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Rajasthan High Court · body

2019 DIGILAW 1843 (RAJ)

Amit Kumar Sharma v. State of Rajasthan

2019-07-01

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT : Goverdhan Bardhar, J. 1. Challenge in all the three criminal appeals have been made by the appellants to the judgment of conviction and sentence dated 27.3.2014 passed by the Court of learned Additional District and Sessions Judge, Tijara, District Alwar, (for short 'the learned trial Court') in Sessions Case No. 44/2012, State of Rajasthan vs. Ishwar Singh and Ors., whereby the learned trial Court has convicted and sentenced the appellants as under:- All the appellants U/s. 363 IPC: Five years rigorous imprisonment and fine of Rs. 3,000/-, in default of payment of fine to further undergo two months rigorous imprisonment. U/s. 366 IPC: Seven years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine to further undergo three months rigorous imprisonment. U/s. 342 IPC: Six months rigorous imprisonment and fine of Rs. 500/-, in default of payment of fine to further undergo 15 days rigorous imprisonment. Appellants Ishwar Singh & Isha U/s. 506 IPC: One year rigorous imprisonment and fine of Rs. 1,000/-, in default of payment of fine to further undergo one month rigorous imprisonment. Appellant-Ishwar Singh U/s. 376(1) IPC: Ten years rigorous imprisonment and fine of Rs. 7,000/-, in default of payment of fine to further undergo five months rigorous imprisonment. Appellants Ishwar Singh & Amit Kumar U/s. 376(1)(G) IPC: Life imprisonment and fine of Rs. 10,000/-, in default of payment of fine to further undergo six months rigorous imprisonment. Appellant- Isha U/s. 376/120B IPC: Ten years rigorous imprisonment and fine of Rs. 7,000/-, in default of payment of fine to further undergo five months rigorous imprisonment. All the sentences were ordered to run concurrently. 2. Facts of the case in nutshell are that on 8.6.2012 complainant Vijay Kumar Saini (PW 2) resident of Bhiwadi along with victim (PW 1) and wife PW-17 Smt. Anita submitted written report (Ex. P7) to the Superintendent of Police, Bhiwadi to the effect that date of birth of victim is 22.12.1994. In the year 2009 she was admitted in Class X in Central Academy School, Bhiwadi and she continued her studies in Class XI in this school. There was no teacher of Maths subject in the school and Isha Madam, who was Accountant, used to teach Maths subject. She also used to give tuition to victim at the residence of complainant. In the year 2009 she was admitted in Class X in Central Academy School, Bhiwadi and she continued her studies in Class XI in this school. There was no teacher of Maths subject in the school and Isha Madam, who was Accountant, used to teach Maths subject. She also used to give tuition to victim at the residence of complainant. In Class XII accused-appellant Ishwar was teaching Physics and Chemistry subjects to the victim in School and he also used to come for tuition to the victim at the residence of complainant. In first Week of January, 2012 Isha Madam came to his house at 12 o'clock noon and told that some Officer of Board had come at Trehan and if they go and meet him, he may extend favour to award good marks to her. Victim went with accused Isha Medam to Trehan. She took victim in a flat, but except Ishwar Singh no Officer of Board was present there. When victim inquired that no officer of Board is present there, then Isha Madam served a soft drink mixed with some intoxicant. After drinking it, she fell in a semi-conscious state. Isha Madam bolted the room from outside. The allegation is that when the victim regained her senses, she found that Ishwar Singh had committed rape on her and took her naked photos and prepared a video clip. When victim told that she would disclose about the incident to her father and mother then these persons threatened her that in case any complaint was made, they would make the naked photos, clips and video public and after recording in C.D., they would sell it in Bhiwadi and would supply to the Cable Operator for display. Ishwar Singh used to blackmail the victim but every time he was assuring her that he would destroy the photos and under this pressure he used to commit rape with her. Ishwar Singh also obtained some love letters from the victim. Thereafter Ishwar Singh made a phone call that he had given the mobile chip to his friend Naresh. Thereafter, she received phone call from Naresh and he called her at a Restaurant near her house to get the mobile clips. When she went there, Naresh told her that the chip is at his house and she has to go there. Upon this victim went to Ashiyana Angan with Naresh. Thereafter, she received phone call from Naresh and he called her at a Restaurant near her house to get the mobile clips. When she went there, Naresh told her that the chip is at his house and she has to go there. Upon this victim went to Ashiyana Angan with Naresh. He took her in a flat and shut the door of room and forcibly committed rape with her. His daughter filled up the A.E.E.E. examination form and she was allotted centre at Ajmer for examination scheduled on 29.4.2012. On 27.4.2012 Ishwar Singh made a call saying that other 15 girls from his Coaching