Criminal appeal filed by accused challenging trial court's order exceeding a closure report under POCSO Act and IPC alleging kidnapping and false complaints. High Court upheld cognizance, dismissing appeal as devoid of merits.
Appeal dismissed; trial court's order of taking cognizance upheld.
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S.B. Criminal Appeal No. 38612023
Dhiraj Son Of Shri Balaram, Aged About 28 Years, Resident Of Nasirabad, Police Station Bakani, District Jhalawar (Raj) At Present Posted As Teacher Grade-111, At Government Upper Primary School Borband Panchayat Samiti Aklera, District Jhalawar (Raj)
----Appellant
Versus
----Respondents
For Appellant(s) : Mr. Praveen Poswal For Respondent(s) : Mr. B.L. Nasuna, Dy.GA
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Order
Date of Reserve:01/06/2023 Date of Pronouncement:02/06/2023
Instant criminal appeal is preferred by accused appellant aggrieved from order dated 31.03.2022 whereby learned Special Judge (POCSO Act Cases) No.2, Jhalwar in final closure report arising out of FIR No. 116/2021 registered at P.S. Bakani, had proceeded to take cognizance against appellant under Sections 354 IPC, 11/12 of POCSO Act and 3(2)(v) of SC/ST (POA) Act.
Learned counsel for appellant submitted that due to animosity between the parties at the instigation of brother of victim, present matter was filed by minor victim which is false and fabricated. He further submitted that the incident as reported in
[CRLAS-386120231
FIR and also in the statement":6f"victim recorded under Section 164 Cr.P.C. clearly indicated that such type of incident is not probable as in broad day light it is impossible that any individual with sexual intent committed any act of sexual harassment by following or touching the body of victim. He further submitted that on record it was proved that elder sister of victim was having affair with appellant and they were exchanging messages on mobiles. Further the brother of victim was having animosity with present appellant and due to these reasons, minor victim was instigated to ,file fabricated and false complaint against present appellant. He further submitted that police after conducting investigation had filed final closure report and learned trial court without assigning the reasons to disagree with final report had proceeded to take cognizance which is bad in eye of law.
Aforesaid contentions were opposed by learned Public Prosecutor. None present for respondent complainant despite service upon respondent complainant.
Heard learned counsel for appellant and learned Public Prosecutor. Perused the material available on record.
A perusal of record clearly indicated that after registration of FIR on 16.06.2021 regarding incident of 15.06.2021, police had investigated the matter and after investigation, filed a final closure report in form of FR. Aggrieved from FR, complainant preferred protest petition and also examined herself and other witnesses under Section 2001202 Cr.P.C. Thereafter learned trial court proceeded to take cognizance after disapproving the closure report.
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Herein, one of the reportPs3bmitted with FR indicated that present appellant had submitted certain photos and screenshots to show that appellant is having love affair with elder sister of victim. A part of chat was reproduced in memo prepared by Investigating Officer. Herein, during investigation, victim was examined under Section 164 Cr.P.C. and in her examination itself, she alleged that appellant is harassing her with bad intention. A series of incident were also mentioned in her statement recorded under Section 164 0.P.C. though there were other witnesses recorded under Section 161 Cr.P.C. to indicate that the allegations were false and the incident as reported by victim-complainant had never taken place. When matter was agitated before learned trial court, then not only victim but also other witnesses were examined including brother, sister-in-law and mother of victim so as to support the version of victim. Some of witnesses clearly indicated that there was some altercations between present appellant and brother of victim wherein mother of victim later arrived.
In view of importance of statement of victim, this court is of considered view that victim from statement before police to statement under Section 164 Cr.P.C. and thereafter under Section 200 Cr.P.C. had corroborated and narrated story, thus learned trial court had not committed any error in taking cognizance after disallowing final closure report.
The defence as raised by learned counsel for appellant is part of trial which is not to be considered as the victim was not confronted with any material to establish that victim had filed this complaint on instigation of any of member of her family. Therefore, learned trial court had not committed any error in
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proceeding for taking cognizante:'Hence, "I "8 this appeal is devoid of
merits and same is liable to be dismissed.
Accordingly, present criminal appeal is dismissed.
Misc. application, if any, stands disposed of.
(ASHOK KUMAR JAlN),J
PREETI VALECHA 1157
2 issues framed by the court
Whether proceedings based on a false closure report regarding sexual harassment under POCSO Act and IPC can be dismissed as having no merits.
Whether the trial court erred in taking cognizance by ignoring the victim's consistent deposition recorded under Cr.P.C. sections.
3 provisions across 3 enactments
Dhiraj Son Of Shri Balaram
State Of Rajasthan
Victim, R/o Nasirabad
Ashok Kumar Jain
As recorded by the court registry
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