BY THE COURT : (PER HON’BLE MEHTA, J.)

1. By the Judgment dated 06.08.2018 passed in Sessions Case No.10/2017, the learned Special Judge, Prevention of Children from Sexual Offences Cases, Barmer convicted and sentenced the accused appellants as below:

2. Death Reference No.1/2019 has been submitted by the learned Special Judge, Prevention of Children from Sexual Offences Cases, Barmer under Section 366 of the Cr.P.C. seeking confirmation of the capital punishment awarded to the accused Ghewar Singh and Shrawan Singh.

Appeal No.167/2018 has been filed by the accused Ghewar Singh, Prahlad Singh, Nar Singh and Shankar Singh whereas appeal No.201/2018 has been preferred by the accused Shrawan Singh for assailing the impugned Judgment.

3. As the death reference as well as the appeals arise out of the same Judgment, they have been heard and are being decided together.

4. Brief facts relevant and essential for disposal of the case are noted herein below:

5. The child victim Mst. ‘P’ (hereinafter referred to as ‘the victim’) was allegedly kidnapped from her father’s house in the night intervening 29.03.2013 and 30.03.2013. The dead body of the victim was recovered lying amongst the hills near the Kubad Mata Temple on 31.03.2013 on which, the father Shri Balwanta Ram (PW-8) lodged a report (Ex.D/4) to the SHO, Police Station Sadar Barmer on 31.03.2013 at 02.15 PM alleging inter alia that his daughter aged 15 years, who was suffering from some mental ailment, disappeared from the house on 30.03.2013. He searched for his daughter in the village but could not find her. In the morning, the dead body was seen lying amongst the hills. On the basis of this report, proceedings were registered under Section 174 Cr.P.C. as Mrig No.11/2013 (Ex.D/4). About an hour later i.e. at 03.20 PM., Smt. Deu (PW-6) wife of Shri Balwanta Ram and the victim’s mother, lodged a handwritten report (Ex.P/31) to the SHO, Police Station Mahila Thana, Barmer alleging inter alia that on 29.03.2013, Mst. ‘P’ and other children were sleeping in the house besides her. In the night at about 11 O’ Clock, Ghewar Singh son of Prahlad Singh and 4-5 other people entered into her house with torches in their hands. The informant woke up because of the flash of light and identified Ghewar Singh but could not ascertain the identity of the others. She asked Ghewar Singh as to why he had entered her house but he did not offer any explanation and went away. The informant went back to sleep. Her husband was at Barmer in connection with his labour job. Only she, the victim and other small children were sleeping in the house. At about 3 O’ Clock, she again saw Ghewar Singh and others in the courtyard of her house. They had gagged the mouth of her daughter and were forcibly kidnapping her with the intention of committing gang rape. She got up on which, Ghewar Singh threatened her with a knife hurling an insinuation that if anyone was told about the incident, the entire family would be eliminated. Fearing for her family’s life, she kept silent and did not tell anyone about the incident. After waking up in the morning, she told her brother-in-law Jagdish @ Jaggaram (PW-7) about the unfortunate incident which had taken place in the night. Jaggaram went to Ghewar Singh and inquired about the girl but he did not reply. Jagdish @ Jaggaram came back after which, Ghewar Singh made frequent calls on his mobile phone and gave misleading informations regarding the child’s location. Finally, Ghewar Singh told that the girl was sitting in the valley besides the Kubad Mata Temple and that he alone should come there. Jagdish @ Jaggaram did not go there fearing for his own life. In the meantime, her husband returned home on which, she and her brother-in-law Jagdish @ Jaggaram told him about the incident. Her husband talked to the villagers but no one could give a clue regarding the girl. In the morning of 31.03.2013 between 10.00-11.00 AM, Ghewar Singh’s father Prahlad Singh and uncle Nar Singh came to her house and admitted that Ghewar Singh had killed their daughter and pleaded that the complainant should refrain from approaching the police. The complainant and her family members refuted the suggestion on which, her husband was forcibly taken away and was pressurised to file a fictitious report at the Police Station Barmer whereas the fact remained that Ghewar Singh and others had trespassed into her house in the night time and had kidnapped the victim who was raped and murdered with the intention of obliterating the evidence of the crime. The dead body of the victim was lying in a trench amongst the hills near the village. Previously also, Ghewar Singh had indulged into untoward acts with her daughter.

