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Sukha @ Sikandar vs State on 28 February, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.

..

D.B. Criminal Appeal No. 407 / 2017

Sukha @ Sikandar Kathat S/o Dau Kathat, By Caste Mehrat,
Resident of Ramgarh (Chang), Sendra Police Station, District Pali.
(Lodged in Central Jail, Jodhpur)

—-Appellant

Versus

The State of Rajasthan

—-Respondent

Connected With

D.B. Criminal Appeal No. 562 / 2017

Pintu Kathat S/o Shri Bhanwaru Kathat, Aged About 33 Years, By
Caste Mehrat, R/o Ramgarh (Chang), Police Station Sendara
District Pali. (At Present Lodged in District Jail, Pali).

—-Appellant

Versus

The State of Rajasthan Through Public Prosecutor.

—-Respondent

__
For Appellant(s) : Mr. Anish Bhurat.

For Respondent(s) : Mr. S.K. Vyas, Additional Advocate
General-cum-Public Prosecutor.

__
(2 of 18)
[ CRLA-407/2017]

HON’BLE MR. JUSTICE DINESH MEHTA

HON’BLE MR. JUSTICE RAMCHANDRA SINGH JHALA
Judgment
Per Hon’ble Mr. Mehta, J. 28/02/2018

Both the appeals, mentioned above, arise out of the common

judgment and sentence dated 03.02.2017 passed by the learned

Special Judge, POCSO Act, Pali in Sessions Case No. 11/2017

(144/2014), whereby the Court below has awarded the following

sentences to the appellants:-

^^n.Mkns”k
vr% fl)nks’k vijk/kh fiUVw dkBkr iq Hkaao: dkBkr] tkfr
esgjkr] mez 33 lky] fuoklh jkex (pkax) Fkkuk lsanM~k ftyk ikyh
rFkk lq[kk mQZ fldanj dkBkr mez 27 lky] tkfr esgjkr] fuoklh
jkex (pkax) Fkkuk lsanM~k ftyk ikyh dks nks’kfl) vijk/kksa esa
fuEukuqlkj nafMr fd;k tkrk gS%

1- izR;sd vfHk;qDr dks nks’kfl) vijk/k /kkjk 366 d Hkkjrh; naM
lafgrk esa nl o’kZ ds lk/kkj.k dkjkokl ,oa 10]000@ v{kjs
nl gtkj :i;s vFkZn.M] vne vnk;xh vFkZn.M ,d ekg ds
vfrfjDr lk/kkj.k dkjkokl ls nf.Mr fd;k tkrk gS A

2- vfHk;qDr fiUVw dkBkr dks nks’kfl) vijk/k /kkjk 376 ?k Hkkjrh;

naM lafgrk@ /kkjk 5 (th) (ts) (11) (,y)@6 ySafxd
vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e 2012 esa vkthou
dkjkokl ,oa 50]000@ v{kjs ipkl gtkj :i;s vFkZn.M]
vne vnk;xh vFkZn.M N% ekg ds vfrfjDr dkjkokl ls
nf.Mr fd;k tkrk gSA
(3 of 18)
[ CRLA-407/2017]

3- vfHk;qDr lq[kk mQZ fldanj dks nks’kfl) vijk/k /kkjk 376 ?k
Hkkjrh; naM lafgrk@/kkjk 5 (th)@6 ySafxd vijk/kksa ls
ckydksa dk laj{k.k vf/kfu;e 2012 esa vkthou dkjkokl ,oa
50]000@ v{kjs ipkl gtkj :i;s vFkZn.M] vne vnk;xh
vFkZn.M N% ekg ds vfrfjDr dkjkokl ls nf.Mr fd;k tkrk
gSA
lHkh ewy ltk;sa lkFklkFk pysxhA vfHk;qDrx.k }kjk nkSjkus
vuqla/kku o vUoh{kk iqfyl o U;kf;d vfHkj{kk esa O;rhr dh x;h
vof/k fu;ekuqlkj ewy ltk esa lek;ksftr dh tkosA ltk okj.V
rS;kj fd;k tkosA vfHk;qDrx.k dks fu.kZ; dh izfr fu;ekuqlkj
fu%”kqYd nh tkosA^^

The facts apropos for the purpose of deciding the present

appeals are that the complainant – Chima lodged an FIR on

22.09.2014 in Police Station, Sendra against the accused-

appellants, inter alia, alleging that on 20.09.2014, when he

returned from his work and his wife from the field, they found that

his daughter ‘P’, aged 12 years was not at home. He along with

his relatives looked for her, but such attempts went in vain. His

daughter (“P”) ultimately came home at about 5:00 p.m. on

21.09.2014 totally disturbed and dismented. When his distraught

daughter was solaced and comforted, she divulged that Sukha S/o

Dau had come to their house at 11:00 a.m. on 20.09.2014, when

she was all-alone and threatened her with a knife and asked her

to hand-over cash and jewellery; failing which, he would kill her.

