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Sanchita @ Shilpi vs State on 29 September, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Suspension Of Sentence(Appeal) No. 615/2018

In

S.B.Criminal Appeal No.622/2018

Sanchita @ Shilpi, D/o Mahendra Kumar Gupta, B/c Vaishya, R/o
35-Molshri Vihar, Vip Road, Raipur, Chhattisgarh. (Central Jail,
Jodhpur)

—-Petitioner
Versus
State, Jaipur

—-Respondent

For Petitioner(s) : Mr Mahesh Bora, Sr. Advocate
assisted by Mr Nishant Bora
For Respondent(s) : Mr S.K.Vyas – AAG cum-G.A.

Mr P.C. Solanki for complainant

HON’BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

29/09/2018

This application for suspension of sentence has been

preferred on behalf of the applicant-appellant for suspending the

sentence awarded to her by Special Judge, POCSO Act, 2012,

Jodhpur (hereinafter to be referred as ‘the trial court’) vide its

judgment dated 25.04.2018 passed in Sessions Case No.116/2016

(152/2013), whereby the trial court has convicted the applicant-

appellant for the offences punishable under Sections 370(4) read

with Section 120-B IPC, 376D IPC, Section 5(g)/6 and Section 17

of Protection of Children from Sexual Offences Act, 2012

(hereinafter to be referred as ‘the POCSO Act’), however,

sentenced her as under:

(2 of 11) [SOSA-615/2018]

Under Section 370(4)/120-B IPC : 10 years’ rigorous

imprisonment and to pay a fine of Rs.50,000/-, in default of

payment of fine, further to undergo one year’s rigorous

imprisonment

Under Section 376D IPC : 20 years’ rigorous imprisonment and

to pay a fine of Rs.50,000/-, in default of payment of fine, further

to undergo 2 years’ rigorous imprisonment.

As per the prosecution story, the prosecutrix, a 12 th

Standard student, who was studying and residing in Asharam

Gurukul, Chhindwara, Madhya Pradesh fell ill in first week of

August, 2013. The applicant-appellant, who was working as

Warden of the hostel, where the prosecutrix was residing, came to

know about the illness of the prosecutrix and thereafter told her

that she is under the influence of evil spirits. On 07.08.2013, the

applicant-appellant informed the family members of the

prosecutrix that she is not feeling well, so they should take her to

Gurukul at Chhindwara, upon which the parents of the prosecutrix

reached Chhindwara on 08.08.2013 and thereafter on 09.08.2013,

visited the Girls Hostel, Gurukul, Chhindwara, where the

prosecutrix was residing and met the applicant-apellant, where

she told her parents that the prosecutrix is under the influence of

evil spirits and she also informed about her condition to Asharam

Bapu, so they should meet him wherever he is. On 09.08.2013

itself, the prosecutrix left the hostel for Shahjahanpur, U.P. with

her parents, where they contacted with Shiva, one of the accused,

who informed them that Asharam will be in Delhi on 12.08.2013,

then the prosecutrix along with her parents reached Delhi on

13.08.2013, then they came to know that Asharam is in Jodhpur

and when they again called Shiva, he asked them to come to
(3 of 11) [SOSA-615/2018]

Jodhpur. Thereafter, the prosecutrix along with her family

members reached Jodhpur at Manai village, where Asharam was

staying in a farm house. The prosecutrix along with her parents

stayed there and met with Asharam. On 15.08.2013, the

prosecutrix was sexually assaulted by Asharam in a Kutia of farm

house. Thereafter, the prosecutrix and the family members left

Jodhpur and reached Shahjapur, where the prosecutrix narrated

entire incident of sexual assault by Asharam to her family

members on 19.08.2013. Then the prosecutrix and her family

members went to Delhi, where a zero number FIR was lodged at

Police Station, Kamla Market, New Delhi and statements of the

prosecutrix were recorded under Section 164 CrpC and thereafter,

FIR No.122/2013 was registered at Police Station, Mahila West,

Jodhpur on 21.08.2013.

