Rajasthan High Court - Jodhpur
Moga vs State Of Rajasthan on 12 April, 2022
Bench: Pushpendra Singh Bhati
(1 of 4) [CRLA-183/1995]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Appeal No. 183/1995
Moga
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. Bhagat Dadhich
For Respondent(s) : Mr. SS Rajpurohit, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
12/04/2022
In the wake of instant surge in COVID - 19 cases and spread
of its highly infectious Omicron variant, abundant caution is being
maintained, while hearing the matters in the Court, for the safety
of all concerned.
Counsel for the appellant has drawn attention of this Court to
the original FIR, in which, though the offence of rape is alleged but
enticing away prosecutrix is recorded.
Counsel for the appellant has thereafter taken this Court to
the statement of PW-1 i.e. prosecutrix, in which she has alleged
rape but again has admitted that she was enticed away by the
boy.
Counsel for the appellant submits that though there is
consensual part of it but trial court did not pay any heed to the
same because it concluded that age of prosecutrix could be below
18 years, thus, consent would become inconsequential.
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(2 of 4) [CRLA-183/1995]
Counsel for the appellant has relied upon the judgment of
Hon'ble Apex Court in the matter of State of Rajasthan Vs.
Kishanlal (Criminal Appeal No.516 of 1996) decided on
10.05.2002). Relevant para of which reads as follows:-
"25. There is yet another aspect of the matter. According to the
prosecutrix she was having sexual intercourse with the accused
when her husband came. According to her, it was her husband
who separated the accused from her. The husband of the
prosecutrix has not said so, though at one place he has stated
that his wife was weeping when the accused was having sexual
intercourse with her. It appears that the prosecutrix was offering
no resistance while she was having sexual intercourse, when
suddenly her husband entered the room. It was, therefore,
contended on behalf of the respondent that it was only when her
husband entered the room, she started raising hue and cry. It was
sought to be argued on behalf of the State that the respondent had
carried a knife with him and had threatened the prosecutrix with
the knife and, therefore, on account of fear, she could not raise an
alarm or resist the respondent. In addition he had forced a
handkerchief in her mouth. It is indeed surprising that the knife
has not been exhibited in the trial, nor does it appears to have
been seized in the course of investigation. If the respondent had
brought a knife with him, and it is the prosecution case that he
was caught hold of within the precincts of the house itself, he had
obviously no opportunity of throwing away the knife. In the
normal course the knife should have been recovered from the
house of the prosecutrix. The non-seizure of the knife raises a
serious suspicion about the truthfulness of the prosecution
version that the respondent had sexual intercourse with the
prosecutrix under threat.
26. Having regard to these features of the case, the probability of
the accused having had sexual intercourse with the prosecutrix
with her consent cannot be ruled out. The features that we have
noticed above probablise the defence of the respondent, and we
entertain serious doubt about the truthfulness of the prosecution
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(3 of 4) [CRLA-183/1995]
case that the accused had sexual intercourse with the prosecutrix
without her consent.
27. In the facts and circumstances of the case, we are of the view
that the respondent is entitled to the benefit of doubt. In the result
this appeal is disposed of with a finding that though the sentence
imposed by the High Court was illegal, having considered the
evidence on record, we are satisfied that the respondent is entitled
to the benefit of doubt. The appeal is, therefore, dismissed and the
respondent is acquitted of all the charges levelled against him.
The bail bonds of the respondent are discharged."
Counsel for the appellant submits that the parents of the
prosecutrix were not examined and no documents pertaining to
any education was brought on record.
Counsel for the appellant submits that on bare reading of the
statement and PW-6 and PW-7, who are doctors, it becomes clear
that they were not sure about the age.
Learned Public Prosecutor opposes.
This Court finds that the consensual aspect has been arrived
at by the help of record and the statement of the prosecutrix but
certainly the aspect of age was important, however, the
prosecution has failed to establish the age below 18 years as the
doctor itself is having grave doubt about the age of the prosecutrix
as during examination he found 28 teeth and third molar teeth
coming out, thus, the benefit of doubt has to be given to the
accused.
In the result the present appeal is allowed. The judgement
dated 24.03.1995 passed by learned Additional Sessions Judge,
Banswara in Sessions Case No.326/1992 convicting the accused-
appellant for the offence under Sections 366 & 376 IPC is set
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(4 of 4) [CRLA-183/1995]
aside. As sentence has already been suspended by this Court
vide order dated 28.06.1995 and the accused is on bail, thus, he
need not to surrender. His bail-bonds are discharged.
(DR.PUSHPENDRA SINGH BHATI), J.
58-nirmala/Sanjay
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