Rajasthan High Court - Jodhpur

Kishan Singh vs State (2025:Rj-Jd:24489-Db) on 20 May, 2025

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2025:RJ-JD:24489-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 D.B. Criminal Appeal No. 1168/2016

Kishan Singh S/o Shri Sajjan Singh Solanki, Dungar Ji Ka Guda,
Police Station Charbhuja, Distt.- Rajsamand Raj. Lodged In Jail
Rajsamand
                                                                      ----Appellant
                                       Versus
State Of Rajasthan
                                                                    ----Respondent


For Appellant(s)             :     Ms. Laxmi Devi
For Respondent(s)            :     Mr. C.S. Ojha, PP



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE SUNIL BENIWAL

Order

20/05/2025

1. This criminal appeal under Section 374(2) Cr.P.C. has been

preferred by the accused-appellant laid a challenge to the

judgment of conviction and order of sentence dated 22.11.2016

passed by the learned Special Judge, POCSO Act, (Session Judge),

Rajsamand in Sessions Case No.59/2014 (State of Rajasthan vs.

Kishan singh), whereby the accused-appellant has been convicted

and sentenced the appellant for the offence under Section 6 of the

Protection of Children from Sexual Offences act, 2012 (in short,

hereinafter to be referred as 'POCSO') to life imprisonment, along

with a fine of Rs. 10,000/-, and in default of payment of the fine,

to undergo three months' simple imprisonment. While convicting

the accused-appellant under Section 6 of the POCSO Act, the

learned trial court considered Section 42 of the POCSO Act and

observed that it does not appear justified to additionally punish

[2025:RJ-JD:24489-DB] (2 of 12) [CRLA-1168/2016]

the accused-appellant for the offence under Section 376 of the

IPC, and Section 4 of the POCSO Act, in light of the provisions of

Section 42 of the POCSO Act, which mandates that where an act

constitutes an offence under the provisons of IPC mentioned

therein and under the provisions of the POCSO Act then the

offender shall be punished under the provision of POCSO Act.

2. The salient facts of the case, as discerned by this Court,

reveal that the complainant, PW-1 (father of the prosecutrix),

made a complaint before the Superintendent of Police, Rajsamand

on 06.06.2014 to the effect that on 02.06.2014, the accused

persons came on motorcycle to his house and enticed away his

minor daughter, aged about 17 years, and committed rape upon

her. He further stated in his complaint that his daughter took away

an amount of Rs.1.5 lacs and jewellery.

2.1 On the basis of the aforementioned complaint, which was

forwarded to the concerned police station, an FIR was lodged at

Police Station Charbhuja, Rajsamand against the accused-

appellant on 11.07.2017 for the offences under Sections 363, 366,

376 of IPC and Section 4 of POCSO Act and the investigation

commenced accordingly. After investigation, a charge-sheet was

filed against the accused-appellant before the Chief Judicial

Magistrate, Rajsamand.

2.2. The learned Trial Court framed the charges against the

accused-appellant under the provisions of Section 363, 366, 376

of IPC and Section 4 and 6 of POCSO Act; the said charges were

[2025:RJ-JD:24489-DB] (3 of 12) [CRLA-1168/2016]

read over to the accused-appellant, which he denied and claimed

to stand due trial, whereafter, the trial commenced accordingly.

2.3. During the course of trial, the prosecution produced as many

as 15 witnesses (PW-1 to PW-15) and got exhibited documents

(Exhibit P-1 to P-15) and 21 documents (Ex.P. 1 to 21) were

exhibited on behalf of the prosecution whereafter, the accused-

appellant was examined under Section 313 Cr.P.C., in which, the

accused appellant pleaded innocence and alleged false implication

in the criminal case in question, and he stated that he was

engaged to the prosecutrix about one year prior to the incident

and since the father of the prosecutrix wanted to marry her

elsewhere, he intervened. The accused-appellant further stated

that it was the prosecutrix herself who had got a stamped

document created, which has resulted in the present allegation.

However, in his defence, two witnesses were examined.