Center are going to Ajmer with their parents to take the examination and she may also accompany them. On 28.4.2012 Ishwar Singh met her at Samtal Chowk, Bhiwadi and took her in car and proceeded for Ajmer. On the way, ahead of Dharukehda, two boys Vicky Agrawal (Agrawal Vastralay, Bhiwadi) and Amit (Suruchi Saree Centre, Bhiwadi) also sat in the car. In the evening at 6 p.m. they reached Ajmer. From Ajmer, Ishwar Singh took her to Pushkar. In the night at 10 p.m. they reached a hotel. Ishwar, Vicky and Amit insisted her to sleep in the room. The victim objected to it but Ishwar Singh showed her nude photos, video clips in mobile and asked her to please them. Thereafter, these persons raped her for the whole night in the hotel room and she was detained in the room till the next day upto 12:30 P.M. and they did not permit to take her examination. On 29.4.12 at 10 p.m. she reached her house. Thereafter again Ishwar Singh made a call saying that he has got another chip with him and called her to the coaching centre. The victim went there and Ishwar committed rape with her. Next day, victim at her own went to coaching centre and secretly took out chip from mobile and came back. Thereafter she remained silent. On 17.5.2012, in the night at 12 O'clock complainant and his wife noticed that light was on in the room and they went to her room and saw that the victim was trying to consume poison and one suicide note was lying on the bed. They stopped her. Then victim narrated the whole story. Thereupon, complainant and his wife met Isha Madam. Isha Madam told them to drop the matter. They stopped her. Then victim narrated the whole story. Thereupon, complainant and his wife met Isha Madam. Isha Madam told them to drop the matter. Complainant started receiving threats on his mobile. On 31.5.2012 complainant had to vacate the house, shut down his shop and come to Rohtak. 3. On the basis of aforesaid written report, FIR No. 339/2012 was registered at Police Station Bhiwadi for the offences under sections 376, 376(2)(G) & 120B IPC. 4. After completion of investigation, the police submitted charge-sheet against accused Ishwar Singh for the offences under sections 363, 366, 342, 506, 376, 376(2)(G) IPC, against accused Amit Kumar for the offences under sections 363, 366, 342, 376(2)(G) and against accused Isha for the offences under sections 363, 366, 342, 506, 376 read with section 120B IPC in the court of learned Judicial Magistrate, Ist Class, Tijara. After taking cognizance in the matter by the learned trial court against the accused persons, the case was committed to the Court of Sessions Judge, Alwar, from where the case was transferred to the learned trial court. Co-accused Naresh Kumar absconded and investigation against him was kept pending under section 173(8) Cr.P.C. The learned trial court, thereafter, framed the charges against accused persons for the aforesaid offences, who denied the charges and claimed to be tried. The prosecution in support of its case recorded the statements of twenty one witnesses and twenty nine documents were exhibited. Thereafter, the accused/appellants were examined under Section 313 Cr.P.C. In defence, only accused/appellants Ishwar Singh and Isha produced their evidence. The learned trial court after considering the evidence led during the course of trial convicted and sentenced the accused/appellants for the charges levelled against them vide impugned judgment/order dated 27.03.2014. The appellants aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence have preferred the instant criminal appeals. 5. Mr. Vinay Pal Yadav, learned counsel appearing for accused Amit Kumar argued that the learned trial court has failed to consider that while appreciating the evidence in a criminal case, the court should have kept in view the two cardinal principles that the guilt against the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lies on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the plea taken by him. There are several infirmities and contradictions in the statements of the prosecution witnesses and therefore, no reliance can be placed upon the testimony of such witnesses. The appellant has been falsely implicated in this case just to extort money otherwise he had no concern with the alleged crime and has not committed any such alleged offences. Actually the prosecutrix was having affair with the main accused Ishwar Singh and wanted to marry him. Being known and friend of co-accused Ishwar Singh, the appellant has been falsely implicated in this case. The learned Trial Court has further failed to consider that in this case that the incident was alleged to have taken place from first week of January 2012 till the month of April 2012 and regarding the said incidents the complainant i.e. father of prosecutrix namely Vijay Kumar Saini PW-2 and mother of prosecutrix namely Anita PW-16 came to know on 17/05/2012 through the alleged suicide note Ex. P-1 of the prosecutrix but even then the F.I.R. was lodged after considerable delay of 22 days after due consultation and with wrong and concocted facts. There is no sufficient explanation regarding the said delay. The delay in lodging the F.I.R. always provides an opportunity to the complainant to lodge a false and concocted report with ulterior motive to implicate the innocent persons like the present appellant. The learned Court below has further failed to consider that in this case no nude photo, video clips etc. were produced in the court, whereas, the complainant has stated that he handed over the same to the Superintendent of Police. The appellant was not previously known to the victim nor any identification parade was got conducted to establish his identity. As per PW-8 Devendra Rathore, hotel receptionist, only three boys were there but he did not say anything about the girl. Hence, the entire prosecution story is false and concocted. 