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Mahendra vs State Of Rajasthan Through Pp on 4 June, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Appeal No. 1207/2016

Mahendra S/o Ram Lal B/c Kumhar, R/o Jirod Police Station Atru
District Baran Raj. Presently In Central Jail Kota, Rajasthan

—-Appellant
Versus
State Of Rajasthan through P.P.
—-Respondent

For Appellant(s) : Mr. Pankaj Gupta.
For State : Mr. Prashant Sharma, PP.

HON’BLE MR. JUSTICE PANKAJ BHANDARI, VJ

Judgment / Order

04/06/2019

1. Special Bench has been constituted with a view to achieve

the goal set up by the Judiciary for “Speedy Justice” and “Access

to Justice” to all, for disposal of the criminal appeals, in which

convict is in jail for five or more years.

2. This Jail Appeal has been received by Judgment and Order

dated 20.09.2016 passed by Special Judge, POCSO Cases, Kota

whereby appellant has been convicted for offence under Section

363, Section366, Section376(2)(n) of IPC and Section 5 (l)/6 of the POCSO Act.

For offence under Section 363 of IPC, appellant has been

convicted for three years rigorous imprisonment and fine of

Rs.3,000/-, on non payment of fine, to further undergo one month

simple imprisonment. For offence under Section 366 of IPC, two

years rigorous imprisonment and a fine of Rs.5,000/-, on non

payment of fine, to further undergo two months simple

imprisonment and for offence under Section 376(2)(n) read with

Section 5(l)/(6) of the POCSO Act, appellant has been sentenced

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to ten years rigorous imprisonment and a fine of Rs.10,000/-, on

non payment of fine, to further undergo five months simple

imprisonment. All the sentences are to run concurrently.

3. Learned Amicus Curiae appearing on behalf of the appellant

contends that prosecution has failed to establish that the

prosecutrix is a minor. As per SectionArticle 2(a)-School Register, her

date of birth was 09.03.1997. School certificate did not relate to

the school first attended. As per Rule 12 of the Juvenile Justice

Care and Protection of Children Rules for determining the age of a

victim, the age of a child or juvenile in conflict with law, the

matriculation or equivalent certificate has to be given preference

in absence whereof date of birth certificate from the school first

attended and in absence whereof birth certificate given by a

cooperation or a municipal authority or a Panchayat and in

absence of either of the above, the opinion of the duly constituted

medical board.

4. It is contended by learned Amicus Curiae that the school

register pertains to school first attended and as to who made the

entries and the person who made the entries was also not

examined. There was no document on the basis of which date of

birth was mentioned in the register. It is also contended that the

prosecutrix was subjected to medical examination but ossification

test report has not been produced before the Court which casts

serious doubts on the investigation. It is contended that PW-9

Raunak Ali has deposed that the complainant had handed over the

transfer certificate and caste certificate but no transfer certificate

was produced before the Court. It is contended that for conviction

under the POCSO Act, it is to be established that prosecutrix was a

minor.

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5. It is also contended that FIR Ex.P-6 was lodged by the

mother of the prosecutrix on 08.09.2013 i.e. after three days of

the incident. In the FIR, it was mentioned that prosecutrix had left

the house on 05.09.2013 and had gone to the market to get her

clothes stitched. From there, she was taken away by the

appellant. It is contended that prosecutrix was recovered on

07.10.2013 i.e. after more than one month. It is argued that the

prosecutrix went on her own free will, stayed with the appellant at

different places, travelled in different public transport but never

raised any alarm or complained to anyone. Prosecutrix was a

consenting party and hence, offence under Section 376(2)(n) is

also not made out.

6. Learned Amicus Curiae has placed reliance on “SectionBablu Pasi

vs. State of Jharkhand (2008) 13 SCC 133”, wherein the Apex

Court has held that school register is relevant and admissible

under Section 35 of the Act but the entry regarding the age of a

person in a school register is not of much evidentiary value to

prove the age of the person in the absence of the material on

which the age was recorded.

7. Reliance has also been placed on “SectionAlamelu Anr. vs.

State (2011) 2 SCC 385”, wherein Apex Court has held that the

transfer certificate issued by a government school and duly signed

by the Headmaster would be admissible in evidence under Section

35 of the Evidence Act. However, the admissibility of such a

document would not be of much evidentiary value to prove the

age of a girl in the absence of the material on the basis of which

the age was recorded. The date of birth mentioned in the transfer

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certificate would have no evidentiary value unless the person, who

made the entry or who got the date of birth recorded is examined.

8. Reliance has also been placed on “Rajak Mohammad vs.

State of Himachal Pradesh (Criminal Appeal

No.1395/2015)” decided on 23.08.2018. In the case before the

Apex Court prosecutrix had remained in the company of the

accused appellant for about 12 days until she was recovered, she

had freely moved around with the accused appellant, in the course

of which movement she had come across many people at different

points of time and she did not complain of any criminal act on the

part of the accused appellant. Apex Court held that the possibility

of the prosecutrix being a consenting party cannot be ruled out.

9. Learned Public Prosecutor has opposed the appeal. His

contention is that prosecutrix was a minor who had been

subjected to repeated rape and the Court has not committed any

error for convicting the appellant for the alleged offence.

