Rajasthan High Court - Jodhpur
Mohan Lal vs State on 10 May, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B. CRIMINAL APPEAL NO.166/1990 Mohan Lal Vs. The State of Rajasthan Date of judgment : 10.5.2013 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. A.K.Acharya, for the appellant.
Mr. Ashok Prajapat, P.P. <><><> The instant appeal has been preferred by the appellant challenging the judgment dated 11.5.1990 passed by the learned Additional Sessions Judge, Chittorgarh in Sessions Case No.91/1988, whereby the appellant has been convicted and sentenced as below:
U/s.363 IPC 3 Year's R.I. and to pay a fine of Rs.1000/-
and in default to further undergo six months' R.I. U/s. 366 IPC 3 Year's R.I. and to pay a fine of Rs.1000/-
and in default to further undergo six months' R.I. Both the sentences were ordered to run concurrently.
Succinctly stated the facts of the case are that one 2/10 Modi Ram lodged a report, Ex.P/1 at the Police Station Nimbahera on 14.5.1987 alleging interalia that his daughter Mst.'S' aged about 15 years had gone for feeding the cow. Appellant, Mohan Lal was standing near the boundary wall of the colony, where Mst.'S' had gone. He gave her a false inducement and thereafter, kidnapped her for illicit motives. On the basis of the said report, an FIR No.187/87 was registered at the Police Station Nimbahera for the offences under Sections 363 and 366 of the I.P.C.
Mst.'S' was recovered and on being medically examined, it was found that her age was between 15 to 16 years and that she had been subjected to intercourse. The appellant Mohan Lal was arrested and on his information, certain ornaments of Mst.'S', which the appellant had sold to a goldsmith, were recovered. While the medical examination of Mst.'S' was being conducted, her clothes were preserved for examination by the FSL and the FSL report was received, as per which, human semen was detected in the underwear and ghaghara of Mst.'S'. The school record regarding the age of the prosecutrix was procured as per which, her date of birth was 4.10.1972. Meaning thereby that she was below 16 years when the incident took place.
The Police after investigation filed a charge-sheet against the appellant and one Kaushalya for the offences under Sections 376, 366, 363 and 120B of the IPC. The case 3/10 was committed to the Court of learned Additional Sessions Judge, Pratapgarh for trial. The learned trial Judge framed charges against the appellant for the offences under Sections 363, 366 and 376 of the IPC. Co-accused Kaushalya was charged for the offences under Sections 363, 366, 109, 376 read with Section 376/114 of the IPC. The prosecution examined as many as 19 witnesses in support of its case.
At the trial, the prosecution examined:-
i. P.W.1 Modi Ram is the father of Mst.'S', and he stated that Mohan Lal seduced Mst.'S' and abducted her. She was recovered after one week from the village Pipaliya (M.P.).
ii. P.W.2 Shyam Das is a formal witness. iii. P.W.3 Lal Hans has turned hostile. iv. P.W.4 Jamna Bai is the mother of Mst.'S' and gave
testimony alike that deposed by Modiram. v. P.W.5 Kalu Ram is a witness regarding recovery of the ornaments of Mst.'S'.
vi. P.W.6 Lobhchand stated that he saw Mohan and Modi Ram's daughter at the bus stand.
vii. P.W.7 Dr.Rajendra Kumar Gupta was examined for proving the medical reports of Mst.'S'. He stated that Mst.'S' was between 15 to 16 years of age at the time of incident and that she had been subjected to intercourse just before her medical examination.
viii. P.W.8 Dharamchand was a witness regarding recovery of 4/10 the silver Dhali at the instance of the appellant. ix. P.W.9 Netrapal Singh was the Police Officer, who proved the FIR etc. x. P.W.10 Mitracharan the ASI of the Police Station Nimbahera investigated the case and recovered the abducted girl and also recovered the ornaments etc. at the instance of the accused.
xi. P.W.11 Mst.'S' is the abducted girl. She clearly stated that Kaushalya induced her to go with Mohan Lal. She was then taken at Kaushalya's residence at Ishqabad, where Mohan Lal committed intercourse with her. She was told that her name would be scandalized in the society if she did not go with Mohan Lal. On the day of the occurrence, when she had gone for grazing the cow, Mohan Lal came there and forcibly took her to the railway station. Then she was taken in a bus to Neemuch. They stayed in a Dharmshala, where Mohan Lal committed intercourse with her. Her Payjeb were sold at Mandsaur from where they went to Pipaliya Mandi, where Mohan Lal kept her in a house. There also, she was subjected to intercourse. When they went to the market, her brother apprehended Mohan Lal and then the Police took both of them back to the village. She stated her date of birth to be 4.10.1972. She further stated that at Nimbahera also, she was frequently taken by Kaushalya to her house and Mohan 5/10 Lal used to subject her to intercourse at Kausalya's house. Mst.'S' also proved the photographs Ex.P/33 and P/34 in which she, Mohan Lal and Kaushalya are shown together. In her cross-examination, suggestions have been given to her for establishing the theory of consent. Certain letters written by the prosecutrix to Mohan Lal being Ex.D/1 to D/6 have been exhibited during her cross-examination. xii. P.W.12 Ahmed Shaeed turned hostile. xiii. P.W.13 Ram Lal was a witness of seizure of the clothes of Mohan Lal.
xiv. P.W.14 Banshi Lal turned hostile at the trial. xv. P.W.15 Prakash Chandra was the witness regarding recovery of the silver Dhali.
xvi. P.W.16 Jagdish Chandra was examined for proving the date of birth of the prosecutrix.
xvii. P.W.17 Manohar Lal proved the recovery of certain articles of the prosecutrix from a house at Pipaliya Mandi. xviii.P.W.18 Sundar Lal was the Constable, who took the articles to FSL for examination.
xix. P.W.19 Manoj Kumar has been examined for proving the recovery of the prosecutrix.
