Rajasthan High Court - Jodhpur
State Of Rajasthan vs Ajay @ Azad on 31 March, 2022
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
....
S.B. Criminal Leave To Appeal No. 120/2021.
State of Rajasthan through PP
----Appellant
Versus
Ajay @ Azad S/o Hira Lal, aged about 22 years, R/o
Mathugamda Phala Gadat Upla, P.S. Sadar Dungarpur, District
Dungarpur Pali.
----Respondent
For Appellant(s) : Mr. Arun Kumar, PP
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order
31/03/2022
Appellant-State has filed this Criminal Leave to Appeal under
Section 378 (iii) and (i) of the Code of Criminal Procedure, 1973
(for short, 'Cr.P.C.') against the impugned judgment dated
07.07.2020 passed by the learned Special Judge, Protection of
Children from Sexual Offences (for short, 'POCSO') Act Cases,
Dungarpur in Sessions Case No.31/2018 whereby, the learned trial
Court has acquitted respondent-accused for the offences
punishable under Sections 363, 366, 307/34 & 326/34 of the
Indian Penal Code (for short, 'IPC') and Section 3/4 of the POCSO
Act, 2012.
(2 of 4) [CRLLA-120/2021]
In compliance of Court's earlier order dated 21.12.2021,
record of the learned trial Court has been tagged along with the
present leave to appeal.
As per the prosecution story, impugned judgment was
passed by the learned trial Court by observing that the recovery of
the 'knife' has not been proved by the prosecution; as per para 35
of the impugned order and evidence available on record, the
Investigating Officer, namely, Kishan Lal has not been included in
the list of the witnesses, therefore, considering all the facts and
circumstances of the case, the impugned order may kindly be set
aside and the present application for filing criminal leave to appeal
may kindly be allowed.
Heard learned Public Prosecutor appearing for the applicant-
State of Rajasthan.
In reply to the query of the Court, learned Public Prosecutor
admitted that name of the Investigating Officer Kishan Lal, Sub-
Inspector has not been included in the list of the witnesses and he
has not been produced before the learned trial Court as a witness.
It is further an admitted position that the prosecution has
failed to prove recovery of 'knife'; the Memo of Seizure (Ex.39)
has not been signed either by the Seizure Officer or by Panch
Gawahan, namely, Mohd. Salim and Ramesh Chandra and thus,
the prosecution has also failed to prove the document in question.
Even the information given by the Juvenile, in conflict with law,
(3 of 4) [CRLLA-120/2021]
under Section 27 of the Indian Evidence Act has not been
exhibited before the learned trial Court, therefore, the finding of
the learned trial Court that, the recovery of the knife from an
accused has not been proved beyond doubt by the prosecution,
appears to be correct.
Admittedly, it has not been made clear by the witness,
namely, Sobran Singh (PW.15) that the photographs (Ex.P.29 to
38) were produced by whom.
So far as, this argument of the learned Public Prosecutor is
concerned that the stomach injury of the injured Sukhdev is found
to be dangerous to life but the same has not been proved in the
statement of the Medical Officer (PW-12). The injured himself
alleged that the injury was caused by the accused.
In the opinion of this Court, a Medical Officer can explain
that the injury is caused by which type of weapon and whether the
injury is dangerous to life or not but it cannot be determined only
on the basis of the statement of the Medical Officer that the injury
was caused by whom. For this purpose, statements of the victim
and independent witness are required and same should be
corroborated by the recovery of weapon which is missing in the
present case, therefore, the learned trial Court has rightly
acquitted the accused by extending him the benefit of doubt.
(4 of 4) [CRLLA-120/2021]
Having heard learned Public Prosecutor and perused the
impugned judgment, in my opinion, on the basis evidence and
other material available on record, learned Special Judge has not
committed any error while rendering the impugned judgment and
it is not a fit case wherein leave is to be granted.
Be that as it may, the fact remains that there is no infirmity
in the impugned judgment, whereby the learned Special Judge has
acquitted the accused-respondent.
In this view of the matter, it is not a fit case wherein
discretion is to be exercised for granting leave. Consequently,
leave prayed for is declined and the appeal is accordingly
dismissed.
(DEVENDRA KACHHAWAHA),J
1-Rashi/S. Dhingra
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