In two criminal appeals by the State, the High Court dismissed appeals challenging the trial court's acquittal of the accused for POCSO offences and rejection of sentence enhancement for an IPC offence due to insufficient evidence on the victim's minor status and attempt to commit rape.
The criminal appeals filed by the State were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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
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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
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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
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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
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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 (PW2) 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.
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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
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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
2 issues framed by the court
Whether the trial court erred in acquitting the accused for offences under the POCSO Act as the prosecutrix was not proven to be a minor.
Whether the coercion force was bereft of force.
3 provisions across 2 enactments
State of Rajasthan
Naraian Lal son of Amar Chand Khatik
Vijay Bishnoi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
