Decided on May 05,2014

Mahant Rudragari Guru Respondents


- (1.) THE present appeal under sec. 378 of the Code of Criminal Procedure, 1973, is directed against the impugned judgment and order rendered in Sessions Case No. 282/97 by the learned Addl. Sessions Judge, Mehsana, Camp at Patan, recording acquittal from the charges for the offences under sections. 363, 373, 377, 323, 342 and 506(2) of the Indian Penal Code, 1860.
(2.) THE facts of the case briefly summarised are as follows: 2.1 The respondent -accused was serving as Mahant of the temple at Patan. The victim was left to him by the father of the victim as 'chela' (disciple) for development. Thus, when the minor victim was in custody of the accused, the accused is said to have committed unnatural act for the offence under sec. 377 and had not allowed him even to get out of the room. It is the case of the prosecution that the victim had tried to resist and when it was committed forcibly injuries are received by the victim for which a complaint is said to have been filed by the minor victim at Patan City Police Station being C.R. No. I -125/97. On the basis of the investigation made including the medical evidence, the chargesheet came to be filed before the Court of Magistrate and the case was committed to the Court of Sessions. 2.2 The Sessions Court proceeded with the trial and after recording of the evidence of the prosecution was over, Further Statement of the accused was recorded under sec. 313 of CrPC. The Sessions Court, after hearing the learned APP and the learned advocate for the defence, recorded the acquittal which has led to the present appeal. It is this judgment and order which has been assailed in the present appeal, inter alia, on the ground that the court below has failed to appreciate the most relevant and crucial material for the offence and has treated the entire case in a casual manner. Learned APP Shri Patel referred to the background of facts and submitted that in fact the complaint by the minor would not be competent and it ought to have been recorded as a complaint by the police. He referred to the testimony of the victim, PW 2, at Exh. 14 and submitted that the victim is a minor aged about 8 years only and, though he is declared as hostile, it is required to be considered in background of the facts, the complaint at Exh. 15 as well as the medical evidence. He submitted that had the complaint been filed by the police officer, he would not have been hostile and as the victim is a minor, whether he is competent to even give the testimony and the complaint is required to be considered. He submitted that, admittedly, the victim was left in the custody of the accused and he has undergone the agony of receiving the injuries. The injuries of the victim as well as the accused are proved by the medical evidence which has been brushed aside. He, therefore, submitted that as the victim is not competent to give the complaint or even consent, the court has to examine independently on the basis of other evidence including medical evidence. He has referred to the provisions of the Children Act, 1960. He submitted that as the Juvenile Justice (Care and Protection of Children) Act, 2000 was not enacted at the relevant time, the Children Act would be relevant. He submitted that the testimony of the other witness, PW 3, is also not relevant but the medical evidence could not have been brushed aside. He pointedly referred to the testimony of the Doctor at Exh. 10 and submitted that the certificate and the evidence clearly suggest about the injury to the victim as well as the acts for which no explanation has been given. He emphasised and submitted that the victim was in the custody of the accused when the incident is alleged to have taken place and when there is nothing on record to explain about the injury, the presumption under sec. 114 of the Evidence Act can be made. He submitted that the custody of the minor is exploited and the heinous crime is committed. The learned APP, therefore, submitted that the impugned judgment and order may be quashed and set aside and the present appeal may be allowed.
(3.) PER contra, learned counsel Shri Nitin Amin appearing for the respondents -accused referred to the testimony of the witnesses and submitted that the complainant victim has turned hostile. He submitted that though the complaint ought to have been filed by the police officer, the facts remains that the police officer has not filed the complaint, nor the father of the victim has filed the complaint. He also referred to the testimony of the father of the victim, PW 4, at Exh. 16 and submitted that he has also not supported and corroborated the prosecution case. Learned counsel Shri Amin therefore submitted that the father would have given the testimony as to what has transpired as the child would have reposed confidence in him, but the father has not stated anything about the incident and therefore the impugned judgment recording acquittal cannot be said to be perverse or contrary to the material and evidence on record. Learned counsel Shri Amin has referred to the provisions of the Children Act, 1960 and pointedly referred to the provision of sec. 41(2). He submitted that it prohibits the court from taking cognizance.;

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