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2019 DIGILAW 2959 (RAJ)

State of Rajasthan v. Mahendra Kumar

2019-12-10

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The instant application under Section 378 (iii) & (i) Cr.P.C. has been preferred by the State of Rajasthan seeking leave to file appeal against the judgment dated 21.07.2018 passed by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012, Sirohi in Sessions Case No.04/2017 (06/2016) whereby, the respondent-accused Mahendra Kumar was acquitted of the charges under Sections 363, 366-A IPC and Section 3/4 of the POCSO Act and in alternate Section 376 IPC and Section 3 (2) (v) of the SC/ST Act; accused-respondent Neti Ram was acquitted of the charges under Section 366-A IPC and Section 16/17 of the POCSO Act and Smt. Jethi was acquitted of the chargers under Sections 363, 366-A, 379 read with Section 109 and 120-B IPC and Section 16/17 of the POCSO Act. 2. I have heard and considered the submissions advanced by the learned Public Protector and have gone through the impugned judgment and the record. 3. On a perusal of the statement of the victim Mst.'I' (PW-3), it is clear that so far as the allegations levelled by her against the acquitted accused Jethi and Mahendra Kumar are concerned, the same are highly vacillatory and contradictory. The girl was confronted with her previous statement (Ex.D-2) recorded by the police wherein she gave out her age to be 18 years. In such statement, she did not name Jethi as being responsible for her kidnapping. In the sworn statement, significant improvements are noticeable regarding involvement of the accused Mahendra Kumar for the offence of kidnapping and sexual assault. 4. Upon a careful perusal of the testimony of the victim in reference to her previous statement (Ex.D-2) recorded by the Investigating Officer during investigation, it is clear that while deposing on oath, the girl made wholesale improvements from her police statement. While deposing before the police, the girl alleged that she was having a friendship with one Visa Ram of her village for last about three years. Neti Ram instigated her to go away with Visa Ram. She used to talk to Visa Ram without the knowledge of her family members. Neti Ram instigated her to elope with Visa Ram and asked her to reach the house of Bhuta Ram on 25.08.2016, where Bhuta Ram and his wife were working. Neti Ram met her there. He then instigated her to bring her mother's ornaments. She used to talk to Visa Ram without the knowledge of her family members. Neti Ram instigated her to elope with Visa Ram and asked her to reach the house of Bhuta Ram on 25.08.2016, where Bhuta Ram and his wife were working. Neti Ram met her there. He then instigated her to bring her mother's ornaments. She went back to her house and brought her mother's ornaments from a safe box. Neti Ram took the ornaments from her. Bhuta Ram gave her Rs.15,000/- and advised her to come out of her father's house whenever called. Neti Ram called her about 11 o'clock in the night. Her family members were sleeping. She collected a bag full of clothes and went with Neti Ram. Five other boys were present there. Neti Ram boarded her on to his own motorcycle whereas, the other boys accompanied them on two other motorcycles. They reached Abu Road railway station at about 2 o'clock. Neti Ram purchased the railway tickets whereafter she and and Visa Ram boarded train and went to Ahemdabad. They took a room in the hotel near the railway station. They went around to roam and visit various places. In the night time, Visa Ram established consensual physical relations with her. 5. In view of these material facts noticeable from the statement of the victim recorded by the Investigating Officer, from which, she totally resiled and improved upon while deposing on oath, I am of the firm opinion that the view taken by the trial court that the statement of the prosecutrix was not wholly reliable to the extent of accused Mahendra Kumar and Jethi and so also to the extent she attributed the allegation of sexual assault against the accused Neti Ram is absolutely justified. To this extent, the impugned judgment dated 21.07.2018 does not suffer from any illegality or infirmity warranting interference therein. 6. As a consequence, the instant leave to appeal application has no merit whatsoever and is dismissed, as such.