Rajasthan High Court - Jaipur
Arsad S/O Prakash vs State Of Rajasthan on 8 August, 2025
Author: Bhuwan Goyal
Bench: Inderjeet Singh, Bhuwan Goyal
[2025:RJ-JP:29198-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal (Db) No. 124/2021
Arsad S/o Prakash, R/o Balwandka, Police Station Udhyog Nagar,
Alwar (Rajasthan) (Accused Appellant Confined In Central Jail,
Alwar)
----Appellant
Versus
State Of Rajasthan, Through P.p
----Respondent
Connected With D.B. Criminal Appeal (Db) No. 217/2021 Ayub @ Mubarik Son Of Hurmat, Resident Of Khoyda Karmali, Police Station Naugava, District Alwar (Rajasthan) (At Present Confined In Central Jail Alwar)
----Appellant Versus State Of Rajasthan, Through P.p
----Respondent For Appellant(s) : Mr. Nasir Ali Naqvi, Sr. Advocate assisted by Mr. Hakam Ali & Mr. Syed Adeel Naqvi Mr. B.N. Sharma, with Mr. Krishan Singh Rawat and Ms. Pragya Sharma For Respondent(s) : Mr. Jitendra Singh Rathore, Addl. GA None present for complainant HON'BLE MR. JUSTICE INDERJEET SINGH HON'BLE MR. JUSTICE BHUWAN GOYAL JUDGMENT RESERVED ON : 31/07/2025 JUDGMENT PRONOUNCED ON : 08/08/2025 PER BHUWAN GOYAL J. :
1. Both the aforesaid criminal appeals under Section 374(2) of the Code of Criminal Procedure, 1973 have been filed by the accused-appellants Arsad and Ayub @ Mubarik against impugned Judgment and Order dated 31.08.2021 passed by Special Judge, Protection of Children from Sexual Offences Act, 2012 and Commission for Protection of Child Rights Act, 2005, No. 4, Alwar (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (2 of 19) [CRLAD-124/2021] in Sessions Case No. 60/2019, vide which accused-appellants have been convicted and sentenced as under :-
Offence Sentence Fine Default sentence u/s 342 IPC 1 year's S.I. Rs. 1,000/- 15 days' S.I. u/s 363 IPC 5 years'R.I. Rs. 10,000/- 6 months' R.I.
u/s 376-DA Life Imprisonment Rs.1,00,000/- 2 years' R.I. IPC till natural death (All sentences are ordered to run concurrently)
2. Brief facts relevant and germane for disposal of the present appeal are that on 19.07.2019, complainant "M" submitted a written report at the Police Station Nowgaon, District Alwar to the effect that on 14.07.2019 at around 12.30 p.m., his wife (hereinafter referred as victim No. 1) and his cousin sister -
(hereinafter referred as victim No. 2) had gone out of the house saying that they were going for natural call and when they did not return home till evening, he and his family members searched them a lot but could not find them. On getting information from the people of the village, he was suspecting on his brother Mubarik Khan that he lured his wife and cousin sister and took them away. Mubarik's mobile numbers were xxxx3424 & xxxx1534. When he went to see his brother, he found that his brother had been missing from home since 14.07.2019 etc.
3. On the basis of said report, F.I.R. No. 246/2019 was registered for the offence under Section 366 of I.P.C. and investigation was commenced. After conclusion of investigation, police submitted charge-sheet against accused-appellants for the offences under Sections 363, 366, 366-A & 376-D, 376-DA & 342 of I.P.C. and Section 5(L)/6 of Protection of Children from Sexual Offence Act, 2012 (for short "POCSO Act" hereinafter) before the (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (3 of 19) [CRLAD-124/2021] concerned court, which took cognizance of aforesaid offences against accused-appellants and committed the case to the court of Sessions, from where it was transferred to the court of Special Judge, Protection of Children from Sexual Offences Act, 2012 and Commission for Protection of Child Rights Act, 2005 No. 4, Alwar (hereinafter referred to as 'trial court').
