Kamal @ kamal Kishore vs State Of Rajasthan

Appellant has filed this appeal challenging the judgment/order dated 28.01.2020 passed by the Trial Court, whereby, he was convicted and sentenced

qua offence punishable under Sections 363 and 376 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') read with section 5 J(ii)(1)/6 of

Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') in FIR No.359/2015 registered at Police Station

Baran Sadar, District Baran.

Prosecution case was set in motion on the basis of the statement of complainant-Ramesh Chand. Complainant had alleged that on 17.10.2015, his

daughter was alone at home. In the evening, complainant could not find his daughter. Thereafter, complainant searched for his daughter in the village

and contacted his relatives, but his daughter could not be located. It was the case of the complainant that his daughter was aged 14 years.

After completion of investigation and necessary formalities, challan was presented against the appellant.

Charges were framed against the appellant under Sections 363 and 376 I.P.C and Section 5 J(ii)(L)(m)/6 of POCSO Act.

Appellant did not plead guilty to the charges framed against him and claimed trial.

In order to prove its case, during trial, prosecution examined seventeen witnesses. Appellant when examined under Section 313 Code of Criminal

Procedure, 1973, after the close of prosecution evidence, prayed that he was innocent and had been falsely involved in this case.

Appellant did not examine any witness in his defence. Trial Court vide impugned judgment/order ordered the conviction and sentence of the appellant

with regard to the charges framed against him. Hence, the present appeal by the appellant.

Learned counsel for the appellant has submitted that the prosecution had miserably failed to prove its case. Prosecutrix had stated in her cross-

examination that she was aged 21/22 years. Appellant had not done any wrong act with her. She has further stated that in the school record, her

father had given her date of birth on assumption. Father of the prosecutrix/complainant had also stated in his cross-examination that he had given the

date of birth of the prosecutrix in the school as well as to the police on assumption. Mother of the prosecutrix had stated in her cross-examination that

her daughter was aged about 20 years. Her statement had never been recorded by the police. There was no medical examination of the prosecutrix

with regard to her age. Thus, it could be said to be a case of no evidence. In-fact, appellant had performed marriage with the prosecutrix and out of

the said wedlock, they were blessed with a daughter. Presently, prosecutrix is residing with the parents of the appellant.

Learned State counsel, on the other hand, has opposed the appeal.

Learned counsel for the prosecutrix has not controverted the submissions made by the counsel for the appellant.

As per the prosecution story, appellant had raped the prosecutrix. Thus, material witnesses in the present case would be the prosecutrix and her family

members.

In order to establish the age of the prosecutrix, prosecution has placed reliance on Exhibit-P-6 and Exhibit-P-7A school record vis-Ã -vis prosecutrix.

As per the school record, the date of birth of the prosecutrix was 15.07.2005. Thus, as per the school record, prosecutrix was a minor at the time of

incident. However, entry in the school record has been duly rebutted by the material witnesses, during trial. Prosecutrix has stated in her cross-

examination that she was aged 21/22 years and her date of birth had been got recorded in the school record by her father on the basis of assumption.

Similarly, mother of the prosecutrix while appearing in the witness-box as PW-3 has deposed that age of her daughter was 20 years when she had

gone with the appellant.

Complainant-Ramesh Chand while appearing in the witness-box as PW-2 has also deposed in his cross-examination that he had disclosed the age of

the prosecutrix in school as well as to the police on assumption. He further stated that he could not tell the date, month or year with regard to the birth

of the prosecutrix. Thus, no reliance can be placed on the school record depicting age of the prosecutrix to come to a conclusion that she was a minor

at the time of the alleged incident.

Prosecutrix while appearing in the witness-box as PW-1, in her cross-examination, has deposed that the appellant had not done any wrong act with

her. She had given statement before the Magistrate as told to her by her father. She also stated that when her examination-in-chief was recorded, she

has deposed as told to her by her father. Thus, prosecutrix had demolished the prosecution case in her cross-examination with regard to the allegation

of commission of offence of rape by the appellant. Mother of the prosecutrix Ramrekha PW-3 has also deposed that the FIR was got registered on

the basis of suspicion. She had later come to know that her daughter had run away with the appellant. In her cross-examination, she has deposed that

her daughter was aged about 20 years when she had gone with the appellant.

Thus, in the present case, from the testimony of the material witnesses, it can be said that the prosecution had failed to establish its case. Rather, from

the statements of the material witnesses, it is evident that the prosecutrix had gone with the appellant of her own accord and they had lived together

for 14 months and a daughter was born to them.

From the statements of material witnesses, it can be safely concluded that the prosecutrix was a major on the day, when she left with the appellant.

In the facts and circumstance of the case, learned Trial Court fell in error while ordering conviction and sentence of the appellant with regard to the

charges framed against him.

Accordingly, appeal is allowed. Appellant is acquitted of the charges framed against him. Consequently, the judgment/order dated 28.01.2020 passed

by the Trial Court are set aside.

Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, appellant Kamal @ Kamal Kishore is directed to forthwith

furnish a personal bond in the sum of Rs. 25,000/-, and surety bond of the like amount, before the Registrar (Judicial) of this Court, which shall be

effective for a period of six months with the stipulation that in the event of filing of Special Leave Petition against this judgment or on grant of leave,

appellant Kamal @ Kamal Kishore on receipt of notice thereof, shall appear before the Supreme Court.