Rajasthan High Court - Jaipur
Dinesh Singh vs State Of Rajasthan Through Pp on 1 May, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal (Jail) Appeal No. 91/2018
Dinesh Singh s/o Shankar Singh, by caste Rawat, aged 20 years,
r/o Badi Pol, Malato ki Ber, Police Station Taudgarh, District
Ajmer.
----Appellant
Versus
State Of Rajasthan Through PP
----Respondent
For Appellant(s) : Mr. Mohd. Rahil Kalam For Respondent(s) : Mr. Javed Choudhary PP
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE BANWARI LAL SHARMA
-/Judgment/-
01/05/2019 Per: Kanwaljit Singh Ahluwalia, J (ORAL) Swayed by prohibited relationship (incest) between the prosecutrix (name withheld to protect her identity) and the accused appellant Dinesh Singh, the trial Judge convicted the appellant for the offences under Sections 363, 366, 344, 376(2) (F) and (N) IPC and Sections 5(L)/(N)/6 of Protection of Children from Sexual Offences Act and vide a separate order of even date, very harshly sentenced the appellant as under:
U/s. 363 IPC- to undergo seven years RI and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo additional three months RI.
U/s. 366 IPC- to undergo ten years RI and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo additional three months RI.
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(2 of 7) [CRLAD-91/2018] U/s. 344 IPC- to undergo three years RI and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo additional three months RI.
U/s. 376(2) (F) and (N) IPC- to undergo life imprisonment and to pay a fine of Rs.50,000/-, in default of payment of fine to further undergo additional four months RI.
U/s. 5(L)(N)/6 of POCSO Act- to undergo life imprisonment and to pay a fine of Rs.50,000/-, in default of payment of fine to further undergo additional four months RI.
All the sentences were ordered to run concurrently. Shankar Singh father of accused appellant and Kishan Singh father of the prosecutrix are real brothers.
On 11.6.2015 at 10:30 AM Kishan Singh (P.W.8) presented typed written report (Exhibit-P/10) before Surendra Singh (P.W.8) SHO, Police Station Taudgarh. On the basis of written report (Exhibit-P/10), a formal FIR (Exhibit-P/11) bearing No.40/2015 was registered at Police Station Taudgarh, Ajmer for the offences under Sections 363 and 366 IPC. The typed written report (Exhibit-P/10) when translated into English, reads as under:-
"To SHO Saheb Police Station Taudgarh, District Ajmer Subject: for enticing away my daughter.
Sir, In the above noted subject, it is submitted that yesterday on 10.6.2015 at 8:00 PM, Dinesh Singh son of Shankar Singh by caste Rawat aged 20 years resident of Badi Pol, Malato Ki Ber, has enticed away my minor daughter (name withheld to protect her identity). We carried extensive search but we are not able to find their whereabouts. For enticing away my (Downloaded on 28/06/2019 at 10:45:45 PM) (3 of 7) [CRLAD-91/2018] daughter, Dinesh Singh had also consent of his mother Sita Devi wife of Shankar Singh. At the moment, Sita Devi is present at her house at Badi Pol. He had taken away my daughter to solemnize marriage.
Therefore, it is requested that my daughter be searched as soon as possible and returned to me and thereafter strict action be taken against the aforesaid accused so that they do not perform such act in future. Height of my daughter is 4"3"
and she is wheatish in colour, wearing Salwar Suit. She is having scar of old wound on foot. Mobile No. of Dinesh Singh - 08128145431, 09602255017, 09586688914, 070436442410, 09924934979. Mobile No. of Prosecutrix - 8107513436 Mobile No. of Sita Devi- 9571623017 Applicant Sd/ Kishan Singh s/o Sujan Singh Badi Pol, Malato Ki Ber, Taudgarh 9460823542 9001240942"
Dr. Deepali Meena (P.W.4) had medico-legally examined the prosecutrix vide report Exhibit-P/5. The doctor opined that the prosecutrix was habitual to sexual intercourse.
Dr. Alok Shrivastava (P.W.6) had also medico-legally examined the prosecutrix alongwith Dr. Deepali Meena (P.W.4).
Dr. Lakhendra Singh (P.W.7) had examined the accused appellant and submitted report Exhibit-P/9 and as per his opinion, there was nothing to suggest that the appellant was not capable of performing sexual intercourse.
In the present case, for us, material is the testimony of the prosecutrix, who appeared in the court as P.W.1 and Rekha Kumari (P.W.5) who was posted as Headmistress of Government Girls Upper Primary Middle School, Taudgarh, Ajmer.
Before we revert to the evidence regarding the age of the prosecutrix, it will be apposite here to note the testimony of the prosecutrix.