4. The trial court framed charges against accused-appellants for the offences under Sections 342, 363, 366, 366A, 376-D & 376- DA of I.P.C. and Section 5(L)/6 of POCSO Act, which were read over and explained to them but they pleaded not guilty and claimed trial. The prosecution examined total 21 witnesses and exhibited Ex.P/1 to Ex.P/34 and Ex.C/1 documents to prove its case. After conclusion of prosecution evidence, accused-appellants were examined under Section 313 of Cr.P.C. and were confronted with the circumstances appearing against them in the prosecution case, which they denied and claimed that prosecution evidence was false, they was innocent and had been falsely implicated in the case. The accused-appellant Ayub @ Mubarik stated that his mother and father had passed away when he was very young and his maternal uncle took him with them and he maintained him. His elder brother Mubeen was also young at that time. His uncle Hunny alias Hanif also started living with them. To usurp his agricultural land and house, Mubeen and his uncle together got a false case registered against him. Accused-appellant Arsad stated that he and Mubarik were working as driver and cleaner on the same vehicle, due to which he was falsely implicated. However, accused-appellant did not wish to produce any evidence in their defence.
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5. The trial court thereafter proceeded to hear arguments of the Public Prosecutor and the defence counsel, appreciated evidence available on record and delivered impugned Judgment dated 31.08.2021, whereby accused-appellants have been acquitted for the committing offences under Sections 342, 363, 366, 376-D of I.P.C. and Section 5(L)/6 of POCSO Act qua Victim No. 1 as also offence under Section 366-A of I.P.C. qua Victim No. 2 but convicted and sentenced for committing offences under Sections 342, 363 & 376-DA of I.P.C. and Section 5(L)/6 of POCSO Act qua Victim No. 2, as stated above. Aggrieved with the same, present appeals have been filed by the accused-appellants before this Court.
6. Heard learned counsel for the parties.
7. Learned counsel for the appellants have submitted that as per prosecution story, appellants abducted the victims, took them on the motor-cycle and forcibly committed rape against their wishes. The submission is that in the case in hand, the trial court on the same set of evidence has discarded half of the prosecution story and come to the conclusion that no offence was committed against victim No.1 but on the same set of evidence, it has wrongly relied upon rest half of the prosecution story and convicted accused-appellants for committing offence of kidnapping and rape against victim No. 2.
8. Learned counsel for the appellants have further submitted that as per ossification test, age of victim was estimated as falling between 15 to 16 years on the top of the Radiological Report (Ex.P/4) and on the back of the report, as per opinion of the Medical Jurist, she was 15 to 17 years. In every cases, there (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (5 of 19) [CRLAD-124/2021] remain a margin of error of 2-3 years in ossification test and benefit of error should go to the accused in criminal case. Therefore, it has been urged that POCSO Act should be held as not applicable in the facts of the present case. In support of their arguments, learned counsel for the appellants have relied upon following decisions :-
(i) Courts on its Own Motion vs. State of NCT of Delhi [2024 Supreme (Online) (Del) 515]
(ii) Rajak Mohammad vs. State of Himachal Pradesh [(2018) 9 SCC 248]
(iii) Nand Kishore vs. State of Rajasthan [2003 2 RLW (Raj) 765]
9. Learned counsel for the appellants have also submitted that as per statement of first informant Mubin (P.W. 4), incident was happened in his presence. The submission is that there was delay of five days in lodging the F.I.R. and no explanation is coming forth on record regarding delay.
10. Learned counsel for the appellants have further submitted that as per statement of P.W. 16 Apsan, victim No. 1 called him, upon which, he along with family members of victim and police reached the place of incident. But to establish this fact, no mobile call details has been produced on record and nor any mobile phone was seized by the police during investigation. It is also submitted that as per statement of P.W. 16 - Apsan, he received the call of victim No. 1 on 20.07.2019, after that, they reached at the spot and recovered the victims and their custody was handed over. But in the present case, victims were recovered and their (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (6 of 19) [CRLAD-124/2021] custody was handed over on 19.07.2019 instead of 20.07.2019, which creates serious doubt about the prosecution story.
11. Learned counsel has also submitted that as per prosecution story, both victim were abducted by accused-appellants on motor- cycle in Village Khoyda and then, they were taken to Surya Nagar, Alwar. However, the witnesses have admitted that town came on the way while going on the motor-cycle and the owner of the house in which incident of rape was committed, was also present there. The submission is that if the victims were forcibly kidnapped and subjected to sexual assault by the accused, then they must have resisted and informed about incident to the persons available on the way as well as owner of the house, which was not done by them, which further brings entire prosecution story under suspicion.
12. It has also been submitted by learned counsel that from the medical evidence, which is available on record, no injury on the private part of victim No. 2 was found. There is no evidence or serological report available on record to establish that semen found on the cloth (Salwar) of victim No. 2 was of the accused and none else.
