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:
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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
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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.
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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
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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
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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,
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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
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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
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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
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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
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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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