[2026:RJ-JP:21182-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Criminal Appeal (DB) No. 38/2019

Surajbhan S/o Shri Nawal Kishore, R/o Vill. Sop PS And Teh.

Nadoti Dist. Karauli Raj. (Presently Confined In Central Jail Kota)

----Appellant

Versus

State Of Rajasthan Through PP.

----Respondent

For Appellant(s) : : Shri Rahul Agrawal

For Respondent(s) : : Shri Amit Kumar Punia, PP

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

Judgment

Date of Conclusion of Arguments : : 19 /0 5 /2026

Judgment Reserved On : : 19 /0 5 /2026

Whether the full judgment or

only the operative part is pronounced : : Full Judgment

Judgment Pronounced On : : 27 /0 5 /2026

Per Hon’ble Mahendar Kumar Goyal, J.

This appeal is directed against the judgment dated

13.12.2018 passed by learned Special Judge, Protection of

Children from Sexual Offences Act Cases cum Child Welfare

Commission No.2, Kota (for short-`the learned trial court’) in

Sessions Case No.72/2018 (CIS No.72/2018) whereby, the

accused-appellant has been convicted and sentenced as under:

1. Section 376D r/w 120B IPC r/w 5(g)/6 of the

Protection of Children from Sexual Offences Act,

2012: Life imprisonment, which shall mean remainder of

his natural life and fine of Rs.50,000/-; in default whereof,

six months’ additional imprisonment.

2. Section 342 r/w 120B IPC: Six months’ imprisonment.

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3. Section 11(v)/12 of Protection of Children from

Sexual Offences Act, 2012: One year rigorous

imprisonment and fine of Rs.10,000/-; in default whereof,

one month’s additional imprisonment.

All the sentences to run concurrently.

The relevant facts, in nutshell, are that Smt. Kamla Meena

(PW3) submitted a typed report (Ex.D1) on 24.01.2014 to SHO

Police Station Bheemganj Mandi, Kota City, Kota wherein, it was

averred that her minor daughter aged about 13 years, studying in

Central School No.1, had gone to Agra on 15.10.2013 along with

school team to participate in the sports activities but, when she

went to school in the month of December, she came to know that

her daughter did not participate in the sports activities and her

teachers informed that she did not go to Agra along with the

team. When she asked her daughter, she was found to be very

frightened but, after much consolation, she disclosed that the co-

accused-Ramkaran Jangid threatened her to go with him from

Kota to Mathura and thereafter to Agra. It was alleged that in the

night, she was taken to Gangapur City in the room of his friend-

appellant-Surajbhan where his another friend Ashish @ Kalli was

also present. It was alleged that she was subjected to rape there

whereafter, the co-accused-Ramkaran took her to Udaipur, kept

her there for about 3-4 days and was again subjected to wrongful

act. It was averred that the co-accused-Ramkaran had threatened

her of publicizing the video clip prepared by him and had also

threatened of eliminating her and the family and therefore, she

did not disclose anything to her family members. Based

thereupon, an FIR no.38 dated 24.01.2014 was registered under

the provisions of Sections 363, 366 and 376 IPC and Section 3/4

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of the Protection of Children from Sexual Offences Act, 2012 (for

short-`the POCSO Act’) and Section 3(1)(xii) of the SC/ST

(Prevention of Atrocities) Act (for short-`the SC/ST Act’).

After investigation, the appellant was chargesheeted, along

with co-accused Ramkaran under Sections 363, 366, 376D, 376(2)

(h), (m) and 342 IPC and Sections 3/4 & 5/6 of POCSO Act and

Section 3(2)(v) of SC/ST Act. Charges under Sections 376D, 342

& 120B of IPC, Sections 5(g)/6 & 11(v)/12 of POCSO and Section

3(2)(v) of SC/ST Act were framed against him. After trial, he has

been convicted and sentenced by the learned trial court, vide

judgment impugned dated 13.12.2018, as stated hereinabove.

The co-accused Ramkaran was also convicted vide same

judgement and he had preferred the criminal appeal no.102/2019

which shall, for the reasons recorded therein, be decided

separately.

It may also be pertinent to notice here that two co-accused

were also subjected to trial before the Juvenile Justice Board,

Kota. While, the co-accused-Manish Kumar was acquitted in

regular criminal case no.16/2015 vide judgment dated 06.09.2018

of the charges framed against him under Section 354D of IPC,

Section 17/8 of POCSO Act and Section 3 of SC/ST Act, the

another co-accused namely; Ashish @ Kalli was convicted under

Section 376 IPC and Section 3/4 of the POCSO Act by the learned

Juvenile Justice Board, Kota in regular criminal case no.128/2014

vide its judgment dated 17.04.2017 and was sentenced, under

Section 15(1)(c) of the Juvenile Justice Act, 2000, for two hours

community service on every working day at Primary Health Centre

for a period of six months. We are informed at Bar that no appeal

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was preferred by the accused Ashish Kumar @ Kalli against his

conviction recorded vide judgment dated 17.04.2017.