6. On the basis of this report, an FIR No.32/2013 (Ex.P/48) came to be registered at the Police Station Mahila Thana, Barmer for the offences under Sections 363, 364, 366A, 450, 376A, 376D, 302, 201, 120B IPC and Section 5(G)/6 of the POCSO Act. The investigation was undertaken by Najeem Ali, Additional Superintendent of Police (PW-22) who was posted as the Circle Officer, Barmer at the relevant point of time. The I.O. proceeded to the hills where the dead body of the victim was lying. The Fard Surathaal Lash (Ex.P/39) was prepared on 31.03.2013 at 04.30 PM. As per this memo, numerous marks of injuries were noticed on the body of the girl. A black coloured trouser, coloured printed Kurta and a yellowish white floral bra were found present on the dead body of the victim. The Panchayatnama Lash (Ex.P/40) was prepared wherein, it was opined that the accused Ghewar Singh had inflicted injuries to the victim, killed her and threw the dead body into the trench. The I.O. sent the dead body of the girl to the Government Hospital Barmer where autopsy was carried out on 01.04.2013 and the postmortem report (Ex.P/28) was issued wherein, cause of death was opined to be shock due to head injury and injury to vital organ i.e. left lung. It was pertinently noted that no opinion could be given regarding rape. It is pertinent to mention here that no marks of violence were noticed by the Medical Board on the genitalia of the victim. However, hymen was missing. The accused appellants Ghewar Singh and Shrawan Singh were arrested vide arrest memo (Ex.P/14 and Ex.P/15) respectively.

7. The I.O. claims that during the course of investigation, the accused gave the informations under Section 27 of the Indian Evidence Act which led to the discoveries/recoveries as set out below:

“Ex.P/56 dated 02.04.2013 at 10.15 AM- Information given by Ghewar Singh regarding the place from where the girl was pushed off the hills.

Ex.P/54 dated 05.04.2013- Information given by Ghewar Singh regarding pointing out the place of incident i.e. an under-construction hospital where the victim was allegedly raped. It is relevant to mention here that in this document, no time is mentioned.

Ex.P/55 dated 04.04.2013 at 09.00 AM- Information given by Shrawan Singh wherein, the accused stated that he could point out the place where he and Ghewar Singh had subjected the girl to rape. Significantly, in this information, the precise description of the place as was set out in the memo Ex.P/54 is not mentioned.

Ex.P/57 dated 02.04.2013 at 10.00 AM- Information given by Ghewar Singh regarding the concealment of a Nokia mobile phone which the accused allegedly used for perpetrating the incident.

Ex.P/58 dated 05.04.2013 (no time)- Information by Shrawan Singh wherein he disclosed that he could point out the place where he and Ghewar Singh had subjected the victim to rape i.e. the building of an under-construction hospital.

Ex.P/59 dated 04.04.2013 at 09.30 AM – Information recorded at the instance of Shrawan Singh purporting to the concealing of a mobile phone allegedly used during the course of the incident.

The I.O. claimed that in furtherance of the informations provided, the two accused, took the police team to an underconstruction building of a hospital on 06.04.2013 at 9 AM where, the site inspection plans (Ex.25 and Ex.26) were prepared at 09.00 AM and 09.45 AM at the instance of Ghewar Singh and Shrawan Singh respectively. The I.O. further claimed that while the Site Inspection Plan (Ex.P/25) was being prepared, a pair of yellow coloured Chappals which the accused disclosed to be of the victim, was seen lying and was seized vide seizure memo (Ex.P/18). A note has been appended in this seizure memo that the complainant Smt. Deu identified the pair of Chappals to be that of her daughter the victim. It is relevant to mention here that the documents (Ex.P/25 and Ex.P/26) were prepared at 09.00 AM and 09.45 AM respectively whereas the document (Ex.P/18) was prepared at 09.30 AM.

Smt. Deu was not made a signatory to the site inspection plans (Ex.P/25 and Ex.P/26). However, she was made to sign the seizure memo (Ex.P/18) regarding the alleged identification of the Chappals of the victim. It is relevant to mention here that though the I.O. claims to have collected call details of the mobile phones seized during the course of investigation, but no certificate of the service provider was collected as per the mandatory requirement of Section 65B of the Indian Evidence Act. Furthermore, no effort was made by the I.O. to connect any of the recovered mobile phones to the victim.

