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IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
Kanwaljit Singh Ahluwalia, Banwari Lal Sharma, JJ.
Guman Nath - Appellant
Vs.
State of Rajasthan - Respondent
D.B. Criminal (Jail) Appeal No. 599 of 2017
Decided On : 12-04-2019
ACQUITTAL - POCSO ACT, 2012 - SECTION 3/4, 29 - IPC - SECTION 363, 366, 346 - AGE OF PROSECUTRIX - CONSENSUAL SEXUAL RELATIONSHIP - BENEFIT OF DOUBT - ACQUITTAL OF ACCUSED.
Fact of the Case:
The appellant was convicted by the trial court for offences under Sections 363, 366, 346 IPC and Sections 3/4 and 29 of the POCSO Act. The appellant enticed away the prosecutrix, who was less than 18 years of age, from the lawful guardianship of her parents with an intention to perform sexual intercourse. The appellant also performed sexual intercourse with the prosecutrix.
Finding of the Court:
The court found that the prosecution failed to discharge its onus to prove the age of the prosecutrix to the hilt. By extending the benefit of doubt, the court held that the prosecutrix was hovering around the age of 18 years and it could not be ruled out that on the day she left the house, she was more than 18 years of age. The court also found that the prosecutrix eloped with the accused and that it was a case of consensual sexual relationship.
Issues: 1. Whether the prosecution has proved the age of the prosecutrix to be less than 18 years? 2. Whether the prosecutrix eloped with the accused or was enticed away by him? 3. Whether the sexual relationship between the appellant and the prosecutrix was consensual?
Ratio Decidendi: 1. The court held that the prosecution failed to produce the school register of the school which the prosecutrix first attended and the Transfer Certificate issued by that school. The court also found that the school register maintained by the Headmaster of the school where the prosecutrix was admitted was not maintained as per the provisions of Section 35 of the Indian Evidence Act. 2. The court held that the prosecutrix eloped with the accused as she stayed for a long period with him, travelled with him in public, and had not made any complaint against him. 3. The court held that the sexual relationship between the appellant and the prosecutrix was consensual as the prosecutrix had an opportunity to complain against the conduct of the accused but she had not complained to anybody.
Final Decision: The court acquitted the appellant of all charges.
Kanwaljit Singh Ahluwalia, J.
1. 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.
2. 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 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.
3. 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.
4. The trial Judge ordered that the sentences awarded upon the appellant on various counts shall run concurrently.
5. Aggrieved against his conviction and sentence, the appellant has filed the present appeal through Jail. During the pendency of the appeal, Ms. Rajesh Kandwal filed her Vakalatnama on behalf of the appellant.
6. Today when the case was taken up for hearing, learned counsel for the appellant is not present.
7. Ms. Alka Bhatnagar, learned Public Prosecutor has read the entire evidence.
8. Having gone through the record and the evidence, we proceed to decide the present appeal.
9. 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.
10. 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 father and instead the prosecutrix named the present appellant Guman Nath as accused.
11. 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).
12. From the perusal of the evidence, we are convinced that in the present case,
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