- (1.) This application under Section 389 Cr.P.C. has been preferred on behalf of the applicant-appellant seeking suspension of sentence awarded to him by Special Judge, POCSO Act Cases Jodhpur (hereinafter to be referred as 'the trial court') vide its judgment dated 25.04.2018 passed in Sessions Case No.116/2016 (152/2013), whereby the trial court has convicted the applicant- appellant for the offences punishable under Sections 370(4) read with Section 120-B and 376D IPC, however, sentenced him as under: Under Section 370(4)/120-B IPC : 10 years' rigorous imprisonment and to pay a fine of Rs.50,000/-, in default of payment of fine, further to undergo one year's rigorous imprisonment Under Section 376D IPC : 20 years' rigorous imprisonment and to pay a fine of Rs.50,000/-, in default of payment of fine, further to undergo 2 years' rigorous imprisonment.
(2.) As per the prosecution story, the prosecutrix, a 12 th Standard student, who was studying and residing in Asharam Gurukul, Chhindwara, Madhya Pradesh fell ill in first week of August, 2013. The co-accused Sanchita alias Shilpi, who was working as Warden of the hostel, where the prosecutrix was residing, came to know about the illness of the prosecutrix and thereafter told her that she is under the influence of evil spirits. On 07.08.2013, co-accused Sanchita alias Shilpi informed the family members of the prosecutrix that she is not feeling well, so they should take her to Gurukul at Chhindwara, upon which the parents of the prosecutrix reached Chhindwara on 08.08.2013 and thereafter on 09.08.2013, visited the Girls Hostel, Gurukul, Chhindwara, where the prosecutrix was residing and met the co- accused Shilpi and the applicant-appellant, where they told her parents that the prosecutrix is under the influence of evil spirits and they also informed about her condition to Asharam Bapu, so they should meet him wherever he is. On 09.08.2013 itself, the prosecutrix left the hostel for Shahjahanpur, U.P. with her parents, where they contacted another co-accused - Shiva, who informed them that Asharam would be in Delhi on 12.08.2013, then the prosecutrix along with her parents reached Delhi on 13.08.2013, then they came to know that Asharam is in Jodhpur and when they again called Shiva, he asked them to come to Jodhpur. Thereafter, the prosecutrix along with her family members reached Jodhpur at Manai village, where Asharam was staying in a farm house. The prosecutrix along with her parents stayed there and met with Asharam. On 15.08.2013, the prosecutrix was sexually assaulted by Asharam in a Kutia of farm house. Thereafter, the prosecutrix and the family members left Jodhpur and reached Shahjapur, where the prosecutrix narrated entire incident of sexual assault by Asharam to her family members on 19.08.2013. Then the prosecutrix and her family members went to Delhi, where a zero number FIR was lodged at Police Station, Kamla Market, New Delhi and statements of the prosecutrix were recorded under Section 164 CrpC and thereafter, FIR No.122/2013 was registered at Police Station, Mahila West, Jodhpur on 21.08.2013. After investigation, the police filed charge-sheet against the applicant-appellant for the offences punishable under Sections 342, 354-A, 370(4), 376(2)(f), 376D, 506, 509/34, 109/120-B IPC and Sections 23 and 26 of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter to be referred as 'the Juvenile Justice Act') and Sections 5(f)/6, 5(g)/6, 7/8 read with Section 17 of Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as 'the POCSO Act'). The trial court framed charges against the applicant- appellant for the offences punishable under Sections 342/34, 354A/34, 370(4), 376(2)(f) read with Section 120-B/109, 376D, 506/34, 509/34 read with Section 109/120 IPC and Section 23 of the Juvenile Justice Act and Section 5(f)/6 read with Section 17, 5(g)/6,7/8 of the POCSO Act. After recording of the prosecution evidence as well as the defence evidence, the trial court has convicted and sentenced the applicant-appellant as aforesaid. Learned counsel for the applicant-appellant have submitted that the trial court has grossly erred in convicting and sentencing the applicant-appellant for the offences punishable under Sections 376D IPC and Sections 5(g)/6 and 17 of POCSO Act.
(3.) It is argued that the applicant-appellant was appointed as Director of Asharam Gurukul Hostel, Chhindwara, Madhya Pradesh in January 2013 only vide Ex.P/64 and prior to that, he was not connected with the activities of Gurukul in any manner. It is further argued that no direct evidence is available on record to suggest that the applicant-appellant sent the prosecutrix to the Ashram at Jodhpur where accused - Asharam was staying or he was aware that if the prosecutrix would go to Asharam's place, she would be sexually assaulted by him. Learned counsel for the applicant-appellant have further argued that there is no direct evidence available on record to suggest that the applicant-appellant hatched a criminal conspiracy with accused - Asharam and sent the prosecutrix to the place, where Asharam was staying, so that he could sexually assault her. Learned counsel for the applicant-appellant have submitted that the trial court in the impugned judgment has also concluded that there is no direct evidence available on record to suggest that the applicant-appellant had directed the prosecutrix and her parents to go to the place where accused - Asharam was staying while knowing that the prosecutrix would be sexually assaulted there. Learned counsel for the applicant-appellant have submitted that the challenge of the applicant-appellant to his conviction under Section 376 IPC and Sections 5(g)/6 read with Section 17 POCSO Act and his sentence under Section 376D IPC is based on strong grounds. Learned counsel for the applicant-appellant have further submitted that the trial court has inferred that when the prosecutrix and her parents met to Asharam at Jodhpur and narrated about the illness of the prosecutrix, he had identified the prosecutrix by saying "BHOOT WALI LADKI" from Chhindwara and this fact is sufficient to prove that the applicant-appellant and Asharam were in league to commit the offence. It is argued that the prosecutrix and her parents made a significant improvement in their statements recorded before the court and deliberately stated that accused - Asharam had identified the prosecutrix as "BHOOT WALI LADKI" from Chhindwara, though such fact was not revealed either by the prosecutrix or her parents during the course of investigation. Learned counsel for the applicant-appellant have further argued that the trial court in Para 458 of the impugned judgment came to the conclusion that no direct evidence of the above mentioned facts is available on record, however, without there being any evidence available on record, on the basis of surmises and conjectures, the trial court held the applicant- appellant guilty of hatching a criminal conspiracy with accused - Asharam. Learned counsel for the applicant-appellant have invited attention of the Court towards the statements of the prosecutrix- PW.5 as well as of her father Karamveer Singh-PW.21 and argued that from the evidence of the said witnesses, only it can be gathered that the applicant-appellant had suggested PW.12 to contact accused-Asharam and nothing else. ;