Bachchu Singh @ Kamlesh vs State Of Rajasthan

The appellant Bachchu Singh @ Kamlesh, was tried by the court of Sessions Judge, Dausa in Sessions Trial No. 141/2014. The said court vide

impugned judgment dated 10.7.2015 convicted the appellant for offences under Sections 363, 366A IPC and Section 11 read with Section 12 of

Protection of Children from Sexual Offences Act, 2012. The said court having convicted the appellant for above said offences, vide a separate

order of even date sentenced the appellant as under:- U/s. 363 IPC- to undergo four years SI and to pay a fine of Rs.500/-, in default thereof to

undergo additional one month SI. U/s. 366(A) IPC- to undergo five years SI and to pay a fine of Rs.500/-, in default thereof to undergo additional

one month SI. U/s. 11 r/w Section 12 of POCSO Act- to undergo two years SI and to pay a fine of Rs.5000/-, in default thereof to undergo

additional six months SI.

Aggrieved against his conviction and sentence, the appellant has preferred the present appeal.

A co-ordinate Bench vide S.B. Cr. Misc. (Suspension of Sentence) Application No. 188/2017 in S.B. Cr. Appeal No. 295/2017, on

10.5.2017, suspended the sentence of the appellant by passing the following order:-

Heard learned counsel for the parties.

On consideration of submissions made on behalf of the respective parties and the material made available for my perusal and more particularly

looking to the period of sentence already served by the applicant and the fact that the decision of the appeal is likely to take time, but without

expressing any final opinion on the merit and demerit of the case, I am inclined to suspend the sentence awarded to him during the pendency of the

appeal.

Accordingly, the application for suspension of sentence is allowed. It is ordered that the sentence awarded to accused-applicant Bachchu Singh @

Kamlesh S/o Shri Sugna Ram in Sessions Case No.141/2014 shall remain suspended on furnishing a personal bond of Rs.50,000/- and two

sureties bond of Rs.25,000/- each to the satisfaction of the learned trial Court to the effect that he shall appear before this Court on 03.07.2017

and as and when called upon to do so.

The learned counsel for the appellant contended that the appellant due to extreme poverty and penury could not furnish personal bonds and

bonds by the sureties. Hence, the appellant had filed an application bearing Inward No. 22778/17, praying therein that the appellant be released

on his personal bonds. On the said application, this Court on 21.12.2017, passed the following order:-

Records have been received from the trial court.

List the present appeal for final hearing and disposal on 04.01.2018.

Hence, today present appeal is being decided finally by reverting to the facts of the case.

Sheonath Meena (P.W.1) on 27.9.2014, submitted written report (Exhibit-P/2). The said written report when translated into English, reads as

under:-

To

SHO Saheb,

Police Station Sikandara, District Dausa.

Subject: Regarding lodging of the report for offence of kidnapping.

Sir,

It is submitted that on 4.5.2014, at about 6:30 PM, at our house programme of Milni (a ceremony before marriage) was going on.

Suddenly, my daughter (name withheld to protect her identity) aged 10 years was kidnapped by a boy on motorcycle of red colour

on the pretext of serving her juice. Thereafter, on 5.5.2014, my daughter was recovered from Lanka Police Post. The name of boy,

who kidnapped my daughter is Bachchu Singh @ Kamlesh. Thus, Sir, it is prayed that above said accused be arrested and legal

action be taken.

Applicant

Sheonath Meena S/o Musyaram Meena

by caste Meena, r/o Dhani Musya ki Reta, Tehsil Sikrai,

District Dausa, (Raj.).

Sheonath Meena (P.W.1) appeared in the court and stated that seven to eight months before the occurrence, marriage ceremony of his son

Ramnath was being performed. His relatives had come. He is having a daughter aged ten years. The child went missing. They searched for her and

then a police personnel from Dubbi Police Post came and named the child and asked whether his daughter is missing. Upon which, he said that

family has been searching for the daughter and she had been kidnapped. The police personnel informed that your daughter was taken away a day

before and he further relayed information that she is at Lanka Police Post. He alongwith family members went to take daughter upon which

daughter informed that she was taken away by Bachchu Singh @ Kamlesh. The daughter informed that motorcycle was of red colour and accused

had taken her on the pretext that he shall serve her juice.

In cross-examination, Sheonath Meena P.W.1 stated that they searched for the daughter in the night till 10-11 PM. Even though child was not

found, they had not lodged any complaint to the police. This witness admitted that her daughter was found on the next day. To similar effect is the

statement made by Shanti Devi (P.W.2) mother of the child.

Material witness for consideration of the court is victim, who had appeared in the court as P.W.3. It will be apposite here to reproduce entire

examination in chief and cross examination of child victim, as under:-

VERNACULAR MATTER OMITTED

In the present case, child victim has stated that accused had taken her to the house of his sister. There, one person came and accused made an

attempt to sell the child. Who was the said person and who was called, no investigation was carried by the investigating agency to find the said

person. No corroborative evidence was gathered.

Admittedly, the child examined is ten years old. In the present case, the occurrence had taken place on 4.5.2014. The child was recovered on

5.5.2014. The written report (Exhibit-P/2) leading to registration of formal FIR (Exhibit-P/3) was submitted on 27.9.2014 at 11:30 AM. Thus,

there is delay of four months and twenty two days in lodging of the report. In the present case, delay assume importance. Furthermore, police post

from where child victim was recovered, no Daily Diary was recorded to the effect that the child was taken away by the accused. All proceedings

in the present case commenced on 27.9.2014 after four months and twenty two days of the occurrence.

Delay in the present case speaks volume. When the child was recovered from the police post Lanka, it was incumbent for the parents to

inform that the child was taken away by the accused. Even the child victim had not disclosed to the police that she was taken away by the accused.

Custody of the child was given to parents on 5.5.2014. The child victim on that day or subsequent day would have named the accused but the

story and name of accused have surfaced in the FIR after four months and twenty two days. Furthermore, no documents has been proved on

record from where it could be inferred that the name of the present appellant has surfaced as accused before submission of written report (Exhibit-

P/2) and registration of FIR (Exhibit-P/3).

Considering the totality of circumstances, this Court is of the view that it cannot be ruled out that due to consultations and deliberations, and for

other reasons, name of the accused was introduced as accused after four months and twenty two days of the occurrence.

Taking the conduct of the complainant and delay in lodging of the report and lack of corroborative evidence, this Court is of the view that it is

not safe to sustain the conviction of the appellant. Hence, this court shall extend benefit of doubt to the appellant by way of abundant caution.

Consequently, the present appeal is accepted. The conviction and sentence of the appellant is set aside and he is acquitted of all the charges.

The appellant who has already undergone three years and three months be immediately set at liberty if he is not involved in any other case. The trial

court shall ensure that the provisions of Section 437A Cr.P.C. are complied with.