ROHIT Vs. STATE OF U P AND ANOTHER

JUDGEMENT

(1.) Rohit Kumar, a child in conflict with law has invoked the jurisdiction of this Court under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'Act') assailing a judgment and order passed by Sri Sarvesh Chandra Pandey, Additional District and Sessions Judge, Court no.1, Azamgarh dated 21.12.2017 dismissing Criminal Appeal No.151 of 2017 and affirming an order dated 14.12.2017 made by the Juvenile Justice Board, Azamgarh in Case no.144 of 2017 (arising out of Case Crime no.170 of 2017), under Sections 354A, 376D, 506 IPC and Section 3/4 of the POCSO Act, Police Station Sarai Meer, District Azamgarh denying bail plea by Rohit.

(2.) Facts giving rise to the instant revision are that a First Information Report was lodged by one Urmila wife of Ram Ajor to the effect that her daughter and hereinafter referred to as the 'prosecutrix' aged about 15 - 16 years was eve teased by some boys who are natives of her village, to wit, Surendra son of Ram Jatan, Amarjeet son of Lal Singh, Suraj son of Mohan and Rohit son of Harish Chandra (revisionist), and, that she complained in the matter to their parents, which did not move them. It was said in the information that in the meanwhile the informant had to proceed to Faridabad in connection with her medical treatment. During this time on 13.08.2017, Rohit came over to her house and told the prosecutrix that Surendra's sister-in-law (Bhabhi) was calling her. In response the prosecutrix went over to Surendra's place, where she did not find his sister-in-law home. Rohit has two houses and not finding his sister-in-law at the one where the prosecutrix first went, she proceeded to the other house. There all the four boys, last mentioned, including Rohit were present, of whom the prosecutrix enquired, where Rohit's sister-in-law was. Rohit responded by telling the prosecutrix that she was sitting inside. The prosecutrix went inside to find the door shut behind her, confining her to the room, where Surendra was already present. Surendra muffled her voice by a tight grip of his palm to her mouth and by the other he shot a photograph of the prosecutrix's, using his mobile. Thereafter, he attempted to ravish her by use of force, but the prosecutrix resisted and cried out loud. He threatened her with sending out her photograph over Whatsapp and turned on the volume of a music player to deafening decibels, in consequence of which the prosecutrix's cry for help could not be heard outside. In the meanwhile, the prosecutrix banged the doors and windows in order to invite attention, and, in the meantime, electric supply went off (turning off the music system). This scared the offenders, who opened the door and took to their heels. The prosecutrix still crying rushed to her brother and sister-in-law (Bhabhi) to whom she narrated the entire episode. The brother of the prosecutrix immediately proceeded to Surendra's sister-in-law and shared the information with her, who told the prosecutrix's brother that when his mother and Surendra's mother would return from Faridabad, this matter would be brought to their concern. As these facts were reported to the police in writing by the mother of the prosecutrix, a First Information Report giving rise to the crime under reference was registered under Sections 354, 506 IPC and Section 7/8 of the POCSO Act.

(3.) In her statement recorded under Section 164 Cr.P.C. before Magistrate, the prosecutrix seemingly did a material alteration to the FIR version and bolstered the prosecution case, the cardinal features of which, different from the FIR version, are to the effect that Rohit called her over to Surendra's place saying that it was the prosecutrix's sister-in-law (Bhabhi), who was calling her there as against the FIR version, where it is said that Rohit told the prosecutrix that it was Surendra's sister-in-law (Bhabhi), who was calling her to Surendra's place. The most material variation in the prosecution account that was introduced by the prosecutrix in her statement under reference is to the effect that when she went to Surendra's place to meet her sister-in-law, who had according to Rohit's representation called her to Surendra's place, she did not find her there and instead the four accused, Rohit and Surendra included, ravished her by turns muffling her cry for help under the deafening sound of a blaring music system. Suddenly, the electricity supply went out and the prosecutrix cried out for help, which led the offenders to take to their heels. The prosecutrix has gone on to say that thereupon she went to her brother crying and told him everything except the fact of having suffered rape. The statement closes with the prosecutrix saying that she has nothing to add.