HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR

S.B. Criminal Appeal No. 297 / 2017

Babu Lal S/o Shri Chanda Ram, B/c Meghwal, resident of Duthwa,

Tehsil Sanchore, District Jalore (Raj.)

[presently appellant is in central Jail, Jodhpur]

—-Appellant

Versus

State of Rajasthan

—-Respondent

Connected With

S.B. Criminal Appeal No. 298 / 2017

State of Rajasthan

—-Appellant

Versus

Babu Lal S/o Shri Chanda Ram, B/c Meghwal, resident of Duthwa,
Tehsil Sanchore, District Jalore (Raj.)

—-Respondent

__

For Appellant(s) : Mr. Rohitash Singh

For Respondent(s) : Mr. SK Vyas, AAG
__

HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

Judgment
16/09/2017

S.B. Cr. Appeal No.297/2017 has been filed by the accused
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appellant Babu Lal against the judgment dated 21.10.2016

whereby the accused appellant was convicted for offence under

Section 363, 366, 376 and 376(N) of the IPC read with Section

3/4 of the POCSO Act and following sentence was imposed against

him, which reads as under :

Under Section 363 IPC Three years simple imprisonment
with fine of Rs.500 and in default
of payment of fine to further
undergo one month SI

Under Section 366 IPC Five years simple imprisonment
with the fine of Rs.1,000/- and in
default of payment of fine to
further undergo two months SI

Under Section 376 IPC Seven years imprisonment with
fine of Rs.2,000/- and in default
of payment of fine to further
undergo three months SI

Under Section 376(N) IPC Seven years imprisonment with
fine of Rs.2,000/- and in default
of payment of fine to further
undergo three months SI.

Under Section 3/4 of the
POCSO Act Seven years imprisonment with
fine of Rs.2,000/- and in default
of payment of fine to further
undergo three months SI.

The State of Rajasthan preferred SB Cr. Appeal No.298/2017

for enhancement of sentence awarded by the learned trial court.

Both the appeals are arising out from the judgment dated

21.10.2016 passed in Sessions Case No.20/2015, therefore, this

court is deciding both the appeals by this common judgment.

As per facts of the case, PW–1 Bhoma Ram submitted a

written report at Police Station Chitalwana on 14.1.2015 at 5.15
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pm in which following allegations were levelled by him against

the accused appellant, which reads as under: –

“lo
s k eas
Jheku Fkkukf/kdkjh th]
iqfyl Fkkuk fpryokuk

fo’k; % ukckfyx yM+dh dks cgyQqlyk dj “kknh dh fu;r ls
Hkxkdj ys tkus ckcrA
egkns ;th]
q izkFkhZ Hkkes kjke S/o ekykjke dkSe tkV fuoklh gqBok
fuons u e
dh bl izdkj gS fd eSa rFkk ejs k HkkbZ foj/kkjke nkus kas gekjs lkeykrh [krs
ljgn nqBok eas cuh viuh jgoklh; k.kh ij jgrs gSA fnukd a
07@01@2015 dh lqcg djhc 7-30 cts ejs s NkVs s HkkbZ foj/kkjke dh
yMd + h ukth D/o foj/kkjke mez 16 o’kZ viuh eka neh nos h W/o
foj/kkjke dks ;g dgdj pyh dh eaS Hkhueky flykbZ e”khu yus s tk jgh
gAaw fnukd
a 9-1-2015 dks lqcg djhc 8-15 ehuV ij nBw ok fuoklh ckcq
S/o pUnkjke dkSe e?s koky fuoklh nBq ok us ekcs kbZy u-a 9799085723 ls
lp
w uk nh fd ge Hkhueky ls jokuk gkd s j vk jgs gSA nkis gj dfjc 315
cts ejs s HkkbZ dh iqjh ukt
s h us ek-s u-a 9783859752 ls viuh eka dks lp w uk
nh fd geas cl ugha feyhA rc ls nkus kas dk ekcs kbZy cna gAS rFkk ejs s HkkbZ
dh yMd + h ukts h vkt rd ?kj ugha ykSVh gAS eqs ijw k vna “s kk gS fd
eqfYte ckcq S/o pUnkjke dkSe e?s koky fuoklh nBw ok ejs h Hkfrth dks
cgyk Qqlykdj “kknh dh fu;r ls Hkxkdj ys x;k gSA gekjs Lrj ij
[ kkt
s fcu dh exj dgha Hkh vrk irk ugha pyk gSA yMd + h u kt
s h ds pqUnMh+
o ?kk?kjk iguk gSA ekFks ij Vhdk dkuks eas lkus s ds yqxa o eqjdh iSjks eas
dMh+ o rkMs h+ iguh gAS ukts h vius lkFk vk/kkj dkMZ] T.C. lkFk ys xbZ
gSA vk/kkj dkMZ dh QkVs ks izfr fjikVs Z ds lkFk eas i”s k dj jgk gAaw fjikVs Z
i”s k gSA dk;Zokgh djkoAs
izkFkhZ
v-fu- Hkkes kjke”