13. Learned counsel have lastly submitted that complainant and accused-appellant Ayub @ Mubarik are real brothers. The complainant wanted to usurp agricultural land and house of Ayub @ Mubarik. The accused-appellant Arsad was working as cleaner on the vehicle, in which Ayub @ Mubarik was driver. Therefore, both of them were falsely implicated in this case due to ulterior motive. Therefore, it has been prayed that both the appeals filed (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (7 of 19) [CRLAD-124/2021] by the accused-appellants may be allowed and they may be acquitted of charges levelled against them.
14. On the other hand, learned Public Prosecutor while supporting judgment and order of conviction, has submitted that trial court after appreciating entire material as well as evidence on record has rightly recorded conviction against accused-appellants for the offences alleged in the present case, which does not warrant any interference by this Court.
15. We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through impugned judgment and minutely sifted through the evidence available on record.
16. In the instant case, as per prosecution story, accused- appellants abducted the victims, took them on motor-cycle and committed rape upon them against their wishes but the trial court after examining the evidence on record has discarded prosecution story qua commission of any offence against victim No. 1 and the offence of abducting victim No. 2 with intent to forcing or seducing her to have illicit intercourse punishable under Section 366A of I.P.C.
17. In the instant case, the crucial point for determination by this Court is the age of the victim No. 2 at the time of incident. The trial court has come to the conclusion regarding age of the victim No. 2 on the basis on the basis of ossification test report and the evidence of P.W. 9 - Dr. Sriram Karwasara. As per statement of doctor (P.W. 9), age of the victim No. 2 at the time of incident was between 15-16 years according to the ossification test because it is an admitted position that no documentary evidence to establish age of victim No. 2 has been placed only. (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (8 of 19) [CRLAD-124/2021]
18. The principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests because it does not provide us the definite age. It only gives up a reference age which generally found margin error of 2-3 years on either side. The Hon'ble Supreme Court in several decisions, has taken judicial notice of the fact that the margin of error in age ascertain by radiological examination is 2-3 years on either side. It is also settled position of law that benefit of doubt, other things being equal, at all stages goes in favour of the accused.
19. The issue regarding variation/margin of error in age on ossification test and granting benefit of such margin of error, came to be adjudicated by the Hon'ble Supreme Court and the Hon'ble High Courts. In the cases of Ram Suresh Singh v. Prabhat Singh reported in (2009) 6 SCC 681 and Jyoti "Prakash Rai v. State of Bihar reported in (2008) 15 SCC 223, it has been observed by the Hon'ble Supreme Court that the age determined by ossification test is not a precise one and, therefore, two years margin of error/flexibility needs to be applied on either side. Of course, these judgments were in context of juvenile in conflict with law but the principle of applying "margin of error" shall be no different while considering a case of child-victim.
20. In "Shweta Gulati & Anr. vs. The State Govt. of NCT of Delhi" (MANU/DE/2812/2018), though, the question was with respect to the payment of wages to a minor victim who had been sexually assaulted but there was no document ascertaining her age and, therefore, the bone age ossification test of victim was (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (9 of 19) [CRLAD-124/2021] got conducted and as per such report, the age of the victim was determined to be in range of 17 to 19 years. The concerned Child Welfare Committee determined the age of the victim as 17 years, which order was upheld in appeal by the Court of learned ASJ. When the revision petition was filed before the Hon'ble Delhi High Court, the High Court made reference to "Jarnail Singh vs. State of Haryana" (MANU/SC /0626/2013) and held that benefit of doubt, at all stages, was to go to the accused.
