Rajasthan High Court - Jodhpur
Ghewarsingh vs State on 22 November, 2021
Bench: Sandeep Mehta, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) D.B. Criminal Death Reference No.1/2018
State of Rajasthan Through PP
----Prosecution
Versus
1. Ghewar Singh son of Prahlad Singh, by caste Rajpurohit,
R/o Nimbari, District Barmer.
2. Shrawan Singh son of Koop Singh, by caste Rajpurohit,
R/o Nimbari, District Barmer.
----Respondents-Accused
Connected With
(2) D.B. Criminal Appeal No.167/2018
1. Ghewar Singh S/o Prahladsingh, by caste Rajpurohit, aged 28
years,
2. Prahaladsingh S/o Shivnathsingh, by caste Rajpurohit, aged
63 years,
3. Narsingsingh S/o Shivnathsingh, by caste Rajpurohit, aged
54 years,
4. Shankarsingh S/o Harchandsingh, by caste Rajpurohit, aged
45 years,
(Presently lodged at Central Jail, Jodhpur).
Appellants.
Versus
State of Rajasthan.
----Respondent
(3) D.B. Criminal Appeal (DB) No. 201/2018
Sharvan Singh S/o Shri Koop Singh, Aged About 25 Years, By
Caste Rajpurohit, Resident of Nimbari, District Barmer.
(At present lodged in Central Jail, Jaipur).
Appellant.
Versus
State of Rajasthan.
----Respondent
(Downloaded on 22/11/2021 at 08:56:13 PM)
(2 of 29) [CRLDR-1/2018]
For Petitioner(s) : Mr. Dhirendra Singh
Mr. Jagdish Singh
Ms. Priyanka Borana.
Mr. Pritam Solanki.
For Respondent(s) : Mr. R.R. Chhaparwal, PP.
Mr. Sidhharth Karwasara.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE SAMEER JAIN
JUDGMENT
Date of pronouncement : __22/11/2021
Judgment reserved on : 10/11/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
Reportable
1. By the Judgment dated 06.08.2018 passed in Sessions Case
No.10/2017, the learned Special Judge, Prevention of Children
from Sexual Offences Cases, Barmer convicted and sentenced the
accused appellants as below:
Name of the Offence for which Sentence awarded
accused convicted
Ghewar Singh & Section 363 IPC 7 Years' Rigorous
Shrawan Singh imprisonment along with a
fine of Rs.25,000/- and in
default of payment of fine,
6 months' R.I.
Section 366A IPC 10 Years' Rigorous
imprisonment along with a
fine of Rs.25,000/- and in
default of payment of fine,
6 months' R.I.
Section 376A IPC Death penalty along with a
fine of Rs.50,000/- and in
default of payment of fine,
1 Year's R.I.
(3 of 29) [CRLDR-1/2018]
Section 376D IPC Life imprisonment along
with a fine of Rs.50,000/-
and in default of payment
of fine, 1 Year's R.I.
Section 458 IPC 10 Years' Rigorous
imprisonment along with a
fine of Rs.25,000/- and in
default of payment of fine,
6 months' R.I.
Section 450 IPC 10 Years' Rigorous
imprisonment along with a
fine of Rs.25,000/- and in
default of payment of fine,
6 months' R.I.
Section 302 IPC Death penalty along with a
fine of Rs.50,000/- and in
default of payment of fine,
1 Year's R.I.
Section 120B IPC Death penalty along with a
fine of Rs.25,000/- and in
default of payment of fine,
6 Months' R.I.
Section 5(G)/6 of 10 Years' Rigorous
POCSO Act. imprisonment along with a
fine of Rs.25,000/- and in
default of payment of fine,
6 months' R.I.
All the sentences were ordered to run concurrently.
Prahlad Singh, Section 347 IPC 3 Years' Rigorous
Nar Singh & imprisonment along with a
Shankar Singh fine of Rs.5,000/- and in
default of payment of fine,
3 months' R.I.
Section 201 IPC 7 Years' Rigorous
imprisonment along with a
fine of Rs.10,000/- and in
default of payment of fine,
6 months' R.I.
Section 19(1)/21 6 Months' Rigorous
of the POCSO Act. imprisonment along with a
fine of Rs.2,000/- and in
default of payment of fine,
15 days' R.I.
All the sentences were ordered to run concurrently.
(4 of 29) [CRLDR-1/2018]
2. Death Reference No.1/2019 has been submitted by the
learned Special Judge, Prevention of Children from Sexual
Offences Cases, Barmer under Section 366 of the Cr.P.C. seeking
confirmation of the capital punishment awarded to the accused
Ghewar Singh and Shrawan Singh.
Appeal No.167/2018 has been filed by the accused Ghewar
Singh, Prahlad Singh, Nar Singh and Shankar Singh whereas
appeal No.201/2018 has been preferred by the accused Shrawan
Singh for assailing the impugned Judgment.
3. As the death reference as well as the appeals arise out of the
same Judgment, they have been heard and are being decided
together.
4. Brief facts relevant and essential for disposal of the case are
noted herein below:
5. The child victim Mst. 'P' (hereinafter referred to as 'the
victim') was allegedly kidnapped from her father's house in the
night intervening 29.03.2013 and 30.03.2013. The dead body of
the victim was recovered lying amongst the hills near the Kubad
Mata Temple on 31.03.2013 on which, the father Shri Balwanta
Ram (PW-8) lodged a report (Ex.D/4) to the SHO, Police Station
Sadar Barmer on 31.03.2013 at 02.15 PM alleging inter alia that
his daughter aged 15 years, who was suffering from some mental
ailment, disappeared from the house on 30.03.2013. He searched
for his daughter in the village but could not find her. In the
morning, the dead body was seen lying amongst the hills. On the
(5 of 29) [CRLDR-1/2018]
