Dismissed

State v. Sher Mohd.

Rajasthan HC12 Jul 2017CRLA/836/2015

Case brief

AI extract

What is this about?

State of Rajasthan challenged acquittal of respondents and sought sentence enhancement against Sher Mohd. Justice Sandeep Mehta held acquittal and conviction findings were based on proper evidence appreciation regarding elopement and age, dismissing both applications.

What did the court decide?

Application for leave to appeal (No. 269/2015) and appeal (No. 836/2015) rejected; record returned to trial court.

State Vs Sher Mohd. — Murder and Culpable Homicide | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Crml Leave To Appeal No. 269 / 2015

State of Rajasthan

----Appellant

Versus

Sher Mohd son of Samsudeen Mirasi,

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Bablu son of Nanu Master Mirasi,

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Kheroon wife of Samsudeen Mirasi, 4. Sabra wife of Saddique Mirasi R/o Kanwakhera. ----Respondents Connected With S.B. Criminal Appeal No. 836 / 2015 State of Rajasthan ----Appellant Versus Sher Mohd. Son of Samsudeen Mirasi, R/o Kanwakhera, Kachhi Basti, Bhilwara.

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----Respondent _____________________________________________________ For Appellant(s) : Mr. L.R. Upadhyaya, PP.

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For Respondent(s) : Mr. Ramesh Purohit.

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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Judgment / Order

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12/07/2017

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The respondents herein were tried by the learned Additional Sessions Judge, Women Atrocities Act Cases, Bhilwara for the offences under Sections 363, 366, 368, 376, 344 read with 120B IPC and Section 376 IPC in Sessions Case No.39/2008 which came to be decided by the judgment dated 27.03.2015. Whilst the respondents Bablu, Kheroon and Sabra were acquitted of all the charges, at the same time, the respondent Sher Mohd. was held guilty for the offence under Section 363 IPC and was sentenced to

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(2 of 4)

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[CRLLA-269/2015]

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the imprisonment already undergone by him.

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The State of Rajasthan has preferred Application

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No.269/2015 under Section 378(iii)(i) Cr.P.C. seeking leave to file an appeal against the acquittal of all the respondents and Appeal No.836/2015 under Section 377 Cr.P.C. seeking enhancement of sentence awarded to Sher Mohd. for the offence under Section

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363 IPC.

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I have heard and considered the arguments advanced by the learned Public Prosecutor and the learned counsel representing the respondents and have gone through the impugned judgment as well as the record.

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The victim Mst. ‘S’ was examined as PW-2 at the trial. She categorically stated that at the time of the incident, her age was 16 years. She was allegedly kidnapped on the night intervening 14-15^th October, 2007. The respondent Sher Mohd. and the girl were found in suspicious circumstances in the jurisdiction of the Police Station Vijaypur on 09.12.2007 whereupon, parents of the girl were called and the girl was sent alongwith them as per her desire. It is relevant to mention here that the officer of the Police Station Vijaypur made a Rojnamcha entry of these events which was proved by the defence as Ex.D/8. As per the said Rojnamcha entry, the girl and boy both stated that they had eloped from Bhilwara on 14.10.2007. The girl did not make any allegation whatsoever that she had been kidnapped or raped by the accused. The father of the girl lodged a complaint in the Court on 03.01.2008 with the allegation that his daughter was taken away

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(3 of 4)

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[CRLLA-269/2015]

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by the accused persons while she was wearing numerous ornaments, etc. The said complaint was forwarded to the police under Section 156(3) Cr.P.C. whereupon FIR No.21/2008 came to

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be registered at the Police Station Kotwali, Bhilwara and investigation commenced. Thus apparently, the girl had been discovered on 09.12.2007 but the FIR came to be lodged nearly 25 days thereafter. The trial court found that the age of the girl was above 16 years on the date of the alleged incident. She left her father’s house and eloped with the respondent Sher Mohd. of her own free will and travelled and stayed with him for almost one

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and half months without raising any protest whatsoever. The photographs (Ex.D/2) to Ex.D/7, which were exhibited by the defence, clearly portrayed that the girl posed happily with the accused Sher Mohd. An affidavit of marriage (Ex.D/1) was also executed between the accused Sher Mohd. and the prosecutrix. The prosecutrix upon being examined as PW-2 during trial, admitted that she was knowing the accused persons from about 3 years. She alleged that she was taken away by the accused persons on a motorcycle and was kept in a hut in the Jungles of Bassi for about one and half months. She escaped from the detainment of the accused and went to her uncle’s house at Mangrol. When confronted with the proceedings undertaken at the Police Station Vijaypur and her photographs, etc., the girl could not satisfactorily explaine the same.

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In this background, this Court is of the firm opinion that the finding of clean acquittal recorded by the trial Judge qua the

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(4 of 4)

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[CRLLA-269/2015]

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accused Bablu, Kheroon and Sabra and of the accused Sher Mohd. from the charge under Section 376 IPC is based upon just and proper appreciation of the evidence and judgment of acquittal does not require any interference whatsoever. The trial court rightly convicted Sher Mohd. for the offence under Section 363

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IPC as the age of the victim girl was below 18 years on the date of occurrence. In view of the fact that the relationship between the prosecutrix and the accused Sher Mohd. was consensual, the sentence of the period already undergone awarded to Sher Mohd. by the trial court for the offence under Section 363 IPC cannot be considered inadequate.

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Thus, there is no reason to admit the appeal No.836/2015 preferred by the State of Rajasthan seeking enhancement of the sentence awarded to Sher Mohd. for the offence under Section 363 IPC. Likewise, there is no justification to grant leave to the State for filing an appeal against the acquittal of the respondents from the charges as mentioned above.

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Consequently, the appeal No.836/2015 as well as the application for leave to appeal No.269/2015 are hereby rejected as being devoid of merit.

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Record be returned to the trial court.

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A copy of this order be placed in each file.

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(SANDEEP MEHTA)J.

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Tikam/24-25

State v. Sher Mohd.

Case brief

What is this about?

What did the court decide?

State v. Sher Mohd.

Case brief

What is this about?

What did the court decide?

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