It was stated that his dreaded daughter was constrained to hand

over 20,000/- rupees lying in the house besides a sliver chain,

pyjeb and aanwala to the accused – Sukha. Thereafter, said
(4 of 18)
[ CRLA-407/2017]

Sukha S/o Dau, along with Sukha S/o Mewa and Pintu forcefully

made her to sit on a motorcycle and took her to a hotel situated at

Beawar. In a closed room of the said hotel, the appellants, along

with another Sukha S/o Mewa, raped her under the threat of a

knife; and thereafter, left her at the Railway Station, Beawar.

Pursuant to the FIR so lodged by Chima, the Police, after

investigation, filed charge-sheet against the accused-appellants,

Pintu and Sukha @ Sikander S/o Dau under Sections 392, 366-A,

376-D of the Indian Penal Code and Section 5 (j), 5(l))/6 of the

Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as the “POCSO Act, 2012”).

To prove the aforesaid charges, the prosecution produced the

victim ‘P’ PW-1, Najeer PW-2, Sugna Devi PW-3, Dr. Anusuya

Harsh PW-4, Mahesh Kumar PW-5, Virendra Singh PW-6, Manohar

Singh PW-7, Ramkhiladi PW-8, Veer Singh PW-9, Dr. Manoj Nagar

PW-10, Satish Agrawal PW-11, Bhuta Ram Vishnoi PW-12,

Rohitash PW-13 and Hanuman Singh PW-14 and produced

documentary evidence, as FIR Ex.P/1, Naksha Mauka (Site Map)

Fard Ex.P/2, recovery memo of Parchat of the prosecutrix Ex.P/3,

Summon of Witness Ex.P/4, Statement of the prosecutrix under

Section 164 Cr.P.C. Ex.P/5, Orders Ex.P/6, Medical Report of the

Prosecutrix Ex.P/7, Study Certificate Ex.P/8, Entry Application

Form Ex.P/9, Student Register Ex.P/10, Memo of Arrest Ex.P/11,

Recovery Memo of Underwear of Pintu Ex.P/12, Memo of Arrest of

Sukha @ Sikander Ex. P/13, Written FIR Ex. P/14, Memo of

Production with regard to Parchat of accused Sukha Ex.14,
(5 of 18)
[ CRLA-407/2017]

Recovery Memo of Articles from which motorcycle was purchased

Ex.P/15, Recovery Memo of Silver Ornaments Ex. P/16, Recovery

Memo of Motorcycle Ex.P/17, Memo of Information regarding Pintu

Ex.P/18, Memo of Information Pintu Ex.P/19, Memo of Information

regarding accused – Sukha Ex.P/20, Memo Information accused

Sukha Ex.P/21, Memo of place of recovery of motorcycle Ex.P/22,

Memo of place of recovery of silver ornaments Ex.P/23,

Acknowledgment Receipt Ex. P/24, Medical Report of Sukha

Ex.P/25, Road Certificate Ex.P/26 and Forwarding Letter Ex. P/.27.

After appreciation of the documentary and oral evidence, the

learned Court below recorded a finding that age of the victim ‘P’ at

the time of commission of the offence was 12 years 6 months and

5 days. Said finding of age of the prosecutrix, has been recorded

on the basis of the certificate issued by the School, being Ex.P/8,

Application Form Ex.P/9 and SR Register Ex.P/10. Apart from the

documentary evidence aforesaid, the statement of the Head

Master of the School, Mahesh Kumar PW-5, the victim PW-1, PW-3

her mother were relied upon by the Trial Court to conclude that

the age of the victim was less than 13 years, at the time of the

incident.

The prosecution brought in the witness box PW-4 Dr.

Anusuya Harsh, a Gynecologist, who had examined the victim ‘P’.

