Judgment Hon'ble the Supreme Court in Rajveer@Raju and anr. v. State of Haryana, 2011 AIR SC 568 has mandated as follows:- “We further direct all the trial courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women. Copy of this order be sent to Registrar Generals/Registrars of all High Courts, which will circulate it to all trial courts.” Apparently, that order was passed to meet out the eventuality when a charge of lesser offence has been framed and the court in its ultimate conclusion finds the accused guilty of graver offence. On the analogy of the Apex Court's view mentioned above, an academic question arises that if a charge of rape has been framed against the accused and if argument of the accused is to the effect that at the most a charge of attempt to rape could have been made out from the record, then should the revisional court pass an order for amendment of the charge, particularly when the trial in sessions case has already been started in the concerned sessions court and four witnesses have already been examined in the court and further more when a Co-ordinate Bench of this Court had ordered that the trial of the case should be completed preferably within three months by conducting the 'In Camera' trial on day to day basis. The present criminal revisions relate to the famous case of the infamous Asharam@Ashumal and others. The trial court has framed the charges against the accused-persons as follows: (1) Asharam @ Ashumal : Sections 376(2)(f), 376(D), 370(4), 354(A), 342, 506, 509,120B IPC and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000(for short 'JJ Act, 2000'), and Section 5(f), 5(g) and 7/8 of the Protection of Children from Sexual Offences Act, 2012(for short 'POCSO Act, 2012') (2) (i) Sanchita @ Shilpi (ii) Prakash (iii) Sharad Chandra Sharat Chandra : 376(2)(f) read with Sec. 120B/109IPC 376(D), 354(A)/34 IPC, 342/34,370(4), 506/34, 509/34 read with Sec.19 and 120B IPC and Section 23 of JJ Act, 2000 and Sections 5(f) read with Section 17, 5(g) read with Sec. 17 and Section 7/8 of POCSO Act, 2012. (3) Shiva @ Savaram : 376(2)(f) read with Sec. 120B/109 IPC 376(D), 354(A)/34 IPC, 342/34, 370(4), 506/34, 509/34 read with Sec.19 and 120BIPC and Sections 5(f) read with Section 17, 5(g) read with Sec. 17 and Section 7/8 of POCSO Act, 2012. I have heard arguments of both the parties in all the three criminal revisions and I have perused the record of the case. The thrust of the accused-petitioners in their arguments is to the effect that if charges under POCSO Act, 2012 do not survive then the case from the Special Court ( Sessions Judge, Jodhpur District, Jodhpur, who is trying the cases of POCSO Act, 2012) may be transferred to the regular Sessions Court where presumption under Sections 29 and 30 of POCSO Act, 2012 will not be available against the petitioner and the accused-petitioners will be benefited accordingly. Sections 29 and 30 of the POCSO Act, 2012 read as follows:- “29. Presumption as to certain offences.-Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental stage but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation.-In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.” Other relevant sections of various Acts mentioned hereinabove may also be reproduced here for ready reference as follows:- (1) POCSO Act, 2012: 3. Explanation.-In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.” Other relevant sections of various Acts mentioned hereinabove may also be reproduced here for ready reference as follows:- (1) POCSO Act, 2012: 3. Penetrative sexual assault.