basis of this report, proceedings were registered under Section
174 Cr.P.C. as Mrig No.11/2013 (Ex.D/4). About an hour later i.e.
at 03.20 PM., Smt. Deu (PW-6) wife of Shri Balwanta Ram and the
victim's mother, lodged a handwritten report (Ex.P/31) to the
SHO, Police Station Mahila Thana, Barmer alleging inter alia that
on 29.03.2013, Mst. 'P' and other children were sleeping in the
house besides her. In the night at about 11 O' Clock, Ghewar
Singh son of Prahlad Singh and 4-5 other people entered into her
house with torches in their hands. The informant woke up because
of the flash of light and identified Ghewar Singh but could not
ascertain the identity of the others. She asked Ghewar Singh as to
why he had entered her house but he did not offer any
explanation and went away. The informant went back to sleep. Her
husband was at Barmer in connection with his labour job. Only
she, the victim and other small children were sleeping in the
house. At about 3 O' Clock, she again saw Ghewar Singh and
others in the courtyard of her house. They had gagged the mouth
of her daughter and were forcibly kidnapping her with the
intention of committing gang rape. She got up on which, Ghewar
Singh threatened her with a knife hurling an insinuation that if
anyone was told about the incident, the entire family would be
eliminated. Fearing for her family's life, she kept silent and did not
tell anyone about the incident. After waking up in the morning,
she told her brother-in-law Jagdish @ Jaggaram (PW-7) about the
unfortunate incident which had taken place in the night. Jaggaram
went to Ghewar Singh and inquired about the girl but he did not
reply. Jagdish @ Jaggaram came back after which, Ghewar Singh
made frequent calls on his mobile phone and gave misleading
informations regarding the child's location. Finally, Ghewar Singh
(6 of 29) [CRLDR-1/2018]
told that the girl was sitting in the valley besides the Kubad Mata
Temple and that he alone should come there. Jagdish @ Jaggaram
did not go there fearing for his own life. In the meantime, her
husband returned home on which, she and her brother-in-law
Jagdish @ Jaggaram told him about the incident. Her husband
talked to the villagers but no one could give a clue regarding the
girl. In the morning of 31.03.2013 between 10.00-11.00 AM,
Ghewar Singh's father Prahlad Singh and uncle Nar Singh came to
her house and admitted that Ghewar Singh had killed their
daughter and pleaded that the complainant should refrain from
approaching the police. The complainant and her family members
refuted the suggestion on which, her husband was forcibly taken
away and was pressurised to file a fictitious report at the Police
Station Barmer whereas the fact remained that Ghewar Singh and
others had trespassed into her house in the night time and had
kidnapped the victim who was raped and murdered with the
intention of obliterating the evidence of the crime. The dead body
of the victim was lying in a trench amongst the hills near the
village. Previously also, Ghewar Singh had indulged into untoward
acts with her daughter.
6. On the basis of this report, an FIR No.32/2013 (Ex.P/48)
came to be registered at the Police Station Mahila Thana, Barmer
for the offences under Sections 363, 364, 366A, 450, 376A, 376D,
302, 201, 120B IPC and Section 5(G)/6 of the POCSO Act. The
investigation was undertaken by Najeem Ali, Additional
Superintendent of Police (PW-22) who was posted as the Circle
Officer, Barmer at the relevant point of time. The I.O. proceeded
to the hills where the dead body of the victim was lying. The Fard
(7 of 29) [CRLDR-1/2018]
Surathaal Lash (Ex.P/39) was prepared on 31.03.2013 at 04.30
PM. As per this memo, numerous marks of injuries were noticed
on the body of the girl. A black coloured trouser, coloured printed
Kurta and a yellowish white floral bra were found present on the
dead body of the victim. The Panchayatnama Lash (Ex.P/40) was
prepared wherein, it was opined that the accused Ghewar Singh
had inflicted injuries to the victim, killed her and threw the dead
body into the trench. The I.O. sent the dead body of the girl to the
Government Hospital Barmer where autopsy was carried out on
01.04.2013 and the postmortem report (Ex.P/28) was issued
wherein, cause of death was opined to be shock due to head
injury and injury to vital organ i.e. left lung. It was pertinently
noted that no opinion could be given regarding rape. It is
pertinent to mention here that no marks of violence were noticed
by the Medical Board on the genitalia of the victim. However,
hymen was missing. The accused appellants Ghewar Singh and
Shrawan Singh were arrested vide arrest memo (Ex.P/14 and
Ex.P/15) respectively.
7. The I.O. claims that during the course of investigation, the
accused gave the informations under Section 27 of the Indian
Evidence Act which led to the discoveries/recoveries as set out
below:
"Ex.P/56 dated 02.04.2013 at 10.15 AM- Information given
by Ghewar Singh regarding the place from where the girl was
pushed off the hills.
Ex.P/54 dated 05.04.2013- Information given by Ghewar
Singh regarding pointing out the place of incident i.e. an
(8 of 29) [CRLDR-1/2018]
under-construction hospital where the victim was allegedly
raped. It is relevant to mention here that in this
document, no time is mentioned.
Ex.P/55 dated 04.04.2013 at 09.00 AM- Information given
by Shrawan Singh wherein, the accused stated that he could
point out the place where he and Ghewar Singh had
subjected the girl to rape. Significantly, in this information,
the precise description of the place as was set out in the
memo Ex.P/54 is not mentioned.
Ex.P/57 dated 02.04.2013 at 10.00 AM- Information given
by Ghewar Singh regarding the concealment of a Nokia
mobile phone which the accused allegedly used for
perpetrating the incident.
Ex.P/58 dated 05.04.2013 (no time)- Information by
Shrawan Singh wherein he disclosed that he could point out
the place where he and Ghewar Singh had subjected the
victim to rape i.e. the building of an under-construction
hospital.
Ex.P/59 dated 04.04.2013 at 09.30 AM - Information
recorded at the instance of Shrawan Singh purporting to the
concealing of a mobile phone allegedly used during the
course of the incident.
The I.O. claimed that in furtherance of the informations
provided, the two accused, took the police team to an under-
construction building of a hospital on 06.04.2013 at 9 AM where,
(9 of 29) [CRLDR-1/2018]
the site inspection plans (Ex.25 and Ex.26) were prepared at
09.00 AM and 09.45 AM at the instance of Ghewar Singh and
Shrawan Singh respectively. The I.O. further claimed that while
the Site Inspection Plan (Ex.P/25) was being prepared, a pair of
yellow coloured Chappals which the accused disclosed to be of the
victim, was seen lying and was seized vide seizure memo
(Ex.P/18). A note has been appended in this seizure memo that
the complainant Smt. Deu identified the pair of Chappals to be
that of her daughter the victim. It is relevant to mention here that
the documents (Ex.P/25 and Ex.P/26) were prepared at 09.00 AM
and 09.45 AM respectively whereas the document (Ex.P/18) was
prepared at 09.30 AM.
Smt. Deu was not made a signatory to the site inspection
plans (Ex.P/25 and Ex.P/26). However, she was made to sign the
seizure memo (Ex.P/18) regarding the alleged identification of the
Chappals of the victim. It is relevant to mention here that though
the I.O. claims to have collected call details of the mobile phones
seized during the course of investigation, but no certificate of the
service provider was collected as per the mandatory requirement
of Section 65B of the Indian Evidence Act. Furthermore, no effort
was made by the I.O. to connect any of the recovered mobile
phones to the victim.
