SUKHA @ SIKANDAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) 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:- Image-1

(2.) The facts apropos for the purpose of deciding the present appeals are that the complainant Chima lodged an FIR on 209.2014 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") .

(3.) 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.