After investigation, the police filed charge-sheet against

the applicant-appellant for the offences punishable under Sections

342, 354-A, 370(4), 376(2)(f), 376D, 506, 509/34, 109/120-B

IPC and Sections 23 and 26 of Juvenile Justice (Care and

Protection of Children) Act, 2015 (hereinafter to be referred as

‘the Juvenile Justice Act’) and Sections 5(f)/6, 5(g)/6, 7/8 read

with Section 17 of POCSO Act.

The trial court framed charges against the applicant-

appellant for the offences punishable under Sections 342/34,

354A/34, 370(4), 376(2)(f) read with Section 120-B/109, 376D,

506/34, 509/34 read with Section 109/120 IPC and Section 23 of

the Juvenile Justice Act and Section 5(f)/6 read with Section 17,

5(g)/6,7/8 of the POCSO Act.

(4 of 11) [SOSA-615/2018]

After recording of the prosecution evidence as well as

the defence evidence, the trial court has convicted and sentenced

the applicant-appellant as aforesaid.

Learned counsel for the applicant-appellant has argued

that the trial court has grossly erred in convicting and sentencing

the applicant-appellant for the offence punishable under Section

376D IPC, Sections 5(g)/6 and 17 of POCSO Act. It is argued

that a woman cannot commit rape and therefore, she certainly

cannot be convicted for commission of gang rape because woman

cannot be said to have an intention to commit rape.

It is also submitted that the trial court in para 458 of its

judgment dated 25.04.2018 has categorically concluded that there

is no direct evidence available on record to suggest that the

applicant-appellant sent the prosecutrix to Asharam, so that he

could sexually assault her, however, at the same time, the trial

court has concluded that on the basis of ocular and circumstantial

evidence, it is proved that the applicant-appellant hatched a

criminal conspiracy with accused-Asharam and sent the

prosecutrix to him, so that he could sexually assault her. Learned

counsel for the applicant-appellant has submitted that as a matter

of fact no such ocular or circumstantial evidence is available on

record, which suggests that applicant-appellant had sent the

prosecutrix to Asharam, so that he could sexually assault her.

Learned counsel for the applicant-appellant has placed

reliance on decisions of Hon’ble Supreme Court rendered in Priya

Patel vs. State of M.P. Anr., (2006) 6 SCC 263 and in State

of Rajasgthan vs. Hemraj Anr., (2009) 12 SCC 403 and

has argued that the Hon’ble Supreme Court in the above referred
(5 of 11) [SOSA-615/2018]

cases has categorically held that a woman cannot be prosecuted

for commission of gang rape.

Learned counsel for the applicant-appellant has,

therefore, argued that challenge of the applicant-appellant to her

conviction under Section 376D IPC, Sections 5(g)/6 and 17 of

POCSO Act, and sentence of her under Section 376D IPC is based

on strong grounds.

Learned counsel for the applicant-appellant has further

argued that the trial court has grossly erred in convicting and

sentencing the applicant-appellant for the offences punishable

under Sections 374/120-B IPC. It is submitted that the applicant-

appellant was employed as Warden of Gurukul Ashram Hostel, just

four months before the incident. The said hostel was running prior

to the joining of the applicant-appellant and in no manner it can

be said that the applicant-appellant is involved in recruiting,

transporting, harboring, transferring or receiving any girl of the

hostel for the purpose of her exploitation. It is submitted that

from the statement of the prosecutrix and her parents, only it can

be gathered that she had suggested them to approach accused-

Asharam for treatment of so called illness of the prosecution. It is

further argued that it is not the case of the prosecution that the

applicant-appellant had transported the prosecutrix to the place,

where the accused-Asharam was staying. It is submitted that as a

matter of fact from the evidence of the prosecutrix and her

parents, it is clear that after leaving the hostel of Chhindwara on

09.08.2013, they first went to Shahjahanpur and therefrom they

went to Delhi and from Delhi they came to Jodhpur after talking to

co-accused Shiva and as such applicant-appellant was in no
(6 of 11) [SOSA-615/2018]

manner involved in sending the prosecutrix or her parents to the

place, where Asharam was staying.

Learned counsel for the applicant-appellant has further

argued that there is no evidence available on record to suggest

that the applicant-appellant had hatched a criminal conspiracy

with other accused-persons particularly the accused-Asharam. It is

submitted that for the purpose of proving the charge of criminal

conspiracy, there must be an evidence to the effect that prior to

the commission of offence, there was a meeting of minds of the

accused-persons or the applicant-appellant had knowledge that

accused-Asharam is going to sexually assault the prosecutrix, if

she goes at the place where he was staying.

Learned counsel for the applicant-appellant has further

submitted that the trial court has held that when the prosecutrix

and her father met Asharam, they told him about the illness of the

prosecutrix, he immediately asked that is she “BHOOT WALI

LADKI” from Chhindwara and this fact is sufficient to prove that

the applicant-appellant and Asharam were in league to commit the

offence. Learned counsel for the applicant-appellant has argued

that as a matter of fact the prosecutrix and her parents have

made a significant improvement in their statements recorded

before the court and have deliberately stated that accused –

Ashram had addressed her as “BHOOT WALI LADKI” from

Chhindwara, though such fact was not revealed by the prosecutrix

or her parents during the course of investigation.

Learned counsel for the applicant-appellant has,

therefore, submitted that the challenge of the applicant-appellant

to her conviction for the offence punishable under Section 370(4)

read with Section 120-B IPC is also based on strong ground and,
(7 of 11) [SOSA-615/2018]

therefore, the sentence awarded under the said offence is also

liable to be suspended.

It is also submitted by the learned counsel for the

applicant-appellant that the applicant-appellant is a young lady

and was granted bail during the course of trial by the High Court,

which she did not misuse and taking into consideration the said

fact also, the sentence awarded to her by the trial court vide

impugned judgment is liable to be suspended.

Per contra, learned Additional Advocate General-cum-

G.A. and the counsel appearing for the complainant have

vehemently opposed the application for suspension of sentence. It

is submitted that from the statement of PW.5 – prosecutrix, PW.12

Sumitra Singh and PW.21 Karmveer Singh, parents of the

prosecutrix, it is clear that the applicant – appellant convinced the

prosecutrix and her parents by falsely creating an impression that

the prosecutrix is under the influence of evil spirits and then

induced them only to approach accused-Asharam, where the

prosecutrix, a minor girl, was sexually assaulted by him.

It is also argued that the prosecution proved by

producing cogent and reliable evidence that at the time of

incident, the prosecutrix was minor and she was subjected to

sexual assault by the accused-Asharam with the aid of applicant-

appellant.

It is further argued that the evidence of hatching

criminal conspiracy is available on record and the trial court after

taking into consideration the said evidence has rightly convicted

and sentenced the applicant-appellant as aforesaid.

Learned Additional Advocate General-cum-G.A. and the

counsel appearing on behalf of the complainant have also argued
(8 of 11) [SOSA-615/2018]

that the trial court has not committed any illegality in convicting

and sentencing the applicant-appellant for the offence punishable

under Section 376-D IPC as ample evidence is available on record

to prove that the applicant-appellant had common intention with

Asharam of committing rape upon the prosecutrix.

It is also contended that simply because the applicant-

appellant was granted bail by this Court during the course of trial

and she did not misuse the conditions of bail, the sentence

awarded to her cannot be suspended.

In support of the above contentions, reliance is placed

on a decision of Hon’ble Supreme Court rendered in Anil Ari vs.

State of West Bengal, (2009) AIR (SC) 1564.

It is, therefore, prayed by the Additional Advocate

General-cum-G.A. and the counsel for the complainant that the

application for suspension of sentence may be dismissed.

Heard learned counsel for the parties and scrutinized

the record of the case.

The trial court has convicted the applicant-appellant for

the offences punishable under Section 376D IPC, Section 5(g)/6

and 17 of the POCSO Act and sentenced her for twenty years’

rigorous imprisonment for the offence punishable under Section

376D IPC. She has also been convicted for the offence punishable

under Section 370(4) read with Section 120-B IPC and sentenced

for ten years’ rigorous imprisonment.

