Rajasthan High Court - Jaipur
Mahendra Vaishnav S/O Shri Prabhudas @ ... vs State Of Rajasthan on 2 July, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 259/2018
Mahendra Vaishnav S/o Shri Prabhudas @ Prabhu Lal Bairagi B/c
Vaishnav, R/o Kakravda, Police Station Khatoli, Distt. Kota (Raj.)
(At Present In Central Jail, Kota)
----Appellant
Versus
State Of Rajasthan, Through P.P.
----Respondent
For Appellant(s) : Mr. Jagdish Singh Chauhan For Respondent(s) : Mr. Javed Choudhary, P.P. HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Order 02/07/2019 Appellant has filed this appeal challenging his conviction and sentence as ordered by the trial Court vide judgment/order dated 10th July, 2018 with regard to commission of offence punishable under Section 377 of Indian Penal Code, 1860 and under Section 5 (m)/6 Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as 'the Act').
Prosecution story in brief is that on 3rd January, 2014 at about 6.30 p.m. victim aged about 9 years was going towards the market. When victim reached near Thakur Ji Temple, he was stopped by the appellant. Appellant took the victim to the roof of the temple and committed carnal intercourse with him.
On the basis of complaint moved by complainant Chandra Prakash, formal FIR No.2/2014 dated 3rd January, 2014 (Downloaded on 30/08/2019 at 08:56:31 PM) (2 of 5) [CRLAD-259/2018] was registered at Police Station Khatoli, District Kota, Rural under Section 377 IPC and Section 4/6 of the Act.
After completion of investigation and necessary formalities, challan was presented against the appellant. Trial Court framed charges against the appellant under Section 377 IPC and Section 5 (m)/6 of the Act. Appellant did not plead guilty and claimed trial.
In order to prove its case prosecution examined 14 witnesses. After completion of prosecution evidence, appellant when examined under Section 313 Cr.P.C. pleaded that he was innocent.
Appellant did not examine any witness in his defence. Trial Court ordered the conviction and sentence of the appellant under Section 377 IPC and Section 5 (m)/6 of the Act vide impugned judgment/order. Hence, present appeal by the appellant.
Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. Prosecution case was not corroborated by medical evidence. Hence, appellant was liable to be acquitted of the charges framed against him.
Learned State counsel has opposed the appeal and has submitted that the victim as well as other prosecution witnesses have duly supported the prosecution case during trial.
Victim had appeared in the witness-box as PW-1. He is the star witness of the prosecution. PW-1 deposed that on the date of occurrence appellant had called him to the temple and had committed carnal intercourse with him. Appellant had left him after three/four hours. He had started bleeding from his anus and his pant had got bloodstained. He came home and narrated the (Downloaded on 30/08/2019 at 08:56:31 PM) (3 of 5) [CRLAD-259/2018] incident to his neighbours. His father and mother took off his pant and inspected the same. His uncle reported the matter to the Police. Victim identified the appellant in the Court. In his cross- examination, he deposed that he had raised alarm in the temple but none had come to the spot. His mother had also not reached the spot. He admitted that his house was near the temple.
Chander Prakash PW-2 - complainant, while appearing in the witness-box has deposed as per the prosecution story. He also deposed that victim was bleeding from his anus.
Sanju Bai PW-3, mother of the victim has also supported the prosecution case and has deposed that the pant of the victim was bloodstained and he was bleeding from his anus.
Ashok PW-4 and Shyoji PW-7 have also supported the prosecution version.
Doctor, who medically examined the victim has been examined as PW-11. The said witness has proved the report Exhibit-P11. As per Exhibit-P11, there was no external injury on the person of the victim. Relevant part of Exhibit P-11 reads as under:
"External Injuries - No external injuries found (recent injury) on all over body.
- No bruise, abrasion, Laceration is on hip, around anus, in anal cannal.
Anal Examination
- No fissure - No patulous anus
- No Bruise - No funnel shape anus
- No fresh bleeding seen.
- No Laceration on anal ring and anal canal."
Thus, in the present case, although, it is a case of the victim that the appellant had committed carnal intercourse with him and had left him after three/four hours, but the said version (Downloaded on 30/08/2019 at 08:56:31 PM) (4 of 5) [CRLAD-259/2018] of the victim is not corroborated by medical evidence. In case, the story put forth by the victim was correct, the same would have been reflected/corroborated by medical evidence. Rather, as per the medical evidence, no injury was found on the person of the victim specially the effected area.
Swabs of the victim were sent for analysis to Forensic Science Laboratory. Although, report of the Forensic Science Laboratory has not been exhibited but the same is available on record and same also does not corroborate the prosecution version.
Thus, in the present case, although, victim and the other prosecution witnesses have supported the prosecution story to the effect that the appellant had committed the offence as enumerated under Section 377 IPC but their version is not corroborated by medical evidence. It is the case of the victim that he was bleeding from his anus but the said fact is not corroborated by medical evidence. As per the medical examination report, no bleeding was seen nor there was any mark of recent injury around anus or in the anal canal or on the hip of the victim. Hence, the possibility that the petitioner might have been falsely involved in this case cannot be ruled out.
Thus, in the present case, appellant is entitled to be acquitted by giving him benefit of doubt as the prosecution has failed to prove its case beyond the shadow of reasonable doubt.
Accordingly, this appeal is allowed. Impugned judgment/order passed by the trial Court dated 10 th July, 2018 is set aside. Appellant is acquitted of the charges framed against him. Appellant who is in custody be set at liberty forthwith, if not required in any other criminal case.
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(5 of 5) [CRLAD-259/2018] In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant Mahendra Vaishnav S/o Shri Prabhudas @ Prabhu Lal Bairagi is directed to furnish a personal bond in the sum of Rs.25,000/-, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.
(GOVERDHAN BARDHAR)J. (SABINA)J.
Dheeraj/29
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