-A person is said to commit “penetrative sexual assault” if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. 4. Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. 5. Aggravated penetrative sexual assault.- (a) ... ... (b) ... ... (c) ... ... (d) ... ... (e) ... ... (f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution is said to commit aggravated penetrative sexual assault. (g) whoever commits gang penetrative sexual assault on a child is said to commit aggravated penetrative sexual assault. Explanation.-When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone. (g) ..... ..... to (o) ..... ..... (g) ..... ..... to (o) ..... ..... (p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else is said to commit aggravated penetrative sexual assault. (q) ...... ..... to (t) ..... ...... 6. Punishment for aggravated penetrative sexual assault.-Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. 7. Sexual Assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 8. Punishment for sexual assault.-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. 17. Punishment for abetment.-Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence. Explanation.-An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.” 9. Explanation.-An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment.” 9. Aggravated sexual assault.-(a) Whoever, being a police officer, commits sexual assault on a child- (i) within the limits of the police station or premises where he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as a police officer; or (b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child- (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the security or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where he is known or identified as a member of the security or armed forces: or (c) whoever being a public servant commits sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or (g) whoever commits gang sexual assault on a child. Explanation.-when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoeveer commits sexual assault on a child, which- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (1) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or (k) whoever, taking advantage of a child's mental or physical disability, commits sexual assault on the child; or (l) whoever commits sexual assault on the child more than once or repeatedly; or (m) whoever commits sexual assault on a child below twelve years; or (n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or (o) whoever, being in the ownership of management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or (p) whoever, being in a position to trust or authority of a child, commits sexual assault on the child or anywhere else; or (q) whoever commits sexual assault on a child knowing the child is pregnant; or (r) whoever commits sexual assault on a child and attempts to murder the child; or (s) whoever commits sexual assault on a child in the course of communal or ascertain violance; or (t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault. 10. Punishment for aggravated sexual assault.-Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. (2) JJ Act, 2000: “23. Punishment for cruelty to juvenile or child.-Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.” (3) Indian Penal Code: “376(2)(f): Whoever being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. Explanation.