6. Mr. Biri Singh Sinsinwar Sr. Advocate assisted by Mr. Rajesh Choudhary learned counsel appearing for accused Isha argued that the learned Trial Court has erred in convicting the accused appellant by relying on the statement of prosecutrix Shaifali PW-1, though, her statement has been disbelieved as regards co-accused Umesh Bansal alias Vicky who has been acquitted from all the charges. Mr. Biri Singh Sinsinwar Sr. Advocate assisted by Mr. Rajesh Choudhary learned counsel appearing for accused Isha argued that the learned Trial Court has erred in convicting the accused appellant by relying on the statement of prosecutrix Shaifali PW-1, though, her statement has been disbelieved as regards co-accused Umesh Bansal alias Vicky who has been acquitted from all the charges. The learned trial court has erred in not relying on the statement of DW-1 Aparna Mathur who specifically stated that Isha worked in the institution from 06.04.2010 to 15.05.2011. She was not the employee of the institution in the month of January 2012 as deposed by Shaifali. Thus, the contention of Shaifali that the appellant was teaching in the Central Academy, Bhiwadi in the Month of January 2012 when she came in contact with Shaifali, is totally false. The prosecutrix has stated in her typed report as well as in her statements recorded under Sections 161 and 164 of Cr.P.C. that Umesh Bansal alias Vicky committed rape with her. She repeated the same allegation before the court in her examination-in-chief but in her cross examination she stated that Umesh Bansal alias Vicky committed rape with her. It shows that she is not a reliable witness and she had changed her version for giving benefit to co-accused for reasons best known to her. Co-accused Ishwar was teaching the prosecutrix in her school as well as at her home/coaching centre. What transpired between them was not in the knowledge of the appellant. The entire facts and circumstances of the case go a long way to show that the prosecutrix, who is at the age of majority, had relationship with co-accused Ishwar of her own free will. As is also clear from her statement, she on receiving call from Ishwar, went to the coaching centre and also to other places, for which the appellant cannot be held liable. The learned Trial Court has erred in not taking into consideration that the incident alleged to have taken place in January 2012 and report for the same has been lodged in June 2012. There is no satisfactory explanation on record for lodging the report after such a long delay. It also casts a serious doubt about the truthfulness of the prosecution story. The learned trial court has erred in not considering Ex. There is no satisfactory explanation on record for lodging the report after such a long delay. It also casts a serious doubt about the truthfulness of the prosecution story. The learned trial court has erred in not considering Ex. D.1 to D.8 which have been produced by co-accused to show that she wrote letters to co-accused Ishwar Singh and was a consenting party. The accused appellant has been convicted with the aid of section 120-B IPC, though there is not an iota of evidence on record to connect her with the crime for offence under section 366 read with section 120-B IPC. It is submitted that for making out case under section 120-B IPC, the factum of criminal conspiracy, on the basis of strong evidence is required to be proved by the prosecution but in the instant case the prosecution has utterly failed to prove the criminal conspiracy. 7. Mr. Ashvin Garg learned counsel appearing for the accused appellant Ishwar Singh has argued that in the present case, the deposition of the prosecutrix PW 1, her father PW 2- Vijay Kumar, her mother PW 17- Smt. Anita do not inspire confidence. The prosecution has not disclosed the true genesis of the crime. The prosecution has not explained the inordinate delay in lodging the FIR even when the incident had come to their knowledge on 17.05.2012. The prosecution has not explained the delay in getting the statement of prosecutrix recorded under section 164 Cr.P.C. No reliance can be placed on the evidence of PW 1 prosecutrix. At every stage she has changed her version, made material improvements and given an exaggerated version. Her testimony is not corroborated from the circumstantial evidence or medical evidence or any other independent evidence. Report (Ex. P7) was made on 08.06.2012 at the Police Station. Her statement (Ex. P2) under section 164 Cr.P.C. was recorded as late as on 09.07.2012. The prosecution has given no explanation for such an inordinate delay in recording her