State Of Rajasthan vs Mohd. Hussain
2021 Latest Caselaw 16528 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Crml Leave To Appeal No. 68/2021

State of Rajasthan

----Appellant Versus Mohd. Hussain S/o Salim Sheikh, aged about 24 years, R/o Behind Roadways Bus Stand, New Vijaynagar, Bheem (District Rajsamand) Presently residing at 7-E-45, Behind Kudi Bhagtasani Police Station, Jodhpur.

                                                                 ----Respondent


For Appellant(s)          :     Mr. Laxman Solanki, Public Prosecutor
For Respondent(s)         :



           HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                 Judgment

29/10/2021

This is criminal leave to appeal under Section 378(iii) & (i)

Cr.P.C. filed by the appellant - State against the Judgment and

Order dated 10.07.2020 passed by Special Judge, POCSO Act

No. 2, Bhilwara in Sessions Case No. 17/2020 (99/2019) titled as

"State of Rajasthan Vs. Mohd. Hussain" vide which the accused

Mohd. Hussain, respondent herein, was acquitted of the offences

under Sections 323, 342, 346, 354-A & 365 I.P.C. and Section

11/12 of the Protection of Children from Sexual Offences Act,

2012.

Brief facts of the case in short are that on the written report

(Ex.P/3) submitted by father of the prosecutrix, the F.I.R. No.

199/2019 (Ex.P/26) was registered at Police Station

Subhashnagar, District Bhilwara against the accused - Mohd

Hussain for the offences under Sections 323, 365, 380 & 509

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I.P.C. and Section 11/12 of Protection of Children from Sexual

Offences Act, 2012 (afterwards referred to as "POCSO Act"). After

investigation, the police submitted charge-sheet against the

accused Mohd. Hussain for the offences under Sections 342, 346,

365, 354 & 509 I.P.C. and Sections 7/8 & 11/12 of POCSO Act

before the Court of Special Judge, POCSO Act No. 2, Bhilwara

(afterwards referred to as "the trial court"). After filing the

charge-sheet, the trial court framed charges under Sections 323,

342, 365, 354 & 354-A I.P.C. and Section 11/12 of POCSO Act

against the accused - Mohd. Hussain, who pleaded not guilty and

sought trial. Thereafter, the prosecution in support of its case

produced total 21 witnesses and exhibited 31 documents. The

accused was examined under Section 313 Cr.P.C. After trial, the

accused was acquitted from all the charges levelled against him

vide impugned Judgment dated 10.07.2020. Being aggrieved by

same, the appellant - State has filed this leave to appeal before

this Court.

Heard learned Public Prosecutor and perused the impugned

judgment.

Learned Public Prosecutor while praying for grant of leave to

appeal, submits that the trial court erred in discarding the

testimony of the prosecutrix without any cogent reasons. The

younger sister of the prosecutrix and complainant, who is father of

the prosecutrix, corroborated the statement of the prosecutrix.

The trial court, on the basis of conjectures and surmises,

disbelieved the statements of these prosecution witnesses which

has resulted into miscarriage of justice. The trial court committed

grave error in not relying upon the statement of sister of the

(3 of 5) [CRLLA-68/2021]

prosecutrix viz. Mst. "K", who was 11 years of age at the time of

incident. As per prosecution story, at the time of abducting the

prosecutrix 'S', the accused shown his private part of body to Mst.

"K" and slapped her. The trial court committed error in

disbelieving the prosecution evidence. He, therefore, prays to set

aside impugned judgment of acquittal.

Considered the submissions advanced by learned Public

Prosecutor and carefully perused the record of the trial court.

The trial court after analyzing the evidence came to the

conclusion that prosecutrix, who was major, accompanied the

accused out of her own free will, without any resistance. The

prosecutrix and the accused were known to each other prior to

incident. The cell phone was also provided to her by the accused

and they used to talk with each other regularly. She did not resist

in going with the accused. She did not complain to anybody in

spite of opportunity. The trial court, after analyzing the

prosecution evidence elaborately, did not find the same credible.

Having regard to the submissions made by learned Public

Prosecutor and the evidence available on record, this Court is in

agreement with the findings recorded by the trial court. A perusal

of the statement of prosecutrix 'S' (P.W. 5) shows that she has

admitted the suggestion given by the defence during her cross-

examination that they used to talk with each other on mobile

phone prior to the incident, which fact was concealed by her from

her family members. After perusal of the cross-examination of

the prosecutrix, there is no reason to doubt that she accompanied

the accused out of her own free will; no force was used against

her by the accused. She never complained against the accused,

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whereas, she was having ample opportunity to resist and complain

against so-called force used against her.

It is also pertinent to note that the prosecutrix and the

accused both went to the court premises in Amet, where some

documents were prepared and she signed them without any

objection. Before preparing the documents, photographs were

also snatched. In the above circumstances, the version of the

prosecution is totally untrustworthy. The prosecutrix was not

abducted by the accused, rather, she accompanied him out of her

own free will. At the time of alleged incident, she was 19-20

years old mature girl. The allegations levelled by her that she was

compelled to accompany the accused is not worth credence. The

trial court did not commit any error in acquitting the accused for

the offences under Sections 365, 342 & 346 I.P.C.

Regarding the charge under Section 354A I.P.C., there is no

cogent evidence available on record with regard to sexually

harassing the prosecutrix by the accused. In the examination-in-

chief, the prosecutrix stated that accused compelled her to make

physical relations with him. However, in absence of any force

being used by the accused against her, accused could not be

convicted under Section 354-A I.P.C.

So far as the charge under Section 11/12 of POCSO Act for

showing his private part to the sister of the prosecutrix viz. Mst.

'K' is concerned, in the considered opinion of this Court, when the

main story of the prosecution itself is found untrustworthy, then

this part of allegation in the prosecution evidence that while

abducting the prosecutrix 'S', the alleged offence with sister of the

prosecutrix was also committed by the accused cannot be

(5 of 5) [CRLLA-68/2021]

accepted. The prosecution evidence is contradictory and not fit to

be relied upon. The trial court has committed no error in

acquitting the accused from the charges levelled against him.

In this background, this Court finds no ground to grant leave

to appeal to this Court.

The criminal leave to appeal is, accordingly, dismissed.

(RAMESHWAR VYAS),J

2-Inder/-

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