2.4. Thereafter, upon hearing the contentions of both the parties

as well as considering the material evidence placed on record, the

learned Trial Court, convicted and sentenced the accused-

appellant, as above, vide the impugned judgment of conviction

and order of sentence dated 22.11.2016, against which the

present appeal has been preferred by the accused-appellant.

3. Ms. Laxmi Devi, learned counsel appearing for the accused-

appellant, submits that the appellant has undergone actual

custody of 8 years, 5 months, and 8 days, and with remissions, a

total of 10 years, 4 months, and 10 days as of 29.04.2025.

[2025:RJ-JD:24489-DB] (4 of 12) [CRLA-1168/2016]

3.1 Learned counsel submits that the learned trial court framed

six issues for determination: (i) whether the prosecutrix, aged 17

years, 3 months, and 29 days, was taken from the lawful custody

of her guardian on 02.06.2014 at 6:00 P.M.; (ii) whether the

prosecutrix was forced into marriage and sexual intercourse; (iii)

whether she was kidnapped for the purpose of sexual intercourse;

(iv) whether sexual intercourse or penetrative sexual assault

occurred; (v) whether such penetration occurred multiple times;

and (vi) whether the accused committed a crime and, if so, the

appropriate punishment.

3.2 Learned counsel contends that, regarding issues 1 to 5, the

Trial Court noted that the prosecutrix was born on 04.02.1997,

was living with her grandparents, and was taken from Bhim to

Phalna on a motorcycle for marriage, where she was allegedly

raped. The prosecutrix did not oppose the marriage at Bhim Court

and stated that she did not report the incident due to threats.

3.3. Learned counsel draws attention to the statement of the

prosecutrix (PW-5), wherein she initially denied knowing the

accused-appellant in court but later stated that he took her from

Bhim to Phalna for marriage and raped her. The statement of

prosecutrix (PW-5) reads as under :-

"ujir flag th esjs firk th yxrs gSa] tks lwjr esa dke djrs gSa vkSj esjs ekrk&firk lwjr esa gh jgrs gSaA ge pkj HkkbZ&cgusa gSaA ge pkjksa vius nknk nknhth ds ikl jgrs gSaA esjh tUe fnukad 14-02-1997 gSA eSa gkftj vnkyr eqy- fd'ku flag dks ugha tkurhA fnukad 02-06-2014 dks eSa esjs ?kj ij FkhA gqde flag vkSj fd'ku flag esjs dks tcjnLrh Hkhe dksVZ esa ys x, Fks vkSj esjh tcju 'kknh djok;hA lk{kh ds eqy- dh rjQ ns[kdj dgk fd ;gh esjs dks 'kknh djus ds fy, ysdj x;k FkkA esjs ?kj

[2025:RJ-JD:24489-DB] (5 of 12) [CRLA-1168/2016]

ls gqde flag eksVjlkbZfdy ij cSBk dj ys x;k FkkA esjs dks fd'ku flag Hkhe ls Qkyuk ysdj x;k vkSj ogka ij esjs lkFk tcjnLrh xyr dke fd;kA xyr dke ls esjk eryc mlus esjs lkFk tcju cykRdkj fd;k FkkA fQj iqfyl okys Qkyuk esa vk;s Fks] ftUgksaus gesa idM+k FkkA ftUgksaus QnZ nLr;kch cuk;h tks izn'kZ ih 2 gS] ftl ij , ls ch esjs gLrk{kj gSaA iqfyl us esjs ?kj ij vkus ds ckn v.Mjfc;j o mij ds diM+s fy;s Fks] ftldh QnZ tCnh cuk;h tks izn'kZ 4 gS] ftl ij , ls ch esjs gLrk{kj gSaA QnZ lqiqnZxh izn'kZ ih 5 gS] ftl ij , ls ch esjs gLrk{kj gSaA iqfyl us esjh MkDVjh djk;h FkhA iqfyl okys ekSds ij vk;s Fks] ftUgksaus uD'kk ekSdk izn'kZ ih 3 cuk;k] ftl ij lh ls Mh esjs gLrk{kj gSaA esjs iqfyl okyksa us eftLVªsV lkgc ds lkeus c;ku djk;s tks izn'kZ ih 6 gS] ftl ij , ls ch esjs gLrk{kj gSa] mDr c;ku eSaus lgh fn;s FksA eqy- fd'ku flag us esjh bPNk ds fo#) tcju esjs lkFk cykRdkj fd;k FkkA"

