- (1.) HON'ble BHAGWATI, J. The challenge in this appeal is to the judgment dated 16th November, 1995 of Special Judge (Satiniwaran) and Additional Sessions Judge, Jaipur City, Jaipur whereby the accused-respondent Kismat Singh @ Pappu @ Manmohan Singh has been acquitted in the offences under Sections 366 and 376 of the Indian Penal Code.
(2.) THE nub of the prosecution story as unfolded by PW. 3 Badri Sen is as under:- That on 19th March, 1995 at about 7 AM Miss. Raju a minor daughter of the complainant PW. 3 Badri Sen, went to the farm house of Man Singh situated at Queens Road, Jaipur to collect butter milk but thereafter she did not return. THE complainant searched his daughter here and there but of no avail. During the search of her daughter the complainant having cast doubt on one Kismat Singh @ Pappu @ Manmohan Singh submitted a written report Ex. P/6 in the police station Vaishali Nagar, Jaipur stating that Kismat Singh @ Pappu @ Manmohan Singh could have enticed and kidnapped his daughter. THE police registered the case and commenced investigation. During investigation, The Investigating Officer recorded the statements of the witnesses under Section 161 of Cr. P. C. prepared necessary memos, recovered Miss. Raju along with the accused-respondent Kismat Singh @ Pappu @ Manmohan Singh at bus stand Bhilwara, arrested the accused-respondent Kismat Singh @ Pappu @ Manmohan Singh vide memo Ex. P/5, got Miss. Raju medically examined with a view to ascertain her age and collect the evidence with regard to the offence of rape and took to Magistrate for recording her statements under Section 164 of the Cr. P. C. Police, after usual investigation, filed the charge-sheet in the offences under Sections 366 and 376 of the Indian Penal Code in the Court. The trial Court framed charge in the offences under Sections 366 and 376 of the Indian Penal Code and read over to the accused who pleaded not guilty and claim-ed trial. The prosecution has examined 8 witnesses to prove its case. The accused while explaining the circumstances appearing against him has held the prosecution evidence to be totally false. On completion of trial, the learned trial Court acquitted the accused-respondent for the aforesaid charges and hence this State Appeal. The learned Public Prosecutor appearing for the State while reiterating the grounds of appeal as narrated in its memo has contended that the lower Court has erroneously held the statements of PW-7 Miss Raju to be unbelievable. He has further contended that so far as the contradictions emerging in the statements of the prosecution witnesses are concerned, they are of flippant nature and are easily reconcilable. The learned trial Court has not properly appreciated the evidence of prosecution witnesses whereas the statements of PW. 7 Miss Raju inspire full confidence and the testimony of the prosecution witnesses has remained unshaken. Hence the judgment of the trial Court deserves to be set aside and the accused-respondent should be convicted and sentenced firmly. Per Contra, the learned counsel for the accused-respondent has urged the judgment of the lower Court to be cogent, proper and just which calls for no interference.
(3.) HAVING considered and ruminated the submissions made at the bar and scanned the impugned judgment and the evidence of prosecution witnesses properly, the statement of PW. 1 Miss. Raju is found to be full of contradictions on material particulars. The statement deposed by Miss. Raju before the trial Court is materially contradictory to the statement Ex. D/4 recorded by the Additional Judicial Magistrate No. 8 Jaipur City under Section 164 of the Cr. P. C. Miss. Raju stated before the Additional Judicial Magistrate No. 8 Jaipur City that on 19th April, 1995 when she went to take butter milk to the house of Man Singh, she saw one Maruti Van standing there. She alleged that Kismat Singh @ Pappu alighted from the Maruti Van and dragged her inside and thereafter gagged her mouth. She efforted to cry but Pappu threatened her to death. He was having a knife with him. She became unconscious and she came in senses at Dudu when the driver of the Van said that they have reached at Dudu. She again started weeping but Pappu did not listen to her. Thereafter, they reached village Aasind where they left the Maruti Van and sent back the driver. There, the accused made her to take cold drink. After taking cold drink she became unconscious. From there, she was taken to a place where one old `saint' lived. There the accused confined her in a room for about 7-8 days. It is alleged that during this period accused ravished her only once by penetrating his penis into her vagina. There she continuously kept on weeping. Ultimately, the accused agreed to take her back. It is stated that when they were coming home, they were caught by police at Bus Stand Bhilwara. The statement given by PW. 7 Miss. Raju before the trial Court is contradictory in material particulars. Before the trial Court she has stated that the accused dragged her to one cave where he forcibly ravished her. When she cried, the accused threatened her with knife to death. The prosecutrix has further stated that she was detained for about 6 to 7 days at that place where one old person was living. She has further stated that there the accused used to perform sexual intercourse forcibly every day under threat and finally they were caught by the police at one place. Before the trial Court she has not stated that she was taken to Aasind village. Before the trial Court she has also not stated that she was ravished forcibly only once. Apart, there are material contradictions in the statements of the prosecutrix on other material points also. With regard to age of prosecutrix, PW. 3 Badri Sen, PW. 7 Miss. Raju and PW. 1 Dr. Sahab Singh have given misleading statements. It is an admitted fact that Miss. Raju is an uneducated girl, so there does not appear any question of her age being recorded in any educational institution. The age as disclosed by the prosecutrix and her father does not conform to the age determined by PW. 1 Dr. Sahab Singh. The father of the prosecutrix claims miss. Raju to be 14 years of age, whereas, PW. 1 Dr. Sahab Singh has determined her age to be between 15 to 17 years. However, the Court has finally held that miss. Raju was not below the age of 16 years on the date of occurrence. I fully agree with the findings of the learned trial Court with regard to the age of the prosecutrix. ;