HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. CRIMINAL APPEAL NO. 681 / 2016
State of Rajasthan
……….Appellant
VERSUS
Naraian Lal son of Amar Chand Khatik, resident of Rud, P.S.
Rashmi, District Chittorgarh.
………….Respondent
CONNECTED MATTER
S.B. CRIMINAL APPEAL NO. 520 / 2016
State of Rajasthan
……….Appellant
VERSUS
Naraian Lal son of Amar Chand Khatik, resident of Rud, P.S.
Rashmi, District Chittorgarh.
………….Respondent
_
Counsel For Appellant(s) : Mr. O.P. Rathi, PP
Counsel For Respondent(s) : Mr. S.S. Shaktawat
__
HON’BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order
25/04/2017
These criminal appeals have been preferred on behalf of the
appellant – State being aggrieved with the judgment dated
21.4.2016 passed by the Special Judge (POCSO Act) Cases,
Chittorgarh (for short ‘the trial court’) in Sessions Case
(2 of 7)
No.155/2014, whereby the trial court while acquitting the accused
respondent for the offences punishable under Section 3/4 read
with Section 18 of the POCSO Act and in alternative Section
376(2) read with Section 511 IPC has convicted him for the
offence punishable under Section 354 IPC and sentenced him for
one year’s rigorous imprisonment and imposed a fine of
Rs.5,000/-, in default of payment of fine to further undergo one
month’s rigorous imprisonment.
The appellant – State has filed S.B. Criminal Appeal
No.681/2016 against the judgment of acquittal of the accused
respondent for the offences punishable under Section 3/4 read
with Section 18 of the POCSO Act and in alternative Section
376(2) read with Section 511 IPC and S.B. Criminal Appeal
No.520/2016 has been filed for enhancement of sentence awarded
by the trial court to the accused respondent for the offence
punishable under Section 354 IPC.
Learned Public Prosecutor has argued that the trial court has
grossly erred in not treating the complainant PW-2 as minor. It is
argued that to prove the fact that the complainant was minor on
the date of incident, the prosecution has produced transfer
certificate and school register as Exhibits P-8 and P-9 respectively
and the said documents have been verified by Madhu Malti
(PW-7), the Head Mistress of the Government Girls School, Rud. It
is argued that the trial court has further erred in acquitting the
accused respondent for the offences punishable under Section 3/4
read with Section 18 of the POCSO Act and in alternative under
Section 376(2) read with Section 511 IPC because from the
(3 of 7)
statement of the prosecutrix (PW-2) and Manju (PW-5), it is
clearly proved that the accused respondent had tried to commit
rape upon the prosecutrix. Learned Public Prosecutor has
therefore prayed that the impugned judgment passed by the trial
court acquitting the accused respondent for the offences
punishable under Section 3/4 read with Section 18 of the POCSO
Act and in alternative Section 376(2) read with Section 511 IPC be
set aside and the accused respondent be convicted and sentenced
for the aforesaid offences accordingly.
Per contra, learned counsel for the accused respondent has
argued that as the prosecution has failed to produce any cogent
and reliable evidence to prove the charges against the accused
respondent for the offences punishable under Section 3/4 read
with Section 18 of the POCSO Act and in alternative Section
376(2) read with Section 511 IPC, therefore, the trial court has
rightly acquitted the accused respondent from the aforesaid
offences.
Heard learned counsel for the parties, perused the impugned
judgment and carefully scrutinized the record.
The prosecutrix PW-2 has filed a complaint Ex.P-1 before the
SHO, Police Station Rashmi while alleging that on 8.7.2014, at
about 8.30 PM, when she was going for easing herself away from
her house, then suddenly accused respondent Narayan Lal came
there and got her fell down on the ground and after lifting her
clothes had sit upon her and tried to commit rape. It is alleged
that when she raised hue and cry, her aunt Manju (PW-5) came
there and then accused respondent ran away from the scene of
(4 of 7)
occurrence. It is further alleged that after hearing the noise,
prosecutrix father and other persons had also reached on the
spot, where she informed them about the incident. It is further
alleged that when father of the prosecutrix and other persons
approached Amar Chand, father of the accused respondent to
make complaint of the incident, then, Amar Chand tried to kill
them by sword, then, the villagers had rescued them.
On the basis of the complaint, the Police Station Rashmi has
registered an FIR No.127/2014 against the accused respondent for
the offences punishable under Section 354(Kha) IPC and started
investigation. After investigation the police has filed charge-sheet
against the accused respondent and the trial court has framed
charges against him for the offences punishable under Sections
354 IPC and Section 3/4 read with Section 18 of the POCSO Act
and in alternative Section 376(2) read with Section 511 IPC.
