Rajasthan High Court - Jaipur
Basti Ram vs Naveen Yadav And Anr on 6 September, 2011
In The High Court Of Judicature For Rajasthan Bench At Jaipur SB Criminal Revision Petition No.804/2011 Bastiram Vs. Naveen Yadav & another Date of order 6.9.2011 HON'BLE DR. MEENA V. GOMBER, J. Ms. Shabina Bano for Mr. V.S. Gurjar, for the petitioner (complainant) Mr. Mahendra Meena, for State This Criminal Revision Petition has been filed by the petitioner (complainant) against the order dated 1.9.2009 passed by Additional Sessions Judge (Fast Track) No.1, Ajmer in Sessions Case No.43/2008, whereby accused non petitioner no.1 Naveen Yadav son of Ratan Singh Yadav, has been acquitted of offence under Sections 376, 386, 366 and 363 IPC. Brief facts of the case are that the petitioner Bastiram had lodged a written report on 26.3.2008 at Police Station Alwar Gate, Ajmer, with the facts that his daughter Mst. Varsha, aged 17 years & 5 months, had been enticed and abducted by their neighbour Naveen Kumar son of Ratan Singh, in the night of 23.3.2008 at about 1.00 a.m. Failing in the searches made for her by the complainant, this report was lodged with the police giving details of Ku. Varsha, wherein it was also averred that on checking, the petitioner found that some cash (Rs.87,000/-) as also some gold ornaments belonging to his wife, were found missing. On this report, FIR No.83/2008 was registered and during investigation, after recovering Varsha, the police got her statements recorded and medical examination conducted and filed charge-sheet against the accused Naveen Kumar for offences under Sections 376, 386, 366, 363 and 120B IPC before the Court of Judicial Magistrate No.6, Ajmer. Since the aforesaid Sections of the Indian Penal Code were triable by Sessions Judge, the case was committed to the Court of Sessions, which eventually came to be transferred to the court of Additional Sessions Judge (Fast Track) No.1, Ajmer. Charges framed for offences under Sections 376, 386, 366 and 363 IPC were denied by the non petitioner. The prosecution examined 11 witnesses and exhibited 25 documents to prove its case. Statements of the accused were recorded under Section 313 CrPC, wherein he alleged false implication and stated that he did not commit any offence and that Varsha was major, as her actual date of birth was 15.7.1990 and that the police has written her incorrect date of birth. Further that he did not entice or abduct Varsha, or committed any offence as she left her home and stayed with him of her sweet will. In his defence he examined DW.1 Mahaveer and besides exhibiting 50 documents, he also exhibited a diary as article - 1. Learned Additional Sessions Judge, framed an issue to the effect whether Varsha was abducted by accused Naveen Kumar from the lawful guardianship of her parents with an intent to commit rape or solemnize marriage with her or had abducted to exert pressure on her for the purpose and committed rape without her consent and obtained Rs.20,000/-, a gold chain & a ring from her on threatening to otherwise kill her brother. On the basis of material placed before it and after hearing both the parties, the learned trial court found that the prosecution had failed to prove the charges levelled against the accused, and as such the accused Naveen Kumar was acquitted of the charges levelled. Learned counsel for the revisionist vehemently argued that the learned Sessions Judge has committed manifest error in holding that Ku. Varsha was major and had left her home with cash and jewelery of her own will. According to him, Ku. Varsha had specifically stated in her statements that respondent no.1 had extended threats with dire consequences to her to bring cash and jewelery as per his demand, else her brother would be eliminated. Further that when Dr. Sumer Singh opined the age of victim as more than 15 years and less than 18 years, in such a circumstance the learned Sessions Judge committed an error in holding her as major. According to him, despite there being sufficient prosecution evidence to hold respondent no.1 guilty, learned Sessions Judge, ignoring the material available on record, arrived at a finding of acquittal.
