Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 2306 (RAJ)

Mohd. Akhtar Ansari v. State

2021-12-10

SAMEER JAIN, SANDEEP MEHTA

body2021
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide judgment dated 27.6.2019 passed by the learned Special Judge, POCSO Act, 2012 and Child Rights Protection Commission Act 2005, No.1, Udaipur in Special Sessions Case No.117/2018: Offences Under Section Sentences Fine Fine Default sentences 363 IPC 3 Years' R.I. Rs.3,000/- 1 month's S.I. 366 IPC 5 Years' R.I. Rs.3,000/- 1 month's S.I. 6 of POCSO Act 10 Years' R.I Rs.5,000/- 2 months' S.I. 3(2)(v) of SC/ST (Prevention of Atrocities) Act Life imprisonment Rs.10,000/- 2 months' S.I. All the sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. Briefly stated facts relevant and essential for disposal of the appeals are noted hereinbelow:- 4. Jhamku (P.W.10) submitted a written report (Ex.P17) to the S.H.O. P.S. Nai, District Udaipur on 27.10.2015 alleging inter-alia that she had gone out to the Avari Mata Temple on 24.10.2015 with her family members. Her younger daughter Sushri P (hereinafter to be referred to as 'the victim') aged 16 years and her son Shankar were present at home. She returned on 25.10.2015 and found that Mst.P was missing. She asked her son as to the whereabouts of the girl on which he replied that he had gone to work leaving his sister at home and that he had no idea about her whereabouts. She made enquiries in the neighbourhood but could not gather any information regarding the bearings of her daughter. She apprehended that some unknown person had lured Mst.P and kidnapped her with the intention of marrying her. On the basis of this report, FIR No.214/2015 (Ex.P18) came to be registered at the Police Station Nai for the offences under Sections 363 and 366 IPC. Investigation was commenced. The girl was traced out after about two months and her custody was handed over to the first informant Smt.Jhamku vide memorandum (Ex.P4). The Investigating Officer requisitioned the school documents of the girl for determination of age and accordingly, the Principal of the Govt. Primary School, Kodiyal provided him the copies of the transfer certificate and the scholar register, wherein the date of birth of the girl was recorded as 29.7.2000. The Investigating Officer requisitioned the school documents of the girl for determination of age and accordingly, the Principal of the Govt. Primary School, Kodiyal provided him the copies of the transfer certificate and the scholar register, wherein the date of birth of the girl was recorded as 29.7.2000. On the basis of the date of birth as entered in the school record, the girl was treated to be a minor and was from Scheduled Caste category. As, she levelled allegation of sexual assault against the appellant in her statements recorded during investigation, the offences punishable under Sections 376 IPC and Section 3 and 4 of the POCSO Act as well as Section 3(5)(xii) of the SC/ST (Prevention of Atrocities) Act were applied to the case. 5. The appellant was apprehended and after conducting usual investigation, a charge-sheet came to be filed against him in the court of the learned Special Judge, POCSO Act Cases, Udaipur for the offences punishable under Sections 363, 366 and 376 IPC, Section 4 of the POCSO Act and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. The case was then transferred to the court of the learned Special Judge, POCSO Act Cases cum Child Rights Protection Commission Act 2005, Court No.1, Udaipur for trial where, charges were framed against the accused for the offences punishable under Sections 363 and 366 IPC, Section 6 of POCSO Act and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act. He pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses and exhibited 18 documents to prove its case. Upon conclusion of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution case which he denied and claimed to be innocent. Upon hearing the arguments advanced by the learned 6. Public Prosecutor and the defence counsel and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above. Hence, this appeal. 7. Shri Radheyshyam Mankad learned counsel representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. The evidence as produced by the prosecution to prove the age of the victim is not reliable. Serious discrepancies regarding her age are reflected from the evidence of Smt. Jhamku, mother of the girl. Hence, this appeal. 