The said witness appeared in the witness box and deposed that

she had examined the victim ‘P’ and found that the victim was

pregnant and carrying a foetus of 26 to 28 weeks and her age was

approximately 12 years.

(6 of 18)
[ CRLA-407/2017]

PW-1, the victim appeared in the witness box and deposed

that she had studied upto 8 th class and that the accused Pintu had

approached her about 9 months ago (with reference to the date of

recording of the statement), while she was grazing the goats and

asked her to make love, which request, she had turned down; yet

Pintu had raped her in the farm itself. She deposed that after

about 6 months of the said incident, Sukha came to her house and

forced her to hand over 11,000/- rupees and her mother’s

jewellery, for which, she had to hand over 11,000/- rupees; pyjeb;

chain; and aanwala to him and thereafter Sukha asked her to

accompany him. According to the statement of prosecutrix, when

Sukha brought her down, Pintu was standing with a motorcycle;

and Pintu and Sukha forcibly made her to sit on the motorcycle

and took her to Beawar Railway Station. After reaching Beawar

Railway Station, they asked her to wait till they returned back.

According to the version of said PW-1, both the accused came at

the Railway Station, Beawar at about 7:00 p.m. and instead of

bringing her back to her house, they took her to a hotel in Beawar

and after having dinner, firstly Pintu and thereafter Sukha raped

her in a closed room of the hotel. Thereafter, the accused left her

at the Beawar Railway Station, in the next morning.

During the cross-examination, said PW-1, the victim, had

accepted that the hotel at Beawar to which, the accused had taken

her is far from the Beawar Railway Station and that the hotel is

situated at Ajmer Road, despite having clearly admitted that she

had never been to Beawar before. It is pertinent that during the
(7 of 18)
[ CRLA-407/2017]

cross-examination, the prosecutrix had accepted that she had

not seen the Manager and that she neither knows the name of the

hotel, nor has she ever disclosed its name to the Police. It will not

be out of place to reproduce relevant excerpts from the statement

of the Prosecutrix (PW-1), essentially at whose testimony the

appellants have been convicted:-

^^eq[; ijh{k.k %
ge rhu HkkbZ cfgu gSA eSa d{kk vkBoha rd i+h gqbZ gwaA eSa
gkftj vnkyr nksuksa eqyfteku dks tkurh gwaA vkt ls djhc ukS ekg
igys eSa [ksr esa cdfj;k pjk jgh Fkh] rks fiUVw vk;k] mlus eqs iwNk
fd D;k dg jgh gS] rks eSaus dgka fd cdfj;k pjk jgh gwaA mlus eqs
dgk fd rqe yo djksaxh] rks eSaus dgka ugha d:axh] blds ckn fiUVw us
[ksr esa gh esjs lkFk cykRdkj fd;kA eqs ekfld /keZ gqvk] eSa
ekfld /keZ esa ugha lerh Fkh] eSaus lkspk dh ,sls gh [kwu vk;k gksxkA
bl ckr dks djhc 6 ekg gks x;sA blds ckn lq[kk esjs ?kj ij vk;k
vkSj eqs dgk fd rsjs ls t:jh dke gS] rks eSaus dgka fd D;k dke gS]
rks mlus dgka fd dke gS] blds ckn eSaus mldks dgka fd eSa Ldwy ls
ysV gks jgh gwa] eSa vkidh ckr ugha lquwaxh] blds ckn lq[kk us eqs
tcjnLrh dgka fd eqs iSls ns] rks eSaus dgka fd esjs ikl iSls ugha gSA
blds ckn lq[kk us esjs ls tcjnLrh 11]000@ :i;s ys fy;sA lq[kk
us eqs eEeh ds tsoj nsus ds fy, Hkh dgk Fkk] rks eSaus dgk fd eEeh
ds tsoj ugha gsA esjh eEeh dh ik;tsc] pSu o vkaoyk ¼xksy½ Hkh lq[kk
us tcjnLrh ys fy;sA blds ckn lq[kk us eqs dgka fd esjs lkFk pyks]
rqEgkjh eEeh cqyk jgh gSA mlds ckn eqs tcjnLrh ?kj ls uhps ys
x;s] ogka ij eksVj lkbZfdy [kM+h Fkh] eksVj lkbZfdy ds ikl fiUVw
[kM+k Fkk] fiUVw o lq[kk eqs tcjnLrh eksVj lkbZfdy ij cSBk dj
C;koj jsYos LVs”ku ys x;sA ogka ij eqs cSBk dj dgk fd ge okfil
vk jgs gS] rqe ;gh ij jgukA bu nksuksa us tsoj csp dj iSls ckaV
fn;s] ‘kke dks 7 cts nksuksa jsYos LVs”ku ij okfil vk;s vkSj eqs dgka
fd gekjs lkFk pyks] rks eSaus dgka fd eqs ?kj ij NksM+ nksA exj
mUgksaus eqs ?kj ij ugha NksM+k vkSj os eqs gksVy ij ys x;sA bu nksuksa
(8 of 18)
[ CRLA-407/2017]

