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Ashish @ Ashu Tiwari vs State Of Chhattisgarh 4 … on 25 November, 2019

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1062 of 2018

Judgment Reserved on : 27.8.2019

Judgment Delivered on : 25.11.2019

Smt. Sonam @ Jyoti Tiwari, W/o Parmeshwar @ Chhotu Tiwari (wrongly
mentioned as D/o Parmeshwar @ Chhoui Tiwari), aged about 19 years, R/o
Tikrapara, Shiv Mandir Talkies Road, Near Bodh Mandir, Bilaspur, District
Bilaspur, Chhattisgarh
—- Appellant
versus

State of Chhattisgarh through the Station House Officer, Police Station Civil
Line, Bilaspur, District Bilaspur, Chhattisgarh
— Respondent

Criminal Appeal No.962 of 2018

Ashish @ Ashu Tiwari, S/o Arvind Tiwari, aged about 28 years, R/o Tifra,
Housing Board Colony, Naya Bus Stand, District Bilaspur, Chhattisgarh
—- Appellant
versus

State of Chhattisgarh through Station House Officer, Police Station Civil Line,
District Bilaspur, Chhattisgarh
—- Respondent

Criminal Appeal No.980 of 2018

Sidhnath alias Tantan, son of Doman Vishwakarma, aged about 27 years,
resident of Masturi, District Bilaspur, Chhattisgarh
—- Appellant
versus

State of Chhattisgarh through the Police Station Civil Lines, Bilaspur
— Respondent
2

Criminal Appeal No.1137 of 2018

Vikki @ Ghanshyam Das Manikpuri, S/o Late Manharan Das Manikpuri, aged
about 24 years, R/o Latiyapara, Thana Masturi, District Bilaspur,
Chhattisgarh
—- Appellant
versus

State of Chhattisgarh through Thana Civil Line, District Bilaspur, Chhattisgarh
— Respondent

and

Criminal Appeal No.1045 of 2018

Himanshu @ Chhota Manikpuri, age 22 years, S/o Manharan Manikpuri, R/o
Village Latiyapara, P.S. Masturi, District Bilaspur, Chhattisgarh
—- Appellant
versus

State of Chhattisgarh through the District Magistrate Bilaspur, Chhattisgarh,
P.S. Civil Line
— Respondent

——————————————————————————————————

For Respective Appellants : Shri Pushpendra Singh Baghel, Shri Raj Kumar
Gupta, Shri Rajeev Kumar Dubey, Shri Vivek
Shrivastava, Advocates
For State/Respondent : Smt. Hamida Siddique, Dy. Advocate General

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. All the above mentioned appeals arise out of a common judgment,

therefore, they are disposed of together.

2. The appeals have been preferred against the judgment dated

12.6.2018 passed by the Special Judge under the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act
3

(henceforth ‘the PoA Act’), Bilaspur in Special Criminal Case SCST

(PA) Act 1989 No.22 of 2016, whereby the Appellants have been

convicted and sentenced as under:

Criminal Appeal No.1062 of 2018
Appellant Smt. Sonam alias Jyoti Tiwari
Conviction Sentence

Under Section 109 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.10,000/-

with default stipulation
Under Section 109 of the Rigorous Imprisonment for 7
Indian Penal Code years and fine of Rs.10,000/-

with default stipulation
Under Section 506 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
Under Section 365 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.1,000/-

with default stipulation
Under Section 343 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
All the sentences are directed
to run concurrently

Criminal Appeal No.962 of 2018
Appellant Ashish alias Ashu Tiwari
Conviction Sentence

Under Section 4 of the Rigorous Imprisonment for 7
Protection of Children years and fine of Rs.10,000/-

from Sexual Offences Act, with default stipulation
2012 (henceforth ‘the
Pocso Act’)

Criminal Appeal No.980 of 2018
Appellant Sidhnath alias Tantan
Conviction Sentence