8. After concluding investigation, a charge-sheet came to be filed against the appellants herein for the offences as below:

“Ghewar Singh and Sharwan Singh:- Sections 363, 366A, 376A, 376D, 458, 450, 302, 120B IPC and Section 5(G)/6 of the POCSO Act.

Prahlad Singh, Nar Singh and Shankar Singh: Sections 451, 347 IPC and Section 19(1)/21 of the POCSO Act.”

9. The trial court framed charges against the accused appellants in the following terms:

“Ghewar Singh and Sharwan Singh: Sections 363, 366A, 376A, 376D, 458, 450, 302, 120B IPC and Section 5(G)/6 of the POCSO Act.

Prahlad Singh, Nar Singh and Shankar Singh: Sections 347 and 201 of IPC and Section 19(1)/21 of the POCSO Act.”

They pleaded not guilty and claimed trial. The prosecution examined as many as 22 witnesses and exhibited 92 documents and marked 10 articles so as to bring home the charges against the accused. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against them in the prosecution evidence, the accused denied the same and claimed to have been falsely implicated. One witness was examined and 8 documents were exhibited in defence. After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and, appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellants as above. Hence the death reference and the appeals have been registered against the judgment dated 06.08.2018.

10. Learned counsel Shri Dhirendra Singh representing the appellants Ghewar Singh, Prahlad Singh, Nar Singh and Shankar Singh and learned counsel Shri Pritam Solanki representing the appellant Shrawan Singh, vehemently and fervently contended that the entire prosecution case is false and fabricated. The theory that the appellants Ghewar Singh and Shrawan Singh kidnapped the victim from her father’s house, is totally concocted. Smt. Deu (PW-6) claims to have witnessed the alleged kidnapping of her daughter with her own eyes at 3 AM but despite that, she casually went to sleep without making any effort whatsoever to raise a hue and cry nor did she make a complaint of the alleged kidnapping to her family members i.e. Jaggaram @ Jagdish etc. who reside in the immediate vicinity. Shri Balwanta Ram, who was allegedly present in Barmer at the time of the incident, was informed and he reached the village well before on 30.03.2013 itself. Upto that time, there was not even a semblance of the so-called threat to the victim’s family members which could have prevented them from approaching the police and lodging the report. They urged that the theory portrayed in the subsequent report (Ex.P/31) and in the evidence of the material prosecution witnesses Smt. Deu (PW-6), Jaggaram @ Jagdish (PW-7) and Balwanta Ram (PW-8) that the accused and their family members extended threats to these witnesses and that is why, they were prevented from lodging a prompt FIR or that the report (Ex.D/4) was manipulated by the accused persons, is falsified from the evidence of the I.O. Shri Najeem Ali (PW-22) who admitted in cross-examination that no such complaint was received by him during investigation, that the complainant party had been thwarted by the accused persons from lodging a timely report with correct details. It was further urged that as there is no allegation in the first report (Ex.D/4) regarding the accused having kidnapped the child and thus, the gross improvement made on this aspect in the subsequent report (Ex.P/31) to this effect has to be discarded. They urged that the report (Ex.P/31) is a purely post investigation document and cannot be relied upon. Learned defence counsel extensively referred to the sworn testimony of the material prosecution witnesses Smt. Deu (PW-6), Jaggaram @ Jagdish (PW-7), Balwanta Ram (PW-8) and the investigating officer Najeem Ali (PW-22) and pointed out the stark contradictions emerging therein and urged that the same do not inspire confidence. It was further urged that the prosecution has portrayed a pertinent theory that the victim was first subjected to rape by multiple assailants and then, she was pushed off from the top of the hill thereby killing her. In this backdrop, learned defence counsel took the Court through the evidence of the Medical Jurist (PW-5) Dr. Arun Kumar and pointed out that the Members of the Medical Board did not notice any mark of sexual violence upon the victim and as such, the theory that she was first subjected to gang rape and then was killed by pushing her off the hill so as to efface the evidence, is totally falsified. It was further urged that the recovery of the Chappals of the victim, which has been attributed to the accused Ghewar Singh, is fabricated and does not inspire confidence. Learned counsel also submitted that the FSL reports (Ex.P/50 and Ex.P/51) do not incriminate the accused in any manner because no semen was detected on the clothes of the victim or the vaginal swab and smear collected from her genital regions. Learned counsel representing the appellants Nar Singh and Prahlad Singh, urged that conviction of these appellants for the alleged obstruction given to the complainant in lodging of the report is totally unjustified because there is no corroboration of the entirely cooked up allegation made by Smt. Deu (PW-6) and Shri Balwanta Ram (PW-8) that the accused persons coerced them into filing the report (Ex.D/4) with false assertions. Learned counsel Shri Pritam Solanki submitted that the accused Shrawan Singh is not named in the FIR and his name has been introduced in the case by way of a sheer improvement and hence, the evidence of the prosecution witnesses is fit to be discarded.