In the cross-examination, she deposed as under:-

"esjs dks ?kj ls gqde falg ysdj x;k Fkk tks fdrsyk ysdj x;k FkkA fd'ku flag esjs dks Hkhe dksVZ us tcju 'kknh djokus ds fy, ysdj x;k FkkA ;g dguk xyr gS fd eSaus ogka ij LVkEi fy;k gks] cfYd tks Hkh fy;k og eqy- us fy;k FkkA izn'kZ Mh 1 ij ,Dl LFkku ij esjh QksVks gSA izn'kZ Mh 1 ij , ls ch esjs gLrk{kj gSaA tc Hkhe dksVZ esa x;h Fkh rc ikap N% tus gekjs lkFk FksA ;g dguk lgh gS fd eSaus ml le; dksbZ fojks/k ugha fd;k D;ksafd eqy- us esjs dks /kedh nh gqbZ FkhA iqfyl us esjk MkDVjh eqvk;uk jktlean vLirky esa djk;k FkkA iqfyl us esjh v.Mjfc;j o czk dks fy;k Fkk] ftudks FkSyh esa ysdj pys x;s Fks] mudks ekSds ij lhyfpV ugha fd;kA uD'kk ekSdk izn'kZ ih 3 Hkhe tgka ij esjs dks ysdj x;s ogka dk cuk;k Fkk vkSj esjs ogha ij gLrk{kj djk;s FksA tgka esjs dks j[kk ml edku ekfyd dks eSa ugha igpkurh gwaA eSaus ogka ij edku ekfyd dks dqN Hkh ugha crk;k D;ksafd eqy- us esjs dks /kedh ns j[kh FkhA Hkksiky flag HkkVh th esjh eklh ds llqjk th gSA Hkksiky flag HkkVh dh gqde flag] thou flag] vyksy dqaoj ds lkFk >xM+k gks rks esjs dks irk ugha gSA esjh fd'ku flag ds lkFk dksbZ lxkbZ ugha gqbZ FkhA eSaus eftLVªsV lkgc ds lkeus tks c;ku fn;s og eSaus eqy- ds ncko esa vkdj fn;s Fks D;ksafd mUgksaus esjs dks /kedh ns j[kh Fkh fd ;fn rqeus fdlh dks ;g ckr crk;h rks rsjs dks ekj nsaxsA ;g dguk xyr gS fd eSa ?kj ls :i;s vkSj xgus ysdj x;h gksÅaA ;g dguk lgh gS fd gqde flag esjs dks eksVjlkbZfdy ij ysdj x;k rc eSaus gYyk ugha fd;k] D;ksafd mlus esjs dks /kedh ns j[kh Fkh fd rqe gYyk djksxh rks rsjs dks ekj nwaxkA eSa vkBoha d{kk rd i<+h gwaA esjh tUe rkjh[k 04-02-1997 gSA esjs firk th us esjs dks Ldwy esa HkrhZ djk;k rc esjh tUe fnukad ckcr~ izek.k&i= is'k fd;s FksA esjs dks iqfyl okys nLr;kc djds yk;s rc eSa vius ekrk&firk ds ikl ugha tkdj viuh eklh ds ;gka ij x;h Fkh] D;ksafd esjs ekrk&firk ml le; lwjr esa FksA"

[2025:RJ-JD:24489-DB] (6 of 12) [CRLA-1168/2016]

3.4 Learned counsel has further drawn attention of this Court

towards Ex.P-6, which is the statement of the prosecutrix

recorded under Section 164 Cr.P.C., in which, she has stated that

she had known the accused-appellant, Kishan Singh, for about two

years, they were fond of each other, and they married at Bhim

Court on 03.06.2014. She confirmed living with him as husband

and wife for about eight days and stated that no force was used

against her. The statement recorded under Section 164 of Cr.P.C.