8. After concluding investigation, a charge-sheet came to be
filed against the appellants herein for the offences as below:
"Ghewar Singh and Sharwan Singh:- Sections 363, 366A,
376A, 376D, 458, 450, 302, 120B IPC and Section 5(G)/6 of
the POCSO Act.
(10 of 29) [CRLDR-1/2018]
Prahlad Singh, Nar Singh and Shankar Singh: Sections
451, 347 IPC and Section 19(1)/21 of the POCSO Act."
9. The trial court framed charges against the accused
appellants in the following terms:
"Ghewar Singh and Sharwan Singh: Sections 363, 366A,
376A, 376D, 458, 450, 302, 120B IPC and Section 5(G)/6 of
the POCSO Act.
Prahlad Singh, Nar Singh and Shankar Singh: Sections
347 and 201 of IPC and Section 19(1)/21 of the POCSO Act."
They pleaded not guilty and claimed trial. The prosecution
examined as many as 22 witnesses and exhibited 92 documents
and marked 10 articles so as to bring home the charges against
the accused. Upon being questioned under Section 313 Cr.P.C. and
when confronted with the circumstances appearing against them
in the prosecution evidence, the accused denied the same and
claimed to have been falsely implicated. One witness was
examined and 8 documents were exhibited in defence. After
hearing the arguments advanced by the learned Public Prosecutor
and the defence counsel and, appreciating the evidence available
on record, the learned trial court proceeded to convict and
sentence the appellants as above. Hence the death reference and
the appeals have been registered against the judgment dated
06.08.2018.
10. Learned counsel Shri Dhirendra Singh representing the
appellants Ghewar Singh, Prahlad Singh, Nar Singh and Shankar
(11 of 29) [CRLDR-1/2018]
Singh and learned counsel Shri Pritam Solanki representing the
appellant Shrawan Singh, vehemently and fervently contended
that the entire prosecution case is false and fabricated. The theory
that the appellants Ghewar Singh and Shrawan Singh kidnapped
the victim from her father's house, is totally concocted. Smt. Deu
(PW-6) claims to have witnessed the alleged kidnapping of her
daughter with her own eyes at 3 AM but despite that, she casually
went to sleep without making any effort whatsoever to raise a hue
and cry nor did she make a complaint of the alleged kidnapping to
her family members i.e. Jaggaram @ Jagdish etc. who reside in
the immediate vicinity. Shri Balwanta Ram, who was allegedly
present in Barmer at the time of the incident, was informed and
he reached the village well before on 30.03.2013 itself. Upto that
time, there was not even a semblance of the so-called threat to
the victim's family members which could have prevented them
from approaching the police and lodging the report. They urged
that the theory portrayed in the subsequent report (Ex.P/31) and
in the evidence of the material prosecution witnesses Smt. Deu
(PW-6), Jaggaram @ Jagdish (PW-7) and Balwanta Ram (PW-8)
that the accused and their family members extended threats to
these witnesses and that is why, they were prevented from
lodging a prompt FIR or that the report (Ex.D/4) was manipulated
by the accused persons, is falsified from the evidence of the I.O.
Shri Najeem Ali (PW-22) who admitted in cross-examination that
no such complaint was received by him during investigation, that
the complainant party had been thwarted by the accused persons
from lodging a timely report with correct details. It was further
urged that as there is no allegation in the first report (Ex.D/4)
regarding the accused having kidnapped the child and thus, the
(12 of 29) [CRLDR-1/2018]
gross improvement made on this aspect in the subsequent report
(Ex.P/31) to this effect has to be discarded. They urged that the
report (Ex.P/31) is a purely post investigation document and
cannot be relied upon. Learned defence counsel extensively
referred to the sworn testimony of the material prosecution
witnesses Smt. Deu (PW-6), Jaggaram @ Jagdish (PW-7),
Balwanta Ram (PW-8) and the investigating officer Najeem Ali
(PW-22) and pointed out the stark contradictions emerging therein
and urged that the same do not inspire confidence. It was further
urged that the prosecution has portrayed a pertinent theory that
the victim was first subjected to rape by multiple assailants and
then, she was pushed off from the top of the hill thereby killing
her. In this backdrop, learned defence counsel took the Court
through the evidence of the Medical Jurist (PW-5) Dr. Arun Kumar
and pointed out that the Members of the Medical Board did not
notice any mark of sexual violence upon the victim and as such,
the theory that she was first subjected to gang rape and then was
killed by pushing her off the hill so as to efface the evidence, is
totally falsified. It was further urged that the recovery of the
Chappals of the victim, which has been attributed to the accused
Ghewar Singh, is fabricated and does not inspire confidence.
Learned counsel also submitted that the FSL reports (Ex.P/50 and
Ex.P/51) do not incriminate the accused in any manner because
no semen was detected on the clothes of the victim or the vaginal
swab and smear collected from her genital regions. Learned
counsel representing the appellants Nar Singh and Prahlad Singh,
urged that conviction of these appellants for the alleged
obstruction given to the complainant in lodging of the report is
totally unjustified because there is no corroboration of the entirely
(13 of 29) [CRLDR-1/2018]
cooked up allegation made by Smt. Deu (PW-6) and Shri Balwanta
Ram (PW-8) that the accused persons coerced them into filing the
report (Ex.D/4) with false assertions. Learned counsel Shri Pritam
Solanki submitted that the accused Shrawan Singh is not named
in the FIR and his name has been introduced in the case by way of
a sheer improvement and hence, the evidence of the prosecution
witnesses is fit to be discarded.
On the basis of these submissions, learned defence counsel
vehemently and fervently urged that the findings recorded by the
trial court in the impugned Judgment that the prosecution has
succeeded to bring home the charges by cogent and convincing
evidence, are totally unsubstantiated, perverse and conjectural in
nature and hence, the impugned Judgment deserves to be
quashed and set aside; the death reference be answered in the
negative and the appeals preferred by the appellants deserve to
be accepted and they are entitled to an acquittal.
11. E converso, the learned Public Prosecutor and learned
counsel Shri Karwasara representing the complainant, vehemently
and fervently opposed the submissions advanced by the learned
defence counsel. They urged that the complainant had no motive
whatsoever to falsely implicate the accused in this case which
involves the heinous allegation of kidnapping, rape and murder of
a child aged 12 years. The child's mother being the first informant
was threatened by the accused persons with dire consequences
right at the time of the incident and again on 31.03.2013 and
thus, she and her husband were impeded from lodging a timely
FIR because of fear for their own lives. The fact that the child was
kidnapped by Ghewar Singh and his companions, has been duly
(14 of 29) [CRLDR-1/2018]
corroborated by the circumstance of recovery of the footwear of
the victim from the unfinished building of a hospital where the
child was subjected to forcible sexual assault. Though the
certificate under Section 65B of the Indian Evidence Act was not
proved by the prosecution but as the defence itself did not dispute
the call detail records, they have to be read against the accused.