On the basis of these submissions, learned defence counsel vehemently and fervently urged that the findings recorded by the trial court in the impugned Judgment that the prosecution has succeeded to bring home the charges by cogent and convincing evidence, are totally unsubstantiated, perverse and conjectural in nature and hence, the impugned Judgment deserves to be quashed and set aside; the death reference be answered in the negative and the appeals preferred by the appellants deserve to be accepted and they are entitled to an acquittal.

11. E converso, the learned Public Prosecutor and learned counsel Shri Karwasara representing the complainant, vehemently and fervently opposed the submissions advanced by the learned defence counsel. They urged that the complainant had no motive whatsoever to falsely implicate the accused in this case which involves the heinous allegation of kidnapping, rape and murder of a child aged 12 years. The child’s mother being the first informant was threatened by the accused persons with dire consequences right at the time of the incident and again on 31.03.2013 and thus, she and her husband were impeded from lodging a timely FIR because of fear for their own lives. The fact that the child was kidnapped by Ghewar Singh and his companions, has been duly corroborated by the circumstance of recovery of the footwear of the victim from the unfinished building of a hospital where the child was subjected to forcible sexual assault. Though the certificate under Section 65B of the Indian Evidence Act was not proved by the prosecution but as the defence itself did not dispute the call detail records, they have to be read against the accused. The evidence of the material prosecution witnesses does not suffer from any significant contradictions or infirmities so as to discard the same.

On these submissions, the learned Public Prosecutor and the complainant’s counsel sought confirmation of the impugned Judgment, dismissal of the appeals preferred by the accused appellants and affirmation of the Death Sentence awarded to the accused Ghewar Singh and Shrawan Singh.

12. We have given our thoughtful consideration to the submissions advanced at bar and, have carefully and minutely reappreciated the evidence available on record.

13. As the prosecution has come out with a categoric theory that the accused Ghewar Singh and Shrawan Singh kidnapped the victim from the lawful guardianship of her parents with an intention of subjecting her to rape and that the child was sexually assaulted and was thereafter, done to death with an intention of effacing the evidence of the crime, it would be apposite to first refer to the medical evidence led by the prosecution to substantiate and corroborate these allegations. The dead body of the child was subjected to autopsy by a Medical Board constituted at the Government Hospital, Barmer. Dr. Arun Kumar (PW-5) was a Member of the said Medical Board. While deposing on oath, he categorically mentioned that there was no mark of injury on the genitalia of the victim. The hymen was absent and one finger was entering into the vagina of the victim. In cross-examination, the doctor admitted that the fatal injuries, which were noted on the dead body of the victim, could be received by a fall from the hill. The doctor also admitted that if two persons had subjected the victim to rape, then there was an imminent possibility of injuries being caused on her genital area. As per the FSL reports (Ex.P/49 to Ex.P/52), when the clothes, the vaginal swab and smear and the pubic hair of the victim were analysed at the Forensic Science Laboratory, the same did not test positive for presence of semen. As per the prosecution, the child was done to death immediately after she had been ravished by the two alleged assailants. In this background, there was an imminent likelihood of semen being detected in the vaginal swab and smear and the pubic hair of the victim when the serological analysis was carried out.

Upon reading the evidence of the Medical officer in conjunction with the FSL reports (supra), we have no hesitation in holding that the prosecution has miserably failed to prove that the victim was subjected to gang rape by the accused Ghewar Singh and Shrawan Singh. As a matter of fact, the medical evidence and the expert reports, totally eliminate the possibility of sexual violence having taken place with the girl before her death.