Assailing the impugned judgment, learned counsel for the

appellant contended that the learned trial court has erred in

recording his conviction based on conjectures and surmises in

absence of legally admissible evidence against him. Inviting

attention of this Court towards the deposition of the prosecutrix

(PW1), he would contend that it is full of contradictions and

improvements on material aspects of the case and therefore, was

not reliable. He, therefore, prayed that the appeal be allowed, the

judgment impugned dated 13.12.2018 be quashed and set aside

and he may be acquitted of the charges framed against him. In

the alternative, he prayed that the substantive sentence awarded

to him may be reduced to the sentence of 20 years-the minimum

sentence provided under Section 376D of IPC.

Per contra, learned Public Prosecutor, opposing the

submissions, contended that the learned trial court has held the

appellant guilty of the charges framed against him assigning

cogent reasons based on appreciation of the evidence available on

record which warrant no interference by this Court. He, therefore,

prayed for dismissal of the appeal.

Heard. Considered.

The learned trial court has, after appreciating the school

record of the prosecutrix, statement of Ms. Deepti Nair (PW8)- the

Principal, Central School and statement of prosecutrix as PW1,

held the date of birth of the prosecutrix to be 23.01.2000 and her

to be minor being 13 years 8 months and 22 days on the date of

incident i.e. 15.10.2013. Her date of birth or for that matter, her

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minority has not been assailed by the appellant. Therefore, we

find no reason to interfere with the same.

Genesis of the prosecution case is the typed report (Ex.D1)

submitted by Smt. Kamla Meena (PW3)-mother of the prosecutrix

with a delay of more than three months and a week from the date

of incident i.e. 15.10.2013. As per it, the delay occurred as she

had come to know in the month of December, 2013 that the

prosecutrix-her daughter had not gone to Agra to participate in

the sports meet and thereafter, when she confronted the

prosecutrix, she was found to be very frightened and only after

much consolation, she disclosed the incident. However, the

prosecutrix has, as PW-1, made no such averment; rather, has

stated that on 23.01.2014 two boys riding on a bike had cut her

hand outside the school and had threatened of her murder if she

disclosed anything against co-accused-Ramkaran as also the co-

accused Ashish. She further alleged that on the next day, four

boys riding on two bikes again threatened her whereupon, she

disclosed entire incident to her mother. But, her mother, as PW3,

stated in the examination-in-chief that Solanki Sir had informed

her to have seen the prosecutrix at Kota Station and that she did

not go to Agra along with school team and when after coming

back to home, she questioned the prosecutrix, she disclosed the

entire incident. Thus, her deposition is in stark contrast with the

explanation offered in the typed report. Furthermore to

substantiate the allegation of threatening the prosecutrix by two

boys on 23.01.2014 and on the next day, by four boys, no

evidence was led by the prosecution; rather, as a matter of fact,

the material on record does not reflect that any investigation was

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carried out in this regard. Thus, this unexplained inordinate delay

in lodging the FIR raises a serious doubt as to veracity of the

prosecution case.

Furthermore, there is material contradiction in the

prosecution case as to the source of information that the

prosecutrix did not go to Agra along with school team. As per

Ex.D1 and the deposition of the complainant-PW3, she was

informed by Solanki Sir-a Teacher in the Central School that the

prosecutrix had not gone to Agra along with school team but,

Mukesh Kumar Solanki (PW4) has deposed that brother of the

prosecutrix had telephoned him enquiring as to whether she had

gone with the school team. In his cross examination, he has

categorically denied to have talked to the complainant. Another

School Teacher namely Ritesh Kumar Chausariya as PW2, has also

claimed to have spoken only with the brother of the prosecutrix.

This contradiction also dents the reliability of the genesis of the

prosecution case.

