorded statements of 15 witnesses and exhibited documents. The statements of accused respondents under section 313 Cr.P.C. were recorded. The accused respondents in defence produced two witnesses and exhibited 7 4 documents. After hearing arguments of both the sides, the trial court acquitted the accused respondents for the offence charged against them vide judgment dated March 26,2002. 3. The learned Public Prosecutor argued that the court below without going through the entire record and evidence wrongly acquitted the accused respondents for the offence charged against them. The court below while passing the impugned order did not consider the statements of witnesses in correct perspective. Thus the judgment of the court below is liable to be set aside and the accused respondents should be convicted for the offence charged against them. The trial court has not properly appreciated the evidence came on record and produced by the prosecution. 4. The learned counsel for the accused respondents on the other hand opposed the submissions of learned Public Prosecutor and stated that the court below after considering all the evidence, documents and record passed the order of acquittal. There is no illegality or infirmity in the order passed by the court below. 5. I have heard the learned counsel for the 5 parties and gone through the entire record. The trial court determined the age of the prosecutrix above 18 years and thus it was found that the charge of section 363 IPC is not made out. The trial court given the finding that not a signal witness or even the prosecutrix in her statement stated that any force was used by the accused respondents in abducting the prosecutrix. The prosecutric on her own will gone with them. Thus also the charge of offence 366 IPC was not made out against the accused respondents. 6. In relation to offence under section 376 IPC, the version of the prosecutrix is not supported by any other witness in the case. PW.5 Sheoji, who is driver of the jeep has also not supported the prosecution case, but he has not been declared hostile. In his statement he stated that his taxi was hired and he received the hired amount from Satyanarain. He supported only that Satyanarain with one female did journey in his taxi and he did not hear anything from the conversation of both of them. PW.8 Kishanlal, at whose residence Satyanarain and Anita stated only stated that Satyanarin stted them that Anita is his wife. They stayed as 6 guests at his residence. Satyanarain Sharma PW.3 supported the prosecution case but his version is not supported by any independent witness. The trial court after discussing the statements of the prosecution witnesses and the defence version produced by the accused respondents came to the conclusion that the charge framed by the trial court for the offence under sections 363, 366 and 376/120 B IPC is not made out against the accused respondents and by giving them benefit of doubt, all the accused respondents have been acquitted. The prosecutrix herself in her statement stated that she was given in Nata and Nata money was received by previous inlaws of husband. I have gone through the statement of prosecutrix recorded under section 164 Cr.P.C. , and her Parcha Bayan and affidavit given by her that she has lodged false case against the inlaws, I am in agreement with the findings given by the trial court. The findings given by the trial court are perfectly justified and there is no illegaliity in the judgment of acquittal by the trial court. The trial court rightly passed the judgment of acquittal in favour of the accused respondents. The judgment passed by the court below is perfectly according to law and 7 there is no illegality or infirmity in the same. The court's attention was drawn on the judgment of the Hon'ble Supreme Court in Umrao Vs. State of Harayana & Ors. SC 2006 Vol.10 Page 136 in which their Lordships of the Supreme Court has observed in para 26 that “it is now well settled that if two views are possible, the appellate court should not interfere with the judgment of acquittal passed by the court below.” 6. Thus the order passed by the court below does not call for any interference in the appeal filed by the State of Rajasthan and the appeal stands dismissed. (Mahesh Chandra Sharma) J. OPPareek/