Rajasthan High Court - Jaipur
Guman Nath vs State Of Rajasthan Through P P on 12 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal (Jail) Appeal No. 599/2017
Guman Nath son of Gopal Nath by caste Jogi, r/o Hingonia,
Police Station Sarwar, District Ajmer.
----Appellant
Versus
State Of Rajasthan Through P P
----Respondent
For Appellant(s) : None present for the appellant.
For Respondent(s) : Ms. Alka Bhatnagar PP HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA HON'BLE MR. JUSTICE BANWARI LAL SHARMA
-/Judgment/-
12/04/2019 Per: Kanwaljit Singh Ahluwalia, J (ORAL) The prosecutrix (name withheld to protect her identity) on 7.2.2014 at 2:00 / 3:00 PM, as per case of the prosecution was enticed away by the appellant Guman Nath from the lawful guardianship of her parents with an intention to perform sexual intercourse. Therefore, the appellant was charged for the offences under Sections 363 and 366 IPC.
The case of the prosecution is that the appellant wrongfully confined the prosecutrix at Jodhpur and thus, committed the offence punishable under Section 346 IPC. It is further case of the prosecution that since the appellant performed sexual intercourse with the prosecutrix who was less than 18 years of age, and a child as per the provisions of Protection of (Downloaded on 28/06/2019 at 12:20:33 AM) (2 of 9) [CRLA-599/2017] Children from Sexual Offences, he committed the offence punishable under Section 3/4 of POCSO Act. The case of the prosecution is that the appellant also committed offence punishable under Section 29 of POCSO Act.
The appellant was tried by the court of Special Judge (POCSO Act Cases) Ajmer. The said court vide impugned judgment dated 17.1.2017 convicted the appellant for the offences under Sections 363, 366, 346 IPC and Sections 3/4 and Section 29 of POCSO Act. Having convicted the appellant for the above said offences, the trial court vide a separate order of even date sentenced the appellant as under:-
U/s 363 IPC- to undergo seven years RI and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo additional four months RI.
U/s 366 IPC- to undergo seven years RI and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo additional four months RI.
U/s 346 IPC- to undergo two years RI.
U/s 3/4 and 29 of POCSO Act- to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo additional five months RI.
The trial Judge ordered that the sentences awarded upon the appellant on various counts shall run concurrently.
Aggrieved against his conviction and sentence, the appellant has filed the present appeal through Jail. During the (Downloaded on 28/06/2019 at 12:20:33 AM) (3 of 9) [CRLA-599/2017] pendency of the appeal, Ms. Rajesh Kandwal filed her Vakalatnama on behalf of the appellant.
Today when the case was taken up for hearing, learned counsel for the appellant is not present.
Ms. Alka Bhatnagar, learned Public Prosecutor has read the entire evidence.
Having gone through the record and the evidence, we proceed to decide the present appeal.
Kailash Nath (P.W.2) father of the prosecutrix presented written complaint (Exhibit-P/7) in the court of Judicial Magistrate, First Class, Sarwar, Ajmer against Samundra Nath and Om Prakash not sent for trial. In the complaint, Kailash Nath (P.W.2) stated that he alongwith his wife is staying at Jaipur, where he is doing labour work. His daughter (name withheld to protect her identity) aged 16 years was taken away by Samundra Nath and Om Prakash on 7.2.2014 at 2:00 - 3:00 PM. Kailash Nath stated that his daughter has been enticed away by Samundra Nath and Om Prakash and therefore, a case be registered against them.
Upon the complaint (Exhibit-P/7) filed by the Kailash Nath (P.W.2), order under Section 156(3) Cr.P.C. was passed and consequently, FIR No.60/2014 (Exhibit-D/1) was registered at Police Station Sarwar, Ajmer for the offences under Sections 363, 366 and 346 IPC against Samundra Nath and Om Prakash.
Subsequently, the prosecutrix was recovered and in her statement made under Section 164 Cr.P.C., she absolved Samundra Nath and Om Prakash named as accused by her (Downloaded on 28/06/2019 at 12:20:33 AM) (4 of 9) [CRLA-599/2017] father and instead the prosecutrix named the present appellant Guman Nath as accused.