statement. Obviously, time was consumed to pressurize the prosecutrix to make false statement. Therefore, no reliance can be placed on it. In the statement (Ex. Her statement (Ex. P2) under section 164 Cr.P.C. was recorded as late as on 09.07.2012. The prosecution has given no explanation for such an inordinate delay in recording her statement. Obviously, time was consumed to pressurize the prosecutrix to make false statement. Therefore, no reliance can be placed on it. In the statement (Ex. P2) recorded under section 164 Cr.P.C., the prosecutrix has not stated the incident that accused Naresh Kumar had called her at restaurant near her house for returning the chip and when she reached there, she was taken to Ashiyana Angan and in the flat, Naresh Kumar committed rape with her. In her entire statement she has not named Naresh Kumar. What the prosecutrix has stated in the Court, has not been stated by her in her statement recorded by the police or in the statement (Ex. P2) recorded under section 164 Cr.P.C. and her statements are not corroborated. The statement of prosecutrix of taking her to Trehan instead of Ashiyana is not corroborated from the site-plan Ex. P3 prepared at the instance of the prosecutrix and her father. This site plan is of flats of Ashiyana Trehan and the prosecutrix has stated that in Flat No. G-12 of flats-G block the rape was committed. Thus, the court statement of the prosecutrix is not corroborated from the site plan. No site plan of Trehan was prepared by the police. The prosecutrix in her statement at page 6 has stated that she was under depression for last one year but her mother PW 17- Smt. Anita has stated at page 8 that prosecutrix was not under depression. The prosecutrix has alleged in the complaint, in the statement under section 164 Cr.P.C. and in the Court statement that one Vicky Agrawal also committed rape with her in the hotel at Pushkar. But in the Court, the prosecutrix has refused to identify Vicky Agrawal and has stated that he did not commit rape with her in the hotel at Pushkar and some Vicky Agrawal had committed rape with her. At every stage the prosecutrix has indulged in changing her statement. From the statement of PW 15 Dr. Neelam Kumari and the medical report (Ex. P18) it is clear that there was no injury on the person or private parts of the prosecutrix indicating forcible intercourse. At every stage the prosecutrix has indulged in changing her statement. From the statement of PW 15 Dr. Neelam Kumari and the medical report (Ex. P18) it is clear that there was no injury on the person or private parts of the prosecutrix indicating forcible intercourse. Absence of injuries clearly shows that the prosecutrix did not put any resistance to the alleged rape committed by the accused forcibly. The learned trial Judge has failed to consider that the allegation of the prosecutrix regarding commission of rape upon her in January, 2012 is totally false. The flats at Trehan are duly watched by security guards. Entry of all persons visiting flats at Trehan is made, their arrival time and departure time is noted, the number of vehicles are noted. The prosecution has not produced any employee of Trehan Developers working as security guard at the relevant time. Even no statements of security guards were recorded under section 161 Cr.P.C. Thus, the prosecution has utterly failed to prove that the prosecutrix had visited Trehan flats and in the absence of any independent evidence it can not be assumed that the prosecutrix has visited the flat at Trehan. The prosecution has not produced any independent witness of the locality of coaching centre who had seen the prosecutrix visiting coaching centre of appellant. The learned Trial Judge has failed to appreciate that except the statement of prosecutrix (PW 1) there is no other evidence that accused - appellant stayed in a room with the prosecutrix in the hotel at Ajmer. In the record of hotel, appellant's name is not appearing. The hotel employee PW 6 Gopal Singh and PW 8 Dharmendra Singh Rathore or Manager PW 14 Nitin Salvi have not stated that the appellant was amongst three persons who visited the hotel. They have not identified the appellant. They have also not identified the prosecutrix that she was the girl who stayed in their hotel in Pushkar. The police also did not arrange any identification parade. Thus, in the absence of any cogent evidence, it can not be said that appellant had visited hotel at Pushkar. The record of the hotel is also doubtful and the same is not reliable. In the Register Ex. P18 there is cutting in the room numbers. Earlier in Room Numbers 108 and 109 number of persons was written "1" but after cutting "2" was made. The record of the hotel is also doubtful and the same is not reliable. In the Register Ex. P18 there is cutting in the room numbers. Earlier in Room Numbers 108 and 109 number of persons was written "1" but after cutting "2" was made. In Room No. 108 there is no entry of lady guest. In Room No. 109 all entries are blank. Thus, in the absence of any cogent evidence, it can not be said that appellant had stayed in room no. 108 or 109 of hotel, at Pushkar. 