To prove the charges against the accused respondent, the
prosecution has produced as many as 9 prosecution witnesses and
has also got exhibited 12 documents. The statement of the
accused respondent was recorded under Section 313 Cr.P.C.,
however, no witness was produced in defence but four documents
were got exhibited.
The trial court after hearing learned counsel for the parties
and after pondering upon the evidence produced by them has
acquitted the accused respondent for the offences punishable
under Section 3/4 read with Section 18 of the POCSO Act and in
alternative Section 376(2) read with Section 511 IPC, however,
convicted him for the offence punishable under Section 354 IPC
(5 of 7)
and sentenced him as stated above.
Though, the prosecutrix (PW-2) in her statement has clearly
stated that the accused respondent caught hold of her and got her
fell down and thereafter tried to push her, but she has not alleged
that the accused respondent had tried to commit rape upon her in
her statement. Manju (PW-5) has simply stated that when she
reached at the place of incident, the accused respondent was
sitting on the prosecutrix (PW-2), but she has not stated that the
accused respondent tried to commit rape upon her.
From the above statements of the two witnesses i.e. the
prosecutrix (PW-2) and Manju (PW-5), the allegation of
attempting to commit rape upon the prosecutrix (PW-2) by the
accused respondent has not been proved.
To prove the fact that the prosecutrix (PW-2) was minor at
the time of incident, the prosecution has produced Madhu Malti
(PW-7), the Head Mistress of the Government Girls School, Rud,
who has verified the transfer certificate Ex.P-8 and the school
register Ex.P-9, wherein the date of birth of the prosecutrix (PW-
2) was mentioned as 12.8.1999.
The trial court has taken into consideration the fact that in
the FIR lodged by the prosecutrix (PW-2) and in her police
statement, she has disclosed her age as 19 years. The prosecutrix
has also specifically stated in her court statement, recorded on
27.5.2015, that her marriage was solemnized around seven years
before, though she has stated that she had not disclosed her age
as 19 years in the police complaint, but she has admitted that
Ex.P-1 was read over to her by the police.
(6 of 7)
PW-1 Jagdish, father of the prosecutrix in his statement has
admitted his signatures on the complaint Ex.P-1. In his cross
examination, he has stated that he has written the date of birth of
his daughter (PW-2) at his house, but at present he does not
remember the date of birth of his daughter.
The trial court has disbelieved the testimony of Madhu Malti
(PW-7), the Head Mistress of the Government Girls School, Rud
and has also discarded Ex.P-8 and Ex.P-9 while observing that
Ex.P-10, the admission form has not been filled in or prepared by
her. The trial court is of the opinion that there is no documentary
evidence available on record on the basis of which it can be said
that the age of the prosecutrix (PW-2) was 12.8.1999 as
mentioned in the Ex.P-8 and Ex.P-9.
This court is of the opinion that admittedly the prosecutrix
(PW-2) in her complaint Ex.P-1 has disclosed her age as 19 years,
but later on the prosecution has produced the transfer certificate
and the school register, wherein the date of birth of the
prosecutrix was mentioned as 12.8.1999, but it is to be noted that
Madhu Malti PW-7, the Head Mistress of the Government Girls
School, Rud had admitted in her statement that no documentary
proof is available on record on the basis of which it can be said
that the date of birth of the prosecutrix (PW-2) was recorded as
12.8.1999. It is also to be noted that the admission form Ex.P-10
pertaining to the prosecutrix (PW-2) was filled in by her mother,
wherein her date of birth has been mentioned as 12.8.1999, but
the mother of the prosecutrix has not been produced as a witness
by the prosecution to prove that she has mentioned the correct
(7 of 7)
date of birth of the prosecutrix (PW-2) on the admission form.
After going through the record of the case, this Court is of
the opinion that the trial court has not committed any illegality in
acquitting the accused respondent from the offences punishable
under Section 3/4 read with Section 18 of the POCSO Act and in
alternative under Section 376(2) read with Section 511 IPC
because the prosecution has failed to prove beyond reasonable
doubt that at the time of incident, the prosecutrix (PW-2) was
minor and the accused respondent had attempted to commit rape
upon her.
So far as the question of quantum of sentence is concerned,
learned Public Prosecutor has failed to convince this Court that the
sentence awarded by the trial court to the accused respondent for
the offence punishable under Section 354 IPC is inadequate.
Hence, this Court is of the view that the sentence awarded by the
trial court to the accused respondent for the offence punishable
under Section 354 IPC is adequate and no interference by this
Court is called for in it.
Resultantly, both the criminal appeals being bereft of force
are hereby dismissed.
(VIJAY BISHNOI), J.
ms rathore/52-53