us eqs igys [kkuk fiyk;k] blds ckn fiUVw us cykRdkj fd;k] mlds
ckn lq[kk us esjs lkFk cykRdkj fd;kA lqcg eSus budksa dgka fd vc
rks eqs ?kj NksM+ nks] rks bUgksus eqs jsYos LVs”ku ij NksM+ fn;kA jsYos
LVs”ku ls gekjs xkao rd tks VsEiks pyrk gS] mlesa cSBdj vius xkao
vk x;hA ?kj ij tkdj eSaus esjh eka lqxuk dks iwjh ?kVuk crk;hA
blds ckn iqfyl Fkkuk lsUnM+k esa fjiksVZ is”k dh Fkh] fjiksVZ
izn”kZ ih 1 gS] ftl ij , ls ch esjs gLrk{kj gSA uD”kk ekSdk o
gkykr ekSdk izn”kZ ih 2 ls , ls ch esjs gLrk{kj gSA lkstr esa esjh
MkWDVjh djok;h FkhA iqfyl okyksa us esjk tck o ik;tkek fy;k Fk]
ftldh QnZ izn”kZ ih 3 gS] ftl ij , ls ch esjs gLrk{kj gS] ;g
diM+s iqfyl okys ys x;s FksA
eftLVªsV lkgc us esjs c;ku fy;s FksA lk{kh lEeu izn”kZ ih 4]
eftLVªsV lkgc us tks c;ku fy;s os c;ku izn”kZ ih5 o vknsf”kdk
izn”kZ ih 6 ij , ls ch esjs gLrk{kj gSA ?kVuk ds le; esjh mez 13
lky FkhA
ftjg odhy eqyfte %

—- —– —— —— —— fiUVw o lq[kk iq esok eqs lqcg 10
cts ys x;s FksA fiUVw o lq[kk iq esok eqs C;koj jsYos LVs”ku ij
fdrus cts NksM+dj x;s ;g eqs irk ugha] vt[kqn dgka fd lq[kk iq
esok ugha gSa] lq[kk iq nkm gSA jsYos LVs”ku ij tgka VsfDl;ka [kM+h
jgrh gS] ogha ij eqs NksM+k FkkA ;g dguk xyr gS fd jsYos LVs”ku ls
ckgj fudyus okys eSaus xsV ls ckgj fudyrs gh VSDlh LVs.M gks]
vt[kqn dgka fd FkksM+k nwj gSA ;g ckr lgh gS fd tgka ij bu nksuksa
us eqs jsYos LVs”ku ds ikl NksM+k ogka ij yksxksa dks vkuktkuk jgrk
gSA eSa jsYos LVs”ku ij rhupkj ?k.Vs cSBh jgh vkSj bu nksuksa dk
bUrtkj fd;kA ftl gksVy esa eqs ;s ys x;sA og gksVy jsYos LVs”ku
ls nwj gS] tks gksVy vtesj tkus okyh jksM+ ij gSA ——- ——- ——–

——— gksVy dk uke eqs irk ugha Fkk] bl dkj.k eSaus iqfyl okyksa
dks gksVy ugha crk;h FkhA ;g ckr lgh gS fd eSaus iqfyl dks dksbZ
ekSdk ugha crk;kA ——– ——— ;g ckr lgh gS fd eSa C;koj ls
mejko HkkbZ ds VsEiksa esa jkex+ vk;h FkhA**
(9 of 18)
[ CRLA-407/2017]

PW-3 Sugna Devi, the mother of the victim deposed that the

accused Pintu and Sukha took her daughter ‘P’ to a hotel at

Beawar and raped her, as told by her daughter, when she returned

from Beawar on 21.09.2014. During the cross-examination, she

refuted the suggestion that her daughter had taken 11,000/-

rupees for her abortion.