-For the purposes of this sub-section,- (a) ... ... (b) ... ... (c) ... ... (d) “women's or children's institution” means an” institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children. 376D. Gang rape.-Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim. 370. 370. Trafficking of person.-(1) Whoever, for the purposes of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by-First-using threats, or Secondly.-using force, or any other form of coercion, or Thirdly.-by abduction, or Fourthly.-by practising fraud, or deception, or Fifthly.-by abuse of power, or Sixthly.-by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1.-The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.-The consent of the victim is immaterial in determination of the offence of trafficking. (2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. (4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. 354(A).-Sexual harassment and punishment for sexual harassment.-(1) A man committing any of the following acts- (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman, or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 506. Punishment for criminal intimidation —Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.— and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 509. Word, gesture or act intended to insult the modesty of a woman —whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine. 342. 342. Punishment for wrongful confinement-Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 34. Acts done by several persons in furtherance of common intention —When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 109. Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment — Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation — An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. 120B. Punishment of criminal conspiracy —(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. For appreciation of arguments, statement of the prosecutrix may be reproduced here which is as follows:- ^^eSa d{kk 12 esa lar Jh vk’kkjke ckiw xq:dqy ijkfl;k jksM+ fNUnokM+k ¼e/;izns’k½ esa i<+rh gwWA fiNyh 2&3 vxLr dks esjh ‘kke dks rch;r [kjkc gks xbZ Fkh] FkksM+s pDdj vk, vkSj esa fxj xbZA esjs gkWLVy dh yM+fd;ksa us okMZu f’kYih dks crk;k] mUgksaus eq>s vkjke djus ds fy, dgk eSa vius dejs esa lks xbZA okMZu eq>s MkDVj ds ikl ugha ys xbZA vxys fnu Hkh eq>s MkWDVj dks fn[kkus ugha ys x;sA nwljs fnu Hkh MkWDVj dks ugha fn[kk;k x;kA nwljs fnu Mk;jsDVj lj ‘kjn th us eq>s vius dejs esa cqyk;k tgkW HkO;k igys ls cSBh FkhA HkO;k ds ckjs esa vkJe esa ;g izpfyr Fkk fd mls Hkwr vkrk gSA Mk;jsDVj ds dejs esa HkO;k ds Hkwr us Hkwr dh vkokt esa eq>s crk;k fd esjs Åij Hkwr dk lk;k gSA Mk;jsDVj vkSj HkO;k us eq>s le>k;k fd lkfRod cuks lk/kuk esa eu yxk;k djksA mlds ckn eSa gkWLVy pyh x;hA ml ‘kke esjs okil isV nnZ gqvkA nwljs fnu Mk;jsDVj us eq>s HkO;k ds lkFk vuq”Bku esa cSBus dks dgk ogka gou o v[k.M jkek;.k dk ikB py jgk FkkA ml fnu ds ckn HkO;k vius ?kj esjB pyh x;hA mlds ,d fnu ckn vekoL;k Fkh vkJe esa egke`R;qat; ea= dk tki py jgk FkkA eq>s iwjh jkr lksus ugha fn;k vkSj e`R;qat; ea= dk ikB djok;kA nwljs fnu okMZu f’kYih us eq>s crk;k fd rqe ij Hkwr dk lk;k gS vkSj ;g ckr ckiw dks crk nh xbZ gSA f’kYih us 7-8-2013 dks [kqn ds eksŒ ls esjs HkkbZ lkseohj ds ua- 9415035839 ij ckr djok;h vkSj eq>ls ;g dgus ds fy, dgk fd esjh rch;r lhjh;l gS vkSj bykt djkus ds fy, eEeh ikik dks cqyk yksA eSaus ;gh dgkA fnukad 8-8-2013 dks esjs isjsaVl fNanokM+k vkJe vk x;s ij eq>ls feyus ugha fn;k cl fo|k ds eksckby