Further, since, the first report is a typed report submitted

with a delay of more than three months and a week, it can safely

be inferred that it was made after much deliberation still, it does

not contain a specific allegation that the prosecutrix was subjected

to rape in Gangapur City at the room of the appellant by whom;

either by the appellant or, by the co-accused-Ramkaran or, by the

co-accused Ashish @ Kalli or, by all of them; rather, it contains a

bald allegation that the co-accused-Ramkaran had taken the

prosecutrix to the room of the appellant where his another friend

Ashish @ Kalli was also present and there, she was subjected to

rape. However, the prosecutrix has, as PW1, levelled specific

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allegation against all the accused of subjecting her to rape. She

has further deposed that despite her protest and repeated

screaming, they did not stop. She further alleged that they made

a video film and threatened to make it viral on internet if she

disclosed the incident to anybody. However, no such video film

was ever recovered. Furthermore, the site plan of the scene of

crime (Ex.P3) discloses that abutting the subject room, the rooms

no.A2 and A3 existed inhabited by the children of the landlord

Harkesh Meena (PW6). It also discloses that in the same

residential house, other rooms also existed and the house itself

was situated in a densely populated residential area. From the

prosecution evidence available on record, the time of alleged gang

rape comes on or around 12 o’ clock in the night. In absence of

the prosecution case that at that time, in the vicinity, there was

some loud music or sound so as to suppress the sound of

repeated screams by the prosecutrix, it is rendered highly

improbable, even if not impossible, that the person

residing/sleeping during the dead night in the vicinity in a town

like Gangapur City would not have heard the screams / protest

raised by the prosecutrix and would not have reached there; even

if not with a sense of rescuing the victim, for the sake of anxiety.

It is also worthy to notice here that although, Harkesh Meena

(PW6)-the landlord of the appellant has deposed that when he

reached to the house in the morning, his children informed that

the co-accused-Ramkaran had visited the house along with a girl

in the night but, he found there none. Conspicuously, neither the

children who had allegedly informed the PW6 nor, any other

neighbour was examined by the prosecution to lend credence to

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its story of subjecting the prosecutrix to gang rape by the accused

in the subject room or, her raising protest/alarm at that time.

Moreover, the prosecutrix has also asserted that the

appellant as also the co-accused-Ramkaran were in her company

till next evening in the room and for some time, they had gone out

locking the room whereupon, she raised hue and cry but, none

came. However, PW6 has categorically denied presence of anyone

in the house when he reached in the morning. Again, despite the

subject house being situated in the densely populated residential

area and despite hue and cry raised by the prosecutrix as claimed,

none came hearing the same which also raises a suspicion as to

reliability of the testimony of the prosecutrix.

Further, her cross-examination as PW1 reveals another

salient feature which discredits her testimony. She has stated that

when she was being undressed, she did not try to run away as the

room was locked and the accused were three in number. She has

also admitted that she was not manhandled by the accused in the

room. However, in the same breath, she has claimed that she was

intimidated by them. But, when confronted with her statement

recorded under Section 164 Cr.P.C. (Ex.P5), she feigned ignorance

as to whether the allegation of intimidation was made in it or not.

She also admitted that she had stated before the Magistrate that

she complained as to why she was being subjected to sex when

she was brought for a trip. As a matter of fact, from her statement

under Section 164 Cr.P.C., it is not revealed that she ever raised

any alarm or hue and cry when she was subjected to the alleged

offence of gang rape by the three accused including the appellant

as claimed in her court statement.

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Indisputably, the instant case hinges on the sole deposition

of the prosecutrix and we are conscious of the fact that conviction

for the offence of rape can rest only on the sole testimony of

prosecutrix provided it is intrinsically trustworthy, free from any

suspicion and is creditworthy as held by the Hon’ble Supreme

Court of India in the case of State of Punjab vs. Gurmit Singh

& Ors.-(1996) 2 SCC 384 , as under:

“xxxxxx The courts must, while evaluating evidence, remain

alive to the fact that in a case of rape, no self respecting

woman would come forward in a court just to make a

humiliating statement against her honour such as is involved

in the commission of rape on her. In cases involving sexual

molestation, supposed considerations which have no material

effect on the veracity of the prosecution case or even

discrepancies in the statement of the prosecutrix should not,

unless the discrepancies are such which are of fatal nature, be

allowed to throw out an otherwise reliable prosecution case.

The inherent bashfulness of the females and the tendency to

conceal outrage of sexual aggression are factors which the

Courts should not over-look. The testimony of the victim in

such cases is vital and unless there are compelling reasons

which necessitate looking for corroboration of her statement,

the courts should find no difficulty to act on the testimony of a

victim of sexual assault alone to convict an accused where her

testimony inspires confidence and is found to be reliable.

Seeking corroboration of her statement before relying upon

the same, as a rule, in such cases amounts to adding insult to

injury. Why should the evidence of a girl or a woman who

complains of rape or sexual molestation, be viewed with

doubt, disbelief or suspicion?