7. Shri Radheyshyam Mankad learned counsel representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. The evidence as produced by the prosecution to prove the age of the victim is not reliable. Serious discrepancies regarding her age are reflected from the evidence of Smt. Jhamku, mother of the girl. The victim's brother Shankar P.W.13 admitted in his evidence that the girl was around 18-19 years of age at the time of incident. The school documents which have been proved in the evidence of the Principal, P.W.2 Arti Chouhan, pertain to the admission of the girl in the VI Standard in the Govt. Upper Primary School, Kodiyal. The witness admitted in her cross-examination that before the victim was admitted to the Kodiyal school, she used to study in the Govt. Primary Schoool, Vala Fala (Bujhda). Shri Mankad relied upon the Hon'ble Supreme Court Judgment in the case of State of M.P. Vs. Munna @ Shambhoo Nath reported in 2015 AIR SCW 6029 and urged that when there is a dispute regarding the age of a person, the conclusive proof to establish age would be the date of birth as recorded in the school where the person was first admitted. He urged that as the school documents which have been proved on record pertain to admission of the girl in the VI standard and as the prosecution has intentionally withheld the documents pertaining to admission of the girl in the 1st standard, the date of birth as mentioned in the documents (Ex.P7 and Ex.P7A) i.e. the Transfer Certificate and the scholar register cannot be relied upon as conclusive proof of age of the girl. He urged that the prosecution did not get conducted any medical examination for determination of age of the girl. If her statement on oath is considered, apparently the case is of consensual sexual relations because the girl used to talk to the accused and was indulged in an affair with him. She eloped with the accused 3 to 4 days before lodging of the FIR. Both went to the village Badi from where they boarded a train and proceeded to Kota and then to Bhawanimandi where both worked in a power plant under-construction. They stayed together in Kota for about 2 months. She eloped with the accused 3 to 4 days before lodging of the FIR. Both went to the village Badi from where they boarded a train and proceeded to Kota and then to Bhawanimandi where both worked in a power plant under-construction. They stayed together in Kota for about 2 months. From there, they went to Buxar and were at Mugalsarai when the Police caught hold of them. The victim admitted that it is during this period that the accused established sexual relations with her. She had ample opportunities to make a complaint to the Police during this period of two months but she never made any such attempt. She could have made a complaint about her so called plight to the plant manager, the contractor or the other construction workers, but she did not do so. He thus urged that the case is of consensual sexual relations between two major persons and hence, the accused appellant was convicted by the learned trial court without any basis. He implored the court to set aside the impugned judgment, accept the appeal and acquit the accused appellant of the charges. 8. Learned Public Prosecutor, on the other hand vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the prosecution produced the school record in evidence and thereby, it was conclusively proved that the victim was minor on the date of the incident. The accused appellant lured and kidnapped the child from the lawful guardianship of her parents and kept her confined illegally for almost two months. During this period, the accused repeatedly subjected the victim to sexual assault. On these grounds, learned Public Prosecutor contended that conviction of the appellant as recorded by the trial court is absolutely just and legal and is based on appropriate appreciation of evidence available on record and that the impugned judgment does not warrant any interference whatsoever. 9. We have given our thoughtful consideration to the arguments advanced at the bar and have thoroughly reappreciated the evidence available on record. 10. Primarily the thrust of submissions advanced by the learned defence counsel revolves around the theory of consent claiming that the victim was major on the date of the incident. We, therefore, firstly proceed to deliberate upon the issue regarding age of the victim Mst.P on the date of the incident. 10. Primarily the thrust of submissions advanced by the learned defence counsel revolves around the theory of consent claiming that the victim was major on the date of the incident. We, therefore, firstly proceed to deliberate upon the issue regarding age of the victim Mst.P on the date of the incident. In this regard, the prosecution examined P.W.10 Jhamku, the first informant, in oral evidence and also produced documentary evidence in the form of school record. Mst.Jhamku did not state a single word in her examination-in-chief regarding the age of her daughter, the victim Mst.P. In cross-examination, she gave out estimated ages of her children. Shankar P.W.13 brother of the girl stated in his cross-examination that his age was about 21 years and that when his sister went away from their house, she was aged around 18 to 19 years. He also admitted that even after the present case, his sister went away with some other boy for which his mother had lodged yet another FIR. Thus, from the evidence of the closely related witnesses, there is a clear indication that the girl was major on the date of incident. 