ls esjs ikik ls ckr gqbZA fnukad 9-8-2013 dks lqcg 9-00&9-30 cts eSa vius isjsaVl ls feyh rc f’kYih us mUgsa crk;k fd eq> ij Hkwr dk lk;k gS vkSj ckiw us gesa cqyk;k gSA ckiw tgka gSa ogka vkidks tkuk gSA mlus ckiw ds ckjs esa irk yxkus dh dksf’k’k dh ij irk ugha yxk rc ikik us Mk;jsDVj ls irk fd;k fd ckiw 12&13 dks fnYyh jgsaxsA ml fnu yxHkx 11&11-30 cts ge vkJe fNanokM+k ls vius ?kj vthtxat ds fy, jokuk gks x,A nwljs fnu ikik us f’kok ls Qksu ij ckiw ds ckjs esa iwNkA f’kok ckiwth dk lsod gS tks ckiw ds lkFk jgrk gSA ckiw dgka gS ;g mls irk jgrk gSA esjs ikik igys Hkh mlls ckr djrs jgrs gSA eSa Hkh mls tkurh gwaA fiNys lky ebZ twu esa ge xq:dqy ls ge yM+fd;ka ckiw ls feyus gfj}kj vkJe x;s Fks rc Hkh esjh mlls ckr gqbZ FkhA f’kok us gesa crk;k fd ckiw 12&13 dks fnYyh jgsaxsA ge fnYyh vk x;sA ogka igqapdj f’kok ls ckr dh rks mlus crk;k fd ckiw rks tks/kiqj pys x;s rks ge ml fnu rks fnYyh esa esjh ekSlh cchrk ds ikl jgs vkSj 13 rkjh[k dh ‘kke dks eaMksj ,Dlizsl ls fnYyh ls jokuk gksdj 14 dh lqcg tks/kiqj vk x;sA jsyos LVs’ku ds osfVax :e esa rS;kj gq, f’kok ls ikik us ckr dh rks mlus crk;k fd ;gka e.kkbZ esa ckiwth dh dqfV;k gS] mlus gh ckiw dh dqfV;k dk irk fy[kok;kA geus vkWVks okys ls ckr dh rks dkbZ Hkh irk ugha tkuk rc ,d vkWVks okys dh f’kok ls ckr djok;h rks f’kok us mls irk le>k;kA ge mlls e.kkbZ vk;sA e.kkbZ tks/kiqj ls yxHkx 30&35 fd-eh- Fkk tkus esa 1&11@2 ?kaVk yx x;kA ge fn, irs ij igqaps] tks ,d cM+s QkWeZgkml tSlk Fkk ftlds xsV ij rkyk yxk gqvk FkkA gesa vUnj ugha tkus fn;k rc geus Qksu ij xsVdhij ls f’kok dh ckr djokbZ rc gesa vUnj vkus fn;kA vUnj cgqr cM+s ,fj;k esa [ksr Fkk ftlds chp esa ,d edku vkSj ,d lqUnj lk efUnj Vkbi cuk FkkA ckn esa irk pyk fd ;g edku ckiwth ds ,d lk/kd fd’kksj HkkbZ dk gS vkSj ;s efUnj ugha cfYd ckiw dh dqfV;k gSA tc ge ml edku ds ikl igqaps rks ckiwth edku ds cka;h vksj uhe ds isM+ ds uhps lRlax ns jgs Fks] 100&50 yksx FksA ge Hkh ogha cSB x;s ge rhuksa eSa vksj eEeh ikik FksA fQj ckiw us iwNk dgka ls vk, gks rks ikik us vius vkSj esjs ckjs esa crk;kA rc ckiw us dgk vPNk rqe Hkwr okyh yM+dh gks vkvks rqEgkjk Hkwr mrkjrk gWaA fQj ty esa ea= i<+dj gekjs Åij fNM+dk vksj fiyk;k HkhA lRlax [kre gksus ij izlkn fn;k] eq>ls esjs Ldwy vksj i<+kbZ ds ckjs esa iwNkA lRlax ds ckn lHkh HkDrksa dks Hkst fn;k vkSj gesa fd’kksj th ds ;gka :dus ds fy, dgkA edku esa uhps fd’kksj dk ifjokj jgrk gS vkSj Åij dejk vkSj ckFk:e gS] tgka gesa Bgjk;kA ml jkr yxHkx 10 cts fd’kksj us dgk fd ckiw us rqEgsa cqyk;k gS] rc ge rhuksa ckiw dh dqfV;k esa x;sA ckiw dqfV;k ds ckgj xkMZu esa Vgt jgs FksA ge Hkh muds lkFk lkFk pyus yxsA mUgksusa gesa iwjk xkMZu fn[kk;kA eq[; dqfV;k dh ykbZV cUn Fkh rks VkpZ ls fn[kk;k fd ;s esjh dqfV;k gS] ;s dejk gS ftlesa eSa jgrk gwW] jlksbZ gS Åij Hkh fn[kk;k fd Åij dejk vkSj cjkenk FkkA pyrs pyrs ckrsa Hkh dj jgs FksA iwNk fd D;k cuuk pkgrh gks] eSus dgk lh-,- rks mUgksusa dgk fd lh-,- cudj D;k djksxh lkjs vQlj gekjs pj.kksa esa vkdj ykSVrs gSa] rqe ch-,M- dj ysuk f’kf{kdk cu tkukA ikik ls dgk fd rqe ;gha :d tkvks vkSj 11 fnu rd vuq”Bku djks] eka dks ?kj Hkstus ds fy, dgk vksj eq>s dgk fd rqe vgenkckn vkJe pys tkvks ogka vuq”Bku djkukA eSaus dgk esjh i<+kbZ dk D;k gksxk rc mUgksusa dgk fd vgenkckn ls fdlh ds lkFk fNUnokM+k Hkst nsaxsA ckiw us ;s Hkh crk;k fd bl dqfV;k esa oks fdlh dks vkus ugha nsrsA muds lkFk 2 vkSj yksx jgk djrs Fks ftlesa ,d 15&17 lky dk yM+dk mudk jlksbZ;k Fkk vkSj 1 vkneh vksj FkkA mlds ckn ckiw us cgqr lkjk izlkn nsdj HkstkA ge fd’kksj th ds edku ij tgka ge :ds Fks vkdj lks x,A 