21. In the case of State vs. Basir Ahmad (MANU/DE/6387/ 2023), the accused, who was facing trial for committing sexual assault, was acquitted by learned Trial Court observing that the age of the prosecutrix was shown to be between 17 to 19 years and, therefore, there was no conclusive evidence of her being a minor at the time of alleged offence. Consequently, the benefit was extended to the accused who was acquitted. Such order was assailed before the Hon'ble Delhi High Court and the appeal was dismissed. The High Court not only upheld the factum of consideration of the age on the upper side of ossification report while assessing the age of the prosecutrix but also approved the principle of giving further margin of two years to such upper estimated age. The pertinent excerpt from the aforementioned judgement is as under:
"12. The question which thus arises is whether the lower or the upper age recommended in the ossification test should be adopted to be the age of the prosecutrix. If benefit of doubt has to be given to the accused under all circumstances, then, it is the higher limit which has to be taken and benefit extended as has been held in the cases of Triveniben Vs. State of Gujarat MANU/SC/0520 /1989 : (1989) 1 SCC 678 and Maru Ram Vs. (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (10 of 19) [CRLAD-124/2021] Union of India MANU/SC/0159/1980 : (1981) 1 SCC 107. So being the case, we may consider the range of age of the prosecutrix as given in the ossification test to be 17 to 19 years. Applying the margin of error principle of two years on either side, the age of the prosecutrix could be anything between 15 to 21 years. Even if the margin of error is not on the higher side, the upper limit of the age has been estimated by the ossification test as 19 years. Giving the benefit, the age of the prosecutrix has to be held as 19 years. Similar conclusion was taken by the Court in the case of Shweta Gulati vs. State of NCT of Delhi MANU/DE/2812/2018. We thus find that learned ASJ has rightly held the prosecutrix to be major at the time of incident. We find no infirmity in the findings in respect of the age of the prosecutrix."
22. This Court in the case of Nand Kishore vs. State of Rajasthan reported in 2002 CriLJ 4157, has observed as under :-
"22. Thus, as stated above, there is no direct documentary or oral reliable evidence about the age of the prosecutrix, except the medical evidence, according to which her age, as per the ossification test was between 14 to 16 years when the offence as alleged was committed. However, keeping in view the margin of error in age ascertained by ossification test may be 2-3 years as propounded in the case laws cited by the counsel for the appellant, the question that emerges is as to whom the benefit of margin should be given. Considering the fact that it is a case of criminal liability, the benefit of margin should go in favour of the accused appellant unless such margin is explained by some piece of evidence. In the instant case, as discussed above, there is no explanation by any substantial piece of evidence. Therefore, I am inclined to give marginal benefit to the accused appellant. Keeping in mind the permissible variance of 2-3 years in the age, it is held that the age of the prosecutrix, at the time of incident, was 18-19 years..."(Downloaded on 22/08/2025 at 11:29:51 PM)
[2025:RJ-JP:29198-DB] (11 of 19) [CRLAD-124/2021]
23. The Hon'ble Supreme Court in Rajak Mohammad vs. State of Himachal Pradesh reported in (2018) 9 Supreme Court Cases 248 has held in Para 9 and 10 as under :-
"9. While it is correct that the age determined on the basis of a radiological examination may not an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the Accused.
10. We will, therefore, have to hold that in the present case the prosecution has not succeeded in proving that the prosecutrix was a minor on the date of the alleged occurrence. If that is so, based on the evidence on record, already referred to, we will further have to hold that the possibility of the prosecutrix being a consenting party cannot be altogether ruled out."
24. The question whether lower side of the age estimation report or the upper side of the age estimation report of a victim in POCSO cases, where the age of the victim is proved through bone age ossification test, is required to be considered and whether the principle of "margin of error" is to be applicable or not in cases under the POCSO Act, where the age of a victim is to be proved through bone age ossification test, came to be answered by the Hon'ble Delhi High Court in Court on its Own Motion vs. State of NCT of Delhi online reported in MANU/DE/4353/2024. The relevant Para Nos. 19, 20, 21, 22 & 44, 45 & 46 of the judgment reads thus :-
"19. If one has a school certificate or birth certificate, then obviously there would not be any difficulty, provided these documents are duly (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (12 of 19) [CRLAD-124/2021] proved before the Court in accordance with law and are admitted in evidence.
20. The age given in any such birth certificate or school record would be a specific and fixed one, being based on date of birth.
21. In absence of said documents, when the Court orders for ossification test, such test though gives us the estimation of age but it does not provide us with precise and definite age. It rather gives us a reference range, which, generally, is found to be of two years.
22. In the case in hand also, such estimation age is given as 16-18 years by the concerned Medical Board. The issue is whether age of the victim should be taken on the lower side or on the upper side of such range. What ought to be the approach of the Court - whether to consider the age of the child victim as 16 years or as 18 years? And secondly and more importantly, whether any further "margin of error" is also to be applied on either side, thereby making the age range, in context of present situation, from '16 to 18 years' to '14 to 20 years'."