The evidence of the material prosecution witnesses does not suffer
from any significant contradictions or infirmities so as to discard
the same.
On these submissions, the learned Public Prosecutor and the
complainant's counsel sought confirmation of the impugned
Judgment, dismissal of the appeals preferred by the accused
appellants and affirmation of the Death Sentence awarded to the
accused Ghewar Singh and Shrawan Singh.
12. We have given our thoughtful consideration to the
submissions advanced at bar and, have carefully and minutely re-
appreciated the evidence available on record.
13. As the prosecution has come out with a categoric theory that
the accused Ghewar Singh and Shrawan Singh kidnapped the
victim from the lawful guardianship of her parents with an
intention of subjecting her to rape and that the child was sexually
assaulted and was thereafter, done to death with an intention of
effacing the evidence of the crime, it would be apposite to first
refer to the medical evidence led by the prosecution to
substantiate and corroborate these allegations. The dead body of
the child was subjected to autopsy by a Medical Board constituted
at the Government Hospital, Barmer. Dr. Arun Kumar (PW-5) was
(15 of 29) [CRLDR-1/2018]
a Member of the said Medical Board. While deposing on oath, he
categorically mentioned that there was no mark of injury on the
genitalia of the victim. The hymen was absent and one finger was
entering into the vagina of the victim. In cross-examination, the
doctor admitted that the fatal injuries, which were noted on the
dead body of the victim, could be received by a fall from the hill.
The doctor also admitted that if two persons had subjected the
victim to rape, then there was an imminent possibility of injuries
being caused on her genital area. As per the FSL reports (Ex.P/49
to Ex.P/52), when the clothes, the vaginal swab and smear and
the pubic hair of the victim were analysed at the Forensic Science
Laboratory, the same did not test positive for presence of semen.
As per the prosecution, the child was done to death immediately
after she had been ravished by the two alleged assailants. In this
background, there was an imminent likelihood of semen being
detected in the vaginal swab and smear and the pubic hair of the
victim when the serological analysis was carried out.
Upon reading the evidence of the Medical officer in
conjunction with the FSL reports (supra), we have no hesitation in
holding that the prosecution has miserably failed to prove that the
victim was subjected to gang rape by the accused Ghewar Singh
and Shrawan Singh. As a matter of fact, the medical evidence and
the expert reports, totally eliminate the possibility of sexual
violence having taken place with the girl before her death.
The trial court has given much credence to the fact that
semen was detected in the underwear of the accused and this
gave an indication of their involvement in a sexual offence.
However, we are of the firm view that by no stretch of
imagination, presence of semen on the underwear of the accused
(16 of 29) [CRLDR-1/2018]
can be considered to be an incriminating circumstance because
the undergarments were recovered after 2-3 days of the incident.
Both the accused are young men and the possibility of the
underwear being stained by their semen due to nocturnal
emissions, cannot be ruled out in the natural course of events.
This suggestion given by defence in cross-examination was
admitted by the Medical Jurist Dr. Arun Kumar (PW-5). Thus, the
finding recorded by the trial court holding that the presence of
semen on the undergarments incriminates the accused, is not
sustainable.
14. Regarding the delay in lodging of the FIR, the primary thrust
of the prosecution allegations as against the accused was that
they extended threats to Smt. Deu while kidnapping the girl and
that even thereafter, insinuations of dire consequences were given
to the complainant party so as to prevent them from filing a report
to police. Not only this, Balwanta Ram (PW-8) was forcibly taken
to the Police Station Barmer and was coerced into filing the report
(Ex.D/4) with totally false assertions. For the sake of repetition, it
may be mentioned here that in this report, it was mentioned that
the informant's daughter aged 15 years, who was suffering from
mental instability, had gone missing from the house on
30.03.2013. A search was made for the girl in the village and in
the morning of 31.03.2013, her body was found near the Kubad
Mata Temple. This report was lodged on 31.03.2013 at 02.15 PM.
An hour and five minutes later i.e. 03.20 PM, a handwritten report
(Ex.P/31) came to be submitted by Smt. Deu to the SHO, Police
Station Mahila Thana, Barmer. In this report, Ghewar Singh was
named whereas the other assailants were not identified. It was
(17 of 29) [CRLDR-1/2018]
alleged that first, Ghewar Singh and 4-5 other unknown
assailants, made an attempt to trespass into the complainant Smt.
Deu's house at 11 O' Clock in the night. The complainant woke up,
on which the accused went away. The complainant went back to
sleep. She again noticed the presence of the accused Ghewar
Singh and other unknown assailants in the courtyard of her house
at 3 O' Clock in the night and that they had gagged the mouth of
the victim and forcibly kidnapped her with an intention of
subjecting her to gang rape. The accused gave threats due to
which, the lady became petrified and thus, she did not inform
anyone of the incident. In the next morning, she told her brother-
in-law Jagdish of the unfortunate events who in turn intimated her
husband. Jagdish then approached Ghewar Singh and asked him
about the girl who divulged that she was sitting in the valley near
the Kubad Mata Temple.
At this point, we would like to take note of some significant
facts narrated in this report. As the complainant has tried to
portray in the report that when she woke up in the night at about
3 O' clock upon being startled by the noises, she saw that the
accused persons were forcibly kidnapping her daughter after
gagging her mouth. If that was the situation, there was no
possibility that the victim would be in any position to carry a
mobile phone with her or to put on the slippers. Admittedly, she
was sleeping at the time of the alleged incident and thus, there
was no possibility that she would have the opportunity to put on
the footwear or to carry the mobile phone with her.
