Rajasthan High Court - Jaipur
State Of Rajasthan vs Om Prakash on 1 August, 2018
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 1587/2016
Om Prakash S/o Shri Ramavtar B/c Brahmin , R/o Nangal Dahar,
Police Station Udaipurwati, Distt. Jhunjhunu Raj. At Present In
Distt. Jail Jhunjhunu
----Appellant
Versus
State Of Rajasthan Through Pp
----Respondent
Connected With S.B. Criminal Leave To Appeal No. 227/2017 State Of Rajasthan Through P.p.
----Appellant Versus Om Prakash Son Of Ramavtar By Cast Brahamin , R/o Nangal Dehar, Police Station Udaspurwati, District Jhunjhunu Rajasthan.
----Respondent For Appellant(s) : Mr. P. L. Sharma in Criminal Appeal No.1587/2016 & Mr. Sudesh Saini PP.
in Criminal Leave To Appeal No.227/2017.
For State(s) : Mr. Sudesh Saini PP. in Criminal Appeal No.1587/2016.
HON'BLE MR. JUSTICE PANKAJ BHANDARI Judgment / Order 01/08/2018
1. Appellant has preferred this appeal aggrieved by order dated 18.11.2016 passed by Special Judge, POCSO Cases, Jhunjhuu, whereby Court below has convicted the appellant for offence under Section 366 of IPC and Section 6 of the POCSO Act and has acquitted the accused for offence under Section 363 and 376 of IPC and for offence under the SC/ST Act.
(2 of 5) [CRLA-1587/2016]
2. State has also preferred the Leave to Appeal seeking conviction for offence under Section 366, 376 IPC and for offence under the SC/ST Act.
3 Defects have been pointed out by the Registry in the Leave to Appeal. Defects are waived. Delay in filing Criminal Leave to Appeal is condoned.
4. In brief the facts of the case are that in written FIR, Exhibit P-7 was submitted to the Police Station Bisau on 3.11.2014 by Dhanni Devi, mother of the prosecutrix that some person has kidnapped her daughter on 31.10.2014. It was mentioned in the FIR that the prosecutrix is aged 14 years. Police on the basis of the said information recovered the girl and arrested the appellant. Statement of prosecutrix were got recorded under Section 164 Cr.P.C. Documents pertaining to her age, were obtained by the police during investigation and after due investigation, police submitted charge-sheet under Section 363, 366, 376 of IPC and under Section 4 of the POCSO Act and under the SC/ST Act.
5. Court heard the charge arguments. Appellant denied the charges and sought trial upon which as many as 14 witnesses were got examined on behalf of the prosecution and 19 documents were exhibited in defence. Five documents were accepted as Exhibit D-1 and D-5. After recording of the statement, explanation of the appellant was recorded under Section 313 of Cr.P.C. He denied the allegations and stated that he has given advance of Rs.50,000/- to father of the prosecutrix and when demand was made, a false case has been registered against him.
6. Court after hearing the arguments of the parties convicted the appellant for offence under Section 366 of IPC and under (3 of 5) [CRLA-1587/2016] Section 6 of the POCSO Act but acquitted him for offence under Section 363 and 376 of IPC and under the SC/ST Act aggrieved by which the present appeal has been preferred by the appellant and Leave to Appeal has been preferred by the State challenging the acquittal of the appellant for the offence under SC/ST Act.
7. It is contended by counsel for the prosecutrix that she went with the appellant on her own free will. Her age has not been established by the prosecution. Her time of recovery by the police is also doubtful. It is also contended that appellant was not aware that the prosecutrix was belonging to the SC/ST and no question was put to him with regard to appellant knowing that she was a member of SC/ST in the examination under Section 313 Cr.P.C.
8. It is also contended that there were no injuries marks on the person of the prosecutrix so as to establish the Commission of Offence of rape.
9. Public Prosecutor has opposed the appeal. His contention is that prosecutrix was aged 14 years 3 months on the date of alleged offence and this fact is established from the school register, Exhibit P-11 and Certificate of the member Exhibit P-10, wherein, date of birth of prosecutrix was mentioned as 1.7.2000. It is also contended that since prosecutrix was a minor, the question of consent is immaterial. Learned Public Prosecutor has also drawn attention towards the statement of the prosecutrix recorded before the Court, wherein, she has specifically alleged that the appellant called her on the pretext of taking her to the market, buying clothes and sandals for her and stated her that after taking her to the city, he would drop her back at the house by him. She has specifically mentioned that the appellant took her (4 of 5) [CRLA-1587/2016] to a school, where there was no lights and committed rape with her three or four times, during the night she has also mentioned that the appellant kept her at the school for two or three days and used to commit rape with her. In the morning also, he used to take her to the nearby hill. It is contended that in cross- examination also appellant has not succeeded to shatter the witness PW-3 Dhanni Devi, who is also stated the complainant of the case and mother of the prosecutrix has stated that she has alleged the FIR and when her daughter was recovered, she told her that appellant took her away on the pretext of taking her to the market and have been committed rape with her. It is also contended that from medical report also, it is revealed that prosecutrix was habitual of sexual intercourse. It is also contended by counsel for the State that prosecutrix was belonging to the Scheduled Caste Community, hence, the Schedule Caste and Schedule Tribes Acty attracted and since the offence is punishable with a sentence of ten years, as per Section 3(ii)(v) of the SC/ST Act. Court below should have awarded leave which to the appellant. It is contended that Court has in a cursory meaning acquitted, the accused for offence under the SC/ST Act.
10. I have considered the contentions and have gone through the record and the judgment passed by the Court below. Admittedly prosecutrix is a girl, aged 14 years 3 months, hence, the arguments that she went with the appellant on her own free will and was consenting party to the sexual intercourse cannot be accepted as the question of consent becomes immaterial looking to her age. As far as evidence is concerned, prosecutrix has clearly narrated the incident how she was kidnapped, of her being (5 of 5) [CRLA-1587/2016] taken to an isolated school and rape being committed with her by the appellant. Accused appellant has not been able to shatter the witness in the cross-examination. The fact that he had advanced Rs.50,000/- to father of prosecutrix is also not established.
11. Doctor has also stated the fact that prosecutrix was subjected to sexual intercourse, cannot be denied. In view of the same there was ample evidence before the Court below to convict the appellant for offence under Section 366 of IPC and under the POCSO Act.
12. However as far as leave to appeal against acquittal under SC/ST Act is concerned, no proof was produced before the Court belong to prove that the prosecutrix belonged to SC/ST, hence, the leave to appeal filed by the State deserves to be rejected.
13. In the result, criminal appeal filed by the appellant is dismissed and the leave to appeal preferred by the State is rejected.
14. The Suspension of Sentence Application stands disposed of.
15. A copy of this order be placed in connected file.
16. Record of the Court below be sent back forthwith.
(PANKAJ BHANDARI),J Seema/16-17 Powered by TCPDF (www.tcpdf.org)