The prosecution in order to secure conviction of the appellant, examined eight witnesses namely, prosecutrix (P.W.1), Kailash Nath (P.W.2), Purushottam Prasad (P.W.3), Smt. Prem (P.W.4), Mewa Nath (P.W.5), Nanu Nath (P.W.6), Ram Singh (P.W.7) and Chanchal Mishra (P.W.8).
From the perusal of the evidence, we are convinced that in the present case, the prosecutrix herself eloped with the accused as she stayed for a long period with the accused and travelled with him in public and had yet not made any complaint against him. It has come in evidence that the prosecutrix when she left the house of her parents, she was married.
The only issue before us to decide is the age of the prosecutrix. We have been called upon to determine the age of the prosecutrix on the basis of evidence led by the prosecution. Before we undertake exercise to find out whether the prosecution has succeeded to prove the age of the prosecutrix less than 18 years of age, we shall refer to the evidence of the prosecutrix.
The prosecutrix appeared in the court as P.W.1. In the court, she stated that she has passed VIII Class. She was student of Government Primary School, Hingonia. Her date of birth is 2.7.1998. She has stated that she had gone to the house of her parents-in-law. She was cutting fodder when Guman Nath came there and enticed her away on the motorcycle. Later she regained her consciousness at Jodhpur. She stated that the accused had performed bad act with her at Jodhpur and he did the same on (Downloaded on 28/06/2019 at 12:20:33 AM) (5 of 9) [CRLA-599/2017] numerous occasions. She further stated that she is not aware after how many days, she was brought by the accused to Kekari. She further stated that the accused had taken away her waistband, anklet, ear tops and three Mandaliya.
In the cross-examination, the prosecutrix stated that distance of Sarwar from Hingonia is 10 - 15 kms. She further stated that from Hingonia to Jogiya Ka Nada is at a distance of 40- 50 kms. She admitted that Kishan Lal is her elder brother but stated that he is not aged 22 years but he was 18-19 years of age at the time of occurrence. She admitted that she was admitted in the school by her father. She named Pradeep as elder brother of her husband and Varsha as wife of Pradeep. She denied that her father had dispute with accused. She further denied that she was taken away by Om Prakash and Samundra Nath. The prosecutrix further stated that she was at the house of her in-laws from where the accused enticed her away.
Kailash Nath (P.W.2) father of the prosecutrix in the court admitted that under the wrong notion, he had earlier submitted complaint against Samundra Nath and Om Prakash. This witness stated that the accused appellant had taken away her daughter.
Smt. Prem (P.W.4) is grandmother of the prosecutrix. This witness stated that the prosecutrix was staying with her. She further stated that the accused appellant enticed her away and she was recovered after one month.
(Downloaded on 28/06/2019 at 12:20:33 AM)
(6 of 9) [CRLA-599/2017] Mewa Nath (P.W.5) had attested the site plan of the spot (Exhibit-P/13). Nanu Nath (P.W.6) is witness to the recovery of motorcycle vide memo Exhibit-P/14.
Constable Ram Singh (P.W.7) had carried sealed packets to the State Forensic Science Laboratory.
Having noted the entire prosecution case, now we shall refer to the testimony of Purushottam Prasad Sharma (P.W.3) Headmaster of the Government Primary School, Hingonia, Sarwar, Ajmer, who proved the date of birth of the prosecutrix.
Purushottam Prasad Sharma (P.W.3) in the court deposed that on 4.1.1999 he was performing his duty as acting headmaster of the school and on the basis of school register, he had issued certificate Exhibit-P/10 regarding date of birth of the prosecutrix as 2.7.1998. This witness produced admission register of the school Exhibit-P/11. This witness also brought the original register of admission (Exhibit-P/12) in the court. In the court, photo-copy of the register was retained.
