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2020 DIGILAW 443 (RAJ)

S v. State of Rajasthan

2020-02-28

ABHAY CHATURVEDI, SANDEEP MEHTA

body2020
JUDGMENT Sandeep Mehta, J. - The appeal (No.124/2018) and the Criminal Leave to appeal application (No.278/2018) have been preferred by the victim Mst 'S' and the State of Rajasthan respectively for assailing the judgment dated 25.04.2018 passed by learned Special Judge, POCSO Act Cases, Jodhpur in Sessions Case No.116/2016 (152/13) whereby the respondents accused Shiva @ Sawaram and Prakash were acquitted of the charges under Sections 370 (4), 342/34, 354-A/34, 376(2)(f) read with Section 120B & 109, 376(D), 506/34, 509/34, 109/120B of the IPC and Sections 5(f)/6, 5(g)/6, 7/8 read with Section 17 of the POCSO Act, 2012. 2. Shri P.C. Solanki, learned counsel representing the complainant in both the appeals and the learned Public Prosecutor vehemently and fervently contended that the acquittal of the respondents Shiva @ Sawaram and Prakash of the charges as recorded by the trial court is absolutely illegal, unjust and based on misreading/ignorance of strong incriminating material and evidence available on record and thus, the appeals deserve to be admitted. 3. Per contra, learned counsel Shri Pradeep Shah and Shri Arun Kumar, Associate to Shri Nishant Bora, Advocate representing the accused Prakash and Shiva respectively, vehemently and fervently urged that the entire case set up by the prosecution as against the respondents (acquitted-accused) is false and fabricated and the evidence available on record does not inspire confidence. Learned counsel Shri Pradeep Shah and Shri Arun Kumar urged that the allegations levelled by the prosecution as against the acquitted accused are based sheerly on conjectures, surmises and inferences sought to be drawn from a totally fictional theory and as such, the trial court was perfectly justified in acquitting the respondents of the charges and hence, the appeal as well as the leave to appeal application do not merit admission. 4. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the impugned judgment and the material available on record. 5. Learned counsel Shri P.C. Solanki, representing the complainant and the learned Public Prosecutor have not disputed the fact that the entire prosecution case as set out against the respondents (acquitted accused) has been discussed by the trial court at Paras Nos.419 to 427 (Shiva) and Paras Nos.428 to 434 (Prakash). 5. Learned counsel Shri P.C. Solanki, representing the complainant and the learned Public Prosecutor have not disputed the fact that the entire prosecution case as set out against the respondents (acquitted accused) has been discussed by the trial court at Paras Nos.419 to 427 (Shiva) and Paras Nos.428 to 434 (Prakash). Thus for elaborating upon the issues advanced by learned counsel representing the respective parties, we deem it fit to reproduce the discussion made by the trial court while recording the findings of acquittal qua each accused in the impugned judgment:- 6. First, the case of the accused Shiva @ Sawaram is taken up. It is clear that, all that has been alleged by PW.21 Karamveer Singh, the sole witness who has given evidence against this accused, is that he (the witness) called the accused Shiva to find out the whereabouts of the principal accused Asaram (before the incident took place) on which, Shiva told him about the schedule availability of Asaram at different places on different dates. The complainant reached Jodhpur on 14th August and finding the gate of the Ashram to be locked, he claims to have called up Shiva who assisted in getting the gate of the Ashram opened. The trial court held in the impugned judgment and rightly so that the call details of the mobile phone allegedly in use of Shiva were not proved by the prosecution. Karamveer Singh (PW.21) admitted in his evidence that the accused Shiva never called him up of his own accord to tell him the location of accused Asaram. The flowchart of the call details of various mobile phones held by the other accused persons does not indicate that the accused Shiva ever talked to the two convicted co-accused Shilpi or Sharad, who are alleged to be the conspirators. The prosecution claimed that the accused Shiva used to talk to Asaram with the aid of the accused Prakash but no evidence was led by the prosecution to show that the alleged Mobile No.9321933400 was being used by Prakash. An allegation was also levelled by the prosecution that some indecent video clippings showing Asaram caressing various women were found stored in the mobile phones recovered from possession of Shiva. An allegation was also levelled by the prosecution that some indecent video clippings showing Asaram caressing various women were found stored in the mobile phones recovered from possession of Shiva. However, when these mobile clippings were examined by the FSL and were also played in the court, the trial court noted that Asaram was seen, casually petting the cheek of a child in one video and in another video, he was seen putting his hand on the shoulder of a woman. In all these clippings, lots of people are visible standing nearby. Thus, the trial court held and rightly so in our opinion that no indecent conduct of Asaram was depicted in the video clippings recovered from the phones in possession of the accused Shiva. 7. In this background, we are of the firm opinion that the findings recorded by the trial court in the impugned judgment that the prosecution could not lead any evidence whatsoever showing in-culpability of the accused Shiva for any of the charges is absolutely justified and based on a thorough and apropos appreciation of evidence available on record. 8. Regarding the accused Prakash, the prosecution came out with a theory that he was the personal servant and Cook of Asaram and that he facilitated the offence committed by the accused Asharam by ensuring that the parents of the victim went away from the place of incident and the victim was left alone with the main accused. The prosecution also alleged that Prakash used to facilitate the mobile conversation of the other people with the principal accused Asaram through a mobile No.9321933400. As has been noted above, the prosecution did not lead any evidence whatsoever to prove that the said mobile phone was owned by or was in use of the accused Prakash. The other allegation regarding the accused Prakash having facilitated the offending act committed by the principal accused Asaram was based on the evidence of PW.5 'S', the victim, PW.12 Sunita Singh, the mother of the victim and PW.21 Karamveer Singh, father the of the victim. The highest case as set out from the statements of these witnesses as against the accused Prakash is that the victim's parents went inside the Kutiya, Hut of Asharam and came out with him. Asaram then called Prakash and asked him to serve milk to these persons. The highest case as set out from the statements of these witnesses as against the accused Prakash is that the victim's parents went inside the Kutiya, Hut of Asharam and came out with him. Asaram then called Prakash and asked him to serve milk to these persons. The victim further claimed that she was ravished by Asaram and when she came out Prakash was sitting in a Baramada located opposite to the Kutiya. Shri Karamveer Singh (PW.21) and Sunita Singh (PW.12) told Prakash that Asaram had instructed them to sit on the passage and he himself started offering prayer at the place of worship. Prakash suggested to Shri Karamveer Singh and Smt. Sunita that both of them could go and sleep. Thus, the highest allegation attributed by the prosecution witnesses to the accused Prakash is that he offered milk to the parents of the victim and while Asaram was purportedly/ indulging into the offending act under the guise of doing a Pooja, the witness suggested to the girl's parents that they could go and sleep. This apparently was just a casual act which does not indicate any inculpable state of mind of the accused Prakash. The trial court took note of the fact that the conduct of the accused Prakash did not indicate he insisted that the witnesses must go away from the place of incident and thus, his casual suggestion to the witnesses that they could go and sleep was rightly held to be innocuous by the trial court. 9. We are thus, of the firm opinion that the findings recorded by the trial court in the impugned judgment while acquitting the accused Prakash and Shiva of the charges are based on a thorough and apropos appreciation of evidence and do not warrant any interference whatsoever. The findings as recorded by the trial court cannot be termed to be illegal or contrary to the evidence on record by any stretch of imagination which would warrant admission of the appeal preferred by the victim Mst 'S' and granting leave to the State of Rajasthan for assailing the judgment against acquittal. Thus, the victim's appeal as well as the State's criminal leave to appeal application fail and are hereby rejected.