... xxx .... xxx .... xxx
44. The ossification test determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. It evaluates the process of the bone formation based on fusion of joints between birth and generally upto the age of 25-30 years. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for calculation of the bone age is radiography of the hand and wrist until the age of 18 years as the elongation of the bone is complete after adolescence. Beyond that, the medial age of clavicle is used for bone age calculation till the age of 22 years. Of course, age determination using ossification test does not yield accurate and precise conclusions, particularly after the examinee crosses the age of 30 years. In Mukarrab(supra), Hon'ble Supreme Court has observed as under:-
"26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (13 of 19) [CRLAD-124/2021] adopted solely on the basis of the medical opinion by the radiological examination. At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
"In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development."
Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances."
45. Thus, the legal position seems fairly settled and quite apparently, the attention of the learned Trial Court was not drawn to Division Bench judgment of this Court as given in State v. Basir Ahmad (supra). We have no reason to come to any different opinion. Moreover, we have already taken note of the judgment given by Hon'ble Supreme Court in Rajak Mohammad (supra) which leaves no uncertainty in our minds in answering the Reference in question.
46. As an upshot of our foregoing discussion, the Reference is answered as under: -
(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (14 of 19) [CRLAD-124/2021] the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?
Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on 'bone age ossification report', the upper age given in 'reference range' be considered as age of the victim.
(ii) Whether the principle of "margin of error" is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test.
Ans: Yes. The margin of error of two years is further required to be applied."
25. From the ratio of law annunciated by the Hon'ble Supreme Court and the Hon'ble High Courts, it is settled that ossification test determines age based on the "degree of fusion of bone" by taking the x-ray of a few bones. It evaluates the process of the bone formation based on fusion of joints between birth and generally upto the age of 25-30 years. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for calculation of the bone age is radiography of the hand and wrist until the age of 18 years as the elongation of the bone is complete after adolescence. Beyond that, the medial age of clavicle is used for bone age calculation till the age of 22 years. Of course, age determination using ossification test does not yield accurate and precise conclusions, particularly after the examinee crosses the age of 30 years.
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26. Applying aforesaid ratio of law and the well accepted method of Modi's Medical Jurisprudence and Toxicolony, in the case in hand, as per prosecution, age of the victim No. 2 was stated to be 15-16 years on the date of incident. As per statement of P.W. 9 - Dr. Sriram Karwasara, age of the victim No. 2 was between 15 - 16 years on the date of incident and it has also been admitted by P.W. 9 in the cross-examination that difference in age opinion given on the basis of x-ray is upto two years. There is no statement made by the doctor (P.W. 9) that age of the victim No.2 was below 16 years. Therefore, in light of the ratio of law propounded by the Hon'ble Apex Court, margin of error of 2-3 years in age on ossification test is natural and in such circumstances, if margin error of 2-3 years in age on ossification test is taken in the age of the prosecutrix, then she was more than 18 years of age at the time of incident. Hence, in our considered opinion, conclusion arrived at by the trial court regarding age of the victim No. 2 is not sustainable.
27. So far as allegation of subjecting victim No. 2 with sexual assault is concerned, from the evidence available on record, it reveals that both victim were abducted by accused-appellants on motor-cycle and as per prosecution, total four persons have stated going on a motorcycle. Further, in the case in hand, there is no statement given by victim No. 2 (P.W. 1) that she was being taken away tied on the motorcycle or that her mouth was closed. Rather, she has only stated in her police statement (Ex.D/1) that when she and her sister-in-law had gone to the jungle for natural call, Arsad took them to Alwar on a motorcycle. Mubarik went separately on another motorcycle. P.W. 17 - Idu Khan, the (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (16 of 19) [CRLAD-124/2021] investigation officer, has also accepted in his cross-examination that it is true that in the statements of the victims Ex.D/1 & Ex.D/2, they did not mention about kidnapping. Further, P.W. 2 - victim No. 1, has accepted in her cross-examination that when they were going on the motorcycle, they came across the town of Nawgaon on the way. In Naugaon town, many people were going on the road and there was also movement of vehicles and at that time landlord was present there and people lived in the neighbourhood of that room. However, there is no evidence on record that victims made any complaint or raised any alarm or tried to escape from the custody of accused. In the opinion of this Court, if the victims were forcibly kidnapped and subjected to sexual assault by the accused-appellants, then they would have certainly resisted and informed about incident to the persons available at those places, which was not done by them, which raises suspicion on their version.
