Rajasthan High Court - Jodhpur

Rahul vs State Of Rajasthan ... on 11 August, 2023

Bench: Farjand Ali

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 685/2023

S.B. Criminal Appeal No.1211/2023

Rahul S/o Lala, Aged About 33 Years, R/o Sukhaniya Padi, Police Station Sadar, District Banswara (Raj.) (At Present Lodged In District Jail, Dungarpur)

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Kamlesh S/o Ramesh, B/c Harijan, R/o Basadwada, Police Station Kotwani, District Dungarpur (Raj.)

----Respondents

For Petitioner(s) : Mr. Sanjay Raj Pandit For Respondent(s) : Mr. Mukhtiyar Khan, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

11/08/2023

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

08.05.2023 passed by the learned Special Judge, Protection of

Children from Sexual Offence Act, Cases, 2012 & Child Protection

Act, 2005, Dungarpar in Sessions Case No.34/2022 whereby he

was convicted and sentenced to suffer maximum imprisonment of

20 years under Sections 376(2) 376(3) of the IPC and under

Section 5/6 of the POCSO Act 20 years rigorous imprisonment on

each count along with fine of Rs.50,000/- & Rs.1,00,000/-

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respectively and in default in payment of fine to further undergo

six months' & one month simple imprisonment.

2. Learned counsel representing the applicant-appellant

submits that from the evidence brought on record it can safely be

inferred that the victim P.W.1 Mst.'R' was having consensual sexual

relationship with the appellant; in an unequivocal terms; she

admitted physical relationship with the appellant; it is revealing

that as a necessary consequence of fornication, she got conceived

and having 8 months fetus, when she was examined during trial;

the appellant never put force upon her; both belongs to same cast

and community and she was in love with him; in her cross

examination she stated that both the families have now agreed to

solemnize their wedding; although, before establishing physical

relationship they had solemnized marriage in a temple; she

candidly admits that she does not want to prosecute against the

appellant. Learned counsel further submits that now the appellant

is behind the bars and his wife is waiting outside alone with a baby

in her lap and it would be very onerous for her also to live isolated

without the company of her husband. It is also argued that the

documents showing date of birth of P.W. 1 are not sacrosanct

piece of evidence, further critical appreciation would be required

to made. As per him, even if she is assumed to be below 18 years

at the time of commission of crime, the fact of their bonding and

delivery of a baby boy by the victim may be an act taken into

account for the purpose of reduction of sentence. In this regard,

learned counsel has placed reliance upon the judgment passed by

the Co-ordinate Bench of this court in S. B. Criminal

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Miscellaneous(Petition) No.6323/2022 titled as Tarun Vaishnva Vs.

State & Anr. decided on 13.10.2022 wherein the identical issue

was before this Court and even this Court considering the

circumstances had quashed the FIR.

3. Learned Public prosecutor and learned counsel for the

complainant opposed the submissions advanced by the learned

counsel for the applicant-appellant. However, they does not refute

the fact that the relationship between the accused and victim was

consensual and even the appellant is a tender age boy and the

learned counsel appearing for the complainant also admits that

family of both the parties are ready and willing to accept the

relationship by solemnizing their marriage.

4. Heard learned counsel for the applicant-appellant as well as

leaned Public Prosecutor for the State and learned counsel for the

complainant. Perused the order impugned as well as relevant

material placed before me.

5. The Coordinate Bench of this Court while dealing the

identical issue in the matter of Tarun Vaishnav Vs. State of

Raj. & Anr. (S.B. Criminal Misc. (Pet.) No.6323/2022

decided on 13.10.2022) has passed the following order.

1. It is rather an unusual case where the FIR (being FIR No.260/2022) under provisions of Section 376 of Indian Penal Code and Sections 3 and 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act') has been registered by the Station House Officer, Devnagar, Jodhpur City West pursuant to the statement of a minor girl - respondent No.2,

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when she delivered a baby boy in a Government Hospital.

2. The case involves and deals with the personal relationship of a minor girl - respondent No.2 who shall be referred to as 'D'. The registry is directed to redact or withhold particulars of respondent No.2 from all online record relating to this case.

3. Facts appertaining to the present case are that on the fateful day of 04.08.2022, when 'D' complained of severe stomachache and distress, her parents took her to Government Hospital and were shocked to learn that their daughter, still a minor and unmarried, was carrying matured pregnancy and was about to deliver. 4. As luck would have it, said 'D' gave birth to a baby boy though she herself was of tender age of 16 years (born on 06.04.2006). Coming to know of such fact, the Investigating Officer recorded her statement in which it was revealed that during currency of her love affair with the present petitioner, she voluntarily cohabited with the petitioner, due to which she got impregnated.

5. Such being the position, the Investigating Officer sprung into action and went on to register the aforementioned FIR against the petitioner under the provisions of Section 376 of the Indian Penal Code and Sections 3 and 4 of the POCSO Act.

6. Mr. Panwar, learned counsel for the petitioner submitted that the petitioner and the respondent No.2 are having an affair and in innocence, rather lack of understanding of the consequences, they indulged in physical relationship, due to which respondent No.2 became pregnant. Having highlighted that the act was consensual, he submitted that neither the prosecutrix nor her parents have any grievance or grudge against the petitioner.

7. While highlighting that the impugned FIR (No.260) has been registered by the police

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officer at his own accord, learned counsel submitted that the parents of 'D' and even 'D' herself have entered into a compromise with the petitioner and approached this Court for seeking quashment of the FIR by invoking the Courts' powers under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code').

8. While pointing out that neither party wants the petitioner to be prosecuted/punished, learned counsel argued that continuation of the prosecution in the facts of the present case will serve no just purpose.

9. Considering the sensitivity of the issue and complexity of the problem, the petitioner, so also the prosecutrix - 'D' and their parents were asked to present themselves in the Court. Parents of both the boy and girl so also the petitioner and 'D' expressed their remorse and helplessness. The hapless parents of the girl expressed their concern about the situation that due to lack of maturity, or mistake, their minor and yet to be married daughter has delivered a baby boy.

10. They submitted that due to the society's pressure and stigma, they are not even in a position to keep their grandson with themselves and that innocent 2 months-old boy is housed in a nursery. They were emotional while stating that the innocent child is deprived of natural love, affection and feed from his mother, only because of the pendency of the impugned FIR.

11. Parents of petitioner so also 'D' who hail from different castes consented that as soon as the prosecutrix 'D' attains majority, they will solemnise her marriage with the petitioner.

12. The parents of both the girl and the boy beseeched that the subject FIR be quashed, because the prosecution for an unreflective, yet consensual act will be more detrimental

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to the rights and interests of 'D' and her son, who is just-born.

13. This Court is not oblivious of the legal position that in cases concerning sexual act with a minor, consent, if any, has no legal sanctity and it cannot be used as a defence. Needless to mention that this Court cannot and does not accord any approval or sanction to the sexual act of petitioner with the prosecutrix but then, it is a hard reality that their love affair has traversed beyond the legal and moral bounds, consequence whereof has begotten a child.

14. This Court cannot be a silent spectator to or turn its back on the distressed family. If the impugned FIR is not quashed, the petitioner will have to face incarceration for at least 10 years. The mistake or blunder which otherwise constitutes an offence has been committed due to immature act and uncontrolled emotions of two persons, out of whom, one is still a minor.

15. The petitioner's prosecution and conviction will lead to pain and tears in the eyes of the family members of both the parties and future of two families, and above all, an innocent child will be at stake, whereas, if the impugned FIR is quashed, it would serve the ends of justice.

16. It is to be noted that in almost similar circumstances, different High Courts have quashed the FIR/proceedings. The following are to mention a few:-

(i) Vijayalakshmi & Anr. Vs. State & Anr. (Crl.M.P. No.109/2021), decided on 27.01.2021 by Hon'ble High Court of Madras;

(ii) Kundan & Anr. Vs. State & Ors. (Crl.M.C. No.27/2022), decided on 21.02.2022 by Hon'ble High Court of Delhi;

(iii) Shri Skhemborland Suting & Anr. Vs. State of Meghalya and Anr. (Crl. Petition No.63/2021), decided on 23.03.2022 by Hon'ble High Court of Meghalya.

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17. Different High Courts have given different reasonings dealing with medical, psychological, social angles of the situation; analysing the statement of objects and reasons of the POCSO Act; considering practical realities including future of the newborn child involved.

18. This Court feels that it is a fit case to exercise its inherent powers under Section 482 of the Code for quashing the FIR to secure the ends of justice, because:-

(i) an adolescent girl of tender age (16 years) has fallen in love with a boy of 22 years;

(ii) both being immature, apparently driven by momentary emotions have fallen prey to lust, surpassing social, moral and legal limits;

(iii) the complainant is the police and the girl or her family are neither aggrieved party nor complainant;

(iv) the girl has been consistent in her stand that she consented to the physical relationship. Not only in her statements under Section 161 and Section 164 of the Code but also before this Court, the girl unequivocally accepted that she had consented to the act;

(v) their fornication though may be without legal and moral sanction, has resulted in child birth;

(vi) parents of both - the girl and the boy having forgiven their respective children for their felony, intend to tie them in nuptial knot, when the prosecutrix attains marriageable age;

(vii) if the prosecution continues, the petitioner is sure to face conviction, as the girl is minor. The conviction will result in 10 years of incarceration which would bring more agony and misery to the girl and her newly born son, rather than securing justice;

(viii) and also because, the basic ingredient

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of retributive theory of punishment -"avenge for the person wronged" is completely absent.

19. Faced with such situation and upon appraisal of the overall circumstances, as an exceptional case, this Court is persuaded to allow the petition, as prayed. The impugned FIR No.0260/2022 registered at Police Station Devnagar, Jodhpur City (West) against the petitioner, is hereby, quashed not only on the basis of compromise, but also for the reasons mentioned hereinabove and what has transpired during the course of hearing.

20. The stay application also stands disposed of.

6. Considering the submissions of learned counsel for the

parties and looking to the totality of facts and circumstances of

the case, more particularly, after having gone through the

statement of PW 1 Mst.'R' and minutely gone through the medical

report, the DNA profile and other medical documents as well as

order passed by the Coordinate Bench of this Court in the case of

Tarun Vaishanav (Supra) wherein the identical issue has been

dealt with in a very prudent manner which persuaded this Court to

take a lenient view by suspending the sentences awarded to the

applicant-appellant during the pendency of the appeal.

7. In view of the above, the application for suspension of

sentence filed under Section 389 Cr.P.C. is allowed and it is

ordered that the sentence passed by learned Special Judge,

Protection of Children from Sexual Offence Act, Cases, 2012 &

Child Protection Act, 2005, Dungarpar who passed the impugned

order dated 08.05.2023 in Sessions Case No.34/2022 against the

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appellant-applicant- Rahul S/o Lala shall remain suspended till

final disposal of the aforesaid appeal and he shall be released on

bail provided he executes a personal bond in the sum of

Rs.50,000/-with two sureties of Rs.25,000/- each to the

satisfaction of the learned trial Judge for his appearance in this

court on 11.09.2023 and whenever ordered to do so till the

disposal of the appeal on the conditions indicated below:-

(1) That he will appear before the trial Court in the month of January of every year till the appeal is decided.

(2) That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.