of the prosecutrix reads as under :-

"eSa yxHkx 1 lky ls fd'ku flag dks tkurh gwaA ge nksuksa ,d&nwljs dks ilan djrs gSaA fnukad 03-06-14 dks ge nksuksa us Hkhe dksVZ esa 'kknh dj yhA 'kknh ds ckn djhc 8 fnu ge nksuksa ifr&iRuh dh rjg lkFk jgsA bl nkSjku gekjs vkilh lgefr esa laHkksx gqvk FkkA fd'ku flag us esjs lkFk dksbZ tcjnLrh xyr dke ugha fd;kA fd'ku flag eq>s Mjk] / kedkdj ;k cgyk&Qqlyk dj ugha ys x;k FkkA eSa viuh ethZ ls mlds lkFk xbZ FkhA eSa vius ?kj ls iSls ;k tsoj oxSjk lkFk ysdj ugha xbZ FkhA"

3.5 Learned counsel thereafter has also drawn the attention of

this Court towards the statement of the father of the prosecutrix,

PW-1, who has stated that he does not know about the date of

birth of his daughter and he also stated that he has not obtained

any certificate from the Panchayat regarding the date of birth of

his daughter.

3.6 Learned counsel has taken this Court to the statement of

PW-14, Dr. Sushma Singh, who stated that no signs of struggle or

injury were observed on the prosecutrix's private parts, noting an

old torn hymen with no evidence of recent injuries.

[2025:RJ-JD:24489-DB] (7 of 12) [CRLA-1168/2016]

3.7 Learned counsel has further taken this Court to the

impugned judgment, in which, the Trial Court erred in relying

solely on the father's statement without considering the broader

circumstances.

3.8 Learned counsel further submits that the evidence suggests

a consensual relationship, and the prosecutrix's age is disputed

due to her father's uncertainty about her date of birth and at best,

it could have been a case of consensual relationship.

3.9 Learned counsel notes that the complainant alleged his

daughter was enticed for marriage and took jewellery, indicating a

consistent narrative of marriage rather than abduction or rape. It

is further noted that the accused himself was having a tender age

of 20 years at the time of incident.

3.10 Learned counsel also submits that the appellant has already

suffered custody of more than 10 years (with remission), and the

prosecution's case lacks merit due to doubts about the

prosecutrix's age and inconsistencies in her statements.

3.11 Learned counsel further argues that the prosecutrix's initial

denial of knowing the accused, followed by her admission of

marriage at Bhim Court, coupled with the accused's claim of a

prior engagement, casts significant doubt on the prosecution's

case.

3.12 Learned counsel contends that there was an engagement

between the parties, which was writ large on the record though

denied by the prosecutrix at one place. Additionally, the statement

[2025:RJ-JD:24489-DB] (8 of 12) [CRLA-1168/2016]

recorded under Section 313 Cr.P.C. made by the accused was in

tandem with the motive of the act, wherein the young man and

the prosecutrix, having developed mutual affection over the

course of their two-year engagement, eloped together due to the

impending dissolution of their engagement.

4. Conversely, learned Public Prosecutor, while opposing the

aforesaid submissions advanced on behalf of the accused-

appellant, submits that there is consistency in the statements of

PW-1, father of the prosecutrix, and PW-5, the prosecutrix. He

further submits that under the POCSO Act, consent does not

matter. He also submits that the absence of medical evidence of

brutality or injury does not negate the offence, as any sexual act

without valid consent from a natural guardian or a major person is

unlawful.

5. Heard learned counsel for the parties as well as perused the

record of the case.

6. This Court finds that the prosecution story is tremendously

shattered by the record of the case. The father of the prosecutrix

(PW-1) admitted to being unaware of his daughter's exact date of

birth, casting doubt on the prosecution's claim that she was 17

years, 3 months, and 29 days old at the time of the incident.

6.1 This Court also finds that the prosecutrix (PW-5) initially

denied knowing the accused-appellant in court but later stated

that he took her from Bhim to Phalna for marriage, where she was

allegedly raped. This contradiction, coupled with her statement

[2025:RJ-JD:24489-DB] (9 of 12) [CRLA-1168/2016]

under Section 164 Cr.P.C. (Ex.P-6), wherein she admitted to a

two-year acquaintance with the accused, mutual affection, a

consensual marriage, and living together as husband and wife for

eight days without force, significantly weakens the prosecution's

narrative of abduction and rape.

6.2 This Court further finds the medical evidence provided by

PW-14, Dr. Sushma Singh, noting no signs of struggle, injury, or

recent trauma, further supports the possibility of a consensual

relationship. While the statement under Section 164 Cr.P.C. is not

conclusive in a criminal appeal, it contributes to the overall factual

matrix. In light of these discrepancies namely, the uncertainty

regarding the prosecutrix's age, her contradictory statements, the

accused's claim of a prior engagement, and the medical evidence,

this Court finds that the prosecution failed to prove its case

beyond a reasonable doubt. The statements of PW-1, PW-5, and

PW-14, read with other material on record, do not inspire

confidence to sustain the conviction and life imprisonment

imposed under the POCSO Act.

6.3. This Court further observes that when the judgment of

conviction is challenged before the Appellate Court, a proper

appreciation of the evidence recorded by the learned Trial Court

has to be made. The power of the Appellate Court is provided

under Section 386(b) of Cr.P.C., which reads as under:-

"386. Powers of the Appellate Court.--

(b) in an appeal from a conviction--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by

[2025:RJ-JD:24489-DB] (10 of 12) [CRLA-1168/2016]

a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same."

6.4. This Court also observes that as provided under Section

386(b)(i) Cr.P.C., the Appellate Court has the power to reverse the

findings of the conviction, so as to acquit the accused. At this

juncture, it is considered appropriate to reproduce the relevant

portion of the judgment rendered by the Hon'ble Apex Court in

case of Kamlesh Prabhudas Tanna v. State of Gujarat,

(2013) 15 SCC 263, as hereunder:-

"9. At this juncture, we are obliged to state that though it may be difficult to state that the judgment suffers from sans reasons, yet it is not at all difficult to say that the reasons ascribed are really apology for reasons. If we allow ourselves to say so, one may ascribe certain reasons which seem to be reasons but the litmus test is to give seemly and condign reasons either to sustain or overturn the judgment. The filament of reasoning must logically flow from requisite analysis, but, unfortunately, the said exercise has not been carried out. In this context, we may refer with profit to the decision in Padam Singh v. State of U.P [(2000) 1 SCC 621:

2000 SCC (Cri) 285], wherein a two-Judge Bench, while dealing with the duty of the appellate court, has expressed thus: (SCC p. 625, para 2)

"2. ... It is the duty of an appellate court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond

[2025:RJ-JD:24489-DB] (11 of 12) [CRLA-1168/2016]

all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

(emphasis supplied)

10. In Rama v. State of Rajasthan[(2002) 4 SCC 571 : 2002 SCC (Cri) 829], the Court has stated about the duty of the appellate court in the following terms: (SCC p. 572, para 4)

"4. ... It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

11. In Iqbal Abdul Samiya Malek v. State of Gujarat [(2012) 11 SCC 312: (2013) 1 SCC (Cri) 636], relying on the pronouncements in Padam Singh [(2000) 1 SCC 621 : 2000 SCC (Cri) 285] and Bani Singh v. State of U.P. [(1996) 4 SCC 720: 1996 SCC (Cri) 848], this Court has reiterated the principle pertaining to the duty of the appellate court.

12. Recently, a three-Judge Bench in Majjal v. State of Haryana [(2013) 6 SCC 798] has ruled thus: (SCC p. 800, para 7)

"7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction.

The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."

6.5. This Court also observes that looking into the overall factual

matrix and the circumstances of the case as well as the evidence

[2025:RJ-JD:24489-DB] (12 of 12) [CRLA-1168/2016]

and the precedent law, as placed before us, it is a fit case to

exercise the power conferred under Section 386(2), which pertains

to the reversal of a finding from conviction to acquittal.

7. Accordingly, the present appeal is allowed and the

impugned judgment of conviction and order of sentence dated

22.11.2016 passed by the learned Special Judge, POCSO Act

(Session Judge), Rajsamand in Special Sessions Case No.59/2014

is quashed and set aside. The accused-appellant is acquitted of

the charges against him. The accused-appellant is in custody; he