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Judgment
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:-
VERNACULAR MATTER OMITTED
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 accusedappellants, 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
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, 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.
PW-1, the victim appeared in the witness box and deposed that she had studied upto 8th 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 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:-
VERNACULAR MATTER OMITTED
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.
On the basis of the aforesaid evidence, the learned Trial Court has held, all the charges levelled against the accusedappellants 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 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 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 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 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 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 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.
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.
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.