The prosecution has not disputed this fact that the

applicant-appellant was appointed as Warden of Asharam Gurukul

Hostel on 01.04.2013 vide Ex.P/67. It is not the case of the

prosecution that the applicant-appellant was present at Jodhpur
(9 of 11) [SOSA-615/2018]

when accused-Asharam allegedly sexually assaulted the

prosecutrix.

The prosecution has also not come out with a case that

the prosecutrix or her parents were in contact with the applicant-

appellant after 09.08.2013 when they left Ashram Gurukul Hostel,

Chhindwara. PW.5 – prosecutrix, PW.12 Sumitra Singh and PW.21

Karamveer Singh have also not stated in their statements that

after 09.08.2013 the applicant-appellant made any contact with

them by whatsoever means.

The prosecution story is that the applicant-appellant

was in regular contact with accused – Asharam through mobile

phones possessed by accused – Shiva and Prakash, however, the

trial court acquitted both the above mentioned accused while

concluding that the prosecution has failed to establish their link

with the commission of crime on the basis of mobile phones

possessed by them.

The trial court in para No.458 of the impugned

judgment has also observed that there is no direct evidence

available on record, which suggests that the applicant-appellant

sent the prosecutrix to Asharam, so that he could sexually assault

her but has held that on the basis of ocular and the circumstantial

evidence, it can be inferred that the applicant-appellant had sent

the prosecutrix to Asharam, so that he could assault her sexually.

However, the ocular and circumstantial evidence, on which the

trial court has placed reliance require consideration in detail.

Taking into consideration the above facts and

circumstances of the case, this Court feels that the challenge of

the applicant-appellant to her conviction for the offence

punishable under Section 376D IPC, Section 5(g) and 17 of the
(10 of 11) [SOSA-615/2018]

POCSO Act and under Section 370(4)/120 IPC is based on strong

grounds.

Having regard to the fact and circumstances of the case

and the fact that the applicant-appellant is a young lady, she was

granted bail during trial and it is not reported that she misused

the conditions of the bail, I consider it just and proper to suspend

the substantive sentence awarded to the applicant-appellant.

Accordingly, this application for suspension of sentence

filed under Sec.389 Cr.P.C. is allowed and it is ordered that the

substantive sentence passed by the trial court vide judgment

dated 25.04.2018 passed in Sessions Case No.116/2016

(152/2013) against applicant-appellant Sanchita @ Shilpi daughter

of Mahendra Kumar Gupta shall remain suspended till final

disposal of S.B.Cr. Appeal No.622/2018, provided she executes a

personal bond in the sum of Rs.2,00,000/- (Rupees two lac) with

two sureties of Rs.1,00,000/- (Rupees one lac) each to the

satisfaction of the learned trial Judge for her appearance in this

Court on 29.10.2018 and whenever ordered to do so, till the

disposal of the aforesaid appeal on the conditions indicated

below:-

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

2. That if the applicant-appellant changes the place
of residence, she will give in writing her changed
address to the trial Court as well as to the
counsel in the High Court.

3. Similarly, if the sureties change their address,
they will give in writing their changed address to
(11 of 11) [SOSA-615/2018]

the trial Court.

4. That the amount of fine awarded by the trial
court shall be deposited by the applicant-

appellant in the trial court by 29.10.2018.

The trial Court shall keep the record of attendance of

the applicant-appellant in a separate file. Such file be registered

as Criminal Misc. Case related to original case in which the

applicant-appellant was tried and convicted. A copy of this order

shall also be placed in that file for ready reference. Criminal Misc.

file shall not be taken into account for statistical purpose relating

to pendency and disposal of cases in the trial court. In case the

applicant-appellant does not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

The trial court is directed to disburse the fine amount,

so deposited by the applicant-appellant, to the complainant.

(VIJAY BISHNOI),J

m.asif/PS

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