The Court while appreciating the evidence of a prosecutrix

may look for some assurance of her statement to satisfy its

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judicial conscience, since she is a witness who is interested in

the outcome of the charge leveled by her, but there is no

requirement of law to insist upon corroboration of her

statement to base conviction of an accused. The evidence of a

victim of sexual assault stands almost at par with the

evidence of an injured witness and to an extent is even more

reliable. Just as a witness who has sustained some injury in

the occurrence which is not found to be self inflicted, is

considered to be a good witness in the sense that he is least

likely to shield the real culprit, the evidence of a victim of a

sexual offence is entitled to great weight, absence of

corroboration notwithstanding. Corroborative evidence is not

an imperative component of judicial credence in every case of

rape. Corroboration as a condition for judicial reliance on the

testimony of the prosecutrix is not a requirement of law but a

guidance of prudence under given circumstances.

It must not be over-looked that a woman or a girl subjected

to sexual assault is not an accomplice to the crime but is a

victim of another person's lust and it is improper and

undesirable to test her evidence with a certain amount of

suspicion, treating her as if she were an accomplice.

Inferences have to be drawn from a given set of facts and

circumstances with realistic diversity and not dead uniformity

lest that type of rigidity in the shape of rule of law is

introduced through a new form of testimonial tyranny making

justice a casualty. Courts cannot cling to a fossil formula and

insist upon corroboration even if, taken as a whole,the case

spoken of by the victim of sex crime strikes the judicial mind

as probable. In State of Maharashtra v. Chandraprakash

Kewalchand Jain MANU/SC/0122/1990:1990CriLJ889 Ahmadi,

J. (as the Lord Chief Justice then was) speaking for the Bench

summarised the position in the following words :

A prosecutrix of a sex offence cannot be put on a par with

an accomplice. She is in fact a victim of the crime. The

Evidence Act nowhere says that her evidence cannot be

accepted unless it is corroborated in material particulars.

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She is undoubtedly a competent witness Under Section

118 and her evidence must receive the same weight as is

attached to an injured in cases of physical violence. The

same degree of care and caution must attach in the

evaluation of her evidence as in the case of an injured

complainant or witness and no more. What is necessary is

that the court must be alive to and conscious of the fact

that it is dealing with the evidence of a person who is

interested in the outcome of the charge leveled by her. If

the court keeps this in mind and feels satisfied that it can

act on the evidence of the prosecutrix, there is no rule of

law or practice incorporated in the Evidence Act similar to

illustration (b) to Section 114 which requires it to look for

corroboration. If for some reason the court is hesitant to

place implicit reliance on the testimony of the prosecutrix

it may look for evidence which may lend assurance to her

testimony short of corroboration required in the case of

an accomplice. The nature of evidence required to lend

assurance to the testimony of the prosecutrix must

necessarily depend on the facts and circumstances of

each case. But if a prosecutrix is an adult and of full

understanding the court is entitled to base a conviction of

her evidence unless the same is shown to be infirm and

not trustworthy. If the totality of the circumstances

appearing on the record of the case disclose that the

prosecutrix does not have' a strong motive to falsely

involve the person charged, the court should ordinarily

have no hesitation in accepting her evidence.”

In Nirmal Premkumar and Anr. Vs. State Rep. by

Inspector of Police-(2024) 20 SCC 293 , their Lordships have

held as under:

“24. What flows from the aforesaid decisions is that in cases

where witnesses are neither wholly reliable nor wholly

unreliable, the Court should strive to find out the true genesis

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of the incident. The Court can rely on the victim as a

"sterling witness" without further corroboration, but

the quality and credibility must be exceptionally high.

The statement of the prosecutrix ought to be consistent

from the beginning to the end (minor inconsistencies

excepted), from the initial statement to the oral

testimony, without creating any doubt qua the

prosecution's case. While a victim's testimony is

usually enough for sexual offence cases, an unreliable

or insufficient account from the prosecutrix, marked by

identified flaws and gaps, could make it difficult for a

conviction to be recorded.” (Emphasis supplied)

What evidence is of sterling worth has succinctly been

explained by their Lordships in the case of Rai Sandeep @

Deepu vs. State of NCT, Delhi-(2012) 8 SCC 21, as under:

“22. In our considered opinion, the 'sterling witness' should be

of a very high quality and calibre whose version should,

therefore, be unassailable. The Court considering the version

of such witness should be in a position to accept it for its face

value without any hesitation. To test the quality of such a

witness, the status of the witness would be immaterial and

what would be relevant is the truthfulness of the statement

made by such a witness. What would be more relevant would

be the consistency of the statement right from the starting

point till the end, namely, at the time when the witness makes

the initial statement and ultimately before the Court. It should

be natural and consistent with the case of the prosecution qua

the accused. There should not be any prevarication in the

version of such a witness. The witness should be in a position

to withstand the cross-examination of any length and

howsoever strenuous it may be and under no circumstance

should give room for any doubt as to the factum of the

occurrence, the persons involved, as well as, the sequence of

it. Such a version should have co-relation with each and

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everyone of other supporting material such as the recoveries

made, the weapons used, the manner of offence committed,

the scientific evidence and the expert opinion. The said

version should consistently match with the version of every

other witness. It can even be stated that it should be akin to

the test applied in the case of circumstantial evidence where

there should not be any missing link in the chain of

circumstances to hold the accused guilty of the offence

alleged against him. Only if the version of such a witness

qualifies the above test as well as all other such similar tests

to be applied, it can be held that such a witness can be called

as a 'sterling witness' whose version can be accepted by the

Court without any corroboration and based on which the guilty

can be punished. To be more precise, the version of the said

witness on the core spectrum of the crime should remain

intact while all other attendant materials, namely, oral,

documentary and material objects should match the said

version in material particulars in order to enable the Court

trying the offence to rely on the core version to sieve the

other supporting materials for holding the offender guilty of

the charge alleged.”

If the deposition of the prosecutrix (PW1) is tested on the

anvil of aforesaid principles, we do not find the same to be of

sterling worth or intrinsically trustworthy so as to sustain the

finding of conviction of the appellant as to the offence of rape or

for that matter, of gang rape. Following are the circumstances

which raise a suspicion as to reliability of the testimony of the

prosecutrix. As already observed, in the FIR, though, lodged with

a delay of more than three months and a week from the date of

incident after much deliberation, there is absence of specific

allegation against him of subjecting the prosecutrix to rape; in her

deposition as PW1, she has claimed to have protested and

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screamed repeatedly when being subjected to gang rape but,

despite it being the dead night and the subject room being

situated in a residential house surrounded by other rooms

inhabited by residents and the house itself being situated in a

densely populated residential area, none either heard the alarm

or, came to her rescue as also failure on the part of the

prosecution to examine any such resident/neighbour; further,

despite testimony of Harkesh Meena (PW6) that when he reached

in the morning, his children informed of bringing a girl by the co-

accused-Ramkaran but, neither the children were examined nor, it

was stated that they had disclosed to have heard the alarm raised

by the prosecutrix, as claimed by her; absence of any averment of

raising any alarm in her Section 164 Cr.P.C. statement as claimed

in her court statement; claim of continue to stay in the same room

with the accused till evening of next day and having food there

which was contradicted by PW6 who claimed to have seen none in

the following morning; her claim to have raised hue and cry when,

on the next day, the appellant along with co-accused Ramkaran

had left the room locking her inside but, none heard the same and

none came to her rescue despite the subject room being situated

in a densely populated residential area, as already observed.

The aforesaid circumstances render the testimony of the

prosecutrix highly doubtful and unreliable so far as involvement of

the appellant in the offence of rape/gang rape or, for that matter,

offences for which he was charged with is concerned so as to

sustain the finding of his conviction.

So far as the provisions of Section 29 of the POCSO Act are

concerned, since, in our considered opinion, the prosecution has

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miserably failed to establish the foundational facts necessary to

constitute the offence, we are not persuaded to draw an inference

on the strength thereof.

In view of aforesaid sketchy, inconsistent, unnatural,

insufficient and unreliable evidence, we are not persuaded to

uphold the findings of conviction of the appellant.

Resultantly, the criminal appeal no.38/2019 deserves to be

allowed. The appeal is allowed accordingly. The judgment dated

13.12.2018 passed by the Special Judge, Protection of Children

from Sexual Offences Act Cases cum Child Welfare Commission

No.2, Kota in Sessions Case No.72/2018 qua the appellant is

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

the charges framed against him. He is in jail and therefore, shall

be released forthwith, if not required to be detained in any other

case.

In view of the provisions of Section 481 of the Bharatiya

Nagarik Suraksha Sanhita, 2023, the appellant-Surajbhan is

directed to furnish a personal bond in the sum of ₹25,000/- each,

and a surety in the like amount before the Registrar (Judicial) of

this Court which shall be effective for a period of six months with

the stipulation that in the event of Special Leave Petition being

filed against the judgment or on grant of leave, the appellant

aforesaid, on receipt of notice thereof, shall appear before the

Hon’ble Supreme Court.

(ANIL KUMAR UPMAN),J (MAHENDAR KUMAR GOYAL),J

RAVI SHARMA/S1-2