11. The school record pertaining to the age of the girl was proved by P.W.3 Arti Chouhan, Principal who, on stepping in witness box, proved the document (Ex.P5) which was a letter submitted to her by the Investigating Officer for providing the age related documents of the girl. She proved the scholar register (Ex.P7) wherein the date of birth of the girl was entered as 29.7.2000 on the basis of the transfer certificate received from the school where she studied earlier. In cross-examination, the witness admitted that prior to being admitted in the Upper Primary School, Kodiyal, the girl studied in the Primary School Vala Fala, Bujhda. She was admitted in the VI standard in the Kodiyal school. Clearly thus, the prosecution has not made any attempt to prove the date of birth of the girl by producing the school record pertaining to her admission in the first standard. The medical jurist P.W.2 Dr.Sushila Khoiwal examined the girl for sexual assault and observed that her genitals were normal and that no opinion could be given regarding recent sexual intercourse with her. However, no medical examination was carried out to make any estimation of age. The medical jurist P.W.2 Dr.Sushila Khoiwal examined the girl for sexual assault and observed that her genitals were normal and that no opinion could be given regarding recent sexual intercourse with her. However, no medical examination was carried out to make any estimation of age. The prosecution neither proved the school record pertaining to the initial admission of the victim in the first educational institution nor was the person who got her admitted in the said school examined on oath. Thus, the scholar register certificate (Ex.P7) cannot be considered to be depicting conclusive proof regarding the age of the girl. 12. Considering the fact that the mother Smt. Jhamku while deposing on oath, did not give any indication regarding the girl's age and the admission appearing in the statement of the victim's brother Shankar P.W.13 that his sister was aged about 18 to 19 years on the date of the incident, we have no hesitation in holding that the victim Mst.P was undoubtedly major on the date of the incident. 13. The prosecution did not examine the Officer who conducted the entire investigation of the case and only formal evidence of submission of charge-sheet was given by Nathu Singh P.W.16. Therefore also, there is a grave infirmity in the case of the prosecution regarding the manner in which the investigation was undertaken. 14. Now we proceed to discuss the evidence of the victim P.W.1 to find out whether the sexual relations which were established by the accused with her were consensual or forcible. The victim was examined on oath as P.W.1. She stated that the accused met her in the village. He is a resident of Bihar. He asked for her mobile number but she did not accede to his demand. Then the accused contacted her cousin Kamla and procured her mobile number and started talking to her. They continued to talk for about 10 to 15 days and then the accused suggested that they should marry. Once he called her near the village canal. She went there. The accused establish sexual relations with her albeit forcibly. 2 to 3 days later, he again called her but she did not go. Then the accused went to the Badi village for working. From there, he called her and asked her to come to the Chetak Circle. She went there. Akhtar and his contractor came and met her at the Chetak Circle. 2 to 3 days later, he again called her but she did not go. Then the accused went to the Badi village for working. From there, he called her and asked her to come to the Chetak Circle. She went there. Akhtar and his contractor came and met her at the Chetak Circle. She was forced to visit some places in Badi. Then she was taken to the Railway Station and both proceeded to Kota. From Kota, they went to Bhawanimandi where they worked in an under-construction power plant. At Bhawanimandi, the accused would indulge in sexual relations with her on every alternate day. They stayed in Kota for two days from where, they proceeded to Buxar and stayed at a house of the paternal aunt of the accused. There, the accused told her that he would drop her back to Udaipur. They proceeded to Mugalsarai Station, where the Police caught hold of them. In cross-examination, the girl agreed to the suggestion of the defence counsel that after the first