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2019 DIGILAW 1756 (RAJ)

Mahendra v. State of Rajasthan

2019-06-04

PANKAJ BHANDARI

body2019
JUDGMENT Pankaj Bhandari, VJ. - Special Bench has been constituted with a view to achieve the goal set up by the Judiciary for "Speedy Justice" and "Access to Justice" to all, for disposal of the criminal appeals, in which convict is in jail for five or more years. 2. This Jail Appeal has been received by Judgment and Order dated 20.09.2016 passed by Special Judge, POCSO Cases, Kota whereby appellant has been convicted for offence under Section 363, 366, 376(2)(n) of IPC and Section 5 (l)/6 of the POCSO Act. For offence under Section 363 of IPC, appellant has been convicted for three years rigorous imprisonment and fine of Rs. 3,000/-, on non payment of fine, to further undergo one month simple imprisonment. For offence under Section 366 of IPC, two years rigorous imprisonment and a fine of Rs. 5,000/-, on non payment of fine, to further undergo two months simple imprisonment and for offence under Section 376(2)(n) read with Section 5 (l)/(6) of the POCSO Act, appellant has been sentenced to ten years rigorous imprisonment and a fine of Rs. 10,000/-, on non payment of fine, to further undergo five months simple imprisonment. All the sentences are to run concurrently. 3. Learned Amicus Curiae appearing on behalf of the appellant contends that prosecution has failed to establish that the prosecutrix is a minor. As per Article 2(a)-School Register, her date of birth was 09.03.1997. School certificate did not relate to the school first attended. As per Rule 12 of the Juvenile Justice Care and Protection of Children Rules for determining the age of a victim, the age of a child or juvenile in conflict with law, the matriculation or equivalent certificate has to be given preference in absence whereof date of birth certificate from the school first attended and in absence whereof birth certificate given by a cooperation or a municipal authority or a Panchayat and in absence of either of the above, the opinion of the duly constituted medical board. 4. It is contended by learned Amicus Curiae that the school register pertains to school first attended and as to who made the entries and the person who made the entries was also not examined. There was no document on the basis of which date of birth was mentioned in the register. 4. It is contended by learned Amicus Curiae that the school register pertains to school first attended and as to who made the entries and the person who made the entries was also not examined. There was no document on the basis of which date of birth was mentioned in the register. It is also contended that the prosecutrix was subjected to medical examination but ossification test report has not been produced before the Court which casts serious doubts on the investigation. It is contended that PW-9 Raunak Ali has deposed that the complainant had handed over the transfer certificate and caste certificate but no transfer certificate was produced before the Court. It is contended that for conviction under the POCSO Act, it is to be established that prosecutrix was a minor. 5. It is also contended that FIR Ex.P-6 was lodged by the mother of the prosecutrix on 08.09.2013 i.e. after three days of the incident. In the FIR, it was mentioned that prosecutrix had left the house on 05.09.2013 and had gone to the market to get her clothes stitched. From there, she was taken away by the appellant. It is contended that prosecutrix was recovered on 07.10.2013 i.e. after more than one month. It is argued that the prosecutrix went on her own free will, stayed with the appellant at different places, travelled in different public transport but never raised any alarm or complained to anyone. Prosecutrix was a consenting party and hence, offence under Section 376(2)(n) is also not made out. 6. Learned Amicus Curiae has placed reliance on " Bablu Pasi vs. State of Jharkhand (2008) 13 SCC 133 ", wherein the Apex Court has held that school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is not of much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. 7. Reliance has also been placed on " Alamelu & Anr. vs. State (2011) 2 SCC 385 ", wherein Apex Court has held that the transfer certificate issued by a government school and duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act. 7. Reliance has also been placed on " Alamelu & Anr. vs. State (2011) 2 SCC 385 ", wherein Apex Court has held that the transfer certificate issued by a government school and duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act. However, the admissibility of such a document would not be of much evidentiary value to prove the age of a girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who got the date of birth recorded is examined. 8. Reliance has also been placed on "Rajak Mohammad vs. State of Himachal Pradesh (Criminal Appeal No.1395/2015)" decided on 23.08.2018. In the case before the Apex Court prosecutrix had remained in the company of the accused appellant for about 12 days until she was recovered, she had freely moved around with the accused appellant, in the course of which movement she had come across many people at different points of time and she did not complain of any criminal act on the part of the accused appellant. Apex Court held that the possibility of the prosecutrix being a consenting party cannot be ruled out. 9. Learned Public Prosecutor has opposed the appeal. His contention is that prosecutrix was a minor who had been subjected to repeated rape and the Court has not committed any error for convicting the appellant for the alleged offence. 