Under Section 366 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.5,000/-

with default stipulation
Under Section 4 of the Rigorous Imprisonment for 7
Pocso Act years and fine of Rs.10,000/-

with default stipulation
Both the sentences are
directed to run concurrently
4

Criminal Appeal No.1137 of 2018
Appellant Vikki alias Ghanshyam Das Manikpuri

Conviction Sentence

Under Section 366 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.5,000/-

with default stipulation
Under Section 506 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
Under Section 365 of the Rigorous Imprisonment for 5
Indian Penal Code years and fine of Rs.1,000/-

with default stipulation
Under Section 343 of the Rigorous Imprisonment for 1
Indian Penal Code year and fine of Rs.1,000/- with
default stipulation
Under Section 4 of the Rigorous Imprisonment for 10
Pocso Act years and fine of Rs.10,000/-

with default stipulation
Under Section 3(1)(xii) of Rigorous Imprison for 2 years
the PoA Act and fine of Rs.2,000/- with
default stipulation
All the sentences are directed
to run concurrently

Criminal Appeal No.1045 of 2018
Appellant Himanshu alias Chhota Manikpuri

Conviction Sentence

Under Section 4 of the Rigorous Imprisonment for 7
Pocso Act years and fine of Rs.10,000/-

with default stipulation

3. Case of the prosecution, in brief, is that on the relevant date, age

of the prosecutrix (PW3) was about 16 years. In the year 2015,

she was studying in XIth standard in Devkinandan Dixit School,

Bilaspur and was residing in Post Matric Anusuchit Jati Kanya

Chhatrawas, Bilaspur along with Padmini Banjare (PW4). Both got

acquainted with each other. In August, 2015, Padmini Banjare

introduced Appellant Vikki alias Ghanshyam Das Manikpuri with

the prosecutrix in Magneto Mall, Bilaspur. Appellant Vikki gave his
5

mobile number to the prosecutrix and thereafter they were talking

to each other on phone. On the day of tija festival in the year

2015, by a phone call, Appellant Vikki called the prosecutrix out of

her hostel and telling her that he will take her for roaming took her

to the house of his friend Vishal Kumar Patre (PW13) situated at

Village Masturi. There Appellant Vikki committed sexual

intercourse with the prosecutrix after shutting the door and

thereafter he asked her not to disclose about this to anyone.

Thereafter, he left her at her hostel. In December, 2015, Appellant

Sonam @ Jyoti Tiwari and Padmini Banjare came to the

prosecutrix in the hostel. At that time, Appellant Sonam and the

prosecutrix got acquainted with each other. Thereafter, they used

to talk to each other on phone. Appellant Sonam told the

prosecutrix that Appellant Vikki is her husband. Thereafter,

Appellant Vikki tendered his apology to the prosecutrix on phone

and called her to the Magneto Mall. She went to the Mall. There

Appellant Vikki introduced her with Appellant Sidhnath alias

Tantan. There both these Appellants telling the prosecutrix that

time was of night took her to Village Masturi Kirari. Appellant Vikki

returned from there and Appellant Sidhnath made physical

relationship with the prosecutrix in his shop at that village. In the

next morning, Appellant Sidhnath gifted a suit to the prosecutrix

and left her at her hostel. On 31.12.2015, Appellant Sonam called

the prosecutrix at her house. The prosecutrix went to her house

along with Padmini Banjare (PW4) in the evening. Appellants

Vikki, Sidhnath, Himanshu alias Chhota Manikpuri and acquitted

accused Yashwant @ Monu Thakur were also present there. All

these persons took dinner. Thereafter, Padmini and the

prosecutrix went to the room for sleeping. Thereafter, Appellant
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Sonam called Padmini out of that room and sent acquitted accused

Yashwant inside the said room. Thereafter, Yashwant made

physical relationship with the prosecutrix in the said room.