In cross-examination, Purushottam Prasad Sharma (P.W.3) has stated that he had not recorded the age of the prosecutrix as disclosed by her parents but on the basis of Transfer Certificate issued by the school first attended by the prosecutrix.
Having heard the learned Public Prosecutor, we are of the view that the register of the school which the prosecutrix first attended has not been produced and proved on record. Similarly, Transfer Certificate issued by the school first attended of the (Downloaded on 28/06/2019 at 12:20:33 AM) (7 of 9) [CRLA-599/2017] prosecutrix has also been withheld from the court. Witness P.W.3 has deposed that in the register he recorded age of the prosecutrix on the basis of Transfer Certificate issued by the school first attended by the prosecutrix. We have seen the school register (Exhibit-P/12). To us, school register (Exhibit-P/12) has not been maintained as per the provisions of Section 35 of Indian Evidence Act.
The investigating agency was not sure about the authenticity of the school register, therefore, ossification test of the prosecutrix was carried to determine her age. As per the medical examination (Exhibit-P/5), the age of the prosecutrix has been determined between 16 to 18 years. We shall reproduce the medical certificate Exhibit-P/5, as under:-
"GENERAL PHYSICAL & SEXUAL EXAMINATION- Average built & nourishment-
Secondary sexual characters developed. TEETH CONFIGURATION-
s 7 6 5 4 3 2 1 1 2 3 4 5 6 7 s
s 7 6 5 4 3 2 1 1 2 3 4 5 6 7 s
RADIOLOGICAL EXAMINATION
(1) X-ray Lt elbow Jt - AP & Lat view:- upper ends of radius & ulna fused.
(2) X-ray Lt wrist Jt - AP & Lat view:- Lower ends of radius & ulna not fused.
(3) X-ray pelvis - AP view :- Iliac crest present but not fused.
Note:- No. of X-ray films = Three Date 23/3/14 Plate no.245 OPINION:- On the basis of general physical, sexual, Dental & Radiological examination, I have an opinion that the age of the prosecutrix (name withheld) D/o Kailash Nath is between 16 to 18 years."
(Downloaded on 28/06/2019 at 12:20:33 AM)
(8 of 9) [CRLA-599/2017] Learned Public Prosecutor has not denied that as per judicial prudence, margin of two years is to be extended to the report of ossification test.
In the present case, the prosecution has failed to discharge its onus to prove the age of the prosecutrix to the hilt. By extending benefit of doubt, we can safely say that the prosecutrix was hovering around the age of 18 years and it cannot be ruled out that on the day when she left the house, she was more than 18 years of age.
The prosecutrix in the present case eloped with the accused and to overcome the same it was alleged that she was enticed away by the accused from the house of her in-laws. She travelled with the accused on motorcycle. The explanation given by her that she became unconscious and as to how she reached at Jodhpur, cannot be given credence, as the explanation given by the prosecutrix is improbable and unconvincing. The prosecutrix stayed with the accused for more than one month at Jodhpur and Kekari. She had an opportunity to complain against the conduct of the accused but she had not complained to anybody. It was only after she was recovered in pursuance of the complaint made by her father against Samundra Nath and Om Prakash, she has named the present accused-appellant. Therefore, from the accompanying circumstances, consent on the part of the prosecutrix is writ large.
Taking totality of circumstances, we cannot rule out that it is a case of consensual sexual relationship. (Downloaded on 28/06/2019 at 12:20:33 AM)
(9 of 9) [CRLA-599/2017] Consequently, by extending benefit of doubt, we accept the present appeal. The conviction and sentenced awarded by the trial court upon the appellant is set aside and he is acquitted of all the charges.
In view of above, we order that the appellant Guman Nath be released forthwith, if in custody and not required in any other case.
Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Guman Nath is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/-, and surety bond of the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant Guman Nath on receipt of notice thereof, shall appear before the Supreme Court.
(BANWARI LAL SHARMA),J (KANWALJIT SINGH AHLUWALIA),J Mak/-
(Downloaded on 28/06/2019 at 12:20:33 AM) Powered by TCPDF (www.tcpdf.org)