PW-2 Najeer proved the preparation of Naksha Mauka by the

Police, being Ex.P/2 and recovery of the clothes; whereas PW-6

Virendra Singh deposed that he has a medical shop at Beawar and

he had not given any medicine for abortion. PW-8 Ramkhiladi has

been a witness for the recovery of the clothes of Pintu, being

Ex.P/11; whereas PW-10 Dr. Manoj Nagar had proved the potency

of Pintu and Sukha. PW-13 Rohitash proved the recovery of the

underwear of Sukha, being Ex.P/14. Other witnesses PW-14 and

PW-9 were essentially witnesses for recovery of various articles,

which facts are not in dispute and reference whereof may be

avoided, for the purpose of present appeals.

PW-9 Veer Singh, the Investigation Officer, appeared in the

witness box and proved the recovery of various articles and

obtaining the certificate Ex.P/8 from the Head Master of the

School regarding the age of the victim. He deposed that he had

recovered jewellery of Parveena, being aanwala, chain etc. from

Pintu and the motorcycle used for abducting the prosecutrix and

taking her to Beawar. During the cross-examination, the said

Investigating Officer has stated that he has not brought the

recovered jewellery in the Court.

(10 of 18)
[ CRLA-407/2017]

On the basis of the aforesaid evidence, the learned Trial

Court has held, all the charges levelled against the accused-

appellants to be proved and resultantly convicted both the

appellants for the offences and sentenced them, as stated in the

opening part of the instant judgment.

Challenging the impugned judgment and sentence dated

03.02.2017 passed by the learned Court below, Mr. Anish Bhurat,

learned counsel for the appellants, submitted that the impugned

judgment passed by the learned Court below is based on

conjectures and surmises. He submitted that the prosecution has

failed to prove its case and that the evidence led by the

prosecution was not sufficient to come to a conclusion that the

appellants were guilty of the charges framed against them.

Learned counsel for the appellants submitted that the Court

below has erred in reckoning the age of the victim as 13 years.

He pointed that Dr. Anusuya Harsh though examined the

prosecutrix, but she has not given any finding or observation

regarding her age. With these submissions, learned counsel for

the appellants submitted that the prosecution has failed to carry

out medical examination to prove that the prosecutrix was minor,

for which, the provisions of POCSO Act, 2012 would be applicable.

Learned counsel for the appellants argued that the

prosecutrix was a major girl and, therefore, even if the allegations

levelled against the accused – appellants are held proved, it is a

case of consensual sex and the prosecutrix had been having
(11 of 18)
[ CRLA-407/2017]

regular physical relations with the appellant Pintu, for which, he

cannot be held guilty of rape.

Reading the statement of the prosecutrix PW-1, learned

counsel for the appellants submitted that she had levelled

allegations of sexual intercourse under the threat of a knife, upon

Pintu alone and according to the statement given by the

prosecutrix, it was Pintu, who had approached her, while she was

grazing the goats in the field and committed rape upon her, under

the threat of knife. In light of the statement about that incident,

learned counsel for the appellants submitted that the appellant

‘Sukha’ cannot be roped in for the rape allegedly committed upon

the prosecutrix at the field, about 6 months before the date of

filing the FIR, while she was grazing the goats.

Adverting to the second charge of abduction and allegation

of rape, in a hotel at Beawar, Mr. Bhurat had much to say. He

argued that even if the statement of the prosecutirx PW-1 are

taken to be at its face value, she had deposed that Pintu and

Sukha forcefully took her to Beawar on a motorcycle, which is

about 20 kilometres from her village. He argued that story of

abduction of the prosecutrix in bright day-light and thereafter

forcefully taking her all the way to Beawar, is concocted and

unbelievable. He submitted with the bewilderment that if the

prosecutrix was abducted and taken on a motorcycle, nothing

stopped her from raising alarm and pray for help. He further

added that according to the statement of the prosecutrix herself,

the accused appellants had dropped her at the Railway Station
(12 of 18)
[ CRLA-407/2017]

and thereafter came back at 7:00 p.m. with a view to take her to

a hotel at Beawar. During such period of about 3-4 hours, the

prosecutrix had sufficient time and opportunity to rush back to her

house, as she was admittedly sitting all-alone, without any eye by

the appellants, submitted Mr. Bhurat. Critically anaylsing the

deposition of the prosecutrix, learned counsel for the appellants

submitted that the statement given by the prosecutrix clearly

suggests that she had voluntarily gone to Beawar, perhaps for the

purpose of abortion and in this process, she had asked the

appellants to accompany her.

