1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T State of Rajasthan vs. Babulal @ Babbu S.B. Criminal Leave to Appeal No.130 of 2008 under Section 378 (i) and (iii) Cr.P.C. against the judgment dated 30.1.2008 passed by Shri Rajendra Kumar Pareek, RHJS, Addl. Sessions Judge,Sambhar Lake, District Jaipur in Sessions Case No.5/2007 (21/07). Date of Judgment :::: 16.03.2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Bhvnish Kumawat, P.P. Mr. R.S.Tanwar for accused respondent. By the Court: Complainant Bodu Ram lodged a complaint on 12.11.2006 with the averments that on 10.11.2006 at about 5.00 P.M. His wife went to market to fetch vegetables and his minor daughter(the prosecutrix) aged about 17 years was at the house. When his wife returned to the house then prosecutrix was found missing. On 11.11.06 a phone call was received from Pooran Mal stating that the prosecutrix and Babu Lal, accused respondent came and are staying with him. When 2 they reached at Jaipur but did not find both of them at the house of Pooran Mal as from the residence of Pooran Mal both of them fled away. After search of many places both the prosecutrix and Babu Lal could not be traced. The police on the basis of the complaint submitted by the complainant Bodu Ram the police on 12.11.2006 registered a case under Sections 363 and 366 IPC vide FIR No.129/2006. On 16.11.2006 the prosecutrix was recovered from Kota vide recovery memo Ex.P.16 and after investigation challan was filed against respondent under Sections 376 and 366 IPC. On the basis of the material and evidence produced by the prosecution along with the challan, the learned trial court framed charges against accused respondent under Sections 366 and 376 IPC to which he denied, pleaded not guilty and claimed trial. To prove its case, the prosecution examined 14 witnesses and also produced some documents. In his statement under section 313 Cr.P.C. the accused respondent denied the allegations and has deposed that he was falsely implicated in the case. However, no witness was produced in defence. Learned trial court after hearing both the sides and evaluating the evidence produced by the prosecution, acquitted the accused respondent of 3 the charge under Sections 366 and 376 IPC vide judgment dated 30.1.2008. Against which judgment, the present leave to appeal has been filed by the State Government. Heard learned P.P. as well as learned counsel for the accused respondent and perused the material and evidence available on the record of the case. It is an admitted fact that as per the statement of PW.3 Dr.Renu Mittal, the prosecutrix was in between 20-22 years of the age and there was no injury on her private parts. It is also well settled that a woman who is a victim of rape is in the same position as an injured witness and her evidence should receive the same weight. This is what the Apex Court has observed in para 16 in the case of State of Maharashtra vs. Chandra Prakash Kewal Chand Jain (AIR 1990 SC 658):- “A prosecutrix in a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly as competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence.” 4 In the instant case the first information report was also lodged after three days. Though which is alone is not sufficient to discard the evidence of the prosecutrix subjected to reliability and inspiring confidence about the same. For this the statement of the prosecutrix have to be taken into consideration. The statement of the prosecutrix if taken into consideration clearly reveals that she remained with the accused respondent from 10.11.2006 till her recovery by the police on 16.11.2006. Thus, she remained with the accused respondent for about 9 days at different places and nowhere resisted the company of the accused. Therefore, the statement of the prosecutrix about the incident does not inspire confidence and reliance on such version cannot be placed. There material contradictions in her statements given to the police under Section 161 Cr.P.C. during investigation and also before the court. From the statement it is borne out that from her residence she went to different places in a Marshall car and reached to Jaipur. From where she along with the accused respondent went to Sawai Madhopur in train where they stayed in Dharamshala and from Sawai Madhopur they went to Kota by train where the police intercepted them. The conduct of the prosecutrix clearly reveals that she was a 5 consenting party. She was a major lady and there is no struggle to resist the company of the accused respondent. The cross examination of PW.13 Nanak Ram also demolishes the story of the prosecutrix that she was abducted at the point of knife. Nanak Ram PW.13 in his cross examination has admitted that on 10.11.2006 at about 6.30 P.M. both the prosecutrix and accused were going together on foot towards Devyani and there was a distance of about one foot between them. The prosecutrix was going easily with Babu Lal and was not raising any hue and cry. The learned trial court while not relying on the statement of the prosecutrix if has given benefit to the accused has not committed any error of law or any illegality in appreciating the evidence. The learned trial court has also relied upon the judgments cited at the bar and if reached on the conclusion on the basis of the law laid down in the cited judgments has acted in accordance with law. No illegality can be found in the impugned judgment. The leave to appeal lacks merit and deserves to be dismissed. Consequently, leave is refused and the leave to appeal is, dismissed. (Bhanwaroo Khan),J. bairwa