Court: RAJASTHAN HIGH COURT
Bench: JUSTICE SANGEET LODHA
State vs Megha On 31 July 2017
Law Point:
Absence of cogent evidences on record. Charges against the accused not proved.
JUDGEMENT
1. This leave to appeal u/s. 378 Cr.P.C. has been filed by the State, aggrieved by the judgment and order dated 16.7.16 passed by the Sessions Judge, Rajsamand in Session Case No.56/15, whereby the accused-respondent though convicted for offences under Section 11/12 of Protection of Children from Sexual Offences Act, 2012 ( for short ‘POCSO Act’), has been acquitted of the charges for offences under Sections 376/511 and 354 B IPC.
2. The brief facts of the case are that the complainant Shri Bherulal submitted a written report at Police Station, Railmagra to the effect that while he alongwith his wife Maya had gone to bank for withdrawal of the payment, his daughter aged 7 years and old mother were at home. At about 2-2.30 pm Ramesh s/o Nathulal Jat informed him on mobile that Megha Ba s/o Kishnaji Bheel has attempted to commit rape on his daughter. When he reached home, her daughter told him that while she was playing outside the house, Megha Ba took her to his house, opened her undergarments, raised up his ‘dhoti’ and sat up on her. It was further stated that when she cried, Ramesh Kakaji and Roshan Kakaji came there and on seeing them, Megha Ba ran away.
3. On the basis of the written report, the police registered FIR for offences under Sections 376/511 IPC and Section 18 of the POCSO Act and the investigation commenced.
4. After completion of investigation, the police filed the charge sheet against the accused for offences under Sections 376/511, 354B IPC and Sections 4/18 of POCSO Act.
5. The trial court framed the charges against the respondent- accused for offences under Sections 376/511, 354B IPC and Sections 4/18 of POCSO Act. The accused denied the charges and claimed trial.
6. During the trial, the prosecution examined 7 witnesses (PW 1 to PW 7) and rendered documentary evidence (Ex.1 to Ex.12). The statement of accused was recorded under Section 313 Cr.P.C. No evidence was led by the accused, however, the statement of Narayan Lal recorded under Section 116 Cr.P.C. was exhibited in evidence as Ex.D/1 on behalf of the accused.
7. After due consideration of the evidence on record, the trial court arrived at the finding that on the basis of the evidence adduced, the charges against the accused for offences under Sections 376/511 and 354 B IPC and Section 4/18 of POCSO Act are not proved. However, the accused was convicted for the offence under Section 11/12 of the POCSO Act and sentenced to simple imprisonment for a period of one year with fine of Rs.1,000/- while taking into consideration the fact that accused is 82 years of age.
8. Learned Public Prosecutor submitted that the learned trial court fell in error in acquitting the accused respondent of the charges for offences under Sections 376/511 and 354 B IPC. The accused-respondent has been convicted for offences under Sections 11/12 of POCSO Act and therefore, there was no occasion for the trial court to acquit him of the charges for offences under Sections 376/511 and 354 B IPC. Drawing the attention of the court to the statement of Ramesh Chandra (PW 4), learned Public Prosecutor submitted that had the said witness not reached on the spot, the accused-respondent would have committed rape on the prosecutrix and thus, ignoring the evidence of prosecutrix (PW 2) and Ramesh Chandra (PW 4), the trial court has seriously erred in acquitting the accused of the charges for the offences under Sections 376/511 and 354B IPC. Learned Public Prosecutor would submit that the trial court has failed to appreciate the evidence produced by the prosecution oral as well as the documentary in correct perspective, which has resulted in erroneous finding being arrived at.
9. I have considered the submissions of the learned Public Prosecutor, gone through the judgment of the trial court and the evidence on record.
10. A perusal of the statement of the prosecutrix (PW 2) reveals that there is no allegation that the accused attempted to commit rape on her. In absence of any cogent evidence suggesting that the accused attempted to commit rape on the prosecutrix, the finding arrived at by the trial court that the offence under Section 376/511 IPC is not proved against the accused cannot be faulted with. There is no allegation either that the accused assaulted or used criminal force with an intention of disrobing or compelling the prosecutrix to be naked and thus, the finding arrived at by the trial court that the offence under Section 354 B IPC, is not proved against the accused, also does not warrant any interference by this court. On the basis of the evidence on record, it is also not proved that the accused attempted to commit penetrative sexual assault and therefore, the trial court has committed no error in acquitting the accused for offence under Section 4/18 of the POCSO Act and instead convicting him for the offence under Section 11/12 of the POCSO Act on the basis of the allegations proved.
11. Thus, taking into consideration, the statement of the prosecutrix and other witnesses including Ramesh Chandra (PW 4), this court is of the considered opinion that in absence of any cogent evidence on record, the conclusion arrived at by the trial court that the charges against the accused for the said offences are not proved, appears to be just and proper.
12. In this view of the matter, no case for grant of leave to appeal is made out.
13. The criminal leave to appeal is therefore, rejected.
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