15-8-2013 dks ckiw ysV vk,A jkr dks isM+ ds uhps lRlax fd;k lRlax djds yxHkx 10 cts tkusFks vkdj lks x,A 15-8-2013 dks ckiw ysV vk,A jkr dks isM+ ds uhps lRlax fd;k lRlax djds yxHkx 10 cts tkusFks vkdj lks x,A 15-8-2013 dks ckiw ysV vk,A jkr dks isM+ ds uhps lRlax fd;k lRlax djds yxHkx 10 cts tkus yxs rks dgk fd tkVksa vk tkvksA ge ckiw ds ihNs ihNs pyus yxs rc pyrs&pyrs dqfV;k vk x;sA chp esa ckrphr Hkh dj jgs FksA ge vUnj igqWps rks igys ge dqfV;k ds cM+s xsV ds vUnj okys jkLrs ij ftl ij dadj fcNs Fks nksuksa rjQ xkMZu Fkk ogka fcBk fn;k oks dqlhZ ij cSBs FksA tgka mudk ,d eafnj lk cuk gSA fQj gels ckrsa Hkh dj jgs FksA vuq”Bku o lk/kuk dh ckr le>k jgs FksA fQj gesa jlksb;s ls nw/k fHktok;k geus nw/k fi;kA jlksb;s us ekrk firk dks tkus dks dgk rks ikik pys x;s eEeh :dh jgh vkSj eq>s dqfV;k esa ihNs lhf<+;ksa ds uhps fcBk fn;kA ckiw dejs esa pys x;sA eSa ogha cSBh jghA ,d ckj eEeh eq>s ns[kus Hkh vk;h fQj eSa ckFk:e esa x;hA ckFk:e ihNs gh FkkA ckFk:e esa xhtj Hkh yxk Fkk] okW’k csflu] decksMZ] ,d fejj Fkk] ,d ckdsV o ex FkkA ckFk:e dh ykbZV eSaus gh tykbZ Fkh fLop ckMZ vUnj gh FkkA igys ckgj ds fLop ls tykbZ rks tyh ugha] blfy, vUnj ls tyk;hA eSa okil ogha cSB xbZA fQj ckiw us ihNs gh vius dejs ds xsV ls eq>s b’kkjk djds cqyk;k ykbZV can Fkh ij mUgksusa lQsn diM+s dqjrk lk] ywaxh vkSj ‘kkWy igu j[kk Fkk blfy, eq>s fn[k x;sA eSa dejs esa vUnj xbZA dejs dh ykbV cUn Fkh ij gYdh lh jks’kuh f[kM+dh ;k ,-lh- dh ykbV ls gks jgh FkhA ,-lh- nhokj ij Åij yxk Fkk ftldk fjeksV ckiw ds ikl FkkA ckiw cSM ij ysVs Fks] cSM ‘kk;n flaxy Fkk lQsn pknj fcNh FkhA mUgksusa eq>s vius ikl gh fcBk fy;k dejs esa ,d okW’k ¼NksVk½ Hkh FkkA eSa muds ikl cSBh rc esjk gkFk lgykus yxs vkSj dgus yxs fd i<+ fy[kdj lh-,- cudj D;k djkxh \ cM+s&cM+s vQlj esjs pj.kksa esa /kksd yxkrs gSaA T;knk i<+uk gS rks Mh-,M- dj ysuk ge rqEgsa vkJe esa f’kf{kdk cuk nsaxs fQj fizalhiy cuk nsaxsA rqe rks lefiZr gks tkvks ge rqEgsa vPNk oDrk cuk,axs] izopu fn;k djuk gekjs lkFk jgukA vgenkckn pyh tkvks eSaus dgk esa i<+uk pkgrh gwWA oks cksys cl rqe rks lefiZr gks tkvks eSa rqEgkjk thou lq/kkj nwaxkA ,slk dgrs&dgrs mUgksus njoktk can dj fn;k njoktk flaxy Mksj Fkk vkSj can djus okyh dqanh chp esa yxh FkhA esjk fnekx dqN lksprk blds igys ckiw us vius lkjs oL= fudky fn, vkSj eq>ls NsM+&NkM+ djus yxsA eSaus fpYykus dh dksf’k’k dh rks mlus eqag can dj fn;k vkSj /kedh nh dh ckgj rqEgkjs eka cki dks tku ls [kre djok nwa rks irk Hkh ugha pysxkA rqe <wa<rh jgksxh rqEgkjk ifjokj [kre gks tk,xkA eSa ‘kksDM gks xbZ ftl vkneh dks lar le>dj eSa vkSj esjk ifjokj Hkxoku dh rjg iwtrs gSa oks ,slk Hkh dj ldrk gS \ eSaus lyokj dqrkZ iguk Fkk] mlus esjh lyokj mrkj nh vkSj esjs ‘kjhj dks Vp djus yxkA mlus esjh iwjh ckWMh Vp dhA diM+ksa ds vUnj gkFk Mkydj Nqvk NqbZ dhA eSa mlls NksM+us ds fy, dg jgh Fkh ij oks tcjnLrh dj jgk FkkA esjs gkFkksa ls viuk fyax Vp djok jgk Fkk vkSj pwlus ds fy, dg jgk FkkA mlus yxHkx 1&11@2 ?kaVs esjs lkFk tcjnLrh NsM+NkM+ dh] fdl fd;k] gx fd;k] eq>s nck;k] fpYykus Hkh ugha fn;kA ifjokj dks [kRe djus dh /kefd;ka Hkh ns jgk Fkk] dHkh I;kj ls ckr dj jgk FkkA esjs lkFk tcjnLrh djus dh dksf’k’k dh pqUuh mrkj nhA yxHkx 1&11@2 ?kaVs ckn mlus eq>s NksM+kA dgk fd ;s ckr fdlh dks er crkuk ugha rks ifjokj dks [kre djok nsaxsA vc vPNs ls tkvks cky Bhd djksA eSa ckgj vkbZ rks eEeh cSBh Fkh] jlksb;k cjkens esa cSBk FkkA eSa eEeh ds lkFk fd’kksj ds edku ij vk xbZ jkLrs esa eEeh us iwNk fd vUnj D;k gqvk rks mudks eSaus dqN ugha crk;k cl ;s dgk fd ckiw vPNs bUlku ugha gSaA ge edku ij vk, rks edku dk xsV cUn Fkk /kDdk fn;k rks [kqy x;kA vUnj ls Åij tk jgs Fks rks pkSd esa ‘kk;n fd’kksj dk HkkbZ vkSj cgu [kM+s Fks ftuds uke eSa ugha tkurh FkhA eEeh us dgk fd ikik ikuh ys x, rks mUgksusa dgk fd ys x,A yxHkx 11-30 ct x, gksaxsA eSa Åij vkdj lks xbZ] ikik igys ls lks jgs Fks] eq>s uhan Hkh ugha vkbZA nwljs fnu eSa ckiw ls ugha feyh] euk dj fn;k ugkus pyh xbZA eEeh ikik dks ;g dgk fd ftls rqe Hkxoku ekurs gks oks ‘kSrku gS] ;gka ls pyksA ml fnu tfYn [kkuk [kkdj ge ogka ls py fn,A fd’kksj th ds ?kj ls ,d yM+dk gesa tks/kiqj jsyos LVs’ku NkM+us vk;k FkkA fd’kksj dk ifjokj vPNk FkkA ge vius ?kj vthtxat vk x;s rc eSaus ;s ckr esjh eEeh dks crk;h vkSj eEeh us ikik dksA vkJe esa tks/kiqj blfy, ugha crk;k D;ksafd dkbZ Hkh esjh ckr ij fo’okl ugha djrk] cfYd eq>s xyr crkrkA esjk o eEeh ikik dk ogka ls fudyuk eqf’dy gks tkrkA tc ikik dks ;s ckr crkbZ rks ikik us irk fd;k fd ckiw fnYyh lRlax dj jgs gSa blfy, ge fnYyh vk x;sA tgka mudk lRlax py jgk Fkk ‘kk;n mlds lkeus iqfyl dk dksbZ vkWfQl Fkk ge ogka x, mUgksusa Fkkus Hkst fn;k tgka fjiksVZ dhA ogka ls gesa tks/kiqj ys vk,A blls igys tc esa ebZ&twu&12 esa muds gfj}kj vkJe xbZ Fkh rc mUgksusa dejs esa cqykdj Nqus dh dksf’k’k dh] xky ij gkFk Qsjk ij eSaus lkspk xq: gS] lar gS cPpk ekudj I;kj dj jgs gSaA blds vykok dqN ugha fd;k FkkA ij oks lar ugha gS ftl vkneh dks ge 11 lky ls Hkxoku dh rjg iwt jgs gSa oks xank vkSj ?kfV;k vkneh gSA dksbZ lar ,slk ugha dj ldrk tks mlus fd;kA eSa cl ;s gh pkgrh gwW fd esjs lkFk tks fd;k fdlh vksj ds lkFk u dj ldsA oks HkkO;k Hkh vHkh rd okil ugha vkbZA esjk HkkbZ vHkh fNUnokM+k vkJe esa gS] eq>s mldh fpUrk gSA** It has been argued on behalf of accused Asharam @ Ashumal that at the most his conduct may come within the definition of attempted fellatio and he cannot be charged for the offence of fellatio. The conduct of the accused asking the girl to suck his organ is called fellatio. Had the girl started sucking his organ, it would have been argued that it was her consensual act. Certainly the charge of attempt to fellatio is graver offence than the fellatio itself. So, the charge even if it relates to fellatio, it will cover the charge of attempted fellatio and the accused is not going to be prejudiced when the charge of fellatio has been framed against him in place of attempted fellatio. Some times the prosecutrix, who is a minor girl may hesitate to tell complete truth before the Investigating Officer and many a times it happens in such type of cases that the prosecutrix unfolds the complete truth only during the camera trial when she is assured that nobody will be able to cause any harm to her because of her statement. Hon'ble the Supreme Court has mandated that in cases of Section 304 B IPC, a charge of Section 302 IPC should also be framed against the accused and on the same logic, this Court hereby directs all the trial courts in Rajasthan that in all cases of attempt to commit rape, a charge for the offence of rape should also be framed against the accused so that, at the stage of conclusion of the trial, the Court may not have to undertake tedious process of amendment of charge and recalling the witnesses causing serious prejudice to the cause of justice in such cases. The matter, as has been discussed above, leaves no doubt that the conduct of the accused-petitioner Asharam @ Ashumal may be of committing rape or attempt to commit rape or aggravated penetrative sexual assault or penetrative sexual assault or aggravated sexual assault or sexual harassment or its attempt or its