28. It is also pertinent to note that in the case at hand P.W. 1 victim No. 2 has admitted in her cross-examination that there was no kitchen in the house, there was no provision of water, there was no water in the toilet. P.W. 18 - Deepak Kumar, the Investigation Officer, has also admitted in his cross-examination that House No. FF 438 shown in the site plan of the place of occurrence (Ex.P/17 & Ex.P/18), there was neither any household goods nor furniture, House No. FF 438 was not locked, it was open. As per the prosecution story, the victim were stated to be stayed there for 5-6 days. Thus, in our considered opinion, under normal circumstances, it is not possible for a person to stay for 5- 6 days in a house, where there are no household goods, furniture, (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (17 of 19) [CRLAD-124/2021] water arrangements, which also raises suspicion on the prosecution story.
29. It is also pertinent to note that P.W. 19 - Dr. Balveer Kaur, has stated in her examination-in-chief that there was no marks of stain or injury on the private parts of the victim No. 2. In her cross-examination, this witness has admitted that there was no swelling on the internal part of vagina of the victim No. 2. As per FSL Report (Ex.C/1), semen was detected on the salwar of victim No. 2 but there is no serological report available on record to establish that semen found on the salwar of the victim No. 2 was of the accused-appellants and none else.
30. In the case at hand, it is also noteworthy that in her statement, victim No. 2 (P.W. 1) has mentioned that on the day of giving the information, police had come there and they had handed over Mubarik to the police. But in the case at hand, Mubarik was arrested on 01.08.2019 instead of 19.07.2019 as per the information given by the victim. P.W. 7 - Rajesh, who was a police personnel, has stated in his cross-examination that the accused was not brought from Nawgaon and that they met him at the CO office.
31. It is pertinent to note here that first informant Mubin (P.W. 4) who is husband of victim No. 2 has admitted in his cross- examination that incident took place in front of him and he did not enquire about his wife and sister from anyone in the village from 14th to 19th, due to which his conduct also raises serious doubts about the truth and credibility of the incident, because if a person's wife and sister are kidnapped in front of him and he sits quietly for 5-6 days, it is not possible. In this context, it is also (Downloaded on 22/08/2025 at 11:29:51 PM) [2025:RJ-JP:29198-DB] (18 of 19) [CRLAD-124/2021] worth mentioning that in the report Ex.P/22, which was lodged five days after the incident, he has neither mentioned about seeing the incident nor has it been clearly mentioned that the accused took his wife and sister in front of him. Even, there is no explanation regarding delay of five days in lodging the F.I.R. It is also worth mentioning that as per prosecution story, victim No. 2 gave information about incident to P.W. 16 - Apsan on 19.07.2019, upon which, the police went there, recovered the victims and prepared recovery memo on 19.07.2019 and the victims gave information about the incident. But P.W. 16 Apsan has stated in his cross-examination that he received a call on 20.07.2019. It is noteworthy in the case that in the recovery memo, neither the place of recovery of the victims is mentioned nor the time is mentioned on it. It is also noteworthy here that even the site plan of the place of recovery has not been prepared. It is also important to note that in the case in hand, neither mobile phone of Apsan (P.W. 16) was recovered nor its call details have been produced on record. Thus, from the evidence on record, the prosecution story that accused-appellants kidnapped and sexually assaulted victim No. 2 has not been established beyond all reasonable doubt.
32. In view of the above, this Court is of the considered opinion that the trial court has erred in convicting the appellants for the offences under Sections 342, 363 & 376-DA of I.P.C., therefore, this Court deems it proper to allow these appeal and set aside the judgment and order of sentence dated 31.08.2021 passed by the trial court.
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[2025:RJ-JP:29198-DB] (19 of 19) [CRLAD-124/2021]
33. Accordingly, both these appeal are allowed and the impugned judgment and order of sentence dated 31.08.2021 passed by the learned trial court is set aside. The accused-appellants are acquitted of the charges levelled against them. The accused- appellants are in jail. They shall be set at liberty forthwith, if not required in any other case or for any other purpose.
34. The appellants are directed to furnish bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with provisions of Section 437-A of Cr.P.C./481 of B.N.S.S. before the Registrar (Judicial) of this Court within four weeks from the date of their release, to the effect that in the event of filing of special leave petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court. The bail bonds will be effective for a period of six months.
35. The record of the learned trial court be sent back forthwith.
(BHUWAN GOYAL),J (INDERJEET SINGH),J
INDER/80-81
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