Adverting to the appellants’ conviction for rape in the hotel,

for which, charges under Section 376(D) of the Indian Penal Code

have been framed against both the appellants, learned counsel for

the appellants argued that the prosecution has failed to prove the

incident of rape of the prosecutrix, in the hotel on 20.09.2014. He

submitted that except the bald assertions of the prosecutrix, there

is no other corroborating evidence. He argued that the prosecution

has even failed to bring on record, the name of the hotel, much

less bringing the record of the hotel, evincing boarding by the

appellants.

With the submissions aforesaid, learned counsel for the

appellants argued that the learned Court below has seriously erred

in accepting the story, as portrayed by the prosecutrix and

projected by the prosecution and holding the appellants guilty of

the offence alleged against them. He contended that the Court

below has seriously erred in coming to the conclusion that both
(13 of 18)
[ CRLA-407/2017]

the appellants were involved in the commission of the crime,

namely rape of the prosecutrix.

Mr. S.K. Vyas, learned Additional Advocate General-cum-

Public Prosecutor appearing on behalf of the State supported the

judgment under consideration and contended that the appellants

are guilty of threatening a minor girl of tender age of 13 years and

then, committing heinous crime of rape under the threat of a

knife. Mr. Vyas further argued that the prosecution has proved

beyond any pale of doubt that both the accused, namely, Pintu

and Sukha, have abducted the prosecutrix on 20.09.2014 and

took her to Beawar, with an oblique motive of having sexual

intercourse with the minor girl. He submitted that their act

squarely falls within the ambit of Sections 366-A and 376 (D) of

the Indian Penal Code and Sections 5(g) 5(j)(ii) of the POSCO

Act. Pointing out from various documentary as well as oral

evidence, he argued that there is sufficient material to show that

the accused had taken the prosecutrix to a hotel in Beawar and

raped her. With these submissions, learned Public Prosecutor-cum-

Government Advocate submitted that both the appeals lack merits

and the appellants have rightly been convicted for the charges

framed against them and submitted that no leniency or reduction

of sentence is warranted in the present case.

Having heard learned counsels for the parties and upon

perusal of the material available on record, we are of the

considered opinion that the prosecution has proved beyond the

realm of doubt that the age of the prosecutrix was 12 years, 6
(14 of 18)
[ CRLA-407/2017]

months and 5 days. For the purpose of proving the age of the

prosecutrix, the prosecution has brought her mother, father and

the Head Master of the School, where the prosecutrix studied, who

have unisonly deposed that the prosecutrix was less than 13 years

of age. Apart from the oral evidence, the prosecution has brought

on record, a clinching evidence in the form of a certificate of age,

given by the Government Secondary School, Sendra, based on the

record maintained by the School, according to which, the date of

birth of the prosecutrix was “15.03.2002” (Exhibits P/8, P/9 and

P/10). In light of the foolproof evidence, we do not find any error

in the conclusion drawn by the Court below, that the date of birth

of the prosecutrix was “15.03.2002” and, accordingly at the time

of commission of the offence, her age was less than 13 years,

making the provisions of the Protection of Children from Sexual

Offences Act, 2012 applicable.

According to the statement given by the prosecutrix, which

are duly supported by the statements of her mother, PW-2 and the

statement of the Dr. Anusuya Harsh PW-4, that the prosecutrix

was having pregnancy of 26 to 28 weeks, which undoubtedly is a

culmination of the sexual assault or intercourse. In this regard,

the prosecutrix has deposed that it was Pintu, who had coerced

her for the sexual intercourse, while she was grazing the goats in

the field, about 9 months before recording of the statement.

Father and mother of the prosecutrix have also deposed that the

prosecutrix had divulged the name of Pintu, being the person, who

had made her pregnant, when she was asked about the name. In
(15 of 18)
[ CRLA-407/2017]

view of the testimony of these witnesses, the factum of sexual

intercourse with the prosecutrix is proved and so also the fact that

such intercourse with the tender aged girl child was done by

Pintu.

