Amitava Roy, J. - (1.) HEARD Mr. Suresh Kumbhat, learned counsel for the petitioner, Mr. Rajesh Bhati, learned Public Prosecutor, Rajasthan and Mr. Mahaveer Singh, learned counsel for the respondents.
(2.) IN challenge is the judgment and order dated 31.1.2002 passed by the Additional Sessions Judge, Fast Track, Pali, acquitting the non -petitioners of the charges under Sections 363, 363/149, 366/149, 376 & 120B IPC. The prosecution case, in short, is that on 6.7.2000, the petitioner herein i.e. Bhika Ram lodged a complaint in the court of the Judicial Magistrate, First Class, Sojat City alleging that while he and his other members of the family were reeling under several financial crunch, consequent upon unprecedented drought in the state, the non -petitioners offered to help them out and requested him to accompany them to Mandsor in search of employment. According to the petitioner, though initially reluctant, he was prevailed upon by the non -petitioners, and therefore, he, on 1.7.2000, alongwith his family members, his daughter Indra accompanied them. On the very same day in the evening, on the insistence of the non -petitioners, and more particularly, the wife of Chautharam, he hesitatingly permitted her daughter to accompany them (wife and daughter of Chautharam) to the market to purchase bangles. When his daughter did not return till late in the evening, he confronted the non -petitioners to enquire her whereabouts, and though they assured to trace her out, they did not take steps to that effect. According to the petitioner/complainant, then he returned to the village and eventually, lodged the complaint on 6.7.2000. The complaint was forwarded to the jurisdictional police station under Section 156(3) Cr.P.C. for investigation and on the basis thereof, a charge -sheet was laid under the aforementioned sections of the IPC against the non -petitioners. At the trial, the prosecution examined several witnesses, including Indra, the daughter of the complainant. The non -petitioners also adduced evidence in their defence. Prior thereto, in the course of examination under Section 313 Cr.P.C., they denied the charges. The complainant's daughter, Indra, after substantially reiterating the contents of the complaint, stated that while in the market, others left her in the custody of non -petitioner Raju and his brother Bhoraram, whereafter they took her in a tempo. They eventually, led her to a nearby jungle, where Bhoraram left the place and Raju committed forcible sexual intercourse with her. Thereafter, according to this witness, Raju took her to the court and thereafter to a temple, where he garlanded her and asked her not to cry. This witness stated that at the time when she was taken to the court, Raju's parents were present. She stated that thereafter, Raju kept her in his house, in course whereof, he cohabited with her as well, without her consent. Eventually, she was recovered from his house by the police. The other witnesses examined by the prosecution do not really speak of anything additionally, significant or persuasive to be dilated upon, as their evidence relate to recovery of Smt. Indra from the custody of Raju, seizure of her wearing apparels. The evidence of PW -16, Dr. G.N. Mathur, who had examined the victim, stated that her age, at the relevant time, was above 15 years, but below 17 years. In cross -examination, the doctor conceded that this was an opinion based on assumptions, and that, growth and development of the body of a person is dependent, amongst others, on the place of residence, environment, food habits etc. PW -17, Anusooya Harsh, who also had medically examined the victim, opined that she was habituated
(3.) THE learned trial court, on an assessment of the evidence on record, returned a finding that the prosecution had failed to prove that Smt. Indra had been forcibly taken away by the non -petitioner Raju and subjected to sexual intercourse without her consent, and thus, acquitted him of the charge under Section 376 IPC. It also held that on a scrutiny of the evidence on record, she could not be convincingly held to be a minor, at the relevant point of time. That the non -petitioners as a whole, could not be held to be guilty of Sections 363 & 366/149 IPC, was concluded and thus, it acquitted them of all the charges.;