- (1.) THE petitioner, brother of Hem Kanwar alias Pinky seeks to assail the judgment and order dated 21.8.2008 passed by the learned Special Judge, Women Atrocities and Dowry Cases, Jaipur City, Jaipur rendered in Sessions Case No.27/2008 under Sections 366, 376/511 of the Indian Penal Code (hereinafter referred to as 'the Code') acquitting the respondent No.2 herein.
(2.) I have heard Mr.R.K.Daga, learned counsel for the complainant/petitioner, Ms.Alka Bhatnagar, Additional Government Advocate and Mr.M.C.Jain learned counsel for the respondent No.2. The facts in short are that as Hem Kanwar alias Pinky went missing on 7.9.2007, the petitioner lodged a missing report on 8.9.2007, and eventually, an FIR was lodged with the Police Station, Vaishali Nagar, Jaipur, which was registered as No.696/2007 under Sections 365, 120B of the Code. It was thereafter that the prosecutrix was recovered on 13.9.2007 while she was in the company of the respondent No.2. Her statement was recorded successively under Sections 161 and 164 Cr.P.C. and on the completion of the investigation, a charge-sheet was laid against the respondent No.2 under Sections 366, 376/511 of the Code. He denied the charge. At the trial, the prosecution has examined seven witnesses, including the prosecutrix as PW-2. The respondent No.2, in course of his examination under Section 313 Cr.P.C., stood by his denial. By the impugned judgment and order, he having been acquitted, the informant/complainant seeks to overturn the decision of the learned trial court by invoking the revisional jurisdiction of this Court under Section 397/401 of the Cr.P.C. As the impugned judgment and order would reveal, the learned trial court rejected the case of the prosecution on the ground of delay in lodging of the FIR as well as discernible consent on the part of the prosecutrix in the episode.
(3.) MR .R.K.Daga, learned counsel for the petitioner has emphatically argued that having regard to the dates of the incident and filing of the FIR, no delay as such was involved. Further, as the statement of the prosecutrix, in particular, made under Section 164 Cr.P.C. and her testimony at the trial would reveal, she was not a consenting party. According to the learned counsel, therefore, the impugned judgment and order is, on the face of it, unsustainable in law and on facts. Mr.Daga has insisted that on the basis of the evidence on record, the learned trial court could, by no means, accord acquittal to the respondent No.2 and as conclusions leading to that consequence are the yield of total disregard of the materials on record, it is a fit case where the impugned judgment and order ought to be interfered with. In his endeavour to endorse these pleas, the learned counsel has taken the Court through the FIR and the statement of the prosecutrix under Section 164 Cr.P.C. and in course of the trial. Reliance was placed on the decisions of the Apex Court in State of Punjab Vs. Gurmit Singh and Ors, AIR 1996 SC 1393 and State of Himachal Pradesh Vs. Asha Ram, AIR 2006 SC 381.;