The second thing which emerges from the report (Ex.P/31) is
that the complainant's husband was informed about the incident in
the morning of 30.03.2013 and he returned to the village soon
(18 of 29) [CRLDR-1/2018]
thereafter. On the very same day i.e. 30.03.2013, the accused
allegedly divulged to the complainant's brother-in-law Jaggaram @
Jagdish, the place where the girl was sitting. Till that time,
admittedly, no threat or insinuation whatsoever had been given by
the accused to the complainant party not to approach the police
etc. Thus, in the natural course of events, immediately on coming
to know about the location of the girl (with there being no
information that she was no more), the family members would
have rushed to the temple area for tracing her out. However,
during the entire day i.e. 30.03.2013, the family members did not
make any effort whatsoever to proceed to the place where the girl
was allegedly available as per the information provided by the
accused nor did they try to approach the police even though there
was no impediment which prevented them from doing so. At this
stage, we would like to extract the relevant parts of the
statements of the material prosecution witnesses i.e. Smt. Deu
(PW-6), Jaggaram @ Jagdish (PW-7), Balwanta Ram (PW-8) and
Najeem Ali (PW-22):
"(i) Smt. Deu (PW-6)
-Chief Examination-
".....fQj eSa lks xbZ] jkr dks 3 cts ?ksojflag o Jo.kflag vk;s fQj diM+k
yk;s vkSj iq'ik ds eqag esa Bql fn;kA eSa txh] eSua s dgk fd esjh yM+dh ds D;k
dj jgs gks] ?ksojflag us pkdq crk;k vkSj dgk fd vkidk iqjk ifjokj [kRe
dj nsx
a s] ugha rks fdlh izdkj dh vkokt er djuk] ftl ij eSua s Mj ds ekjs
vkokt ugha dhA jkr Hkj eSa lksbZ jgh vkSj lqcg esjs nsoj txnh"k dks ;g
lkjh ckr crkbZA fQj eSaus mudks dgk fd esjs ifr dks Hkh lekpkj djksaA fQj
txnh"k fuEcMh ?ksojflag o Jo.kflag ds ikl x;kA esjs nsoj us dgk fd esjh
Hkrhth dks vki dgk ys x;s gks vkSj oks vc dgk gS] mUgksaus dksbZ larks'ktud
tokc ugha fn;k vkSj dgk fd ;gha dgh ccqy dh >kfM+;ksa esa gksxhA esjk nsoj
(19 of 29) [CRLDR-1/2018]
okil vk x;kA fQj esjs nsoj ds ikl ?ksojflag dk Qksu vk;k] mlus dgk fd
vkids ?kj ds ikl >kfM+;ksa es iq'ik gksxh vkSj jkuhxkao ds igkM+ksa dh ?kkfV;ksa esa
iq'ik gksxhA fQj dgk fd dqcM ekrk ds Vkads ds ikl iq'ik dk [kMh gksuk
crk;kA fQj dgk fd dqcM ekrk ds eafnj ds ikl iq'ik [kMh gS] tks vki
vkdj ys tkvksaA fQj "kke dks esjk ifr vk;kA eSua s esjs ifr dks lkjh ckr
crkbZA fQj esjk ifr o txnh"k xkao esa yksxksa dks iwNus x;kA xkao esa
"kadjflag] izgyknflag o ujflax dks ckr iwNh rks mUgksua s ugha crkbZA fQj ogka
ls okil vk;sA fQj nwljs fnu jfookj dks izgyknflag] "kadjflag o ujflax
gekjs ?kj vk;s vkSj dgk fd vkidh yM+dh dks ?ksojflag o Jo.k us vkidh
yM+dh dks ekj fn;k gS] vki Hkyh fopkjksaA fQj esjs ifr dks tcjnLrh
idM+dj ys x;s vkSj dgk fd xkao esa jguk gks rks ge dgsa oSlk djksA ....."
-Cross Examination-
"....fQj 3 cts jkr dks okil vk;sA nwljs le; tc 3 cts eqyfteku ?kj
vk;s] rc eSaus jMs dh fd esjh cPph ds D;k dj jgk gS rks mlus pkdq
fn[kkdj dgk fd iwjk ifjokj [kRe dj nawxkA esjh yM+dh ds eqag esa diM+k
Bwlus esa 20 feuV dk le; yxk FkkA bl njfe;ku esjs cPps esjs ikl lk jgs
Fks] tks ugha txs D;ksafd os NksVs FksA nwckjk eqyfteku 3 cts vk;s rc os 20
feuV :ds FksA iq'ik ds eaqg esa eqyfteku us diM+k Bwlk FkkA ;g lgh gS fd
3-20 ij okjnkr [kRe gks xbZ FkhA esjh yM+dh dks eqyfteku gkFkksa o ckyksa ls
idM+dj ys x;s FksA --------------------------------------esjs nsoj txnh"k dk edku esjs
edku ds ihNs vk;k gqvk gSA ;g lgh gS fd txnh"k ekrk&firk o ifjokj
lfgr mlh edku esa jgrk gSA esjs iM+kSl esa Qjlflag dk edku vk;k gqvk
gSA mDr lkjs edku esjs edku ds tksM+k tksM vk;s gq, gSA nwljs yksxksa ds
edku esjs edku ls vk/kk fdeh dh nwjh ij vk;s gq, gSA eqyfteku tc jkr
dks okjnkr djds pys x;s] mlds ckn mijksDr iM+kSlh edku okyksa dks ?kVuk
ds ckjs esa ugha crk;kA -------------------------------------------------------------------------------------- ?kVuk ds
rqjra ckn jkr dks eSua sa esjs nsoj txnh"k o mlds ifjokj ds fdlh lnL;
dks ?kVuk ds ckjs esa ugha crk;kA eSa lksbZ ugha FkhA
----------------------------------------------------------------------- lqcg eSaus txnh"k dks 6&7 cts jkr dh
?kVuk dh ckr crkbZA txnh"k ds ifjokj dks ckr ugha crkbZA
---------------------------------------------------------------------------------------------fQj lqcg eSaus esjs ifr dks
bRryk dhA ;g ckr lgh gS fd txnh"k us lqcg 6&7 esjs ifr dks lwpuk esjh
ekStwnxh esa dh FkhA lqcg lekpkj fd;k Fkk rc nksigj 4&5 cts esjs ifr vk;s
FksA txnh"k us esjs ifr dks ?kVuk ds ckjs esa ugha crk;kA vt[kqn dgk fd ?kj
(20 of 29) [CRLDR-1/2018]
vkus ij eSaus crk;k FkkA esjs ifr ds okil vkus ij ?kVuk dh ckr crkbZ] rks
mUgksaus ?kVuk ds lac/a k esa iM+kSfl;ksa dks crk;k ysfdu iM+kSfl;ksa us tokc ugha
fn;kA ---------------------------------------------------- esjs ifr ds nwljs fnu "kke dks vkus ls
igys eSusa o txnh"k us ;k vU; xkao okyksa us ?kVuk ds laca/k esa fjiksVZ is"k
ugha dhA esjs ifr ds esjs ?kj vkus ds ckn geus fjiksVZ is"k ugha dhA ?kVuk
"kfuokj dh gS vkSj essjs ifr us jfookj dks fjiksVZ is"k dh FkhA
------------------------------------------------izn"kZ ih- 31 esa eSusa Jo.k flag dk uke fy[kk;k FkkA
izn"kZ ih- 31 eSusa gekjs ukbZ;ksa ds yM+dsa "kSrku ls fy[kkbZ FkhA izn"kZ ih- 31 esa
eSus rks Jo.kflag dk uke crk;k Fkk] D;ksa ugha fy[kk gS] eq>s irk ughaA
----------------------------------------------------------------eSua s] esjs ifr o txnh"k us nwljs fnu esjs
ifr ds ?kj vkus ds ckn xkao okyksa dks ;g crk;k Fkk fd vki gekjs lkFk
fjiksVZ djus pyksa] exj xkao okyksa us tokc ugha fn;k] blfy;s ge fjiksVZ
djus ugha x;sA ------------------------------------------ eq>s irk ugha fd yM+dh dks Hkxkdj
ys tkus ds ckn lekt ds yksxksa us dc gM+rky dhA lekt ds yksxksa ds ncko
ls geus fjiksVZ is"k dh FkhA gM+rky 3&4 fnu rd pyh FkhA iq'ik ds ikl
Qksu ugha Fkk u okjnkr ds fnu Fkk u vU; fnu u eSaus dHkh ns[kkA
------------------------------------------------- eSa jsi o vukf/kd`r "kCn dk vFkZ ugha
le>rhA...."
