S.B. Criminal Revision Petition No.476/2001 Smt. Bhagoti Vs. State of Raj. & Anr. Dated : 01.04.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Ajay Gupta, for the petitioner. Mr. GS Fauzdar, PP for the State. Mr. Bharat Yadav for the accused- respondent. *** Challenge in this criminal revision petition is to the judgment dated 11th April, 2001 whereby the learned Additional Sessions Judge Neem-ka-Thana District Sikar acquitted the accused respondent No.2-Mathura Prasad of the offence under Sections 363, 342, 407 and 376 of IPC. The facts, necessary for the disposal of this criminal revision, succinctly stated are that on 4th October, 1998 the accused-non-petitioner No.2 Mathura Prasad kidnapped the minor girl Supyar Kanwar and took her to Jalandhar. It is alleged that the accused wrongfully confined her for three or four months and ravished her for such a long time, without her consent and against her will. The mother of the prosecutrix submitted a complaint Ex.P/8 in the Court of Judicial Magistrate, Neem-Ka-Thana on 7th October, 1998, who sent the same for investigation under Section 156(3) of Cr.P.C. to Police Station Thoi, whereupon the police lodged FIR Ex.P/1 and commenced investigation. -2- The Investigating Officer prepared site plan Ex.P/2, recovered the prosecutrix Kumari Supyar vide memo Ex.P/3, arrested the accused Mathura Prasad vide memo Ex.P/4, recovered the golden and silver ornaments of prosecutrix from the possesion of the accused vide memo Ex.P/5, recorded the statements of the witnesses acquainted with the facts and circumstances of the case, got the prosecutrix medically examined so as to determine her age and the commission of offence of rape and after usual investigation filed the charge-sheet in the Court. The accused Mathura Prasad was indicted for the offences under Sections 363, 342, 406 and 376 of IPC, who pleaded not guilty and claimed to be tried. In order to further its version, the prosecution has examined as many as 10 witnesses. In the statements recorded under Section 313 of Cr.P.C, the accused claimed himself to be innocent. On completion of trial, the court acquitted the accused respondent No.2 of the alleged charges, as indicated hereinabove. Heard learned counsel for the revisionist, learned Public Prosecutor appearing for the State and learned counsel for non-petitioner No.2 and carefully perused the relevant material including the impugned judgment available -3- on record. Learned counsel for the revisionist canvassed that the learned trial Court held the prosecutrix to be 19 years old, whereas her age on the date of commission of offence was only 14 years. The learned trial Court did not rely upon the date of birth recorded in the School register and E-converso, based acquittal on the estimated age determined by the Medical Officer on the basis of ossification Test. He further canvassed that there was ample evidence on record with regard to the age of the prosecutrix, proving her to be 14 years of age. The observation of the learned trial Court in this regard is erroneous, capricious and contrary to the date of birth recorded in the school register. Hence, the impugned judgment being bad in law, deserves to be set aside. Learned Public Prosecutor appearing for the State and learned counsel for the non-petitioner No.2 defended the impugned judgment and stated the same to be just and proper and submitted that it did not call for any intervention. They further contended that neither the prosecutrix was examined by the prosecution nor the Magistrate who recorded the statements of the prosecutrix under Section 164 of Cr.P.C. during investigation, was examined. Apart -4- this, there was no independent or corroborative evidence on record, which could suggest the commission of the offence of kidnapping and rape. Having reflected over the submissions made at the bar and carefully perused the relevant material on record, it is noticed that after alleged commission of offence under Section 363 and 376 of IPC and thereafter her recovery made by police, the prosecutrix was married to somebody else. It is also noticed from the statements of her mother PW/9 Bhagwati that she died after two months of her marriage. Neither the prosecutrix was examined by the prosecution nor the Judicial Magistrate who recorded her statements under Section 164 of Cr.P.C. was produced in evidence. The statement of PW/1 Shimbhu is of no avail, as his evidence is hear say evidence. He simply deposed before the Court that he got the information that Mathura Prasad had enticed his sister and kidnapped her. PW/4 Kalu Ram and PW/6 Sri Ram are the witnesses of the recovery of the golden and silver ornaments, but they have not supported the prosecution story and have turned hostile. PW/8 Nemi Chand is the Investigating Officer who recovered the ornaments of prosecutrix and PW/10 Shri Gokul Chand Sharma is the police witness who investigated the case. Albeit, the prosecution has examined as -5- many as ten witnesses in all, but there is not even a shred of evidence which could slightly suggest that the prosecutrix was kinnapped by the accused Mathura Prasad and she was subjected to rape by him. Whatever the evidence with regard to kidnapping has emerged, is based on hear say information. Though the Police Officer has endeavoured to prove the recovery of golden and silver ornaments of the prosecutrix at the instance of accused but the recovery has not been corroborated by the independent witnesses. Learned trial court having examined the evidence of the prosecution witnesses in detail found that the alleged offences against the accused were not proved beyond reasonable doubt. The impugned judgment seems to be just and proper and the same does not suffer from any infirmity. The learned trial Court rightly observed that for want of evidence of prosecutrix and the Judicial Magistrate who recorded her statement under Section 164 of Cr.P.C., the conviction of the accused could not be based on rest of the evidence which was of no avail, I find myself in unison with the finding of acquittal arrived at by the learned trial Court and the impugned judgment, to my view too, warrants no intervention. -6- For the reasons stated above, the criminal revision petition being bereft of merit stands dismissed. (MAHESH BHAGWATI)J. pcg