Upon aforesaid complaint, FIR no.4 dated 14.1.2015 was

registered at Police Station Chitalwana and investigation was

commenced. In the investigation, the accused Babu Lal was
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arrested vide Ex.P/2 on 26.1.2015 and cloths of the accused

appellant and prosecutrix were taken in possession for

investigation vide Ex.P/3 and Ex.P/4. The gold and silver

ornaments were recovered upon information of the accused

appellant Babu Lal vide Ex.P/7. The prosecutrix who was 16 ½

years old was recovered and handed to the mother Smt. Damo

Devi vide Ex.P/8. The statement of prosecutrix were recorded

under Section 164 Cr.P.C. (Ex.P/9) on 30.1.2015 in which

allegation for committing rape were levelled by her against the

accused appellant Babu Lal. The prosecutrix was medically

examined and report Ex.P/9 was given by the medical officer of

Primary Health Center, Sanchore on 26.1.2015 in which it is

reported that sexual intercourse was committed with her. The

accused appellant Babu Lal was also medically examined and

report Ex.P/10 was obtained in the investigation. The age

certificates (Ex.P/11, P/12, P/13) of prosecutrix were obtained

from the school where she was pursing her study and as per those

certificates of government school her date of birth was found to be

18.4.1998. All the recovered articles including cloths, vaginal

serum slides, Salwar, Kurta, underwear, saliva etc were sent for

medical examination in which positive report was given by the

FSL. After recording statements of all the witnesses including

prosecutrix, charge-sheet was filed against the accused appellant

and, thereafter, the learned Sessions Judge, Jalore commenced

the trial.

After hearing arguments, the charges were framed against
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the accused appellant for the offences under Sections 363, 366,

376, 376(N), 344, 379 IPC and under Section 3/4 of the POCSO

Act and trial was commenced.

During trial, statements of 10 prosecution witnesses were

recorded including statement of prosecutrix, after recording

statements of prosecution witnesses, statement of accused

appellant under Section 313 Cr.P.C. were recorded wherein

accused Babu Lal denied all the allegations levelled by the

prosecution witnesses against him and said that it is a false

implication. In defence, three witnesses DW-1 Sohan Lal, DW-2

Versi Ram and DW-3 Umar Khan were produced before the court.

After recording evidence of both the sides, final arguments

were heard and the accused appellant was convicted for aforesaid

offense vide judgment dated 21.10.2016 in Sessions Case

No.20/2015 and sentence mentioned above was passed aganst

the accused appellant Babu Lal.

In Cr. Appeal No.297/2017, the appellant Babulal is

challenging the aforesaid judgment. The learned counsel for the

appellant vehemently argued that trial court has committed grave

error to convict the accused appellant for the alleged offence of

rape on the ground that the prosecutrix was less than 18 yearrs

of age, therefore, even if there was consent, the case falls under

the definition of rape, but the learned trial court has failed to

appreciate the fact that prosecution has failed to lead any

evidence to prove the age of prosecutrix less than 18 years of

age, therefore, the finding of guilt recorded by the learned trial
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court deserves to be quashed.

Learned counsel for the appellant further submit that trial

court has relied upon the certificates (Ex.P/12) issued by the PW–

17 Peera Ram, but the said document has no legal sanctity in the

eye of law. Similarly, there is no signature upon the another

certificate (Ex.P/13), as such, both these documents cannot be

treated genuine or acceptable document so as to determine the

age of prosecutrix. As per the statement of prosecutrix there is

dispute in between the family members of the her family and

family members of the appellant and prosecutrix admitted that a

phone call was made to her mother on mobile that she is at the

home of her material-uncle and this fact was disclosed by the

complainant in his report, therefore, there is no case of

prosecution that accused appellant forcibly abducted the

prosecutrix. Therefore, it is obvious that allegation of prosecution

against the accused appellant for committing rape is totally false.

