- (1.) CHALLENGE in this appeal is to the judgment dated March 26, 2007 of the learned Special Judge, (Women Atrocities and Dowry Cases) Jaipur, whereby Mohd. Sartaj @ Vikky @ Sonu, the appellant has been convicted and sentenced as under:- U/s.363 IPC: Rigorous imprisonment for three years and fine of Rs.100.00, in default to further suffer rigorous imprisonment for three months. U/s.366 IPC: Rigorous imprisonment for four years and fine of Rs.100.00, in default to further suffer rigorous imprisonment for three months. U/s.376 IPC: Rigorous imprisonment for seven years and fine of Rs.100.00, in default to further suffer rigorous imprisonment for three months. All sentences were to run concurrently.
(2.) IT is the prosecution case that on August 3, 2006 the complainant Moinuddin (Pw.8) submitted a written report (Ex.P-26) at Police Station Brahmapuri, Jaipur wherein it was stated that his daughter Samreen (Pw.7), aged 14 years, was missing since 21-7-2006 (of which a missing person report was lodged on 25-7-2006) and recovered from Mujaffarpur on 3-8-2006 by him, the police, his brother Naimuddin and Hamid Gafur. Thereafter his daughter on recovery had stated to him that she was enticed by the appellant Mohd. Sartaj and taken away to Mujaffarpur via Ajmer, Delhi and Patna during the period 21-7-2006 to 1-8-2006 during which period the accused had also committed rape on her. On the report, FIR No.154/2006 under sections 363, 366 and 376 IPC was registered and investigation commenced. Statements of witnesses were recorded and necessary memos were drawn. On completion of investigation challan was filed against the appellant under Sections 363, 366, and 376 IPC. In due course the case came up for trial before the learned Special Judge Jaipur. Charges were framed under sections 363, 366 and 376 IPC against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined 11 witnesses and exhibited 31 documents. In the explanation under Sec.313 Cr.P.C., the appellant claimed innocence. He further stated that the prosecutrix, known to him for a while, herself persuaded him to marry her under threat of suicide. Thereupon the two travelled to Mujaffarpur, Bihar where Nikah with the prosecutrix was done on mutual consent. No witness in defence was examined. The accused however exhibited the statement of Moinuddin (Ex.P-20) recorded by the police in support of his defence. On hearing final submissions the learned trial Judge, on basis of its appreciation of evidence before him, convicted and sentenced the appellant as indicated herein above. For the prosecution, appearing as Pw.8 Moinuddin, father of the prosecutrix stated that Samreen his daughter was unschooled, but was about 15 years of age. He stated that about 6-7 months prior to 14-3-2007, when his statement was recorded before the trial court, on returning home around 6.00 PM after work, he was told by his nephew Safruddin that Samreen, his daughter was not at home since 3.00 PM. Subsequent search for Samreen in the neighbourhood was not successful. It was stated that in the course of search, it also transpired that the appellant Sartaj @ Vikky, who was a regular visitor to his house, was also missing. In this situation Ex.P-13, missing person report, vis-a-vis his daughter Samreen, with suspicion on the appellant had been lodged at the Police Station on 25-7-2006. It was stated that thereafter he received a phone call from his daughter Samreen from Mujaffarpur informing him that she was at appellant's house in Mehandi Hasan chowk, Mujaffarpur and should be fetched by him immediately. According to him, thereupon with his brother-in-law Abdul Hameed, brother Naimuddin and some police personnel of Police Station Moti Doongari purporting to act on the missing person report Ex.P-13 he proceeded to Mujaffarpur and found his daughter with the appellant. With the aid of local police he and the local police at Jaipur brought the prosecutrix and the accused appellant back to Jaipur. He stated that his daughter at Mujaffarpur police station told him that the appellant Vikky had enticed and taken her with him and thereafter committed rape on her at Ajmer, Delhi, Patna and Mujaffarpur. Reliance was placed by him on a ration-card, Ex.P-28, wherein the age of the prosecutrix was recorded as 14 years at the time of preparation of ration-card, in the year 2005. It was stated that the appellant Sartaj @ Vikky was known him earlier as his tenant, and thereafter as family friend and was treated as a virtual son (Dharam-beta) by his wife owing to which the appellant had easy access to his house all time. He submitted that the appellant had also stolen about Rs.50,000.00 from his house. Pw.6, Shama, the mother of the prosecutrix, generally supported the statements of Pw.8 Moinuddin. In her evidence she stated that the appellant was first a tenant, and thereafter a friend of the family and a virtual son, owing to which he had a regular access to her house. She stated that the missing person report was lodged by her husband on 25-7-2006 after the search for her daughter -the prosecutrix -for 4 days had failed. She also supported her husband's allegation that appellant had taken away Rs.50,000.00 from her house when he kidnapped