- (1.) THE petitioner has challenged the judgment dated 03.08.2009, passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur District, Jaipur, whereby the learned Judge has acquitted the accused-respondent No.2, namely Kailash Chand for offences under Sections 366 & 376 IPC.
(2.) IN brief, the facts of the case are that On 12th June, 2008, the complainant, Ram Prakash, filed a written report at Police Station, Sanganer against the accused-respondent and his family. IN the written report, he alleged that his niece, namely Deepti, daughter of present petitioner, has been abducted by the accused-respondent and his family members. The police registered a FIR, FIR No.462/2008 for offence under Section 366 IPC. During the course of investigation, the INvestigating Officer recovered the abducted girl and she was medically examined. Her statement was recorded by the learned Magistrate under Section 164 Cr.P.C. wherein she disclosed the entire facts of the alleged incident. The statements of other witnesses were also recorded by the Investigating Officer during the course of investigation. On completion of investigation, the police submitted charge-sheet only against the accused-respondent for offences under Sections 366 & 376 IPC. Thereafter, the learned Judge framed the charges against the accused-respondent for the said offences. The prosecution produced eleven witnesses, and relevant documents to prove its case. The accused-respondent was examined under Section 313 Cr.P.C. After hearing both the parties, vide judgment dated 03rd August, 2009, the learned Judge acquitted the accused-respondent of offences under Sections 366 & 376 IPC. Hence, this petition before this Court. Mr. Rajesh Goswami, the learned counsel for the petitioner, has vehemently contended that the learned Judge has failed to appreciate the evidence which is readily available on record. According to the learned counsel, the prosecutrix was a minor at the time when the alleged offence took place. Therefore, the question of consent for physical relationship does not even arise. Secondly, the learned Judge has erred in relying upon the testimony of Kamal Kishore (PW.10), the Investigating Officer, and has overlooked the testimony of the prosecutrix herself. Therefore, the impugned judgment should be quashed and set aside. Heard the learned counsel for the petitioner and perused the impugned Judgment. A bare perusal of the impugned judgment clearly reveals that the learned Judge has discussed the issue about the age of the prosecutrix in great detail. The learned Judge has concluded after going through the evidence available on record that there is nothing to prove the fact that the prosecutrix is minor. Therefore, he has no other option, but to go by the medical evidence; according to the medical evidence, the prosecutrix was between the age of 17 and 18 years. It is, indeed, a settled principle of criminal jurisprudence that in case there are two interpretations of the same evidence, then the interpretation which is in favour of the accused should be accepted. Relying on this principle, the learned Judge has taken the age of the prosecutrix to be 18 years. Hence, he has validly and legally concluded that the prosecutrix was, indeed, major on the day of the occurrence. A bare perusal of the impugned judgment further reveals that the learned Judge has critically analised the testimony of the prosecutrix herself. According to the learned Judge, the prosecutrix admits that she had accompanied the accused-respondent to Jodhpur, where she had lived with him for four months in a rented house. Although in her testimony, she claims that she was locked from outside, although she claims that she could not shout for help, but her testimony on this point has been contradictory by the testimony of the Kishor Singh (DW.2), who happens to be the landlord of the room where the prosecutrix lived with the accused-respondent. According to the Kishor Singh, his family members and he would interact with the prosecutrix and the accused-respondent. Moreover, according to the Kishor Singh, in case the prosecutrix had shouted for help, her shouts could be heard loud and clear. Therefore, the learned Judge was justified in concluding that the prosecutrix did not make any effort to free herself from the clutches of the accused-respondent.
(3.) INSTEAD, she continued to live with him for four long months. Thus, the learned Judge is justified in concluding that considering the fact that the prosecutrix was major, considering the fact that she had accompanied the accused-respondent peacefully without raising any hue and cry, considering the fact that she had lived with him for four long months, thus, clearly it is a case of consent and of elopement, rather than being a case of abduction and rape. Thus, the conclusion drawn by the learned Judge is neither perverse, nor illegal. Of course, it is true that the learned Judge has discussed the testimony of Kamal Kishor (PW.10), the Investigating Officer. However, his reasoning is not solely based on the testimony of the Kamal Kishor. INSTEAD, he has found sufficient gaps in the story of the prosecution to come to the conclusion that the prosecution has not been able to prove its case beyond a reasonable doubt. In this view of the matter, the petition is devoid of any merit. It is, hereby, dismissed.;