Thereafter, Appellant Sonam asked the prosecutrix to stay at that

house and to attend her school from there. On this, the prosecutrix

stayed there till 9.1.2016. on 2.1.2016, Appellant Himanshu made

physical relationship with the prosecutrix at the house of Appellant

Sonam. 2-3 days thereafter, Appellant Sonam called Appellant

Ashish alias Ashu Tiwari telephonically to her house. Appellant

Ashish reached her house and thereafter took the prosecutrix and

Appellant Sonam in a car to his house at Tifra, Bilaspur. In the

night, Appellant Sonam asked the prosecutrix to sleep with

Appellant Ashish. The prosecutrix did so. In the next morning,

Appellant Ashish left both the prosecutrix and Appellant Sonam to

the house of Appellant Sonam. Thereafter, on 11.1.2016,

Appellant Sonam again went to the hostel of the prosecutrix and

took her out from there saying that both will go for roaming.

Thereafter, she called acquitted accused Mohd. Lukman alias

Monu and sent the prosecutrix with him. Thereafter, Mohd.

Lukman took the prosecutrix to the house of his friend and made

physical relationship with the prosecutrix there. On 9.2.2016, the

prosecutrix left a letter at the hostel that she was going to the

house of her sister and left the hostel. On 13.2.2016, the

prosecutrix returned the hostel in the evening. Appellants Sonam

and Vikki reached behind her to the hostel and threatening her

took her away along with them. On 15.2.2016 at 2:30 p.m., the

prosecutrix returned her hostel. Behind her, Appellant Sonam also

came to her and threatened her. Hostel Superintendent Smt.

Sharda Dhritlahre (PW1) made a written complaint in this regard in
7

the police station on the basis of which offences under Sections

363, 365, 34 of the Indian Penal Code were registered. Statement

of the prosecutrix was recorded under Section 161 of the Code of

Criminal Procedure. On the basis of her statement, other offences

were added. Statements of other witnesses were also recorded.

During the course of investigation, a mark-sheet (Ex.P20) of the

prosecutrix was seized from her father Bedram Anchal (PW6) vide

seizure memo (Ex.P16). Dakhil-Kharij register (Ex.P66) was also

seized vide seizure memo (Ex.P67). According to the entries

made in the mark-sheet and in the dakhil-kharij register, date of

birth of the prosecutrix is 12.9.1999. On completion of the

investigation, charge-sheet was filed. Charges were framed

against Appellant Vikki under Sections 376(1), 366, 506, 365, 343

of the Indian Penal Code and Section 4 of the Pocso Act. Charges

were framed against Appellants Himanshu, Ashish and acquitted

accused persons Yashwant and Mohd. Lukman under Section

376(1) of the Indian Penal Code. Against Appellant Sidhnath

charges were framed under Sections 376(1), 366 of the Indian

Penal Code and Section 4 of the Pocso Act. Against Appellant

Sonam, charges under Sections 109/115 (3 counts), 506, 365,

343, 370(A) of the Indian Penal Code were framed. Against

Appellants Vikki, Ashish, Sidhnath, acquitted accused Yashwant

and Mohd. Lukman, additional charges under Section 3(1)(xii) of

the PoA Act was framed. Against Appellant Vikki, acquitted

accused Yashwant, Appellant Himanshu, acquitted accused Mohd.

Lukman, Appellants Ashish, Sidhnath, Sonam, charge under

Section 3(2)(v) of the PoA Act was also framed.

4. In support of its case, the prosecution examined as many as 29

witnesses. In examination under Section 313 of the Code of
8

Criminal Procedure, the accused persons denied the guilt. No

witness has been examined in their defence.

5. After trial, the Trial Court acquitted accused persons Yashwant and

Mohd. Lukman of all the charges framed against them, but

convicted and sentenced the present Appellants as mentioned in

second paragraph of this judgment. Hence, these appeals.

6. Learned Counsel appearing for the Respective Appellants

submitted that the present Appellants have wrongly been convicted

by the Trial Court without there being sufficient evidence on record

against them. The entire story narrated by the prosecutrix is

suspicious and not natural. She never made any complaint at any

point of time to anyone. If the entire statement of the prosecutrix is

taken as it is, it is well established that she was a consenting party

to the alleged act done with her. The Trial Court has wrongly

arrived at the conclusion that at the time of incident age of the

prosecutrix was below 18 years. From a bare perusal of the

statement of father of the prosecutrix, it is well established that on

the relevant date, the prosecutrix was aged more than 18 years.

