Om Prakash @APPELLANT@Hash State of Rajasthan & Ors

Appellant has preferred this appeal aggrieved by order dated 18.11.2016 passed by Special Judge, POCSO Cases, Jhunjhuu, whereby Court below

has convicted the appellant for offence under Section 366 of IPC and Section 6 of the POCSO Act and has acquitted the accused for offence under

Section 363 and 376 of IPC and for offence under the SC/ST Act.

State has also preferred the Leave to Appeal seeking conviction for offence under Section 366, 376 IPC and for offence under the SC/ST Act.

3 Defects have been pointed out by the Registry in the Leave to Appeal. Defects are waived. Delay in filing Criminal Leave to Appeal is condoned.

In brief the facts of the case are that in written FIR, Exhibit P-7 was submitted to the Police Station Bisau on 3.11.2014 by Dhanni Devi, mother of

the prosecutrix that some person has kidnapped her daughter on 31.10.2014. It was mentioned in the FIR that the prosecutrix is aged 14 years. Police

on the basis of the said information recovered the girl and arrested the appellant. Statement of prosecutrix were got recorded under Section 164

Cr.P.C. Documents pertaining to her age, were obtained by the police during investigation and after due investigation, police submitted charge-sheet

under Section 363, 366, 376 of IPC and under Section 4 of the POCSO Act and under the SC/ST Act.

Court heard the charge arguments. Appellant denied the charges and sought trial upon which as many as 14 witnesses were got examined on

behalf of the prosecution and 19 documents were exhibited in defence. Five documents were accepted as Exhibit D-1 and D-5. After recording of the

statement, explanation of the appellant was recorded under Section 313 of Cr.P.C. He denied the allegations and stated that he has given advance of

Rs.50,000/- to father of the prosecutrix and when demand was made, a false case has been registered against him. 6. Court after hearing the

arguments of the parties convicted the appellant for offence under Section 366 of IPC and under Section 6 of the POCSO Act but acquitted him for

offence under Section 363 and 376 of IPC and under the SC/ST Act aggrieved by which the present appeal has been preferred by the appellant and

Leave to Appeal has been preferred by the State challenging the acquittal of the appellant for the offence under SC/ST Act.

It is contended by counsel for the prosecutrix that she went with the appellant on her own free will. Her age has not been established by the

prosecution. Her time of recovery by the police is also doubtful. It is also contended that appellant was not aware that the prosecutrix was belonging

to the SC/ST and no question was put to him with regard to appellant knowing that she was a member of SC/ST in the examination under Section 313

Cr.P.C.

It is also contended that there were no injuries marks on the person of the prosecutrix so as to establish the Commission of Offence of rape.

Public Prosecutor has opposed the appeal. His contention is that prosecutrix was aged 14 years 3 months on the date of alleged offence and this

fact is established from the school register, Exhibit P-11 and Certificate of the member Exhibit P-10, wherein, date of birth of prosecutrix was

mentioned as 1.7.2000. It is also contended that since prosecutrix was a minor, the question of consent is immaterial. Learned Public Prosecutor has

also drawn attention towards the statement of the prosecutrix recorded before the Court, wherein, she has specifically alleged that the appellant called

her on the pretext of taking her to the market, buying clothes and sandals for her and stated her that after taking her to the city, he would drop her

back at the house by him. She has specifically mentioned that the appellant took her to a school, where there was no lights and committed rape with

her three or four times, during the night she has also mentioned that the appellant kept her at the school for two or three days and used to commit rape

with her. In the morning also, he used to take her to the nearby hill. It is contended that in crossexamination also appellant has not succeeded to

shatter the witness PW-3 Dhanni Devi, who is also stated the complainant of the case and mother of the prosecutrix has stated that she has alleged

the FIR and when her daughter was recovered, she told her that appellant took her away on the pretext of taking her to the market and have been

committed rape with her. It is also contended that from medical report also, it is revealed that prosecutrix was habitual of sexual intercourse. It is also

contended by counsel for the State that prosecutrix was belonging to the Scheduled Caste Community, hence, the Schedule Caste and Schedule Tribes

Acty attracted and since the offence is punishable with a sentence of ten years, as per Section 3(ii)(v) of the SC/ST Act. Court below should have

awarded leave which to the appellant. It is contended that Court has in a cursory meaning acquitted, the accused for offence under the SC/ST Act.

I have considered the contentions and have gone through the record and the judgment passed by the Court below. Admittedly prosecutrix is a girl,

aged 14 years 3 months, hence, the arguments that she went with the appellant on her own free will and was consenting party to the sexual

intercourse cannot be accepted as the question of consent becomes immaterial looking to her age. As far as evidence is concerned, prosecutrix has

clearly narrated the incident how she was kidnapped, of her being taken to an isolated school and rape being committed with her by the appellant.

Accused appellant has not been able to shatter the witness in the cross-examination. The fact that he had advanced Rs.50,000/- to father of

prosecutrix is also not established.

Doctor has also stated the fact that prosecutrix was subjected to sexual intercourse, cannot be denied. In view of the same there was ample

evidence before the Court below to convict the appellant for offence under Section 366 of IPC and under the POCSO Act.

However as far as leave to appeal against acquittal under SC/ST Act is concerned, no proof was produced before the Court belong to prove that

the prosecutrix belonged to SC/ST, hence, the leave to appeal filed by the State deserves to be rejected.

In the result, criminal appeal filed by the appellant is dismissed and the leave to appeal preferred by the State is rejected.

The Suspension of Sentence Application stands disposed of.

A copy of this order be placed in connected file.

Record of the Court below be sent back forthwith.