abetment, in all these cases, the charges framed by the trial court are such that it will cover all the possibilities of aggravated form of offence committed by the accused-petitioner and so at the time of judgment, the trial court will not have to amend the charges causing any prejudice to the cause of justice and hence this Court is of the view that the charges framed against accused-petitioner Asharam @ Ashumal deserve no interference at this stage because within three months, the trial will be completed in the trial court, no doubt subject to cooperation by the accused-petitioners in the trial court. Hon'ble the Supreme Court in Munna Devi v. State of Rajasthan, 2002 Cr.L.R.(S.C.) page 101, has held that the revisional powers should be exercised only when it is shown that there is legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the F.I.R. even if they are taken at the face value and accepted in their entirety, do not constitute the offence for which the accused has been charged. In that case, accused for the charge under Section 376 IPC etc. was discharged by the High Court in criminal revision and that order was quashed by Hon'ble the Apex Court. It was held by the Apex Court that the learned Judge of the High Court has ignored the basic principles which conferred the jurisdiction upon the High Court for exercise of revisional power. It was further held that it was pre-mature for the High Court to say that the material placed before the trial court was insufficient for framing the charge or that the statement of the prosecutrix herself was not sufficient to proceed further against the accused-respondent. It was further held that it was pre-mature for the High Court to say that the material placed before the trial court was insufficient for framing the charge or that the statement of the prosecutrix herself was not sufficient to proceed further against the accused-respondent. The impugned order of the Rajasthan High Court was held to have been passed against the settled position of law and so it was set aside by the Hon'ble Apex Court and the order of framing the charge passed by the trial court against the accused was upheld with directions to the trial court to proceed with the trial of the case and dispose of the same on merits in accordance with law. Similarly, the arguments of other accused-petitioners, namely, Prakash, Sharad Chandra @ Sharat Chandra, Miss Sanchita @ Shilpi and Shiva@Savaram are also not acceptable at this stage because charges are to be framed in wider terms covering all eventuality which may crop-up during the trial. A person may wear a shirt slightly larger than his size but he cannot wear a shirt which is smaller to his size. Minor irregularities, if found in charges, do not vitiate the trial unless they have caused the prejudice to the case of the accused. In the present case, by any stretch of imagination, it cannot be said that no case under POCSO Act, 2012 has been made out against any of the accused-persons and hence the accused-persons in the case in hand cannot defeat the provisions of presumption likely to be applicable against them under Sections 29 and 30 of the POCSO Act, 2012. It may further be mentioned here that the age of the prosecutrix has also rightly been determined by the trial court where she has been found to come within the definition of a child as defined under Section 2(1)(d) of the POCSO Act, 2012, according to which a child means any person below the age of eighteen years. As per the