her daughter. She stated that she came to know about her daughter's whereabouts when a phone call was received from the prosecutrix then in Mujaffarpur, Bihar. Thereafter steps were taken for her recovery from there. Pw.7, the prosecutrix in evidence stated that she was born on 25th April, but did not remember the year of birth. She stated that she was not schooled, but stayed at home. On the day of incident, Vikky, whom her mother treated as a virtual son and was known to her for a while came home and asked her to go out with him for a walk. Trusting him she accompanied him, but thereafter he asked her to sit in an auto and then in a bus. When in the bus, she asked as to where were they going. The appellant was then stated to have both threatened her and also assure her that after visiting Ajmer, he would drop her back home at Jaipur. She stated that the appellant had not taken any money or any other article from her house. After reaching Ajmer they rented a room in a hotel and under the threat of physical harm the appellant raped her in spite of her protestation. Thereafter varying her earlier assertion in the course of her evidence in court, the prosecutrix stated that her mother's purse and money was with the appellant, but she did not know how he had obtained it. Subsequently, she travelled with the appellant back to Jaipur and further to Delhi by bus. From Delhi they reached Patna by train, where again the appellant raped her in spite of her resistance. Then the prosecutrix traveled with the appellant to his home in Mujaffarpur. While in Mujaffarpur the appellant continued to have forced sex with her under threat of killing her in the event of her resistance. She stated that when the appellant came to know that there was a general look out notice for him, and imminent search he planned to travel elsewhere with the prosecutrix to avoid arrest. Then on an opportunity presenting, the prosecutrix called her parents and told them the whole story and the background in which she had been kidnapped by the appellant and subjected to rape. The prosecutrix identified the accused in court. Aside of the oral testimony of the aforesaid main witnesses for the prosecution, the prosecution also relied upon medical evidence Dr.Rajesh Verma (Pw.2). Who stated that on physical examination of the prosecutrix no external injury on her body was found and on radiological, dental and physical examination of the prosecutrix, it appeared that she was over 15 years of age, but less than 17 years. Pw.3 Dr. O.B. Nagar, stated before the trial court that the prosecutrix was healthy, she had fully developed breasts and had 28 teeth. He also stated that the physical examination of her body and private parts indicated that the prosecutrix was not a virgin and appeared to be habituated to sex. He stated that her vaginal smear, slide and swab had been taken and sent to FSL for report for an opinion for recent sexual intercourse. The prosecution case thus was that even though the prosecutrix was under 16 years of age, the appellant having had sexual intercourse with her with or without her consent was liable to be found guilty of sections 363, 366 and 376 IPC and punished accordingly.
(3.) AS against the prosecution evidence, the defence before the trial court was that the relationship between the appellant and the prosecutrix was a consensual sexual relationship and has resulted into a marriage (Nikah). It was stated that the relationship was sought to be criminalised on false evidence and the entire investigation was a frame up to obtain the conviction of the accused. It was stated that in the first instance when the statements of the prosecutrix were recorded u/s.161 Cr.P.C., the prosecutrix had admitted that she had known the accused appellant Sartaj for a reasonable length of time and on his proposal to marry she had married him on 27-7-2006 in Mujafarpur, though without permission or authority of her parents. It was submitted that the prosecutrix eloped -the first move being her's -with the accused and married him (performed Nikah ceremony) and lived with him as wife. It was submitted that in the context of the aforesaid first version of the prosecutrix, to the police no offence whatsoever against the accused appellant either of threatening or of kidnapping or of raping the prosecutrix was made out and that entire story by her as set up before the court was fabricated, quite apparently under pressure of her parents. It was stated that medical evidence with regard to age of the prosecutrix based on dental, physical examination and x-ray of the joints of the prosecutrix indicated her to be 15 to 17 years of age with two years variation legally recognised. The variation in the case at hand ought to have been towards the higher side upto 19 years owing to the general physical development of the prosecutrix, such as fully developed breasts and the fact of the prosecutrix being habituated to sex. In this view of the matter it was submitted that with the prosecutrix being over 16 years of age -probably over 18 years of age -and her conduct evidencing consensus for sex with the appellant no charge as framed could be made out and the accused appellant deserved acquittal.;