The trial court has given much credence to the fact that semen was detected in the underwear of the accused and this gave an indication of their involvement in a sexual offence. However, we are of the firm view that by no stretch of imagination, presence of semen on the underwear of the accused can be considered to be an incriminating circumstance because the undergarments were recovered after 2-3 days of the incident. Both the accused are young men and the possibility of the underwear being stained by their semen due to nocturnal emissions, cannot be ruled out in the natural course of events. This suggestion given by defence in cross-examination was admitted by the Medical Jurist Dr. Arun Kumar (PW-5). Thus, the finding recorded by the trial court holding that the presence of semen on the undergarments incriminates the accused, is not sustainable.

14. Regarding the delay in lodging of the FIR, the primary thrust of the prosecution allegations as against the accused was that they extended threats to Smt. Deu while kidnapping the girl and that even thereafter, insinuations of dire consequences were given to the complainant party so as to prevent them from filing a report to police. Not only this, Balwanta Ram (PW-8) was forcibly taken to the Police Station Barmer and was coerced into filing the report (Ex.D/4) with totally false assertions. For the sake of repetition, it may be mentioned here that in this report, it was mentioned that the informant’s daughter aged 15 years, who was suffering from mental instability, had gone missing from the house on 30.03.2013. A search was made for the girl in the village and in the morning of 31.03.2013, her body was found near the Kubad Mata Temple. This report was lodged on 31.03.2013 at 02.15 PM. An hour and five minutes later i.e. 03.20 PM, a handwritten report (Ex.P/31) came to be submitted by Smt. Deu to the SHO, Police Station Mahila Thana, Barmer. In this report, Ghewar Singh was named whereas the other assailants were not identified. It was alleged that first, Ghewar Singh and 4-5 other unknown assailants, made an attempt to trespass into the complainant Smt. Deu’s house at 11 O’ Clock in the night. The complainant woke up, on which the accused went away. The complainant went back to sleep. She again noticed the presence of the accused Ghewar Singh and other unknown assailants in the courtyard of her house at 3 O’ Clock in the night and that they had gagged the mouth of the victim and forcibly kidnapped her with an intention of subjecting her to gang rape. The accused gave threats due to which, the lady became petrified and thus, she did not inform anyone of the incident. In the next morning, she told her brotherin-law Jagdish of the unfortunate events who in turn intimated her husband. Jagdish then approached Ghewar Singh and asked him about the girl who divulged that she was sitting in the valley near the Kubad Mata Temple.

At this point, we would like to take note of some significant facts narrated in this report. As the complainant has tried to portray in the report that when she woke up in the night at about 3 O’ clock upon being startled by the noises, she saw that the accused persons were forcibly kidnapping her daughter after gagging her mouth. If that was the situation, there was no possibility that the victim would be in any position to carry a mobile phone with her or to put on the slippers. Admittedly, she was sleeping at the time of the alleged incident and thus, there was no possibility that she would have the opportunity to put on the footwear or to carry the mobile phone with her.

The second thing which emerges from the report (Ex.P/31) is that the complainant’s husband was informed about the incident in the morning of 30.03.2013 and he returned to the village soon thereafter. On the very same day i.e. 30.03.2013, the accused allegedly divulged to the complainant’s brother-in-law Jaggaram @ Jagdish, the place where the girl was sitting. Till that time, admittedly, no threat or insinuation whatsoever had been given by the accused to the complainant party not to approach the police etc. Thus, in the natural course of events, immediately on coming to know about the location of the girl (with there being no information that she was no more), the family members would have rushed to the temple area for tracing her out. However, during the entire day i.e. 30.03.2013, the family members did not make any effort whatsoever to proceed to the place where the girl was allegedly available as per the information provided by the accused nor did they try to approach the police even though there was no impediment which prevented them from doing so. At this stage, we would like to extract the relevant parts of the statements of the material prosecution witnesses i.e. Smt. Deu (PW-6), Jaggaram @ Jagdish (PW-7), Balwanta Ram (PW-8) and Najeem Ali (PW-22):

“(i) Smt. Deu (PW-6)

-Chief Examination-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

-Cross Examination-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

(Emphasis supplied)

(ii) Jaggaram @ Jagdish (PW-7)

-Chief Examination-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

-Cross Examination-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

(Emphasis supplied)

(iii) Balwanta Ram (PW-8)

-Chief Examination-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

-Cross Examination-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

(Emphasis supplied).

(iv) Najeem Ali (PW-22)

-Cross Examination-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

(Emphasis supplied).