10. I have considered the contentions and have perused the

record of the case.

11. For the offence to fall under the POCSO Act, prosecutrix

ought to be a minor, to prove that the prosecutrix was a minor,

prosecution has examined PW-17 Ali Mohd., who has deposed that

prosecutrix was a student in Rajkiya Balika Madhyamik Vidyalaya

Baparwankala, District Kota. She took admission in the school on

19.07.2008 and transfer certificate was issued to her on

10.09.2013 in the school register her date of birth was mentioned

as 09.03.1997. Witness has exhibited the admission register as

SectionArticle-2(a). In cross-examination, the witness has admitted that

at the time when the prosecutrix took admission in the school, the

transfer certificate of the earlier school attended by the

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prosecutrix was not taken, her birth certificate or caste certificate

were also not taken. He categorically admitted that at the time of

admission of prosecutrix, no documents were taken by the school.

He has also stated that the date of birth mentioned in the register

was on assumption. He has also stated that he was not aware as

to who got the date of birth recorded in the register. The witness

was also not aware as to in which school, prosecutrix had earlier

studied and on what basis date of birth was mentioned.

12. As per Rule 12 of the Juvenile Justice Care and Protection of

Children Rules, in absence of Board Certificate, the date of birth

mentioned in the school first attended is to be considered for

determining the age of a child. From the statement of PW-9, it is

not revealed that Rajkiya Balika Madhyamic Vidhyalaya was the

school first attended by the prosecutrix, he has admitted that in

the register of the school the age was mentioned on the basis of

assumptions and no document with regard to the age was

produced at the time of making entries in the register. No transfer

certificate of the school earlier attended was submitted at the time

of the admission in the school.

13. It is pertinent to note that the prosecutrix was subjected to

medical examination and an ossification test was also conducted

as stated by PW-11 (Investigation Officer-Bhanwar Singh). He has

in his cross-examination admitted that for determining the age,

medical examination was got conducted. No report has been

submitted with regard to age of the prosecutrix. As per Rule 12 of

the Juvenile Justice Care and Protection of Children Rules, in

absence of the Board Certificate, date of birth mentioned in the

school register first attended is to be considered and in absence

thereof the birth certificate issued by the Government Authorities

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or all local bodies is to be considered and in absence of all the

above, a child or victim in conflict with law is to be subjected to

medical examination by a duly constituted Medical Board.

14. Admittedly, there is no Board Certificate, there is no

certificate from school first attended and there is no certificate

from local bodies. The victim child ought to have been medically

examined by a duly constituted Medical Board. PW-11 speaks of

the victim being medically examined for determining the age but

the Medical Board certificate has not been produced before the

Court, hence, prosecution has utterly failed to establish that the

victim was a minor at the time of commission of offence.

15. As to whether offence under Section 376(2)(n) has been

committed by the appellant, it is pertinent to note that the

prosecutrix left the house on her own free will on 05.09.2013. FIR

was lodged after a delay of three days. Mother of the prosecutrix

in her cross-examination has stated that she saw her daughter

leaving and she called her daughter but she walked away and

Mahendra followed her. Prosecutrix PW-1 has stated that she was

taken away by force. She has also stated that she was taken in a

bus to village Jirod, from Jirod to Sahrod then to Dolam then to

village Khuri then to Chipa Barod and then to Kota, where they

stayed for about one month. Prosecutrix did not raise any alarm or

did not complain to anyone about the criminal act of the accused.

Apex Court in SectionRajak Mohd. vs. Sate of Himachal Pradesh (Supra)

was dealing with a case where the prosecutrix remained with the

accused for twelve days without complaining to anyone. The Court

held that the possibility of the prosecutrix being a consenting

party cannot be altogether ruled out.

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16. In the present case, prosecutrix has remained with the

appellant for more than a month and has gone to different places

in public transport and has not raised any alarm or complained to

anyone, hence, the possibility of the prosecutrix being a

consenting party cannot be ruled out. Since, prosecution has

utterly failed to establish that the prosecutrix was a minor, offence

under the POCSO Act is not made out. The conviction under

POCSO Act is thus quashed. Prosecutrix has remained with the

appellant for a month without raising any alarm, hence, she was a

consenting party and offence under Section 376(2)(n) is also not

made out. Offence under Section 363 of IPC is also not made out,

as prosecutrix left the house on her own free will.

17. In view of the above, the Judgment and Order dated

20.09.2016 passed by Special Judge, POCSO Cases, Kota is

quashed and set aside and consequently, the appeal is allowed

and appellant is acquitted from the charges leveled against him.

18. Appellant be released forthwith, if not wanted in any other

case.

19. Appellant is directed to furnish personal bond in the sum of

Rs.20,000/- and a surety bond in the like amount in accordance

with Section 437-A of Cr.P.C. before the Registrar (Judicial) within

two weeks from the date of the release to the effect that in the

event of filing of Special Leave Petition against the judgment or on

grant of leave, the appellant on receipt of notice thereof, shall

appear before the Hon’ble Apex Court. The bail bond will be

effective for a period of six months.

(PANKAJ BHANDARI),VJ
CHANDAN /37

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