8. Learned Public Prosecutor assisted by Mr. Vipul Jaiman and Mr. S.S. Sunda learned counsel appearing for the complainant opposed the appeals and supported the impugned judgment of conviction and sentence passed by the learned trial court. 9. Prosecutrix (PW 1) in her statement reiterated the averments made in the FIR. 10. Dharmendra Singh Rathore (PW 3) in his statement deposed that on 28.04.2012 at about 5:00-6:00 PM he was sitting at Reception in Hotel Goyal Inn. One boy came there and he made demand of two rooms. He gave two rooms to him. Initially he gave room numbers 104 and 105 but due to problem of A.C. he changed those rooms and gave room numbers 108 and 109. The total number of persons were three. Both the rooms were booked in the name of Amit Kumar. 11. Nitin Salvi (PW 14) deposed in his statement that on 17.06.2016 he was working as a Manager in Hotel Goyal Inn at Pushkar. In register (Ex. P18) there is no entry in his hand. In room No. 108 there is entry of two male persons and there is no entry of any female guest. Evidence relating to case of accused Ishwar Singh: 12. So far as accused - Ishwar Singh is concerned, in his statement recorded under Sec. 313 Cr.P.C. he gave explanation that he did not commit rape on her, rather victim used to harass him and made telephone calls since 2011 and victim wanted to marry him but on his refusal, with ulterior motive, to extort money, victim and her father had roped him in a false case. 13. The Hon'ble Supreme Court in the matter of Swaroop Singh vs. State of M.P. reported in AIR 2013 Supreme Court 2912 in para 14 has held ad infra: 14. 13. The Hon'ble Supreme Court in the matter of Swaroop Singh vs. State of M.P. reported in AIR 2013 Supreme Court 2912 in para 14 has held ad infra: 14. In this context it will be worthwhile to refer to the principles laid down by this Court as to the manner in which the evidence of a rape victim should be evaluated to ascertain the truth. The said decision is reported in State of Punjab vs. Gurmit Singh, 1996(2) SCC 384 . Para 8 and 21 are relevant which reads as under:- "8. .... 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 overlook. 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 of 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 judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled 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 persons'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...." "21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 14. Prosecutrix has been examined as PW-1. Prosecutrix (PW-1) has described the acts of the appellant-Ishwar Singh. Prosecutrix stated that first of all in January, 2012 the appellant committed rape in the flat situated at Trehan and, thereafter, under the threat of making nude photos, clips and video public, continuously committed rape with her. She has also stated that at the instance and connivance of the accused his friend Naresh also raped her. Thereafter, when she went to appear in the examination A.E.E.E. at Ajmer she was raped by accused - Ishwar Singh and Amit in the room of hotel situated at Pushkar. She has also stated that at the instance and connivance of the accused his friend Naresh also raped her. Thereafter, when she went to appear in the examination A.E.E.E. at Ajmer she was raped by accused - Ishwar Singh and Amit in the room of hotel situated at Pushkar. Admittedly, accused Ishwar Singh was teaching and taking coaching classes where victim was student and was stated to be 17 to 18 years of age and she categorically stated that the appellant was a known person, performed the act of forcible sexual intercourse. In her statement she has specifically alleged that accused taking benefit of his position, subjected her to sexual assault and the accused also made her victim of other accused's lust. Vijay Kumar Saini PW 2 and Anita PW 16 father and mother of the victim have also supported the statement made by the victim. 15. The trial Court while evaluating evidence on a detailed consideration of the evidence before it concluded that the case of the prosecutrix was cogent and convincing and also supported by the evidence of other witnesses. 16. It is an admitted fact that the victim was a student of appellant -Ishwar Singh and he went to take classes of Chemistry and Physics at home also. The Hon'ble Supreme Court in the case of Mohan Lal and Ors. vs. State of Punjab, reported in 2013(2) ACR 1992, in para nos. 17 and 18, where offence of like nature was committed, held ad-infra:- "17. The requirement of education for girls and the functions of a teacher have been dealt with and explained at some length by this Court in Avinash Nagra vs. Navodaya Vidyalaya Samiti and Ors. (1997) 2 SCC 534 , which read as follows: "It is in this backdrop, therefore, that the Indian society has elevated the teacher as "Guru Brahma, Guru Vishnu, Guru Devo Maheswaraha". As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as society duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing constitutional ideals enshrined in Article 51-A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the level of the student for the development, prosperity and welfare of the society. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the student for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail. It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity in which he takes part are material factors determining the degree and supervision demanded by a teacher. The age of the pupil and the nature of the activity in which he takes part are material factors determining the degree and supervision demanded by a teacher. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to independence, is fathom deep due to indifference on the part of all in rural India except some educated people, Education to the girl children is nations asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middleclass people are sending the girl children to coeducational institutions under the care of proper management and to look after the welfare and safety of the girl. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher, who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher. The question arises whether the conduct of the Appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the Appellant is the tip of the iceberg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail in the coffin..... 18. As there was a fiduciary relationship between the accused and the prosecutrix being in their custody and they were trustee, it became a case where fence itself eats the crop and in such a case the provisions of Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act') (which came into effect from 25.12.1983) are attracted. Undoubtedly it is a case which provides for a presumption against any consent in a case of rape even if the prosecutrix girl is major, however, every presumption is rebuttable, and no attempt had ever been made by any of the Appellants or other accused to rebut the said presumption." 17. So far as the findings given by the learned trial court regarding commission of forcible sexual intercourse and continuous blackmailing victim under the threat of making photos, clips and videos public, are concerned, same do not require any interference. Evidence relating to the case of accused-Amit Kumar: 18. So far as accused - Amit Kumar is concerned, in his statement under Section 313 Cr.P.C. he gave explanation that he did not go to Pushkar and the victim and his family members with intention to extort money had implicated him falsely in this case. 19. Victim PW-1 in her testimony has specifically named accused-Amit and stated that on the way ahead of Dharuheda, Amit sat in the car and insisted her to share the room in hotel at Pushkar, where he committed rape with her. She has also stated that the room was also booked in the name of Amit. Thus, it cannot be said that the accused-appellant has been falsely implicated. Evidence relating to the case of accused Isha: 20. So far as accused -Isha is concerned, in her statement recorded under Section 313 Cr.P.C. she gave an explanation that neither in the year 2012 she was doing any job in Central Academy School nor she used to give tuition to Kumari Shaifali nor she came at her residence. In the year 2012 when she went along-with her mother to the market, she told about the misconduct of Kumari Shaifali. She submitted that she has been implicated in the case with intention to extort money from her. The statement of PW-1 does not reveal that there was an agreement between the parties for doing an unlawful act. To bring home the charge of conspiracy within an ambit of Section 120-B IPC, It is necessary to establish that there was an agreement between the parties for doing an unlawful act. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences not supported by cogent or acceptable evidence. To bring home the charge of conspiracy within an ambit of Section 120-B IPC, It is necessary to establish that there was an agreement between the parties for doing an unlawful act. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences not supported by cogent or acceptable evidence. Thus, the learned trial Court erred in convicting the appellant-Isha under Section 376 read with Section 120-B IPC. Hence, we are of the opinion that possibility that appellant Isha has been falsely involved in this case cannot be ruled out. Appellant-Isha deserves to be acquitted by giving her benefit of doubt. 21. In the facts and circumstances of the case, the criminal appeals filed by the accused appellants Amit Kumar and Ishwar Singh are devoid of merit and accordingly stand dismissed. 22. So far as the criminal appeal filed by the accused appellant- Isha is concerned, the criminal appeal filed by her is allowed and the impugned judgment/order of conviction and sentence dated 27.03.2014 passed by the Court of learned Additional District and Sessions Judge, Tijara, District Alwar, in Sessions Case No. 44/2012, State of Rajasthan vs. Ishwar Singh and Ors., are set aside and the accused appellant is acquitted of the charges leveled against her. 23. Keeping in view, however, the provisions of Section 437A Cr.P.C., the appellant Isha is directed to forthwith furnish a personal bond in the sum of Rs. 25,000/- and a surety bond in the like amount, before the trial court, which shall be effective for a period of six months to the effect that in the evening of filing of Special Leave Petition against the judgment or for grant of leave, the appellant-Isha, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.