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2019 Supreme(Raj) 111
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Kanwaljit Singh Ahluwalia, Banwari Lal Sharma, JJ.
Dinesh Singh – Appellant
Vs.
State of Rajasthan – Respondent
D.B. Criminal (Jail) Appeal No. 91 of 2018
Decided On : 01-05-2019
For the Appellant : Mohd. Rahil Kalam
For the Respondent: Javed Choudhary, PP
The consent of a minor is not valid in cases of sexual offenses, but if the prosecution fails to prove that the victim was a minor at the time of the incident, the consent will be considered valid.
Headnote:
ACQUITTAL - POCSO ACT - SECTION 363, 366, 344, 376(2)(F) AND (N) IPC AND SECTIONS 5(L)/(N)/6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT - CONSENTING PARTY - AGE OF PROSECUTRIX - FAILURE TO PROVE MINORITY - CONVICTION AND SENTENCE SET ASIDE.
Fact of the Case:
The appellant was convicted and sentenced for offenses related to kidnapping, abduction, sexual assault, and violation of the Protection of Children from Sexual Offences Act. The prosecutrix, who was allegedly a minor at the time of the incident, had left her home with the appellant voluntarily and stayed with him for three and a half months as his wife.
Finding of the Court:
The court found that the prosecution failed to prove beyond a reasonable doubt that the prosecutrix was a minor at the time of the incident. The court also noted that the prosecutrix had acted as a consenting party throughout her stay with the appellant.
Issues: 1. Whether the prosecution proved that the prosecutrix was a minor at the time of the incident. 2. Whether the consent of the prosecutrix was valid.
Ratio Decidendi: The court held that the prosecution failed to prove that the prosecutrix was a minor at the time of the incident. The court also held that the consent of the prosecutrix was valid since she was not a minor.
Final Decision: The court acquitted the appellant of all charges.
Kanwaljit Singh Ahluwalia, J.
1. Swayed by prohibited relationship (incest) between the prosecutrix (name withheld to protect her identity) and the accused appellant Dinesh Singh, the trial Judge convicted the appellant for the offences under Sections 363, 366, 344, 376(2)(F) and (N) IPC and Sections 5(L)/(N)/6 of Protection of Children from Sexual Offences Act and vide a separate order of even date, very harshly sentenced the appellant as under:
U/s. 363 IPC-to undergo seven years RI and to pay a fine of Rs. 10,000/-, in default of payment of fine to further undergo additional three months RI.
U/s. 366 IPC-to undergo ten years RI and to pay a fine of Rs. 10,000/-, in default of payment of fine to further undergo additional three months RI.
U/s. 344 IPC-to undergo three years RI and to pay a fine of Rs. 10,000/-, in default of payment of fine to further undergo additional three months RI.
U/s. 376(2)(F) and (N) IPC-to undergo life imprisonment and to pay a fine of Rs. 50,000/-, in default of payment of fine to further undergo additional four months RI.
U/s. 5(L)(N)/6 of POCSO Act-to undergo life imprisonment and to pay a fine of Rs. 50,000/-, in default of payment of fine to further undergo additional four months RI.
2. All the sentences were ordered to run concurrently.
3. Shankar Singh father of accused appellant and Kishan Singh father of the prosecutrix are real brothers.
4. On 11.6.2015 at 10:30 AM Kishan Singh (P.W. 8) presented typed written report (Exhibit-P/10) before Surendra Singh (P.W. 8) SHO, Police Station Taudgarh. On the basis of written report (Exhibit-P/10), a formal FIR (Exhibit-P/11) bearing No. 40/2015 was registered at Police Station Taudgarh, Ajmer for the offences under Sections 363 and 366 IPC. The typed written report (Exhibit-P/10) when translated into English, reads as under:-
"To
SHO Saheb
Police Station Taudgarh, District Ajmer
Subject: for enticing away my daughter.
Sir,
In the above noted subject, it is submitted that yesterday on 10.6.2015 at 8:00 PM, Dinesh Singh son of Shankar Singh by caste Rawat aged 20 years resident of Badi Pol, Malato Ki Ber, has enticed away my minor daughter (name withheld to protect her identity). We carried extensive search but we are not able to find their whereabouts. For enticing away my daughter, Dinesh Singh had also consent of his mother Sita Devi wife of Shankar Singh. At the moment, Sita Devi is present at her house at Badi Pol. He had taken away my daughter to solemnize marriage.
Therefore, it is requested that my daughter be searched as soon as possible and returned to me and thereafter strict action be taken against the aforesaid accused so that they do not perform such act in future. Height of my daughter is 4"3" and she is wheatish in colour, wearing Salwar Suit. She is having scar of old wound on foot.
Mobile No. of Dinesh Singh - 08128145431, 09602255017, 09586688914, 070436442410, 09924934979.
Mobile No. of Prosecutrix - 8107513436
Mobile No. of Sita Devi-9571623017
Applicant
Sd/
Kishan Singh S/o. Sujan Singh
Badi Pol, Malato Ki Ber, Taudgarh
9460823542
9001240942"
5. Dr. Deepali Meena (P.W. 4) had medico-legally examined the prosecutrix vide report Exhibit-P/5. The doctor opined that the prosecutrix was habitual to sexual intercourse.
6. Dr. Alok Shrivastava (P.W. 6) had also medico-legally examined the prosecutrix alongwith Dr. Deepali Meena (P.W. 4).
7. Dr. Lakhendra Singh (P.W. 7) had examined the accused appellant and submitted report Exhibit-P/9 and as per his opinion, there was nothing to suggest that the appellant was not capable of performing sexual intercourse.
8. In the present case, for us, material is the testimony of the prosecutrix, who appeared in the court as P.W. 1 and Rekha Kumari (P.W. 5) who was posted as Headmistress of Government Girls Upper Primary Middle School, Taudgarh, Ajmer.
9. Before we revert to the evidence regarding the age of the prosecutrix, it will be apposite here to note the testimony of the prosecutrix.
10. The prosecutrix appeared i