(Emphasis supplied)
(ii) Jaggaram @ Jagdish (PW-7)
-Chief Examination-
"....ml le; esjk HkkbZ cyoarkjke ckM+esj etnwjh ij x;k gqvk FkkA eSaus
cyoarkjke dks lekpkj fd;k vkSj iq'ik dks <wa<us fuEcMh x;k] ogka ij
?ksojflag o Jo.kflag dks iwNus ij lgh tokc ugha fn;k vkSj eSa okil vk
x;kA fQj okil vkus ds ckn ?ksojflag dk esjs Qksu ij Qksu vk;k fd iq'ik
ccwy dh >kfM+;ksa esa iMh gS] fQj dgk fd jk.khxkao ds igkMh dh rygVh esa
iMh gS] mlds ckn fQj Qksu vk;k vkSj dgk fd dqcMh ekrk ds eafnj ds ikl
iq'ik iMh gksuk crk;kA eq>s dgk fd vdssys vkuk lkFk fdlh dks er ykukA
eSaus xkao okyksa dks dgk fd esjs lkFk pyks]a rks xkao okyksa us pyus ls euk
fd;k] eSa vdsyk Mj ds ekjs ugha x;kA fQj "kke dks esjk HkkbZ cyoarkjke ?kj
ij vk;k] eSua s o nsÅ us iqjh ?kVuk esjs HkkbZ dks crkbZ A ...."
(21 of 29) [CRLDR-1/2018]
-Cross Examination-
";g ckr lgh gS fd cyoarkjke ds edku ds ikl esa esjk edku vk;k gqvk gS]
ftlesa eSa o essjs firkth ifjokj lfgr jgrs gSA ml jkr eS]a esjs firk] esjh
ekrk] esjh iRuh] esjk NksVk HkkbZ ikjlkjke ftldh mez 18 lky gS] edku esa
jg jgs FksA ---------------------------------------------cyoarkjke ds ?kj ds nks njokts gS] ,d
esjh lkbZM esa [kqyrk gS o nwljk Bhd ihNs [kqyrk gSA ftl fnu lqcg nsÅ
us ?kVuk ds laca/k esa eq>s "kfuokj dks crk;k Fkk] "kqØokj o "kfuokj dh
njfe;kuh jkf= dh ?kVuk gS] bl njfe;kuh jkf= dks eSa vius ifjokj lfgr
edku esa lks jgk Fkk] ysfdu eq>s jkr dks nsÅ us iq'ik ds vigj.k ds lac/a k esa
dksbZ ckr ugha crkbZ FkhA lqcg 9&9-30 cts nsÅ us vius ?kj ij ckr crkbZ
FkhA lq;ksZn; ls yxkdj 9-30 cts rd nsÅ us ?kVuk ds lac/a k esa dksbZ ckr
ugha crkbZA ----------------------------------------------------------------------------------- eSua s xkao okyksa dks]
esjs fj"rsnkjksa dks o esjs HkkbZ dks ?kVuk ds laca/k esa iqfyl dks lwpuk nsus dh
ckr ugh dh FkhA ------------------------------------------------- eSua s esjs c;ku ls igys fdlh dks
Hkh ncko nsdj esjs HkkbZ ls >wBh fjiksVZ fy[kokus ckcr f"kdk;r ugha dh FkhA"
(Emphasis supplied)
(iii) Balwanta Ram (PW-8)
-Chief Examination-
"fnu dks 12&1 cts jckjh vk;k Fkk] ftldks esjs dkdkbZ HkkbZ txnh"k us Hkstk
FkkA fQj mlh jkst "kke dks 4&5 cts ?kj ij vk x;kA iq'ik dks jkr dks 3
cts eqag esa :eky Mkydj ?ksojflag o Jo.kflag }kjk ys tkuk crk;kA iq'ik
dks ;s yksx cqjk dke djus ds fy;s ys x;s FksA ftl le; iq'ik dks ys x;s Fks
ml le; bu yksxksa us dgk fd fdlh dks ckr crkbZ rks rqEgsa o rqEgkjs ifjokj
dks tku ls ekj nasxsA fQj eSa o esjk HkkbZ txnh"k xkao esa x;s] b/kj&m/kj
iwNrkN dhA...."
-Cross Examination-
"....;g ckr lgh gS fd ?ksojflag }kjk esjh iRuh dks pDdq crkdj Mjkus dh
ckr ?kVuk ds le; fy[kkbZ gS] tks esjh iRuh ds dgs vuqlkj fy[kkbZ gSA 4
cts xkao igqp
a us ls igys esjh iRuh o txnh"k ls dksbZ ckr ugha gqbZ A
------------------------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------- eSa 30 rkjh[k dks ?kj ij vk;k rks xkao okys esjs lkFk ugha
pys blfy;s eSa Fkkuk fjiksVZ djus ugha x;kA eq>s 30 rkjh[k dks gdhdr dk
(22 of 29) [CRLDR-1/2018]
ekyqe iM+ x;k FkkA 30 rkjh[k dks fjiksVZ blfy;s is"k ugha dh D;ksafd ujflag
o izgykn us Mjk;k /kedk;k Fkk fd fjiksVZ is"k er djksA 30 rkjh[k dks eSua s
fjiksVZ blfy;s is"k ugha fd D;ksafd ujflag o izgykn esjs ?kj okyksa dks /kedh
nsdj x;s Fks vkSj esjh iRuh us crk;k fd rqe ckgj er tkuk] rqEgsa Hkh ekj
nsx
a sA ;g ckr iqfyl c;ku izn"kZ Mh 3 esa fy[kh ugha gSA -------------------"
(Emphasis supplied).
