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State vs Naraian Lal on 25 April, 2017

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

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