Narayan vs State Of Rajasthan

Heard learned counsel for the parties. Trial court record has been perused.

Vide impugned decision dated 06.02.2017 the appellant has been convicted for offences punishable under Section 363, 366 IPC and 3/4 POCSO Act. Sentence imposed is to undergo simple imprisonment for a period of 5 years, 7 years and 7 years respectively and pay fine in sum of Rs.2,000/-, Rs. 3,000/- and Rs. 3,000/- respectively, in default to undergo simple imprisonment for 2 months, 3 months and 3 months respectively. The sentences have been directed to run concurrently.

The appellant has already undergone a sentence of 5 years 7 months and 6 days as on 25.01.2019.

Principal contention advanced at the hearing today is that the age of the prosecutrix has not been established by the prosecution to be less than 18 years as of the date of the alleged incident i.e. 17.06.2013. Learned counsel for the appellant has taken me through the relevant evidence having bearing upon the age of the prosecutrix.

The age of the prosecutrix assumes importance because a perusal of the testimony of the prosecutrix who appeared as PW-1 shows that her stand was that she knew the appellant. He used to visit her residence. As per her on the day of the incident her family members had gone to attend a marriage. She stayed back to look after the goats. He threatened her and perforce, she sat on his cycle. They reached Bhatkada bus stand. From Bhatkada bus stand he took her to Punchdewal in a bus. In the evening he took her to the house of Ranachha in village Pipala. He raped her. She stayed in said house for two days. She was repeatedly raped. On the third day her parents rescued her.

During cross-examination she admitted that she never raised any hue and cry. She admitted that they reached the bus stand on cycle. She admitted that lot of people were crossed by them when they reached the bus stand. She gave an excuse for not summoning any rescue when they crossed the people by saying that she was under fear. She admitted that after they deboarded from the bus they walked about 5 k.m.

Consent of the prosecturix to go with the appellant is clearly emerging.

Concerning the age of the prosecutrix the prosecution examined Dr. Narendra Mishra, PW-13 who proved the report Ex.-P10. The report evinces that from the dental examination of the prosecutrix her age was opined to be more than 15 years. Regretfully, the ossification test has not been conducted. During cross-examination PW-13 admitted that he is not an Orthodontist.

He admitted that he had no diploma of Medical Jurist and had simply undergone 6 months course in Radiology.

On the issue of the age of the prosecutrix testimony of her father PW-2 becomes relevant. He disclosed his age to be 52 years when he appeared as witness on 29.08.2013. As per him he was married when he had crossed the age of 20 years. Her eldest son was born after 7 years of the marriage. 2 years thereafter his second son was born and a year later the third son was born. The prosecutrix was the fourth child and was born one year after the third son. If this is taken to be a basis to calculate the age of the prosecutrix her age as of 17.06.2013 would be about 21 years.

The mother of the prosecturix who has appeared as PW-4 admitted that the family had a ration card and unfortunately the Investigating Officer made no attempt to seize the same. Trial court record shows that age of the prosecutrix was sought to be established through the expert opinion of PW-13, who as noted above, is not an expert in the subject.

Considering the testimony of the father of the prosecutrix and superimposing thereon the testimony of the prosecutrix I note that in cross-examination she stated that her second brother was aged 30 years and the third brother named Suresh was 2 years younger than the second brother. She has admitted that Suresh was one year elder to her. The prosecutrix and her father came from a rural background and they deposed about the date of the male members of the family in a broad manner but cumulatively read from the testimony of PW-1 and PW-2 her age certainly emerges to be more than 18 years.

In view of the testimony of the prosecutrix which shows consent, her age being held by me to be more than 18 years, the appeal is disposed of acquitting the appellant of the charges framed against him. The sentences imposed upon the appellant are quashed. The appellant be set free forthwith if he is not required in any other case.

However, keeping in view the provisions of Section 437A Cr.P.C. the accused appellant is directed to furnish personal bond in sum of ₹5,000/- 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 appellant shall appear before the Supreme Court.