The accused in his statement under section 313Cr,P.C took a specific plea of consent of the prosecutrix but did not choose to lead any evidence.
The appellant Mohan Lal in his statement claimed: 6/10
i. Mst.'S' was aged more than 20 years. ii. Mst.'S' left her house of her own free will.
iii. The ornaments had been sold by Mst.'S' herself. iv. The photograph Ex.P/34 and P/35, wherein Mst.'S' is shown with the appellant were taken with the consent of Mst.'S'.
At the conclusion of the trial, the trial Judge proceeded to hold that the prosecutrix was a girl of about 15 years of age. He also found that in the letters written by the prosecutrix to Mohan Lal, the fact regarding her being minor was mentioned and thus, the accused was well aware about the age of the prosecutrix. The trial Judge also opined that from the very build and structure of Mst.'S', it could easily be assessed that she was a girl of tender age. The learned trial Judge also came to the conclusion that the medical officer's opinion regarding the age of the prosecutrix was not challenged by cross-examination. The learned trial Judge also came to the conclusion that the prosecutrix and the accused Mohan lal were having love affairs and that the prosecutrix went with the accused of her own desire but looking to the fact that the prosecutrix was below 18 years of age on the date of the occurrence, the learned trial judge proceeded to hold the appellant guilty for the offences under Sections 363, 366 of the IPC. The appellant was given the benefit of doubt regarding the offence of rape holding Mst.'S' to be a 7/10 consenting party and was acquitted from the offence u/s 376 I.P.C. The co-accused Kaushalya was acquitted by the very same judgment.
Now the appellant Mohan Lal has approached this Court by way of the instant appeal assailing his conviction for the offences under sectios 363 and 366 I.P.C.
Learned counsel for the appellant submitted that it is a clear case of consent between Mohan Lal and the prosecutrix. He submitted that the learned trial Judge has himself given the benefit of doubt to the appellant holding that Mst.'S' was a consenting party while acquitting the appellant from the charge under Section 376 of the IPC. He submitted that admittedly the appellant did not induce the prosecutrix to go from her father's guardianship and thus, the conviction of the appellant in this case was uncalled for, he, thus, prayed that the appellant deserved to be acquitted.
Learned Public Prosecutor on the other hand opposed the arguments advanced by the learned counsel for the appellant. He submitted that the appellant has not disputed the fact that he took prosecutrix with him. He contended that the prosecutrix was admittedly a girl below 16 years of age on the date of the incident and the appellant was well aware of this fact. Despite knowing this he took the prosecutrix to various places after taking her away from the lawful guardianship of her father and thereafter, she was 8/10 subjected to forcible intercourse and thus, it is clearly a case wherein the accused cannot escape the consequences of his act. He submitted that in view of the finding of the trial court that the prosecutrix was below 16 years of age, there is no escape from the conclusion that the appellant has rightly been convicted for the said offences.
Heard and considered the arguments advanced at the bar and perused the judgment impugned and the record.
The fact regarding the appellant having accompanied the prosecutrix to different places is not disputed in this case. The age of the prosecutrix was not seriously challenged by the accused at the trial. The appellant specifically took the defence of consent before the trial court and thus, the case has to be examined in a very limited sphere.
Thus, the question which falls for consideration of this Court is as to whether the prosecutrix was taken away from the lawful guardianship of her father so as to uphold the guilt of the appellant for the offences under Sections 363 and 366 of the I.P.C. It is not in dispute that the prosecutrix has been subjected to intercourse by the appellant. The date of birth of the prosecutrix being 4.10.1972 as per the school record, she was definitely below 16 years of age on the date of the occurrence. As the girl was below 16 years when subjected to intercourse, in the opinion of this Court, the 9/10 acquittal of the respondent as recorded by the trial Judge from the charge under Section 376 I.P.C. on the basis of consent was also prima-facie illegal but the same has not been subjected to the challenge by the State Government.
The evidence, which has been led at the trial clearly establishes that the prosecutrix was systematically seduced by the appellant despite knowing the fact that she was a minor. As such, the appellant is bound to face the consequences of his act.
In view of the discussion, which has been made hereinabove, this Court is of the opinion that the conviction of the appellant, which has been recorded by the learned trial Judge for the offences under Sections 363 and 366 I.P.C. canot be called in question as it is based on plausible and unimpeachable evidence.
However, coming to the question of sentence, as has been discussed above, the learned trial Judge has himself held that an affair was going on between the prosecutrix and the appellant for a substantially long period of time. It is in pursuance of the prolonged love affair that the appellant took the prosecutrix to various places and thereafter subjected her to intercourse. The incident took place way-back in the year 1987 and now more than 26 years have lapsed since then. This Court is of the opinion that the sentences awarded to the appellant deserve to be reduced.
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Accordingly, while upholding the conviction of the appellant for the offences under Sections 363 and 366 I.P.C., the sentences awarded to the appellant for both the offences are reduced one year's rigorous imprisonment each on both the counts. Both the sentences shall run concurrently.
The appeal is partly allowed accordingly. The appellant is on bail. His bail bonds are cancelled. He shall surrender to serve out the remaining sentences.
(SANDEEP MEHTA), J.
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