time Akhtar called her, they would talk to each other regularly. She would go to a cave and water source near their village to meet the accused. She did not make any complaint to her family members that the accused was calling her to the cave. She could not recollect the number with which the accused used to call her. The process of indulging in talks and meeting each other continued for about one month. On the day she left her house, she went to the Chetak Circle. Many people were available there. They stayed there for about 2 to 3 hours and then they boarded a bus and proceeded to Badi village. About 20 to 25 people were present in the bus. They came back from Badi village and went to the City Station in the evening at about 6 O'clock. Policemen and T.T. were present at the Railway Station. The contractor provided them the tickets for travel. They took breakfast in a hotel at the Chetak Circle. Many people were sitting there. Many people were present in the bogie of the train which they boarded at Udaipur. The train stopped at Maharana Pratap Station, where number of people boarded the bogie. The train reached the next station after 2 to 3 hours and arrived at Kota in the night. They spent the night at the station. Many people were sitting there. Many people were present in the bogie of the train which they boarded at Udaipur. The train stopped at Maharana Pratap Station, where number of people boarded the bogie. The train reached the next station after 2 to 3 hours and arrived at Kota in the night. They spent the night at the station. Many Police persons were thronging the station and between 200 to 500 people were also available there. They went to the power plant at Bhawanimandi in an autorikshaw and met the contractor and the plant manager, who provided them a room to live. Akhtar would bring groceries and she used to cook food in the room. Both of them worked at the power plant. They stayed there for about two months. She did not make any complaint whatsoever either to the contractor or the plant manager that she had been forcibly brought there by Akhtar. Akhtar did not maltreat her. He however never subjected her to sexual relations. Two months later, they went to the house of the paternal aunt of Akhtar in a train. They reached there in three days and stayed there for two days. She had a conversion with Akhtar's aunt. Then they started for returning to Udaipur. Police came there and brought them back to Udaipur. 15. On a thorough perusal of the entire statement of the victim, it becomes apparent that she and the accused got involved in some kind of love affair after which, both of them eloped. As the girl was above 18 years of age, she was definitely mature enough to take her own decisions. Without telling anyone in her family, she went to Udaipur and met the accused at the Chetak Circle. The sexual relations if any, were definitely consensual because despite availability of ample opportunities, the victim made no efforts whatsoever to resist the advances of the accused or to make a complaint to either the Police officials or the members of public whom she encountered over this period of more than two months. She did not tell of her plight even to the plant manager or the contractor of the power plant, where she stayed with the accused for almost two months. She did not tell of her plight even to the plant manager or the contractor of the power plant, where she stayed with the accused for almost two months. The fact that the girl comfortably lived with the accused in the room provided to them by the power plant manager for a period of two months and cooked food for both without a murmur and also got involved in the construction work clearly establishes that the relations between the accused and the girl were purely consensual in nature. 16. As Mst.P has been held to be a major on the date of the incident, apparently, she was competent to give consent for sexual intercourse and consequently, the accused cannot be held liable for having subjected the girl to forcible sexual assault. 17. As a result of the above discussion, we are of the firm opinion that the appreciation of evidence as undertaken by the trial court while rendering the impugned judgment is not appropriate and hence, the same cannot be sustained. 18. As a consequence, the appeal deserves to be and is hereby allowed. The impugned judgment dated 27.6.2019 passed by the learned Special Judge, POCSO Act, 2012 and Child Rights Protection Commission Act, 2005 No.1, Udaipur in Special Sessions Case No.117/2018 is quashed and set aside. The appellant is acquitted of all the charges. He is in custody. He shall be released forthwith if not wanted in any other case. 19. However, keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court. 20. Record be sent back forthwith.