The doctor had also advised for ossification test of the prosecutrix

for determination of her age, but the prosecution did not conduct

ossification test of the prosecutrix for the reasons best known to

them. Since on the date of incident, age of the prosecutrix was

above 18 years and she was a consenting party to the alleged act,

no offence is made out beyond reasonable doubt. Thus, the

finding of the Trial Court is perverse and not in accordance with the

evidence available on record.

7. Learned Counsel appearing for the State supported the impugned

judgment of conviction and sentence.

9

8. I have heard Learned Counsel appearing for the parties and

perused the record minutely.

9. I shall first consider the evidence on record with regard to age of

the prosecutrix. In this regard, 2 documentary evidence are

available on record. They are dakhil-kharij register (Ex.P66) and

mark-sheet (Ex.P20) of the prosecutrix. According to the entries

made in these two documents, date of birth of the prosecutrix is

12.9.1999. The alleged incident took place in December, 2015. As

stated by the prosecutrix (PW3), in the year 2015, she was

studying in XIth standard. In her Court statement, the prosecutrix

(PW3) has not been able to state her date of birth and whatever

has been stated by her regarding her date of birth is based on the

entries made in her mark-sheet (Ex.P20). Her father Bedram

(PW6) has also deposed that he also stated her date of birth on the

basis of the entries made in the mark-sheet (Ex.P20). He has

further deposed that he had got the prosecutrix admitted in the

Primary School Mathpur in 1st standard. He has also admitted that

he did not get the birth particulars of the prosecutrix entered in the

kotwari register. According to the entries of dakhil-kharij register

(Ex.P66) also, date of birth of the prosecutrix is 12.9.1999.

10. Teacher Sarla Ahire (PW28) has stated that in the entry made at

Sl.No.355 of dakhil-kharij register (Ex.P66), date of birth of the

prosecutrix is 12.9.1999 and date of her admission in I st standard is

10.8.2004. She was not able to state that on what basis the

entries were made in the dakhil-kharij register and who made those

entries in the said register.

11. Bedram (PW6), father of the prosecutrix has stated in paragraph 6

of his cross-examination that he was aged about 19 years at the
10

time of his marriage. 1½ years thereafter, his first child was born

and thereafter with an interval of 1-1½ years, his remaining 2

children including the prosecutrix were born. On the date of

recording of his statement in the Court, his apparent age is

mentioned as 45 years. If he got married on his age of 19 years

and his all the 3 children born with an interval of 1-1½ years then

his all the 3 children would have taken birth on his age of 25 years.

In these circumstances, in the year 2015, age of the prosecutrix

establishes to be 18-19 years. Bedram (PW6) has further stated in

paragraph 9 that he got the prosecutrix admitted in the school in 1 st

standard on her age of 7-8 years. As stated by teacher Sarla Ahire

(PW28), admission of the prosecutrix in the school was done on

10.8.2004. In these circumstances, on 10.8.2004, i.e., on the date

of her admission in the school, age of the prosecutrix was 7-8

years and in the year 2015 when she was studying in XI th standard

her age establishes to be 18-19 years.

12. From the evidence discussed above, it is well established that

though in dakhil-kharij register (Ex.P66) and in mark-sheet

(Ex.P20), date of birth of the prosecutrix is mentioned as

12.9.1999, who made those entries in these 2 documents and on

what basis the entries were made in these documents is not

established. No entry regarding date of birth of the prosecutrix was

got recorded in the kotwari register. Despite being suggested by

the doctor, ossification test was not conducted by the prosecution

for determination of age of the prosecutrix. From the statement

made by Bedram (PW6) in paragraphs 6 and 9, age of the

prosecutrix in the year 2015 establishes to be between 18 and 19

years. Thus, the finding of the Trial Court that on the date of

incident age of the prosecutrix was below 18 years is not in
11

accordance with the evidence available on record.