As far as the alleged incident of commission of gang rape, for

which, charges under Section 376 (D) IPC have been framed

against the appellants Pintu and Sukha are concerned, we are

unable to see any evidence on record suggesting the occurrence of

the incident in a hotel at Beawar. The entire charges under

Sections 366-A and 376 (D) IPC are solely based upon the

statement given by the prosecutrix, who has deposed that Pintu

and Sukha had taken her to Beawar on a motorcycle.

Firstly, this Court has its own doubts about the veracity of

the story so projected by the prosecution. It is easy to allege but

difficult to digest, that two persons can abduct a girl of 13 years in

bright day light and take her all the way to Beawar, which is

situated at a distance of 20 kilometres from the prosecutrix’s

village and that too on a motorcycle. Equally unbelievable is the

suggestion that in such event the victim would not raise alarm or

invite attention of the passer-by. According to the prosecutrix’

own version, the accused had took her to Beawar and left her at

the Railway Station, Beawar and came back at about 7:00 p.m. for

taking her to the hotel. We fail to comprehend as to what

prevented the prosecutrix to contact anybody, if not the Police or

to come back home, particularly when she was capable of doing

so, as deposed by her that she had come to her village in a tempo
(16 of 18)
[ CRLA-407/2017]

of Usman Bhai on the next day i.e. on 21.09.2014, when the

accused had dropped her at the Railway Station.

We are constrained to comment upon the manner of

investigation and evidence collected by the Investigating Officer,

who had not even bothered to ascertain the name of the hotel, at

which, the accused purportedly gang-raped the victim. The

Investigating Officer, had gone and prepared the site plan Ex.P/2

of the field, where the accused firstly raped the prosectrix, about 6

months before lodging of the FIR, but did not think it necessary to

even enquire about the hotel, at which such gang-rape was

committed. It is surprising rather shocking that the Investigating

Officer has neither collected any information about the hotel, nor

has he produced any other material, such as hotel record etc. to

prove that the appellants had even checked-in the said hotel on

20.09.2014, much less proving the commission of rape by the

appellants on that fateful day. The prosecution has failed to bring

on record any evidence evincing the presence of the prosecutrix at

Beawar, much less inducing and coercing the prosecutrix to enter

the hotel and engage in the unlawful sexual activity.

The deposition of the mother of the prosecutrix (PW-2)

regarding her abduction to Beawar and consequent rape in a hotel

at Beawar, is solely based upon the version of the prosecutrix and

the same is nothing more than hear-say. There is no evidence,

worth the name, pointing towards commission of rape by the

appellants at Beawar on 20.09.2014.

(17 of 18)
[ CRLA-407/2017]

After wading through the oral and documentary evidence

available on record, we are of the considered opinion that the

prosecution has failed to prove the charge of rape of the

prosecutrix by the appellants in the hotel at Beawar, on

20.09.2014. The prosecution has also failed to prove that the

appellants had forcefully taken the prosecutrix to Beawar on the

motorcycle, with an intention to commit the rape or intercourse.

As a result of the discussions foregoing, the appeal of

accused-appellant Sukha, being Appeal No. 407/2017 is allowed in

toto and he is acquitted of all the charges framed against him. The

appellant – Sukha, who is reported to be in custody, be released

forthwith, if not required in any other case.

As far as, the appeal filed by the accused Pintu, being Appeal

No. 562/2017, is concerned, the same is partly allowed. The

appellant Pintu is acquitted of the charges under Section 376 (D)

IPC and Section 5 (g), 5(j) (ii)/6 of the POCSO Act, for committing

repeated sexual assault and gang-rape in a Hotel at Beawar.

Similarly, the appellant Pintu is acquitted of the charges under

Section 366-A IPC for the allegation of abduction of the

prosecutrix on 20.09.2014.

However, the appellant – Pintu is held guilty of offence under

Section 376 IPC read with Section 4 of the POCSO Act, for

coercing “P” the prosecutrix to indulge in sexual intercourse in the

farm, while she was grazing the goats and his conviction is altered

to conviction under Section 4 of POSCO Act.

(18 of 18)
[ CRLA-407/2017]

In view of his conviction aforesaid, the appellant – Pintu shall

undergo 10 years’ rigorous imprisonment, with fine of

Rs.50,000/-. In default of payment of fine, he shall further

undergo simple imprisonment of six months. The appellant Pintu

is in jail and he shall be released after serving out the remaining

part of sentence and deposition of the amount of fine.

(RAMCHANDRA SINGH JHALA),J. (DINESH MEHTA),J.

/Mohan/12-13

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