(iv) Najeem Ali (PW-22)
-Cross Examination-
"......;g lgh gS fd 30-03-2013 dks lqcg e`rdk ds firk cyoark dks gknls
dh lwpuk mlds dkdk txnh"k mQZ txkjke us lwpuk tfj;s VsfyQksu nhA
lwpuk feyus ds ckn mlh rkjh[k dks cyoarkjke vius ?kj jMok vk x;k FkkA
izn"kZ ih- 31 fjdkMZ vuqlkj fnukad 31-03-2013 dks oDr 3-20 ih-,e- xkao
jMok esa is"k gqbZ FkhA ;g lgh gS fd e`rdk ds firk cyoark o nsm o txnh"k
}kjk ,slk dksbZ fo"ks'k dkj.k ugha crk;k ftlesa ,Q-vkbZ-vkj- nsjhuk is"k djus
dk dkj.k gksA vt[kqn dgk fd ,Q-vkbZ-vkj- nsjhuk dk dkj.k eqLrxhl i{k
us vkjksih i{k dk ncko crk;k FkkA ;g lgh gS fd fjdkMZ esa dgh Hkh fdlh
Hkh xokg us ugha crk;k fd ncko ds dkj.k eqdnek nsjhuk ntZ djok;k
gksA ;g lgh gS fd esjh r¶rh"k esa ;g rF; vk;k gS fd fnukad 30-03-2013
dks eqyfte ds firk cyoark dks fnu ds 10&11 cts ;g lwpuk fey xbZ Fkh
fd iq'ik dh e`R;q gks pqdh gSA ;g lgh gS fd cyoark dk edku tgka iq'ik
dk vigj.k gqvk] vkcknh ds chpks&chp vk;k gqvk gSA ;g lgh gS fd
iM+kSfl;ksa dks Hkh ?kVuk dh lwpuk cyoarkjke dh iRuh ;k fj"rsnkj us ugha
nhA cyoarkjke ds c;ku izn"kZ Mh- 3 eSaus fy;s FksA iqfyl c;ku izn"kZ Mh- 3
esa cyoarkjke us eq>s ;g ugha crk;k fd mldks ?kVuk dh lwpuk ,d jckjh
ds tfj;s feyh gksA c;ku izn"kZ Mh- 3 dk fgLlk ,- ls ch-] lh- ls Mh- o bZ-
ls ,Q- tSlk xokg us dgk] oSlk gh fy[kk] u dksbZ rF; ?kVuk u c<k;kA
------------------------------------------------------------------- esjh r¶rh"k es fdlh Hkh xokg us ekSf[kd
o lk{; rkSj ij ugha crk;k fd mlus cyoark ij ncko nsdj >wBh fjiksVZ
fy[kkbZ gksA esjh r¶rh"k esa ;g ckr ugha vkbZ gS fd "kadjflag }kjk ncko
nsdj dksbZ >wBh fjiksVZ ntZ djokbZ gksA...."
(Emphasis supplied).
(23 of 29) [CRLDR-1/2018]
On a threadbare analysis of the statements of these
witnesses, it becomes clear as daylight that firstly, a conscious
attempt has been made by the witnesses to introduce the name of
Prahlad Singh as being present in the house of the complainant at
the time of the alleged kidnapping. No justification has been
offered regarding the omission of his name even in the highly
belated subsequent report (Ex.P/31). Furthermore, it is also clear
that the complainant Smt. Deu, had ample opportunity to
approach her closest family member Jaggaram @ Jagdish, who
resides immediately next door but she made no effort whatsoever
in this direction. As per the statement of Jaggaram @ Jagdish
(PW-7), Smt. Deu told him of the incident at about 09.30 in the
morning. This clearly indicates an unnatural conduct of Smt. Deu.
It is also not in dispute that on 30.03.2013, no one from the side
of the accused had approached the complainant or her family
members nor had anyone extended threats to them. Rather, as
per the language of the FIR, the accused Ghewar Singh had
divulged the location of the victim to Jaggaram @ Jagdish in the
late hours of 30.03.2013 but despite that, no one from the family
of the complainant, made any effort to proceed to the place where
the victim was available because by that time, they had no idea
regarding the child having been done to death. As the complainant
and her family members had no idea that the victim had been
killed, the natural human conduct demanded that they should
have immediately rushed to the hills for locating her. If at all, they
had got wind of the victim having been murdered then they should
have proceeded to the police station for reporting the matter
because there was no hindrance against them from from doing so.
Thus, the conduct of the complainant Smt. Deu in not making any
(24 of 29) [CRLDR-1/2018]
effort to approach her family members in the night immediately
after the girl had allegedly been kidnapped; casually going back to
sleep as if nothing had happened; in informing her brother-in-law
Jagdish about the so-called incident as late as at about 09.30 in
the next morning; Balwanta Ram (PW-8) and Jaggaram @ Jagdish
(PW-7) in not proceeding to the hills where the girl was allegedly
available on 30.03.2013; in not reporting the matter to the police
on 30.03.2013 despite available opportunity; in trying to disown
the first report (Ex.D/4) on the unsubstantiated allegation that the
accused had threatened them and got the facts manipulated,
completely demolishes the credibility of the witnesses Smt. Deu
(PW-6), Jaggaram @ Jagdish (PW-7) and Balwanta Ram (PW-8).
15. There is yet another circumstance which convinces us that
the above mentioned three prosecution witnesses are speaking
blatant lies. In this regard, we would like to refer to the evidence
of Kaluram (PW-10) who stated that Gumana Ram called him and
told him that Balwanta Ram's daughter had been killed by Ghewar
Singh and Shrawan Singh. He went to the village Radwa where
number of people had gathered around in front of the house of
Sarpanch Trilok Singh. He told the Sarpanch that the dead body
was lying in the hills for the last three days and thus, the
police should be informed. A little later, police came there.
Thus, apparently, the entire story of the principal
prosecution witnesses is falsified by the version of
Kaluram.
(Emphasis supplied).