10. I have considered the contentions and have perused the record of the case. 11. For the offence to fall under the POCSO Act, prosecutrix ought to be a minor, to prove that the prosecutrix was a minor, prosecution has examined PW-17 Ali Mohd., who has deposed that prosecutrix was a student in Rajkiya Balika Madhyamik Vidyalaya Baparwankala, District Kota. She took admission in the school on 19.07.2008 and transfer certificate was issued to her on 10.09.2013 in the school register her date of birth was mentioned as 09.03.1997. Witness has exhibited the admission register as Article-2(a). In cross-examination, the witness has admitted that at the time when the prosecutrix took admission in the school, the transfer certificate of the earlier school attended by the prosecutrix was not taken, her birth certificate or caste certificate were also not taken. Witness has exhibited the admission register as Article-2(a). In cross-examination, the witness has admitted that at the time when the prosecutrix took admission in the school, the transfer certificate of the earlier school attended by the prosecutrix was not taken, her birth certificate or caste certificate were also not taken. He categorically admitted that at the time of admission of prosecutrix, no documents were taken by the school. He has also stated that the date of birth mentioned in the register was on assumption. He has also stated that he was not aware as to who got the date of birth recorded in the register. The witness was also not aware as to in which school, prosecutrix had earlier studied and on what basis date of birth was mentioned. 12. As per Rule 12 of the Juvenile Justice Care and Protection of Children Rules, in absence of Board Certificate, the date of birth mentioned in the school first attended is to be considered for determining the age of a child. From the statement of PW-9, it is not revealed that Rajkiya Balika Madhyamic Vidhyalaya was the school first attended by the prosecutrix, he has admitted that in the register of the school the age was mentioned on the basis of assumptions and no document with regard to the age was produced at the time of making entries in the register. No transfer certificate of the school earlier attended was submitted at the time of the admission in the school. 13. It is pertinent to note that the prosecutrix was subjected to medical examination and an ossification test was also conducted as stated by PW-11 (Investigation Officer-Bhanwar Singh). He has in his cross-examination admitted that for determining the age, medical examination was got conducted. No report has been submitted with regard to age of the prosecutrix. As per Rule 12 of the Juvenile Justice Care and Protection of Children Rules, in absence of the Board Certificate, date of birth mentioned in the school register first attended is to be considered and in absence thereof the birth certificate issued by the Government Authorities or all local bodies is to be considered and in absence of all the above, a child or victim in conflict with law is to be subjected to medical examination by a duly constituted Medical Board. 14. 14. Admittedly, there is no Board Certificate, there is no certificate from school first attended and there is no certificate from local bodies. The victim child ought to have been medically examined by a duly constituted Medical Board. PW-11 speaks of the victim being medically examined for determining the age but the Medical Board certificate has not been produced before the Court, hence, prosecution has utterly failed to establish that the victim was a minor at the time of commission of offence. 15. As to whether offence under Section 376(2)(n) has been committed by the appellant, it is pertinent to note that the prosecutrix left the house on her own free will on 05.09.2013. FIR was lodged after a delay of three days. Mother of the prosecutrix in her cross-examination has stated that she saw her daughter leaving and she called her daughter but she walked away and Mahendra followed her. Prosecutrix PW-1 has stated that she was taken away by force. She has also stated that she was taken in a bus to village Jirod, from Jirod to Sahrod then to Dolam then to village Khuri then to Chipa Barod and then to Kota, where they stayed for about one month. Prosecutrix did not raise any alarm or did not complain to anyone about the criminal act of the accused. Apex Court in Rajak Mohd. vs. State of Himachal Pradesh (Supra) was dealing with a case where the prosecutrix remained with the accused for twelve days without complaining to anyone. The Court held that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out. 16. In the present case, prosecutrix has remained with the appellant for more than a month and has gone to different places in public transport and has not raised any alarm or complained to anyone, hence, the possibility of the prosecutrix being a consenting party cannot be ruled out. Since, prosecution has utterly failed to establish that the prosecutrix was a minor, offence under the POCSO Act is not made out. The conviction under POCSO Act is thus quashed. Prosecutrix has remained with the appellant for a month without raising any alarm, hence, she was a consenting party and offence under Section 376(2)(n) is also not made out. Offence under Section 363 of IPC is also not made out, as prosecutrix left the house on her own free will. 17. The conviction under POCSO Act is thus quashed. Prosecutrix has remained with the appellant for a month without raising any alarm, hence, she was a consenting party and offence under Section 376(2)(n) is also not made out. Offence under Section 363 of IPC is also not made out, as prosecutrix left the house on her own free will. 17. In view of the above, the Judgment and Order dated 20.09.2016 passed by Special Judge, POCSO Cases, Kota is quashed and set aside and consequently, the appeal is allowed and appellant is acquitted from the charges leveled against him. 18. Appellant be released forthwith, if not wanted in any other case. 19. Appellant is directed to furnish personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of the release to the effect that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.