13. With regard to the alleged incident, only the Hostel Superintendent

Sharda Dhritlahre (PW1) has identified Appellant Sonam. In her

Court statement, she has stated that on 9.2.2016, the prosecutrix,

leaving a letter in the hostel that she had to go to the house of her

sister, went out. On 13.2.2016, Gangabai Yadav (PW2) and

Rajkumari Diwaker (PW11), both cook of the hostel had told this

witness that the prosecutrix went out of the hostel along with one

boy on a motorcycle. Thereafter, on 15.2.2016, the prosecutrix

returned to the hostel. This witness called the prosecutrix to her.

At that time, a telephonic call of Appellant Sonam came to the

prosecutrix. Then this witness called Appellant Sonam. Sonam

came to this witness. Then this witness called police at the hostel

and thereafter she made the written complaint (Ex.P1). This

witness has turned hostile. In her cross-examination in paragraph

12, she has stated that in the police station she was asked by the

police officials to give a complaint in writing and, therefore, she

made the written complaint. Gangabai (PW2) and Rajkumari

(PW11) have also not supported the case of the prosecution and

turned hostile.

14. The prosecutrix (PW3) in her Court statement has stated that she

took admission in the hostel in July, 2015. In the hostel, her

friendship developed with Padmini Banjare. Thereafter, she went

along with Padmini Banjare to Magneto Mall. Padmini Banjare

introduced her with Appellant Vikki in the Mall. Thereafter, talks

started between her and Appellant Vikki. She has further stated

that on the day of tija festival, Appellant Vikki called her at the gate

of her hostel. She came out of the hostel and went out along with
12

Appellant Vikki on his bike for roaming. Appellant Vikki took her to

the house of his friend Vishal (PW13) at Village Masturi. She

stayed in a room of that house for 1 day. During her stay at the

house, Appellant Vikki forcibly committed wrong with her. But,

Vishal (PW13) has not supported the above statement of the

prosecutrix and turned hostile. The prosecutrix has further stated

that 1 week thereafter Appellant Vikki made her a telephonic call

and tendered his apology. He called her to meet him. On her

refusal, he threatened her and asked her to come to Magneto Mall.

She went to Magneto Mall. There she met with Appellants Vikki

and Tantan. While roaming, the time spent and it became evening.

Then she asked them to leave her at her hostel. They saying that

they will leave her at her hostel took her on their motorcycle.

Thereafter, they took her to the shop of Appellant Tantan situated

in Village Kirari. Thereafter, Appellant Vikki went away and

Appellant Tantan committed wrong with her in his shop. Next day,

Appellant Tantan gifted her a suit and asking her not to disclose

the matter to anyone left her at her hostel. She has further stated

that in December, 2015, Appellant Sonam came to the hostel along

with Padmini Banjare. During stay of Sonam at the hostel for 2

days, this witness got acquainted with her. Thereafter, on an

invitation of Appellant Sonam for celebrating 31 st December, she

went to the house of Sonam along with Padmini Banjare. After

celebrating the new year, this witness and Padmini Banjare slept in

the night in a room of the house of Appellant Sonam. In the night,

Appellants Sonam and Vikki called and took out Padmini from the

room and sent acquitted accused Yashwant inside that room

where he committed rape with her in that night. In the next

morning, Appellant Vikki, Padmini and Yashwant returned back.
13

Appellant Sonam asked this witness to stay at her house and

attend her school from her house. On being asked so, this witness

stayed at the house of Appellant Sonam. 2 days thereafter,

Appellant Sonam called Appellant Ashish. Then Appellants Sonam

and Ashish and this witness went to the house of Appellant Ashish

situated at Tifra, Bilaspur in a car. There 3-4 boys were already

present. All the persons took dinner there. Thereafter, Appellant

Sonam shut this witness along with Appellant Ashish in a room

there. Thereafter, Appellant Ashish committed rape with her in that

night. In the next morning, at about 10-11 a.m., Appellant Ashish

took this witness and Appellant Sonam and left them at the house

of Appellant Sonam. This witness has further stated that on 7 th or

8th of January, 2016, Appellant Himanshu came to the house of

Appellant Sonam. Sonam introduced Himanshu with her as

younger brother of Appellant Vikki. In the night, Appellant

Himanshu committed rape with her. This witness has further

stated that on 9.1.2016, she returned to her hostel with her mobile

phone and started living at her hostel. Thereafter, Appellant

Sonam had been threatening her to come back otherwise she will

take her out of the hostel. On 8 th or 9th of February, 2016,

Appellant Sonam again threatened her. On this, this witness

leaving a letter in the hostel went to the house of Appellant Sonam.