High School Certificate of the prosecutrix, her date of birth is 4.7.1997. I see no reason to disbelieve the genuineness of High School Certificate of the prosecutrix which is the best available evidence to prove her date of birth. As per the High School Certificate of the prosecutrix, her date of birth is 4.7.1997. I see no reason to disbelieve the genuineness of High School Certificate of the prosecutrix which is the best available evidence to prove her date of birth. In Bhoop Ram v. State of U.P., AIR 1989 S.C. 1329 , it was held that Medical Certificate is generally based on estimate and possibility of error cannot be ruled out, while the School Certificate, particularly, the High School Certificate is always more reliable for determination of the age of the person in question. In JJ Act, 2000 also, as per rule 12(3)(a)(i) of the JJ Rules, 2007, the best reliable document for determination of age is mentioned as Matriculation or equivalent Certificate. So the argument of accused-persons in this regard also is not acceptable. The case has been argued on behalf of the accused-petitioners on so many counts as mentioned in their memo of revisions but this Court is not inclined to appreciate the evidence in the case at the stage of charge because that will seriously prejudice the cause of justice in the case and hence without commenting upon the merits of the case, it can be said that the charges framed by the trial court against all the petitioners do not deserve to be disturbed but the trial court is also left free to amend or alter the charges as and when required in furtherance of the cause of justice to do complete justice with the parties. By this order, I have to decide the criminal revision filed by the prosecutrix also. By this order, I have to decide the criminal revision filed by the prosecutrix also. In her petition, it was argued on her behalf that the charge under section 5(p) of the POCSO Act, 2012 should also have been framed against the accused-petitioners but this argument has been raised perhaps because of the apprehension that the place where the alleged main offences were committed by accused Asharam, may or may not come within the definition of the “institution under the management of accused-petitioners”, but Section 5(p) of the POCSO Act, 2012 is a minor offence of Section 5(f) of the POCSO Act, 2012 and so at the time of the judgment, if the trial court is convinced that Section 5(f) of the POCSO Act, 2012 is not made out, then the trial court will be free to take help of Section 5(p) of the POCSO Act, 2012 also without amending the charge, if need arises to save the cause of justice. Prayer regarding charge under Section 26 of the JJ Act, 2000 has not been pressed by the learned counsel for the prosecutrix in criminal revision petition. Thus, not only the revision petition filed by the prosecutrix (S.B.Criminal Revision No.255/2014) but also the criminal revision petitions filed by all the accused-persons (S.B. Criminal Revision Petition No. 192/2014 and S.B. Criminal Revision Petition No. 179/2014) are devoid of any force, which are hereby dismissed and the impugned order dated 7.2.2014 by which the charges were framed against all the accused-persons is left undisturbed though the trial court is directed to conduct the expeditious trial in the case. The prosecutrix as well as all the accused-persons are also supposed to cooperate in the trial before the trial court. Copy of this order be sent to the trial court today only.