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 A2- 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