She stayed at the house of Appellant Sonam till 13.2.2016. on

13.2.2016, Appellants Sonam and Vikki came to her hostel.

Sonam dragged her by her hand from her room to the gate of the

hostel. Appellant Vikki started abusing her at the gate. Appellants

Sonam and Vikki forcibly made her sit on a bike and thereafter she

was taken away from there. On 15.2.2016, this witness telling

Appellant Sonam that she had received a telephonic call from her
14

father returned from the house of Appellant Sonam and came to

her hostel. When she was narrating the incident to the Hostel

Superintendent, at that time itself, a telephonic call of Appellant

Sonam came to her. On this, the Hostel Superintendent talked to

Appellant Sonam and asked her to come to the hostel. On

reaching Sonam to the hostel, the Hotel Superintend called police

at the hostel. In her cross-examination, the prosecutrix has stated

that when she was shut in the house of Vishal (PW13) at Village

Masturi, at that time, she had shouted loudly. She has further

stated that on the next day, at about 11-12 a.m., Appellant Vikki

had left her at the gate of the hostel. At that time, she had not

made any complaint to anyone. In paragraph 28, she has further

stated that in the night of 31 st December, 2015, she did not see the

person who committed sexual intercourse with her. On being told

by Padmini Banjare, she came to know that the said person was

Yashwant. In paragraph 29, she has admitted that she had a

mobile phone on which she had been talking to her family

members, but she never told about the incident to her family

members. In paragraph 40, she has further stated that in Village

Kirari, she had stayed at the shop of Appellant Tantan for about

10-12 hours and when he started doing wrong with her forcibly,

she shouted for about 10 minutes. Thereafter, Appellant Tantan

gagged her mouth. She has further stated that Appellant Tantan

did not commit any marpeet with her and on the next day he

himself had left her on his bike to her hostel. At that time also, she

did not make any complaint to anyone. She has further stated that

on 31.12.2015, Appellant Tantan had met with her at the house of

Appellant Sonam. There also, this witness did not make any

complaint against Appellant Tantan.

15

15. Padmini Banjare (PW4) has also not supported the case of the

prosecution and turned hostile. Priyanka Tandaon (PW7), one of

the students, who was also residing in the hostel has not supported

the case of the prosecution and turned hostile. Sangeeta (PW8),

cook of the hostel has also not supported the case of the

prosecution and turned hostile. Constable Neelam Yadav (PW9)

and Lance Nayak Salomi Rani (PW10) were deputed to discharge

their duties at the hostel in question. Both have also not supported

the case of the prosecution and turned hostile. Trilochan Singh

(PW14) and Seema Lader (PW17) are witnesses in whose houses

Appellant Sonam had lived as their tenant for some period. Both

these witnesses have stated that they had expelled Appellant

Sonam out of their houses because of her suspicious activities.

Sub-Inspector J.R. Banjare (PW20) recorded First Information

Report (Ex.P2) on the basis of the written complaint (Ex.P1) made

by the Hostel Superintendent.

16. Inspector Vinodini (PW19) recorded statement of the prosecutrix

under Section 161 of the Code of Criminal Procedure. Dr. Nilesh

Thakur (PW21) examined the prosecutrix on 16.2.2016. Her report

is Ex.P18 in which she opined that no definite opinion could be

given regarding recent sexual intercourse with the prosecutrix.

She opined that the prosecutrix was habitual to sexual intercourse.

2 fingers entered easily into her vagina. No injury on any part of

her body was found. For determination of her age, this witness

advised for ossification test.

