- (1.) A perusal of the order-sheets indicates that the counsel for the appellant has been appearing before this Court has been absent from this Court on various dates such as 10.07.2012, 24.07.2012, 09.08.2012 and 03.01.2013 on the matter coming up before this Court. Even today none has appeared.
(2.) PERUSED the appeal and also the judgment dated 11.02.2011, passed by the trial court i.e. Additional Sessions Judge (Fast Track) No.2, Sikar, Head Quarter at Srimadhopur, in Sessions Case No.27/2008 whereby the accused-respondents have been acquitted of offences under Sections 366 and 376(2)(G) IPC. From the evidence on record, it is evident that the prosecutrix was over 16 years of age. The complainant, Madu Ram, the uncle of the prosecutrix, had admitted in his cross-examination before the trial court that the prosecutrix was over eighteen years of age. Further in her statement under Section 164 Cr.P.C. recorded fifteen days after the alleged incident consequent to which the accused-respondents were subjected to criminal proceedings, the prosecutrix stated before the Magistrate (Exhibit-18) that she was 19 years of age. In the medical examination of the prosecutrix on the question of her age, her age has been found by Dr. R.K. Sharma (PW-7) between 17 to 19 years. Aside of the above, in defence, the accused-respondents had relied upon exhibit P-13 which was the certificate pertaining to the date of birth of the prosecutrix obtained from the Government Senior Secondary School, Thoi (Exhibit P-13) indicating her date of birth as 13.07.1990 whereupon as on 07.02.2009, the date of incident, the prosecutrix was over 18 years of age. In this view of the matter, the only issue for consideration of the trial court was as to whether there was any evidence of the prosecutrix being subjected to non-consensual sexual intercourse.
(3.) FOR determining the allegation of rape against the prosecutrix, the trial court has relied upon Exhibit P-9, which is her medical examination with regard to the commission of rape on her person. Dr. R.K. Sharma (PW-7), who prepared Exhibit P-9 found that the prosecutrix had old torn hymen and there was nothing on record to establish that she had been virgin in the recent past. Vaginal swab of the prosecutrix had been sent to the FSL. In FSL report (Exhibit P-26), no traces of semen were found consequent to which it could not be opined that the prosecutrix had been subjected to recent sexual intercourse. The trial court also found that the evidence of the prosecutrix was contradictory and the prosecutrix appeared to be lying before the court in the course of her examination. On the appreciation of the evidence of the prosecutrix, the trial court found that the prosecutrix was unreliable even on the fundamental question as to whether she knew the accused or not inasmuch as at times she admitted to knowing Ramji Lal and at other she refused to have ever known. The trial court also found that there was no test identification parade of the accused, Ramji Lal and Ashok, conducted at any time and further that in the T.I. parade held in respect of Jai Raj and Dinesh, the prosecutrix had been unable to identify Dinesh, but had only identified Jai Raj. Proceeding further with the evidence on record, the trial court relied upon Exhibit D-14 to record that the prosecutrix in fact had been beaten up by her uncle, Madu Ram, on 15.01.2009 in his desire to have her married off with one Ashok Samota with which alliance the prosecutrix was in disagreement. The trial court also found that the investigation of the Investigating Officer (PW-9) was at complete variation with the prosecution case set up before the trial court. The trial court also held that the allegation of the prosecutrix with regard to her being sexually exploited by four persons had a ring of falsity in view of the fact that there was no injuries on her person found during the physical examination of the prosecutrix. The trial court from the evidence on record therefore concluded that the prosecutrix, being a major, appeared to have willingly gone with Ramji Lal owing to the beating of her uncle, Madu Ram, and his desire against her will to marry her against one Ashok Samota and therefore found it unsafe to convict the accused-respondents for offences alleged as serious as ones under Sections 366 and 376(2)(G) IPC.;