On a threadbare analysis of the statements of these witnesses, it becomes clear as daylight that firstly, a conscious attempt has been made by the witnesses to introduce the name of Prahlad Singh as being present in the house of the complainant at the time of the alleged kidnapping. No justification has been offered regarding the omission of his name even in the highly belated subsequent report (Ex.P/31). Furthermore, it is also clear that the complainant Smt. Deu, had ample opportunity to approach her closest family member Jaggaram @ Jagdish, who resides immediately next door but she made no effort whatsoever in this direction. As per the statement of Jaggaram @ Jagdish (PW-7), Smt. Deu told him of the incident at about 09.30 in the morning. This clearly indicates an unnatural conduct of Smt. Deu. It is also not in dispute that on 30.03.2013, no one from the side of the accused had approached the complainant or her family members nor had anyone extended threats to them. Rather, as per the language of the FIR, the accused Ghewar Singh had divulged the location of the victim to Jaggaram @ Jagdish in the late hours of 30.03.2013 but despite that, no one from the family of the complainant, made any effort to proceed to the place where the victim was available because by that time, they had no idea regarding the child having been done to death. As the complainant and her family members had no idea that the victim had been killed, the natural human conduct demanded that they should have immediately rushed to the hills for locating her. If at all, they had got wind of the victim having been murdered then they should have proceeded to the police station for reporting the matter because there was no hindrance against them from from doing so. Thus, the conduct of the complainant Smt. Deu in not making any effort to approach her family members in the night immediately after the girl had allegedly been kidnapped; casually going back to sleep as if nothing had happened; in informing her brother-in-law Jagdish about the so-called incident as late as at about 09.30 in the next morning; Balwanta Ram (PW-8) and Jaggaram @ Jagdish (PW-7) in not proceeding to the hills where the girl was allegedly available on 30.03.2013; in not reporting the matter to the police on 30.03.2013 despite available opportunity; in trying to disown the first report (Ex.D/4) on the unsubstantiated allegation that the accused had threatened them and got the facts manipulated, completely demolishes the credibility of the witnesses Smt. Deu (PW-6), Jaggaram @ Jagdish (PW-7) and Balwanta Ram (PW-8).

15. There is yet another circumstance which convinces us that the above mentioned three prosecution witnesses are speaking blatant lies. In this regard, we would like to refer to the evidence of Kaluram (PW-10) who stated that Gumana Ram called him and told him that Balwanta Ram’s daughter had been killed by Ghewar Singh and Shrawan Singh. He went to the village Radwa where number of people had gathered around in front of the house of Sarpanch Trilok Singh. He told the Sarpanch that the dead body was lying in the hills for the last three days and thus, the police should be informed. A little later, police came there. Thus, apparently, the entire story of the principal prosecution witnesses is falsified by the version of Kaluram.

(Emphasis supplied).

16. We are also of the firm opinion that conduct of the investigating officer Najeem Ali (PW-22) while undertaking investigation, was highly tainted. In this regard, it would be worthwhile to reiterate the fact that even though, none of the material witnesses stated that the deceased was having a mobile phone but despite that, the investigating officer tried to portray that he recovered the mobile phone of the victim at the instance of the accused Ghewar Singh vide recovery memo (Ex.P/20). Not only this, absolutely fake recovery of the footwear of the victim was shown to have been effected vide memorandum (Ex.P/18). If at all the incident had taken place in the manner as alleged in the second report (Ex.P/31) and in the testimony of Smt. Deu (PW-6), there was absolutely no possibility that the victim could have worn the footwear. As per the prosecution case, the accused forcibly kidnapped Mst. ‘P’ from her bed while she was sleeping at 03.00 AM in the morning. In this background, there was no possibility of her, getting an opportunity to put on the chappals. Thus, the recovery of the chappals vide memorandum (Ex.P/18) is concocted. The material prosecution witnesses have tried to portray that the accused initially gave them threats by mobile calls. However, the I.O. made no effort whatsoever to ascertain the numbers of the mobile phones in use of Jaggaram @ Jagdish or Balwanta Ram. On the contrary, both these witnesses denied that they were possessing any mobile phone. This is yet another suspicious circumstance in the prosecution evidence which makes the entire thrust of allegations doubtful. The I.O., on being crossexamined, randomly stated that he assumed that the mobile No.9660778490 was that of victim Mst. ‘P’. The said mobile was referred to in the call detail record (Ex.P/63) as per which, there was a conversation between the mobile number of Ghewar Singh and the mobile number alleged to be of Mst. ‘P’ on 30.03.2013 at 02.18.34 PM. The I.O. also admitted that a SMS was sent from the mobile number alleged to be of the deceased to the mobile number of Jaggaram @ Jagdish on 30.03.2013 at 13.51 PM. However, the I.O. did not collect any details regarding the said SMS from the service provider. If at all, the incident had taken place in the manner alleged, there was no justification for the exchange calls and messages in this manner. On insistent crossexamination, the I.O. admitted that the community to which the complainant party belongs to, indulged into protests and strikes due to the incident. He admitted not being able to collect direct evidence regarding the alleged rape and murder.