(25 of 29) [CRLDR-1/2018]
16. We are also of the firm opinion that conduct of the
investigating officer Najeem Ali (PW-22) while undertaking
investigation, was highly tainted. In this regard, it would be
worthwhile to reiterate the fact that even though, none of the
material witnesses stated that the deceased was having a mobile
phone but despite that, the investigating officer tried to portray
that he recovered the mobile phone of the victim at the instance
of the accused Ghewar Singh vide recovery memo (Ex.P/20). Not
only this, absolutely fake recovery of the footwear of the victim
was shown to have been effected vide memorandum (Ex.P/18). If
at all the incident had taken place in the manner as alleged in the
second report (Ex.P/31) and in the testimony of Smt. Deu (PW-6),
there was absolutely no possibility that the victim could have worn
the footwear. As per the prosecution case, the accused forcibly
kidnapped Mst. 'P' from her bed while she was sleeping at 03.00
AM in the morning. In this background, there was no possibility of
her, getting an opportunity to put on the chappals. Thus, the
recovery of the chappals vide memorandum (Ex.P/18) is
concocted. The material prosecution witnesses have tried to
portray that the accused initially gave them threats by mobile
calls. However, the I.O. made no effort whatsoever to ascertain
the numbers of the mobile phones in use of Jaggaram @ Jagdish
or Balwanta Ram. On the contrary, both these witnesses denied
that they were possessing any mobile phone. This is yet another
suspicious circumstance in the prosecution evidence which makes
the entire thrust of allegations doubtful. The I.O., on being cross-
examined, randomly stated that he assumed that the mobile
No.9660778490 was that of victim Mst. 'P'. The said mobile was
referred to in the call detail record (Ex.P/63) as per which, there
(26 of 29) [CRLDR-1/2018]
was a conversation between the mobile number of Ghewar Singh
and the mobile number alleged to be of Mst. 'P' on 30.03.2013 at
02.18.34 PM. The I.O. also admitted that a SMS was sent from the
mobile number alleged to be of the deceased to the mobile
number of Jaggaram @ Jagdish on 30.03.2013 at 13.51 PM.
However, the I.O. did not collect any details regarding the said
SMS from the service provider. If at all, the incident had taken
place in the manner alleged, there was no justification for the
exchange calls and messages in this manner. On insistent cross-
examination, the I.O. admitted that the community to which the
complainant party belongs to, indulged into protests and strikes
due to the incident. He admitted not being able to collect direct
evidence regarding the alleged rape and murder.
The Sarpanch Trilok Singh was examined as DW-1. In his
examination-in-chief, the witness categorically stated that
Balwanta Ram brought the report (Ex.D/4) to him on 31.03.2013
wherein, it was written that Mst. 'P', who was mentally unstable,
had been found dead near the Kubad Mata Temple. None of the
accused persons were present with Balwanta Ram at that time nor
did they force Balwanta Ram to file such report. No cross-
examination whatsoever was made from the Sarpanch on this
aspect of his testimony. The fact that even in the belated report
(Ex.P/31), Shrawan Singh was not named and that his name has
been introduced in the case as one of the kidnappers at a
subsequent stage during the testimony of the witness, clearly
shows that the intention of the prosecution witnesses was all
along to somehow or the other entangle the accused persons in
the offence. The element of involvement of the accused persons in
the case under the pressure of the community to which the
(27 of 29) [CRLDR-1/2018]
complainant belongs to, is writ large from the evidence available
on record. The testimony of the sole prosecution eye witness the
complainant Smt. Deu (PW-6) is not trustworthy. The report
(Ex.P/31) was manifestly not her creation because the witness
was not familiar with the words 'अनाधिकृत, गंग रेप', etc. which were
used in the written report. The witness admitted that she was not
familiar with these words. For the sake of repetition, it may be
mentioned that the conduct of Smt. Deu (PW-6) in not informing
anyone of the incident immediately or within a reasonable time
after the victim had been allegedly kidnapped and the gross delay
in lodging of the FIR, makes her testimony doubtful and
unreliable. Other than her testimony, there is nothing on record
which can connect the appellants with the alleged crime. The
regimented improvements in the prosecution case which are
manifested from the testimony of the prosecution witnesses
completely demolish the creditworthiness of the entire case. The
theory that the accused persons kidnapped the girl on the night
intervening 29.03.2013 and 30.03.2013; subjected her to gang
rape at the under-construction hospital and then threw her down
from the hills thereby killing her, is totally conjectural and
untenable on the face of the record. Medical Jurist Dr. Arun Kumar
(PW-5) affirmed the fact that no marks of sexual violence were
noticed on the genital area of the victim. Coupled with this
observation, the absence of semen in the samples (swab, smear
and hair) collected from the victim's body, completely rules out
the possibility of the victim having been subjected to rape by
multiple assailants.
(28 of 29) [CRLDR-1/2018]
17. After perusing the impugned Judgment threadbare and, on
going through the findings recorded by the trial court holding that
the prosecution has proved its case against the accused beyond all
manner of doubt, we are of the firm view that the trial court fell in
a grave error in accepting the evidence of the prosecution
witnesses to be a gospel truth and in recording the adverse
findings against the accused on the basis of such suspicious
testimony. To a great extent, the findings which have been
recorded by the trial court in the impugned Judgment, are
conjectural on the face of the record.
18. In wake of the discussion made herein above, we are of the
firm view that the conviction of the appellants as recorded by the
trial court for the offences mentioned above cannot be sustained.
19. As a consequence, the appeals deserve to be and are
hereby allowed. The impugned Judgment dated 06.08.2018
passed in Sessions Case No.10/2017, the learned Special Judge,
Prevention of Children from Sexual Offences Cases, Barmer is
hereby set aside. The accused appellants are acquitted of all the
charges. The Death Reference is answered in the Negative.
The accused appellants Ghewar Singh and Shrawan Singh are in
custody. They shall be released from prison forthwith if not wanted
in any other case. The accused appellants Prahlad Singh, Nar
Singh and Shankar Singh are on bail. They need not surrender.
Their bail bonds are discharged.
20. However, keeping in view the provisions of Section 437-A
Cr.P.C., each of the appellants is directed to furnish a personal
(29 of 29) [CRLDR-1/2018]
bond in the sum of Rs.40,000/- and a surety bond in the like
amount before the learned trial court, which shall be effective for
a period of six months to the effect that in the event of filing of a
Special Leave Petition against the present judgment on receipt of
notice thereof, the appellants shall appear before the Supreme
Court.
21. Record be returned to the trial court forthwith.
(SAMEER JAIN),J (SANDEEP MEHTA),J
Tikam Daiya/-
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