HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
S.B. Criminal Leave To Appeal No. 134 / 2017
State Of Rajasthan
Mukesh Kumar S/o Ganpatram, B/c Meghwal, R/o Kumawas, P.S.
Navalgarh, District Jhunjhunu (Raj.)
For Appellant(s) : Mr. N.S. Dhakad, PP
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment / Order
Heard learned Public Prosecutor and perused the judgment
impugned dated 03.10.2016, whereby the learned trial Court has
convicted the accused-respondent for the offence punishable
under Section 457 IPC and Section 7 of Protection of Children
from Sexual Offences Act, 2012 (‘POCSO Act’) while acquitting the
accused for the offence under Section 354 IPC.
This leave to appeal has been preferred by the State
challenging the acquittal of the accused for the offence under
Section 354 IPC.
On perusal of the judgment, it is found that learned trial
Court has recorded acquittal of the accused for the offence under
Section 354 IPC only on the technical ground that taking into
consideration the provisions of Section 42 of the POCSO Act only
alternative punishment is required to be awarded.
For ready reference, provision of Section 42 of the POCSO
(2 of 2)
Act, is reproduced as below:-
“42. Alternative punishment:- Where an act or
omission constitutes an offence punishable under
this Act and also under Sections 166A, 354A, 354B,
354C, 354D, 370, 370A, 375, 376, 376A, 376C,
376D, 376E or Section 509 of the Indian Penal Code
(45 of 1860), then, notwithstanding anything
contained in any law for the time being in force, the
offender found guilty of such offence shall be liable
to punishment under this Act or under the Indian
Penal Code as provides for punishment which is
greater in degree.”
Looking to the above said legal position, it is clear that
learned trial Court has correctly acquitted the accused in technical
sense for the offence under Section 354 IPC, as he has been
convicted for the offence punishable under Section 7/8 of POCSO
Act, which is a graver offence.
In view of the above, no infirmity is found in the judgment
Hence the leave to appeal is rejected.