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(4 of 7) [CRLAD-91/2018] The prosecutrix appeared in the court as P.W.1. She in the court stated that she was enticed away by the accused Dinesh Singh after her father had rebuked him. She stated that first they went to Marward Junction and from there, they in train went to Ahmedabad. There the accused had taken a room. She further stated that she stayed with the accused for three and a half months as his wife. In cross-examination, she admitted that before she left the house, they were having regular telephonic conversation. In cross-examination she further stated that she herself had accompanied the accused. The following portion of the cross-examination of the prosecutrix being important is reproduced below:-
;g lgh gS fd eqfYte us eq>s Qksu fd;k rc eSa blds lkFk viuh ethZ ls xbZ FkhA rhu eghus eSa ogka jgh rc ;s ckr eSaus fdlh dks ugha crkbZ vt[kqn dgk eqyfte us eq>s Mjk j[kk FkkA ;g lgh gS fd eqyfte vgenkckn esa dke ij etnwjh djus tkrk Fkk ij dHkh dHkh tkrk FkkA ;g lgh gS fd ogka vkl ikl vU; yksx jgrs FksA ;g lgh gS fd vgenkckn esa [kkuk eSa gh cukrh Fkh rFkk vkl ikl okyksa dks eqyfte dh iRuh gksuk crkrh FkhA The prosecutrix has admitted that in cross-examination that she had accompanied the accused as per her own accord. She further admitted that the accused used to do labour work. She further admitted that to the neighbours she had given her identity as wife of the accused. She further admitted in cross-examination that the accused had not kept her in lock.
Having heard the learned counsel for the appellant, we find that the prosecutrix herself had travelled with the accused. They used public transport. She had gone to Marward Junction (Downloaded on 28/06/2019 at 10:45:45 PM) (5 of 7) [CRLAD-91/2018] and from there, they took a train and went to Ahmedabad. The prosecutrix stayed with the accused as a wife for three and a half months. She had enough opportunity to complain against the accused but she had not done so. She had admitted that she herself had accompanied the accused as per her own free will. Prosecutrix during her stay with accused for all purposes was acting as a wife of the accused appellant.
From the testimony of prosecutrix, it is evident that she was a consenting party. However, if the prosecutrix is held to be minor, the consent shall be of no consequence. Therefore, we have to determine the age of the prosecutrix.
Rekha Kumari (P.W.5) in the court stated that on the basis of school register, she had issued certificate (Exhibit-P/8) and as per the school register, the date of birth of the prosecutrix was recorded as 25.2.1998.
In the present case, the prosecutrix had left the house on 10.6.2015, if the school certificate is taken into consideration, the prosecutrix was seventeen years and four months old. Rekha Kumari (P.W.5) Headmistress of the school stated that she had not brought the admission form submitted by the parents of the prosecutrix. Rekha Kumari (P.W.5) stated that she is not aware as to what date of birth is recorded in the admission form. She further stated that she is not aware that if the parents of the prosecutrix in the admission form had given age of the prosecutrix as less than the actual.
Kishan Singh (P.W.9) in the court deposed that before the admission of the prosecutrix to the school of which Rekha Kumari (P.W.5) was Headmistress, the prosecutrix was got admitted in the government school at Malato Ki Ber. Therefore, (Downloaded on 28/06/2019 at 10:45:45 PM) (6 of 7) [CRLAD-91/2018] Rekha Kumari (P.W.5) is not the Headmistress of the school first attended by the prosecutrix. In the school first attended, what was the date of birth given, the prosecution has not proved the same. In admission form, what is the age recorded, the prosecution has withheld the admission form from the court.
In these circumstances, we can safely say that the prosecution has failed to prove to the hilt that the prosecutrix was infact born on 25.2.1998. In the present case, the prosecutrix was hovering around the age of eighteen years. The defence has given a very valid suggestion to the Headmistress of the school by stating that at the time of filling examination form to Xth Class, the age of the prosecutrix was stated on the lower side. Therefore, the admission form and the record of the school first attended assume importance and they have been withheld from the court. Therefore, we can safely say that the prosecutrix was more than eighteen years of age. We cannot rule out that the prosecutrix was more than eighteen years of age at the time of occurrence.
Taking the conduct of the prosecutrix, we are of the view that the conviction and the sentence of the appellant cannot be sustained.
Consequently, the present appeal is accepted. The conviction and sentence awarded by the trial court upon the appellant is set aside and he is acquitted of all the charges.
In view of above, we order that the appellant Dinesh Singh be released forthwith, if in custody and not required in any other case.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Dinesh Singh is directed to forthwith furnish a personal bond in the sum (Downloaded on 28/06/2019 at 10:45:45 PM) (7 of 7) [CRLAD-91/2018] of Rs. 20,000/-, and surety bond of the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant Dinesh Singh on receipt of notice thereof, shall appear before the Supreme Court. (BANWARI LAL SHARMA),J (KANWALJIT SINGH AHLUWALIA),J Mak/-
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