The Sarpanch Trilok Singh was examined as DW-1. In his examination-in-chief, the witness categorically stated that Balwanta Ram brought the report (Ex.D/4) to him on 31.03.2013 wherein, it was written that Mst. ‘P’, who was mentally unstable, had been found dead near the Kubad Mata Temple. None of the accused persons were present with Balwanta Ram at that time nor did they force Balwanta Ram to file such report. No crossexamination whatsoever was made from the Sarpanch on this aspect of his testimony. The fact that even in the belated report (Ex.P/31), Shrawan Singh was not named and that his name has been introduced in the case as one of the kidnappers at a subsequent stage during the testimony of the witness, clearly shows that the intention of the prosecution witnesses was all along to somehow or the other entangle the accused persons in the offence. The element of involvement of the accused persons in the case under the pressure of the community to which the complainant belongs to, is writ large from the evidence available on record. The testimony of the sole prosecution eye witness the complainant Smt. Deu (PW-6) is not trustworthy. The report (Ex.P/31) was manifestly not her creation because the witness was not familiar with the words ‘अनाधिक ृत, गंग रेप’, etc. which were used in the written report. The witness admitted that she was not familiar with these words. For the sake of repetition, it may be mentioned that the conduct of Smt. Deu (PW-6) in not informing anyone of the incident immediately or within a reasonable time after the victim had been allegedly kidnapped and the gross delay in lodging of the FIR, makes her testimony doubtful and unreliable. Other than her testimony, there is nothing on record which can connect the appellants with the alleged crime. The regimented improvements in the prosecution case which are manifested from the testimony of the prosecution witnesses completely demolish the creditworthiness of the entire case. The theory that the accused persons kidnapped the girl on the night intervening 29.03.2013 and 30.03.2013; subjected her to gang rape at the under-construction hospital and then threw her down from the hills thereby killing her, is totally conjectural and untenable on the face of the record. Medical Jurist Dr. Arun Kumar (PW-5) affirmed the fact that no marks of sexual violence were noticed on the genital area of the victim. Coupled with this observation, the absence of semen in the samples (swab, smear and hair) collected from the victim’s body, completely rules out the possibility of the victim having been subjected to rape by multiple assailants.

17. After perusing the impugned Judgment threadbare and, on going through the findings recorded by the trial court holding that the prosecution has proved its case against the accused beyond all manner of doubt, we are of the firm view that the trial court fell in a grave error in accepting the evidence of the prosecution witnesses to be a gospel truth and in recording the adverse findings against the accused on the basis of such suspicious testimony. To a great extent, the findings which have been recorded by the trial court in the impugned Judgment, are conjectural on the face of the record.

18. In wake of the discussion made herein above, we are of the firm view that the conviction of the appellants as recorded by the trial court for the offences mentioned above cannot be sustained.

19. As a consequence, the appeals deserve to be and are hereby allowed. The impugned Judgment dated 06.08.2018 passed in Sessions Case No.10/2017, the learned Special Judge, Prevention of Children from Sexual Offences Cases, Barmer is hereby set aside. The accused appellants are acquitted of all the charges. The Death Reference is answered in the Negative. The accused appellants Ghewar Singh and Shrawan Singh are in custody. They shall be released from prison forthwith if not wanted in any other case. The accused appellants Prahlad Singh, Nar Singh and Shankar Singh are on bail. They need not surrender. Their bail bonds are discharged.

20. However, keeping in view the provisions of Section 437-A Cr.P.C., each of the appellants is directed to furnish a personal bond in the sum of Rs.40,000/- 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 a Special Leave Petition against the present judgment on receipt of notice thereof, the appellants shall appear before the Supreme Court.

21. Record be returned to the trial court forthwith.