The learned counsel for the appellant submits that all the

independent witnesses of defence stated in their statement that

age of prosecutrix is about 21 years and said that accused

appellant has been implicated falsely in this case due to dispute of

way in between the parties, therefore, the finding of conviction

recorded against the accused appellant is totally false because as

per evidence on record prosecutrix was major, therefore the

learned trial court though gave finding that it is a case of consent,

but looking to the age of prosecutrix recorded finding that she is

minor and held accused appellant guilty, but the said finding is
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perverse and not in accordance with law.

Learned counsel for the appellant submits that there are

major contradictions in the statements of the prosecutrix, so also,

as per evidence on record prosecutrix was married woman and

this fact is accepted by the witnesses of the prosecution, so also,

prosecutrix herself in her cross-examination, therefore, finding of

conviction recorded by the learned trial court so as to convict the

accused appellant for the alleged crime of rape deserves to be

quashed and accused appellant is entitled to be acuiqtted from the

charges because it is a case of consent and finding recorded by

the learned trial court with regard to age of prosecutrix is ot

based upon evidence on record.

Per contra, learned Public Prosecutor submits that the

certificates of age obtained from the government school submitted

by the prosecution in support of date of birth of 18.4.1998 are

genuine documents, the learned trial court rightly accepted those

documents so as to accept the fact that prosecutrix was minor on

the date of incident. It is true that in para no.24 of the judgment,

the learned trial court observed that there is ample evidence to

prove the fact that as per medical evidence the accused appellant

performed intercourse with the prosecutrix, who was minor

therefore, even if it is presumed that there was consent then also

accused appellant is guilty for the offence of rape because consent

of prosecutrix is totally irrelevant.

According to learned Public Prosecutor PW–6 Dr. Bhupendra

Bishnoi gave the medical report (Ex.P/9) after examining the
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prosecutrix and reported that no injuries were found upon her

body, therefore, although it can be said that intercourse was

performed with the consent by the prosecutrix but there is ample

evidence on record to prove that prosecutrix was less than 18

years of age, therefore, consent is irrelevant. The learned trial

court has relied upon the testimony of prosecutrix so also,

documentary evidence to accept the age so also, convict the

accused appellant for alleged offence of rape, therefore, the

appeal filed by the accused appellant being SB Cr. Appeal

No.297/2017 may be rejected and the appeal filed by the State of

Rajasthan being SB Cr. Appeal No.298/2017 for enhancement of

sentence may kindly be allowed.

After hearing learned counsel for the parties, first of all, I

have perused the FIR Ex.P/1 in which there is no allegation that

prosecutrix was forcibly taken away by the accused appellant, but

is a fact is disclosed by the complainant that daughter of my

younger brother is 16 years of age and she left the house on

7.1.2016 while informing her mother Damo Devi that she is going

to take sewing machine and, thereafter on 9.1.2015 at about 8.15

am informed that we are coming from Bheenmal and again in the

noon at 3.15 pm informed to her mother that bus is not available

therefore did not come back to the home. There is no allegation

against the accused appellant that he has forcibly took away

prosecutrix with him. The only allegation is that accused appellant

took prosecutrix for solemnizing marriage with her.

The learned counsel for the appellant argued that there is no
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dispute with regard to the fact that prosecutrix went with the

accused appellant as per her desire and there is finding in the

impugned judgment that it is a case of consent, but conviction is

based upon the fact that prosecutrix was minor and consent of

minor is not relevant so as to hold accused appellant guilty for

offence of rape.

To ascertain the correctness of the finding of learned trial

court with regard to the age, I have perused the educational

certificates (Ex.P/11, P/12 and P/13). All these certificates are

issued by the Principal of Government Sanskrit School, Arwa,

Jalore. The witness PW–7 Peera Ram, Principal of Government

Sanskrit School, Arwa, Jalore gave following statements in support

of certificates, which reads as under:

**eSa fnukda 12-01-2015 dks jktdh; lLa d`r izkFkfed ckfydk fo
vj.kk; eas iz/kkuk/;kid inLFkkfir FkkA ml jkt s iqfyl Fkkuk fpryokuk
ds vf/kdkjh }kjk gekjs fo eas iow Z esa v/;;ujr jgh Nkk dqekjh
u kts h iq foj/kkjke fuoklh nw ok ds tUefrfFk lca /a kh vfHky[s k ekaxus ij
eSua s fo eas miyC/k vfHky[s k ls vfHky[s k dks v/;;u Nkk ukt s h dk
tUefrfFk izek.k i rS;kj dj iqfyl dks lqiqnZ fd;k Fkk tks izn”kZ ih11
gS] tks ejs h dyeh gS] ftl ij , ls ch e; eqnzk ejs s gLrk{kj gSA fo

vfHky[s k ds vuqlkj Nkk ukt s h dh tUe frfFk 18-04-1998 gAS rkckn
fnukd a 03-02-2015 dks Hkh iqfyl Fkkuk fpryokuk ds vf/kdkjh ds fuons u
ij ejs s }kjk blh Nkk dk tUefrfFk izek.k i izn”kZ ih12 Hkh tkjh
fd;k Fkk tks ejs k dyeh gS ftl ij Hkh , ls ch e; eqnzk ejs s gLrk{kj gSA
mDr nkus kas izek.k ikas es lh ls Mh Hkkx eas ukt
s h dh tUefrfFk dk vd a u
gSA izn”kZ ih13 Nkk dh ey w Vh lh dh QkVs ks izfr gS tks ejs s }kjk iqfyl
dks miyC/k djok;h x;h Fkh**a
In my opinion, there is no strength in the argument of

learned counsel for the appellant that prosecution has failed to
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prove these documents regarding age because there is no dispute

with regard to the fact that PW–7 Peera Ram is head master of

the Government Sanskrit School, Arwa and certificates bears his

signatures in which date of birth of prosecutrix is 18.4.1998.

Admittedly, the incident took place on 14.1.2015 and on that

date, the prosecutrix was less than 18 years of age, therefore, I

am not inclined to accept the arguments of learned counsel for the

appellant that prosecution has failed to prove certificates

(Ex.P/11, P/12 and P/13) in which date of birth of the prosecutrix

was shown as 18.4.1998.

To ascertain the fact whether it is a case of consent, I have

perused the statements of prosecutrix in which it is nowhere said

by her that accused appellant forcibly taken her for the purpose of

solemnizing the marriage, more so, it is stated by her that she

lived with him for 15 days in a rented room where accused

appellant committed intercourse with her for 15 days.

In view of the fact that prosecutrix lived with the accused

appellant for 15 days in the rented house it cannot be presumed

that intercourse was committed with her against her will. It is

nowhere stated by the prosecutrix that she was confined illegally

in the rented house, therefore, obviously, it is a case in which

physical relations were made by the accused appellant with the

consent of the prosecutrix as per her willingness. We have also

considered the arguments of the learned counsel for the appellant

with regard to false implication due to some land dispute but in

our opinion there is no evidence on record to prove the fact that
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there was any dispute in between the accused appellant and

family members of the prosecutrix. The accused appellant

produced 3 defence witnesses so as to prove the age of the

prosecutrix to be 21 years but in our opinion, such oral evidence

of defence witnesses cannot be accepted so as to determine the

age of prosecutrix as 21 years because the statement of father

and mother and educational documents loudly speaks that

prosecutrix was less than 18 years of age and it is the best

evidence so as to accept the age of prosecutrix.

In view of the above facts, we are of the opinion that none of

the arguments advanced by the learned counsel for the appellant

inspire confidence so as to acquit the accused appellant from the

alleged offence of commission of rape with the prosecutrix.

However, I am of the opinion that sentence of 7 and 5 years as

imposed by the learned trial court respectively for offences under

Section 366, 376, 376(N) IPC and under Section 3/4 of the

POCSO Act deserves to be reduced to three years because as per

the evidence on record, prosecutrix lived with the accused

appellant as per her own will without raising any objection.

Consequently, SB Cr. Appeal No.297/2017 is hereby partly

allowed and while maintaining the conviction and sentence for the

offence under Section 366 IPC as imposed by the learned Sessions

Judge, Jalore in Cr. Sessions Case No.20/2015 against the

accused appellant Babu Lal, the sentence of 7 and 5 years

respectively for the offences under Sections 366, 376, 376(N) IPC

and under Section 3/4 of the POCSO Act, is hereby reduced from
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7 and 5 years respectively to three years with default stipulation.

Since the S.B. Cr. Appeal No.297/2017 is disposed of,

therefore, the S.B. Cr. Appeal No.298/2017 filed by the State of

Rajasthan for enhancement of sentence is hereby dismissed.

(GOPAL KRISHAN VYAS)J.

cpgoyal/ps