17. Deputy Superintendent of Police Nasar Siddiqui (PW22), Additional

Superintend of Police Varsha Mishra (PW27) and Head Constable

Manoj Rajput (PW29) are the witnesses who investigated the
16

offence in question in part. Other witnesses, namely, Satyendra

Mishra (PW24) and Subhash Singh (PW25) have also not

supported the case of the prosecution and turned hostile.

18. Hostel Superintendent Sharda (PW1), in paragraphs 13, 14 and 15

of her cross-examination, has admitted the fact that homeguards

were present at the gate of the hostel for 24 hours. A lady

homeguard also remained present in the girls hostel. A separate

shade is made for meeting with visitors. Permission is granted to

the students staying at the hostel only to meet with their parents

and with the persons whose photographs are pasted in the visitors’

register. This witness has further stated that she herself marks

attendance of the students in the attendance register daily in the

evening. In paragraph 20, she has admitted that in December,

2015, according to the attendance register, attendance of the

prosecutrix for all the days excluding the period of winter vacation

is marked as her presence. She has further admitted that in

January, 2016, attendance of the prosecutrix for the whole month

is marked as her presence. In the month of February, 2016 also,

presence of the prosecutrix is marked for the period from 1.2.2016

to 8.2.2016. In paragraph 26, she has further admitted that from

31.12.2015 to 9.1.2016, presence of the prosecutrix is marked in

the hostel attendance register.

19. On a minute examination of the above evidence on record, it is

clear that as stated by the prosecutrix, first incident took place with

her by Appellant Vikki on the day of tija festival. But, she never

made any complaint in this regard to anyone and she returned

from Village Masturi along with Appellant Vikki himself. Later on

also, both continued to meet with each other. But, she never made
17

any complaint. With regard to Appellant Tantan, from the evidence

of the prosecutrix, it is established that she herself stayed at the

shop of Appellant Tantan for the whole night and she was gifted a

suit also by him next day of her stay and he went along with her to

leave her at her hostel. On 31.12.2015 also, Appellant Tantan met

with the prosecutrix at the house of Appellant Sonam where many

persons were already present. But, she did not make any

complaint against Appellant Tantan to anyone. With regard to

Appellant Ashish, as stated by the prosecutrix, in the first week of

January, 2016, at the house of Appellant Ashish, he had committed

rape with her, but, she herself has admitted that on the next day, it

was Appellant Ashish who left her at the house of Appellant

Sonam. At that time or even later on, she did not make any

complaint against Appellant Ashish to anyone. With regard to

Appellant Himanshu, on 7th or 8th of January, 2016, Appellant

Himanshu had stayed at the house of Appellant Sonam and

committed rape with the prosecutrix, but against him also, she did

not make any complaint to anyone.

20. According to the statement of Hostel Superintendent Sharda

(PW1), attendance of the prosecutrix in the hostel attendance

register was marked for the whole month of January, 2016

including 31st December, 2015. In these circumstances, statement

of the prosecutrix that she stayed at the house of Appellant Sonam

from 31.12.2015 to 9.1.2016 and during that period Appellants

Ashish and Himanshu committed the alleged act with her at the

house of Appellant Sonam and she would have stayed at her

house is not reliable. With regard to the incident of 13.2.2016 and

15.2.2016 also, the cooks and homeguards of the hostel have not

supported the case of the prosecution. On a minute examination
18

of the statement of the prosecutrix and the other evidence

available on record, it seems that the whole incident is not natural

and unreliable. Even if for the sake of argument, it is considered

that the incident in question had taken place with the prosecutrix,

from the statement of the prosecutrix itself it is established that she

was a consenting party. On the relevant date, age of the

prosecutrix was below 18 years is not proved and as stated by her

father Bedram (PW6) it seems that her age on the relevant date

was about 19 years. Hence, no offence is made out against any of

the Appellants.

21. Consequently, all the appeals are allowed. The impugned

judgment of conviction and sentence is set aside. All the

Appellants are acquitted of the charges framed against them.

22. Record of the Court below be sent back along with a copy of this

judgment forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal

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