I have perused the record of trial court carefully and I do not find any manifest error or perversity in the impugned judgment. Learned trial judge has held that no reliance could be placed on the statements of prosecutrix as she was not truthful in making her statements. It was also observed by learned Sessions Judge that she had taken shifting stands at different stages of investigation as also during trial. Her supplementary statements are at variance with her original statement. Her conduct also shows that she was a consenting party and had married respondent no.1 on her own will and volition.
Learned Sessions Judge concluded that so far as the charge under Section 386 IPC is concerned, there has not been any evidence to prove the fact of extorting cash and jewelery from the prosecutrix under threat to eliminate her brother, because in Exhibit P.17 - FIR itself, the petitioner came out with the case that her daughter Varsha has taken away Rs.87,000/-, gold & silver jewelery of his wife. There is no mention of respondent no.1 extorting or demanding cash and jewelery by threatening her. Further the prosecutrix and respondent no.1 have lived together in one room and the recovery of gold chain and ring from the room shared by Varsha and him, cannot alone be said to be sufficient to prove the guilt against respondent no.1 for offence under Section 386 IPC. Similarly, learned Sessions Judge observed that Exhibit P.6 recovery memo of purse and Rs.3950/-, clearly shows that the cash and purse was of Varsha, therefore, it could not be said that respondent no.1 extorted the cash or purse. Learned Sessions Judge also appreciated that in her statement before the court, Varsha had stated that on 23.3.2008, respondent Naveen telephoned her and asked for money and also threatened her that if she did not accede to his demand and not to disclose to anyone, else her brother would be eliminated when he goes to take his exam on 25.3.2008. She admitted taking out cash and jewelery from her mother's box. In her statements recorded under Section 164 CrPC (Exhibit P.4) also she stated this fact, however, in Exhibit D.50, her version was that she took the jewelery and Rs.20,000/- from her father's box a month before the date she left. However, she could not tell as to on which telephone no. she received call from Naveen and no call details had been collected during investigation, whereas respondent no.1, had denied making any call to the prosecutrix. Learned trial court has rightly observed that there is variance between her statements given to the police, to the Magistrate and before the trial court and that she is not a truthful witness.
So far as the charges under Sections 366 and 376 IPC, levelled against respondent no.1 are concerned, they also cannot be said to be roved because it is amply clear from record that the prosecutrix and respondent where having love affair and according to the medical opinion, she was of the age of maturity. Moreover, her changing versions at different stages make her statements doubtful. Learned Sessions Judge has rightly observed, after appreciating the material on record, which shows that she left her home at midnight with cash and jewelery, after complete planning with the respondent, and accompanied him and his friend on a motorcycle, and has married him, travelled at different places with him, lived in rented house with him as his wife, but despite there being enough opportunities, never complained to anyone, may be neighbours, landlord or co-passengers, while travelling with him in the buses from one place to another. Her statements show that in order to look for a job, respondent used to leave home in the morning and return by evening, but in his absence, despite having opportunity, she did not try to escape. This conduct of her, amply proved that she was a consenting party to the acts, and she can, by no stretch of imagination, be said to have been threatened or abducted or raped.
In my view, since prosecution miserably failed to prove the guilt of the accused, learned trial court had no other option but to acquit him. View taken by the learned trial court is a possible view on the evidence led before it. In Chandrappa & others v. State of Karnataka, JT 2007 (3) SC 316, Supreme Court held that in a case of acquittal, there is double presumption in favour of accused. Firstly, presumption of innocence available to him under fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless proved to be guilty by competent court of law. Secondly, accused having secured acquittal, presumption of innocence certainly not weakened but re-affirmed and strengthened by trial court. If two views are possible, the view benefiting the accused should be accepted.
In the facts of this case, view taken by the trial court is a possible view and cannot be interfered with. Prosecution failed to prove the charges levelled against respondent no.1 beyond reasonable doubt.
Accordingly, I do not find any illegality, manifest error or perversity in the impugned judgment. Consequently, this revision petition is dismissed.
(Dr. Meena V. Gomber) J.
db [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS