[Cites 24, Cited by 0]
Rajasthan High Court - Jodhpur
Lajendra Singh @ Lali vs State on 4 February, 2026
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2026:RJ-JD:5728-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal (DB) No. 187/2020
Lajendra Singh @ Lali S/o Sh. Boga Singh, Aged About 30 Years,
B/c Jat Sikh, R/o 139, Basant Vihar, P.s. Sadar, Sri Ganganagar
(Raj.). (Presently Lodged In Central Jail, Sri Ganganagar).
----Appellant
Versus
State, Through Pp
----Respondent
For Appellant(s) : Mr. Vineet Jain, Sr. Advocate with Mr.
Praveen Vyas
For Respondent(s) : Mr. Rajesh Bhati, PP
Mr. NL Joshi
Ms. Kirti Pareek for the complainant
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA
Reportable
Judgment
1. Date of conclusion of argument 30.01.2026
2. Date on which the judgment was 30.01.2026
reserved
3. Whether the full judgment or only Full Judgment
operative part is pronounced
4. Date of Pronouncement 04.02.2026
BY THE COURT: (PER HON'BLE MR. JUSTICE VINIT KUMAR MATHUR)
1. The Apex Court in Birbal Kumar Nishad Vs. State of
Chhattisgarh: in SLP (Crl) No.4540/2021 decided on 30.06.2021
has made observations as to the necessity of anonymisation of the
names of victims and considering the provisions of Section 228A
of the IPC and Section 23 of the POCSO Act, 2012, this Court
deems it appropriate that the name of victim in the present
judgment be noted as "prosecutrix" and/or "C".
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2. The present Criminal Appeal has been preferred under
Section 374 (2) Cr.P.C. by the accused-appellant Lajendra Singh @
Lali son of Shri Boga Singh, assailing the validity of judgment
dated 02.12.2020 passed by the learned Sessions Judge,
P.O.C.S.O. Act Cases & The Commissions for Protection of Child
Rights Act, 2005 No. 1, Sri Ganganagar (hereinafter referred to as
the learned trial court), in Sessions Case No. 126/2018, whereby
the accused-appellant has been convicted for the offence under
Sections 376 (2) (n) of the IPC and 5 (L) / 6 of the Protection of
Children from Sexual Offences Act, 2012 and sentenced for the
aggravated offence under Section 376(2)(n) of IPC as under:-
376(2)(n) Rigorous imprisonment for life with a Fine of Rs.
IPC 50,000/-.
3. As per prosecution case, on 12.05.2016, the complainant,
mother of the victim, appeared at the police station along with the
victim and submitted a written report stating that her daughter,
aged about 17 years, had been taken by the accused-Lajendra
Singh Brar, a former Sarpanch, from Sri Ganganagar to Sikar on
09.05.2016 at about 8:30 PM on the pretext of getting her
passport prepared and sending her abroad. It was alleged that the
accused had booked a double sleeper berth in a Virat Travels bus
and, during the night journey; the accused-appellant molested the
victim and committed sexual assault upon her in the sleeper
berth. When the victim attempted to raise an alarm, the accused
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allegedly covered her mouth and threatened to kill her father if
she disclosed the incident. After reaching Sikar, the accused
allegedly booked a hotel room and kept the victim there
throughout the day, where he repeatedly subjected her to sexual
assault. The victim attempted to escape, but she was prevented
from doing so, and the accused continued to threaten her. On
10.05.2016, the accused took the victim to the passport office
and, thereafter, brought her back to Sri Ganganagar by a double
sleeper bus at about 11:00 PM. The accused-appellant
telephonically informed the family members that the victim was
standing at the bus stand and asked them to take her home.
Thereupon, the complainant's husband brought the victim home
on his motorcycle. Upon reaching home, the victim fell asleep and
appeared to be under the influence of some intoxicating
substance. Later in the evening, when she woke up, the victim
started crying and narrated the entire incident to the complainant.
She alleged that the accused had raped her multiple times and
had also abused her with caste-based slurs, claiming superiority of
caste and asserting that no one could harm him. The victim stated
that the accused had sexually assaulted her four times. On the
basis of these allegations, the written report had been given to
concern police station.
4. On the basis of the above written report, a formal FIR No.
96/16 (Ex.P-06) was registered at Mahila Police Station, Sri
Ganganagar against the accused-appellant for the offences under
Section 376 of IPC, Section 5 (L) / 6 of the Protection of Children
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from Sexual Offences Act, 2012 and Section 3 of SC/ST
(Prevention of Atrocities) Act, 1989.
5. After completion of investigation, Police filed a charge-sheet
against the accused-appellant for the offences under Section 376
(2)(f)(n) of IPC, Section 5 (L) / 6 of the Protection of Children
from Sexual Offences Act, 2012 and Section 3(2)(v) of SC/ST
(Prevention of Atrocities) Act, 1989.
6. Learned Trial Court framed, read over and explained the
charges under Section 376 (2)(f)(n) of IPC, Section 5 (L) / 6 of
the Protection of Children from Sexual Offences Act, 2012 and
under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act,
1989 to the accused-appellant, who denied the charges and
sought trial.
7. During the trial, the prosecution examined as many as 20
witnesses. In support of its case, the prosecution also produced
documentary evidence, Exhibits P-01 to P-36.
8. The accused-appellant was examined under Section 313
Cr.P.C., during which he denied the prosecution evidence in its
entirety and claimed innocence. He stated that the case had been
falsely registered against him due to political rivalry and collusion
with the opposite party. He further stated that he was kept at the
police station for a period of four days and was thereafter, taken
to the Mahila Police Station on 16.05.2016, where he was formally
arrested. In defence, the accused-appellant produced
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documentary evidence as Exhibits D-1 to D-10 and examined
witnesses-DW-1 Vijaypal and DW-2 Lakhwinder Singh.
9. Learned Trial Court, after hearing the arguments advanced
on behalf of both sides, upon appreciation of the oral and
documentary evidence brought on record, convicted and
sentenced the accused-appellant as aforesaid vide its judgment
dated 02.12.2020.
10. Hence the present appeal.
Submissions on behalf of the accused-appellant:
11. Mr. Vineet Jain learned Senior Counsel appearing on behalf of
the accused-appellant submitted that the learned trial court has
failed to properly appreciate the evidence led by the prosecution
with regard to the age of the prosecutrix. The evidence on record
is inconsistent and attended with concealment of material facts,
and therefore the conclusion that at the time of commission
of offence, the prosecutrix was a minor is wholly
unsustainable.
12. Learned Senior Counsel further submitted that PW-1
Rajaram, father of the prosecutrix, feigned ignorance regarding
the date of birth of his daughter as reflected in various
government documents such as "the Ration Card" and "Bhamasha
Card". This conduct clearly indicates an attempt to wriggle out of
the recorded date of birth of prosecutrix. The witness admitted
that the Aadhar Card and Bhamasha Card of the victim were
prepared at her instance. He further admitted that his daughter 'C'
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was first admitted to a school at 1-B Bavriyo Ki Dhani; however,
admittedly, no document from the school she first attended
was produced by the prosecution.
13. It was also submitted that similarly, PW-5, the mother of the
prosecutrix, also feigned ignorance regarding the date of birth
mentioned in government records, though she specifically
admitted that the prosecutrix was first admitted to the school at
1-B Bavriyo Ki Dhani. The prosecutrix Mst. 'C' (PW-6) admitted
that she herself got her Aadhar Card prepared, but denied
preparing the Bhamasha Card. She relied upon the Secondary
Board mark-sheet showing her date of birth as "20.02.1999".
14. Learned Senior Counsel submitted that the Investigating
Officer PW-18 Hazari Ram admitted that neither he investigated
the school first attended by the prosecutrix nor did he attempt to
secure any documents therefrom. Likewise, the other
Investigating Officer (PW-20 Bachhan Singh) admitted that he
neither obtained documents nor conducted any inquiry from the
first school. A specific suggestion was put to him that these
documents were withheld as they were adverse to the prosecution
story and discloses the age of the prosecutrix as "19 years".
15. Learned Senior Counsel for the accused-appellant submitted
that it is apparent that the prosecution wilfully concealed the most
relevant documents concerning age, namely the admission record
of the first school attended, which contained the earliest
declaration of date of birth by the parents. Though the Secondary
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Board mark-sheet is a relevant document, in the face of apparent
contradictions between the mark-sheet and other government
documents authored by the prosecutrix herself, it was
incumbent upon the investigating agency to secure and
produce the first admission record. Suppression of such
vital evidence renders the mark-sheet inconclusive.
16. It is further submitted that the appellant has consistently
taken the plea of false implication. Even assuming, though not
admitting, that the prosecutrix was a minor, the plea of false
implication stands probabilized from the material on record.
17. Learned Senior Counsel submitted that PW-1 Raja Ram
admitted that he received the prosecutrix at about 6:00 AM on
11.05.2016 at bus stand and, thereafter, went to his work, and
thus he is not a witness to the alleged first disclosure.
Learned Senior Counsel further submitted that PW-5, the mother
of the victim, claimed to be the first recipient of disclosure;
however, in cross-examination she admitted that the written
report (Ex.P-5) was authored by her nephew Rajendra, who was
not examined. Both PW-1 and PW-5 claimed long familiarity with
the appellant-accused and alleged that he offered to arrange a
passport so the prosecutrix could go abroad like his daughter, who
was already in Canada. Yet both witnesses admitted that they
had never seen or even knew the name of the appellant's
daughter. This assertion is inherently improbable and
undermines the prosecution story.
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18. Learned Senior Counsel further submitted that the
prosecutrix herself admitted that she had never seen or known the
appellant's daughter. Consequently, the prosecution's substratum
that the appellant induced the family under the pretext of
passport formalities collapses on its face as no daughter of the
accused-appellant resides at Canada.
19. Learned Senior Counsel further submitted that there is an
unexplained delay in lodging the FIR. The prosecutrix was with her
parents from the morning of 11.05.2016, yet the FIR was
registered only on 12.05.2016 at 10:45 AM. The explanation that
she was intoxicated is inconsistent and contradicted by the
testimony of PW-5 and PW-6 (mother and the prosecutrix herself).
This delay assumes significance in light of the admitted
proximity of the prosecutrix to her parents during that
period.
20. It was submitted that the daily diary entries further cast
serious doubt. As per Ex.P-29, (statement of father) that
telephonic information was given that her daughter had been
ravished, but the name of the alleged assaulter was not disclosed.
Ex.P-36 reveals that the appellant was detained prior to
registration of the FIR. This lends credence to the defence
allegation that the FIR was subsequently engineered due to
political enmity. PW-1 remained conspicuously silent about
these crucial facts, suggesting deliberate concealment.
Importantly, S.I. Krishan Kumar and Constable Pooja Vishnoi --
the first responders and witnesses to the earliest disclosure --
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were not examined. Withholding such material witnesses
warrants an adverse inference against the prosecution story.
21. Learned Senior Counsel further submitted that the
prosecution case regarding arrest is equally suspicious. Though
the appellant was allegedly arrested on 16.05.2016, it is admitted
that he had earlier been detained and purportedly escaped from
police custody, yet no FIR for absconding was registered and no
action was taken against the responsible officers.
22. Learned Senior Counsel submitted that the investigating
officers (PW-18 Hazari Ram & PW-20 Bachhan Singh) admitted
that no CCTV footage was secured from the hotel or passport
office, which was the best available evidence of the alleged
presence of the accused appellant with the prosecutrix. The
appellant, on the contrary, produced documentary proof (Ex.D-6)
of his independent appearance before the passport office. No
inquiry was conducted by both the Investigating Officers from co-
passengers of the buses allegedly travelled on relevant dates.
23. Learned senior counsel further submitted that the Satveer
Singh, Manager of Hotel Shiv Palace (PW-7) was declared hostile.
The hotel register (Ex.P-13) where victim stayed does not contain
the name of the appellant. The evidence on record indicates that
another boy was accompanying the prosecutrix; however, no
meaningful investigation was carried out by either of the
investigating officers to ascertain the identity of the said boy. This
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omission lends support to the defence version and renders the
prosecution case doubtful.
24. Learned senior counsel for the accused-appellant submitted
that the defence evidence on record clearly establishes the
independent and lawful presence of the accused-appellant at
Sikar, wholly inconsistent with the prosecution story. He submitted
that the accused-appellant had travelled to Sikar along with his
brother Lakhwinder Singh (DW-2) and stayed at Hotel Spark,
Sikar. Vijay Pal (DW-1), the hotel manager, categorically deposed
that Lajendra Singh Brar along with another man stayed at Hotel
Spark, and the hotel register (Ex.D-07), at serial No. 508,
specifically records the name of the accused-appellant, thereby
corroborating the defence version.
25. Learned senior counsel further submitted that Lakhwinder
Singh (DW-2), in his sworn testimony, stated that he and his
brother Lajendra Singh Brar left Sri Ganganagar by Virat Travels
bus at about 8:30 PM and reached Sikar at around 4:10 AM.
Thereafter, both of them proceeded to Hotel Spark, where the
accused-appellant had already booked a room. The accused-
appellant duly registered himself in the hotel register Ex.D-07 and
furnished his Aadhaar Card as proof of identity. Both brothers
stayed together in Room No.202. DW-2 further deposed that in
the morning, after having breakfast, both of them went to the
passport office, as the accused-appellant had to renew his
passport. This testimony, coupled with the documentary evidence,
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was submitted to be natural, cogent, and free from
embellishment.
26. Learned senior counsel finally submitted that the medical
evidence does not corroborate the allegation of forcible sexual
intercourse. The rape report (Ex.P-22), proved by PW-15 Dr.
Surendra and PW-17 Dr. Salu records the absence of any internal
or external injuries, which would ordinarily be expected in a case
of forcible or first intercourse. The report further notes that
the prosecutrix specifically disclosed having engaged in
sexual intercourse about four weeks prior to the
examination a fact not alleged in the FIR or during trial.
This circumstance materially weakens the prosecution case.
27. Learned senior counsel further placed reliance upon the
judgment of the Hon'ble Supreme Court in the case of Nirmal
Premkumar and Others vs. State represented by Inspector
of Police, decided on 11.03.2024, reported as 2024 INSC 193,
to contend that where the prosecution evidence suffers from
material contradictions and discrepancies, the conviction cannot
be sustained. In the said case, the Hon'ble Supreme Court, upon
noticing several inconsistencies in the oral testimonies of the
prosecution witnesses, interfered with the judgment of the Madras
High Court, which had dismissed the convicts' appeal under
Section 374(2) of the Code of Criminal Procedure, 1973, against
the decision of the Special Court convicting accused No.1 under
Section 12 of the Protection of Children from Sexual Offences Act,
2012 and accused No.2 under Section 506 of the Indian Penal
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Code, 1860. Consequently, the Hon'ble Supreme Court allowed the
appeal, set aside the conviction and sentence imposed upon
accused Nos.1 and 2, as affirmed by the High Court, and directed
their immediate release.
28. Learned Senior Counsel thus submitted that in view of the
cumulative inconsistencies, concealment of material evidence,
investigative lapses, and lack of medical corroboration, the
prosecution has failed to prove its case beyond reasonable doubt.
The appeal therefore deserves to be allowed and the appellant is
entitled to acquittal.
Submissions on behalf of the complainant
29. Per contra, Mr. Niranjan Lal joshi learned counsel appearing
for the complainant submitted that the conviction recorded by the
learned trial court is well-founded and based on cogent and
reliable evidence, particularly the consistent testimony of the
prosecutrix and her parents.
30. Learned counsel for the complainant submitted that the
statement of the prosecutrix inspires full confidence and is duly
corroborated by PW-1 Rajaram, and PW-5, Saroj. The prosecutrix
has consistently narrated the incident and withstood cross-
examination without any material contradiction affecting the core
of the prosecution case. PW-1, her father, and PW-5, her mother
have supported the prosecution version regarding the
circumstances in which the prosecutrix returned home and
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disclosed the incident. Their evidence lends natural corroboration
to the testimony of the victim.
31. Learned counsel further submitted that minor discrepancies,
if any, in the statements of witnesses are natural and do not go to
the root of the matter. It is well settled that conviction cannot be
set aside on trivial inconsistencies when the substratum of the
prosecution case remains intact. The allegation of rape stands
clearly established, and it is inconceivable that parents would
falsely implicate a person at the cost of the dignity and
future of their own daughter.
32. As regards the delay in lodging the FIR, it is submitted that
the delay is neither inordinate nor fatal. The prosecutrix was under
fear, trauma, and intimidation. In cases of sexual assault,
some delay in reporting is natural and does not by itself
discredit the prosecution case.
33. Learned counsel submitted that the statement under Section
161 Cr.P.C. of Sukhveer Singh (Ex.P-4) supports the prosecution
version, as he stated that the accused appellant and the
prosecutrix both alighted at Sikar. This circumstance
corroborates the presence of the appellant with the prosecutrix
during the relevant period. Reliance is also placed on Ex.P-12 the
statement under Section 161 Cr.P.C. of Satveer Singh, Manager of
Hotel Shiv Palace, who saw the accused appellant and the
prosecutrix together at the hotel. This evidence further
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strengthens the prosecution case regarding the movements of the
accused and the prosecutrix.
34. Lastly, it is submitted that the mere fact that the prosecutrix
did not raise an alarm in a public place does not imply consent.
The evidence shows that she was under fear and threat. In such
circumstances, silence or non-resistance cannot be construed as
voluntary consent, particularly in a case of sexual assault or rape.
35. Learned counsel for the complainant placed reliance upon
the judgment of the Hon'ble Supreme Court in the case of State
of U.P. vs. Hari Mohan and Ors decided on 07.11.2000,
reported as AIR 2001 SC 142 in para No.09 has held as under:
09......However, the defective investigation
cannot be made a basis for acquitting the
accused if despite such defects and failures of
the investigation, a case is made out against all
the accused or anyone of them. It is
unfortunate that no action can be taken against
the IO at this stage who, in all probabilities,
must have retired by now
36. The Hon'ble Supreme Court in the case of State of U.P Vs.
Chhoteylal decided on 14.01.2011 reported in AIR2011SC697
in para No.23 has held as under:-
23. We shall now examine the evidence of
the prosecutrix. The prosecutrix at the relevant
time was less than 18 years of age. She was
removed from the lawful custody of her brother
in the evening on September 19, 1989. She
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was taken to a different village by two adult
males under threat and kept in a rented room
for many days where A-1 had forcible sexual
intercourse with her. Whenever she asked A-1
for return to her village, she was threatened
and her mouth was gagged. Although we find
that there are certain contradictions and
omissions in her testimony, but such omissions
and contradictions are minor and on material
aspects, her evidence is consistent. The
prosecutrix being illiterate and rustic young
woman, some contradictions and omissions are
natural as her recollection, observance,
memory and narration of chain of events may
not be precise. Learned Counsel for the
Respondent submitted that no alarm was
raised by the prosecutrix at the bus stand or
the other places where she was taken and that
creates serious doubt about truthfulness of her
evidence. This argument of the learned
Counsel overlooks the situation in which the
prosecutrix was placed. She had been
kidnapped by two adult males, one of them -
A-1 - wielded fire-arm and threatened her and
she was taken away from her village. In the
circumstances, it made sensible decision not to
raise alarm. Any alarm at unknown place might
have endangered her life. The absence of
alarm by her at the public place cannot lead to
an inference that she had willingly
accompanied A-1 and A-2. The circumstances
made her submissive victim and that does not
mean that she was inclined and willing to
intercourse with A-1. She had no free act of
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the mind during her stay with A-1 as she was
under constant fear.
37. The Hon'ble Supreme Court in the case of State of Punjab
Vs. Gurmit Singh and Ors. decided on 16.01.1996 reported in
AIR 1996 SC 1393 in para No.17, 22 &23 has held as under:-
17. We must express our strong disapproval of
the approach of the trial court and its casting
a stigma on the character of the prosecutrix.
The observations lack sobriety expected of a
Judge. Such like stigmas have the potential of
not only discouraging an even otherwise
reluctant victim of sexual assault to bring forth
complaint for trial of criminals, thereby making
the society to suffer by letting the criminal
escape even a trial. The courts are expected to
use self-restraint while recording such findings
which have larger repercussions so far as the
future of the victim of the sex crime is
concerned and even wider implications on the
society as a whole-where the victim of crime is
discouraged the criminal encouraged and in
turn crime gets rewarded! Even in cases,
unlike the present case, where there is some
acceptable material on the record to show that
the victim was habituated to sexual
intercourse, no such inference like the victim
being a girl of "loose moral character" is
permissible to be drawn from that
circumstance alone.
Even if the prosecutrix, in a given case, has
been promiscuous in her sexual behavior
earlier, she has a right to refuse to submit
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herself to sexual intercourse to anyone and
everyone because she is not a vulnerable
object or prey for being sexually assaulted by
anyone and everyone. No stigma, like the one
as cast in the present case should be cast
against such a witness by the Court, for after
all it is the accused and not the victim of sex
crime who is on trial in the Court.
22. Of late, crime against women in general
and rape in particular is on the increase. It is
an irony that while we are celebrating
women's rights in all spheres, we show little or
no concern for her honour. It is a sad
reflection en the attitude of indifference of the
society towards the violation of human dignity
of the victims of sex crimes. We must
remember that a rapist not only violates the
victim's privacy and personal integrity, but
inevitably causes serious psychological as well
as physical harm in the process. Rape is not
merely a physical assault - it is often
destructive of the whole personality of the
victim. A murderer destroys the physical body
of his victim, a rapist degrades the very soul
of the helpless female. The Courts, therefore,
shoulder a great responsibility while trying an
accused on charges of rape. They must deal
with such cases with utmost sensitivity. The
Courts should examine the broader
probabilities of a case and not get swayed by
minor contradictions or insignificant
discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to
throw out an otherwise reliable prosecution
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case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without
seeking corroboration of her statement in
material particulars. If for some reason the
Court finds it difficult to place implicit reliance
on her testimony, it may look for evidence
which may lend assurance to her testimony,
short of corroboration required in the case of
an accomplice. The testimony of the
prosecutrix must be appreciated in the
background of the entire case and the trial
court must be alive to its responsibility and be
sensitive while dealing with cases involving
sexual molestations.
23. There has been lately, lot of criticism of
the treatment of the victims of sexual assault
in the court during their cross-examination.
The provisions of Evidence Act regarding
relevancy of facts notwithstanding, some
defence counsel adopt the strategy of
continual questioning of the prosecutrix as to
the details of the rape. The victim is required
to repeat again and again the details of the
rape incident not so much as to bring out the
facts on record or to test her credibility but to
test her story for inconsistencies with a view
to attempt to twist the interpretation of events
given by her so as to make them appear
inconsistent with her allegations. The court,
therefore, should not sit as a silent spectator
while the victim of crime is being cross-
examined by the defence. It must effectively
control the recording of evidence in the Court.
While every latitude should be given to the
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accused to test the veracity of the prosecutrix
and the credibility of her version through
cross-examination, the court must also ensure
that cross-examination is not made a means
of harassment or causing humiliation to the
victim of crime. A victim of rape, it must be
remembered, has already undergone a
traumatic experience and if she is made to
repeat again and again, in unfamiliar
surroundings, what she had been subjected to,
she may be too ashamed and even nervous or
confused to speak and her silence or a
confused stray sentence may be wrongly
interpreted as "discrepancies and
contradictions" in her evidence.
38. The Hon'ble Bombay High Court (Nagpur Bench) in the
case of Dilip vs. The State of Maharashtra decided on
30.11.2018 reported in 2019(2) Crimes 570 (Bom.) in para
No.24 has held as under:-
24. It will have to be noted here that from the
line of the cross-examination of the prosecution
witnesses and when the accused was examined
by learned Judge of the Court under Section 313
of the Code of Criminal Procedure, it was
defence of the accused that he is falsely
implicated in the crime at the behest of one
Shaikh Istar. According to the defence, this
Shaikh Istar deals in scrap business and the
accused is also involved in the said business
and, therefore, to eliminate his business rivalry
Shaikh Istar utilized the victim as a tool. This
particular defence is required to be rejected for,
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(i) there is nothing available on record to show
that there was very close intimacy and/or
relationship in the family of the victim with
Shaikh Istar except that they belong to the
same religion and (ii) it is really unbelievable
that PW2, the father of the victim will put
prestige of his family as well as future of his
minor victim at stake for and on behalf of Shaikh
Istar. Further, except suggestion there is no
material available on record to show the
business rivalry between Shaikh Istar and the
accused.
39. In view of the above, it is submitted that the prosecution has
proved its case beyond reasonable doubt, and the conviction
recorded by the learned trial court calls for no interference.
Submissions of Public Prosecutor:
40. Learned Public Prosecutor Mr. Rajesh Bhati has opposed the
submissions made by the Learned senior counsel for the appellant
and has supported the prosecution case set out before the learned
trial court and he submits that there is no infirmity in the
judgment passed by the learned trial court convicting the
appellant under Section 376(2) (n) IPC vide judgment dated
02.12.2020.
41. We have bestowed our anxious consideration to the
submissions advanced at the Bar and have minutely scrutinized
the oral and documentary evidence on record, including the
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impugned judgment dated 02.12.2020. The appeal necessitates
reappraisal of evidence in order to determine whether the
prosecution has succeeded in establishing guilt beyond reasonable
doubt, the golden thread that runs through criminal
jurisprudence.
42. The principal submission raised on behalf of the accused-
appellant relates to the age of the prosecutrix. The prosecution
was under a legal obligation to establish beyond reasonable doubt
that the prosecutrix was minor at the relevant time. The evidence
on record reveals that PW-1, father of the prosecutrix, and PW-5,
her mother, both admitted in cross-examination that the
prosecutrix was first admitted in a school at 1-B Bavriyo Ki Dhani.
However, no admission record of the school first attended was
produced by the prosecution. Both Investigating Officers, PW-
18 and PW-20, candidly admitted that they neither made
any inquiry from the said school nor attempted to secure
the admission documents. A specific suggestion was put to
them that such documents disclosed the age of the prosecutrix as
19 years and were therefore withheld. The prosecution relied only
upon the Secondary Board mark-sheet. While a school certificate
is relevant, when contradictory material exists in government
documents admittedly prepared at the instance of the prosecutrix
herself, the earliest admission record assumes determinative
significance. Suppression of the best available evidence
relating to age gives rise to an adverse inference against
the prosecution. In criminal jurisprudence, where two views are
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possible, the one favourable to the accused must prevail. We are
therefore unable to hold that the minority of the prosecutrix
stands proved beyond reasonable doubt.
43. The credibility of the prosecution narrative also suffers from
inherent improbabilities. The prosecution alleges inducement
under the pretext of passport formalities linked to the appellant's
daughter residing abroad. However, the father, mother and
prosecutrix all admitted that they neither knew nor had
ever seen the accused-appellant's daughter, who resided at
Canada. This admission renders the prosecution story artificial
and constructed. The written complaint was authored by a nephew
who was not examined, thereby depriving the Court of a material
witness. Furthermore, the father admitted that he was not present
at the time of first disclosure. These circumstances cumulatively
erode the naturalness and spontaneity expected in a genuine
prosecution case.
44. The delay in lodging the FIR also assumes importance. The
prosecutrix admittedly returned home on the morning of
11.05.2016 and remained with her parents throughout the day,
yet the FIR came to be registered only on 12.05.2016 at 10:45
AM. The explanation that she was under intoxication is
inconsistent and unsupported by medical evidence, and is
contradicted by the testimony of the material witnesses
themselves. While delay in reporting a sexual offence is not per se
fatal, an unexplained delay coupled with contradictions and
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surrounding suspicious circumstances affects the credibility of the
prosecution case.
45. The daily diary entries further deepen the doubt. Ex.P-29
shows that telephonic information regarding the alleged
ravishment was given prior to registration of the FIR, yet the
name of the appellant was not disclosed. Ex.P-36 indicates
that the appellant was detained even before formal registration of
the FIR. PW-1 Rajaram, father of the prosecutrix remained silent
about these material facts in his deposition. The non-
examination of S.I. Krishan Kumar and Constable Pooja
Vishnoi, who were the first responders and witnesses to
the earliest disclosure, has resulted in withholding the first
version of the incident from the Court. Such omission warrants an
adverse inference against the prosecution and seriously impairs
the reliability of its case.
46. The evidence regarding the alleged stay at the hotel is
equally unsatisfactory. PW-7, Satveer Singh, Manager of Hotel
Shiv Palace, was declared hostile and the hotel register (Ex.P-13)
does not contain the name of the appellant. The record suggests
that another boy accompanied the prosecutrix. Despite this crucial
circumstance, no meaningful investigation was conducted to
ascertain the identity of that person. The passenger lists of the
relevant travel records also do not contain the appellant's name.
These omissions are not trivial; they go to the root of the
prosecution case and probabilize the defence version.
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47. The defence evidence adduced by the accused-appellant is
credible and creates a serious dent in the prosecution case. DW-1,
Vijay pal, Manager of Hotel Spark, Sikar, proved the hotel register
(Ex.D-07), wherein at serial No.508 the name of the accused-
appellant is recorded. The said entry is a contemporaneous
business record maintained in the ordinary course of affairs and its
genuineness has not been effectively discarded by the
prosecution. DW-2 Lakhwinder Singh, brother of the accused,
gave a consistent and natural account of their travel from Sri
Ganganagar to Sikar, their stay together at Hotel Spark in Room
No.202, and their visit to the passport office for renewal of
passport. His testimony stands corroborated by Ex.D-07 (hotel
Spark's register) and nothing material was elicited in cross-
examination to discredit him. Significantly, the investigating
agency made no effort to verify or falsify this defence version by
collecting CCTV footage from the hotel or the passport office,
though such evidence was the best available. The defence is not
required to prove its case beyond reasonable doubt; it is sufficient
if it probabilizes its version. The evidence of DW-1 (Vijaypal,
Manager, Hotel Spark) and DW-2 (Lakhwinder Singh), read with
Ex.D-07 (hotel Spark's register), clearly does so and raises a
reasonable doubt about the prosecution story, thereby lending
support to the plea of false implication.
48. The investigating officers (PW-18 Hazari Ram & PW-20
Bachhan Singh) further admitted that no CCTV footage was
secured from the hotel or passport office, though such footage
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would have been the best available corroborative evidence.
No inquiry was conducted from co-passengers who allegedly
travelled with the prosecutrix. These serious lapses in
investigation deprive the Court of independent corroboration and
add to the cumulative doubt. Criminal trials cannot be founded
upon incomplete investigation when decisive evidence was readily
available but ignored.
49. The medical evidence also fails to lend support to the
prosecution story. The rape report records absence of internal
or external injuries ordinarily expected in a case of forcible
or repeated sexual assault. It further notes that the
prosecutrix disclosed prior sexual intercourse four weeks
earlier, a fact conspicuously absent from the FIR and her
testimony. While absence of injuries is not conclusive, in the
present factual matrix it assumes significance and weakens the
allegation of repeated forcible intercourse.
50. When the evidence is appreciated cumulatively, it becomes
evident that the prosecution case is riddled with inconsistencies,
omissions, and investigative deficiencies. Proof beyond
reasonable doubt is not a mere slogan; it is a constitutional
safeguard protecting liberty. The minority of the prosecutrix is
not conclusively established; the foundational story is improbable;
the delay in FIR is unexplained; the earliest version is withheld;
independent corroborative evidence is absent; and the medical
evidence does not support the prosecution narrative. Criminal
conviction cannot rest on suspicion or conjecture. The
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prosecution must prove its case beyond reasonable doubt,
and the benefit of every reasonable doubt must enure to
the accused.
51. From an overall assessment of the evidence available on
record, this Court finds that the prosecutrix (PW-6) has stated
that she had been subjected to sexual intercourse about four
weeks prior to the date of her medical examination. Significantly,
this allegation does not find mention in any of her earlier
statements, nor was any action taken by PW-1 and PW-5, the
father and mother of the prosecutrix, in respect thereof. Such
omission is material and creates a serious doubt about the
prosecution version. It is highly improbable that if a person had
committed rape upon a minor girl, she would thereafter voluntarily
accompany him to another place for the purpose of passport
formalities. Equally improbable is the prosecution case that the
prosecutrix was raped in a sleeper bus during the night and,
despite alighting at a public place, continued to accompany with
that person to a hotel. There was no apparent impediment
preventing her from raising an alarm or seeking protection either
at the bus stand or atleast at the hotel. The conduct attributed to
the prosecutrix, viewed in the aforesaid factual matrix, appears
wholly unnatural and inconsistent with ordinary human behaviour.
In these circumstances, the defence version appears to be more
probable. At the very least, the allegations levelled against the
accused-appellant are not proved beyond reasonable doubt
because there is also a defence evidence on behalf of the accused-
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appellant that even he alongwith his brother had stayed at
different hotel and the same was testified by the hotel manager
verifying that no girl was accompany with the accused-appellant,
thereby entitling him to the benefit of doubt.
52. In so far as the judgments relied upon by learned counsel for
the complainant in the case of State of U.P. v. Hari Mohan, State
of U.P. v. Chhotey Lal, State of Punjab v. Gurmit Singh and Dilip v.
State of Maharashtra (supra) are concerned, the principles laid
down therein may be summarized to the effect that: (i) a
defective investigation by itself cannot be a ground for acquittal;
(ii) failure of the victim to raise an alarm at a public place cannot
necessarily lead to an inference that she was a consenting party;
(iii) minor discrepancies or contradictions in the testimony of the
victim, attributable to trauma, shame, nervousness or confusion,
are not sufficient to discard her evidence; and (iv) a plea of false
implication on account of political rivalry, by itself, is not a ground
for acquittal. The Judgment relied upon by learned counsel of the
complainant are having no application in the present case as the
present case stands on a materially different footing. Firstly, the
prosecution has failed to establish that the prosecutrix was a
minor at the time of the alleged incident. Secondly, the
prosecution has failed to prove that the daughter of the accused-
appellant was residing abroad or that the prosecutrix was taken on
the assurance that she would be sent abroad for that purpose of
obtaining a passport. Thirdly, no CCTV footage from the passport
office or the hotel, which constituted the best available evidence,
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was collected or produced. Fourthly, the first responders and
material witnesses, namely S.I. Krishna Kumar and Constable
Pooja Vishnoi, were not examined by the prosecution without any
plausible explanation. Fifthly, the medical evidence reveals that
the prosecutrix disclosed having engaged in sexual intercourse
about four weeks prior to her medical examination, yet no
allegation or action in that regard was ever taken, and no
explanation has been forthcoming to show the existence of any
continuing threat or coercion. Sixthly, accused-appellant had
travelled to Sikar along with his brother Lakhwinder Singh (DW-2)
and stayed at Hotel Spark, Sikar. Vijay Pal (DW-1), the hotel
manager, categorically deposed that Lajendra Singh Brar along
with another man stayed at Hotel Spark, and the hotel register
(Ex.D-07), at serial No. 508, specifically records the name of the
accused-appellant, thereby corroborating the defence version.
Seventhly, it is highly improbable that a girl, having been
ravished by a person, would thereafter voluntarily accompany the
same person to another city in a sleeper bus. Equally improbable
is the prosecution version that, after allegedly being raped in a
sleeper bus during the night, the victim would continue to
accompany the accused to a hotel after alighting at the bus stand,
which is admittedly a public place. In view of these cumulative
and substantive deficiencies, the factual matrix of the present
case is clearly distinguishable from the judgments relied upon by
the learned counsel for the complainant, and the ratios laid down
therein do not advance the prosecution case in the facts and
circumstances of the present case.
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53. In our considered view, the prosecution has failed to
discharge its burden. The conviction recorded by the learned trial
court cannot be sustained. The appeal deserves to be allowed.
54. Accordingly, the appeal is allowed. The judgment of
conviction and sentence dated 02.12.2020 passed by the learned
Sessions Judge, POCSO Cases No.1; Sri Ganganagar in Sessions
Case No.126/2018 is set aside. The appellant is acquitted of all
charges. The accused-appellant's sentence was suspended by this
Court and therefore, he is on bail. He is not required to surrender,
if not required in any other case.
55. Keeping in view, however, the provisions of Section 437A
Cr.P.C. the accused appellant is directed to forthwith furnish a
personal bond in the sum of Rs.50,000/- 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
Special Leave Petition against the judgment or for grant of leave,
the appellant, on receipt of notice thereof, shall appear before
Hon'ble the Supreme Court.
56. Office is directed to send the record of the trial court
forthwith.
CHANDRA SHEKHAR SHARMA),J (VINIT KUMAR MATHUR),J
62-Kartik Dave/C.P. Goyal/-
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