Point of Law : Statement of prosecutrix must be given primary consideration but at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that the prosecutrix would always tell entire story truthful.

JUDGMENT :

1. This jail appeal has been preferred by the appellant Pramod Kumar against the judgment and order dated 13.11.2018 passed by Special Judge, (POCSO Act)/8th Additional Sessions Judge, Agra in Special Case No. 2446 of 2017, case crime no. 441 of 2017 State Vs. Pramod Kumar, under sections 363, 366 and 376 I.P.C. and 3/4 POCSO Act, police station Atmadpur District Agra.

2. By the impugned judgment and order dated 13.11.2018 the learned lower court convicted the present accused Pramod Kumar under section 363, 366 and 376 I.P.C. and acquitted under section 3/4 POCSO Act, whereby the accused persons Dinesh, Choota @ Atendra and Tinchu @ Sarvesh were acquitted of all the charges levelled against them by the same judgment passed in the connected Special Sessions Trial No. 821 of 2018, State Vs. Tinchu and others under the same sections.

3. The facts germane to this appeal are that on 4.9.2017 on 18.10 hours Mannu son of Niroti Lal lodged a first information report at case crime no. 0441 of 2017 under sections 363 and 366 I.P.C. against Lakhan and Chhotu, both sons of Suresh with the allegation that he is a peace loving and law abiding poor person belonging to scheduled caste. He works as a labourer in Ballabhgarh Faridabad and his family members reside in village Siktara police station Atmadpur District Agra. On 1.9.2017 his wife Smt. Ranno Devi had gone to graze animals at about 4.00 p.m. His daughter Pooja aged about 16 years was alone at the house. Lakhan and Chhotu sons of Suresh r/o house no. 83 lane no. 2, police station and District Firozabad enticed her daughter away and her whereabouts are not known till now so the steps be taken against them.

4. After lodging the first information report, Sub-Inspector Jai Prakash recorded necessary statements, prepared site plan, made attempt to recover the girl and ultimately the girl was recovered by him on 22.9.2017. Her statements were recorded under sections 161 and 164 Cr.P.C. and she was given in supurdagi of her parents as per her wish. The girl was medically examined. Her statement against sexual violence was recorded by the concerned doctor. According to the report of C.M.O. she was found to be about 18 years of age. All the necessary endorsements were made in case diary and following the due procedure chargesheet no. 284/2017 dated 14.12.2017 was submitted against the present accused Pramod Kumar under sections 363, 366, 376D I.P.C. and 3/4 POCSO Act and charge sheet no. 284A/2017 dated 15.3.2018 was filed against Chhota @ Atendra, Dinesh and Tinchu @ Sarvesh under the same sections 363, 366, 376D I.P.C. and 3/4 POCSO Act. After receiving the chargesheets, learned Magistrate took cognizance against the accused persons and under due procedure of law the cases were committed to the court of Sessions.

5. On 10.5.2018 and 20.4.2018 charges under section 363, 366, 376-D I.P.C. and 3/ 4 POCSO Act were framed against accused Pramod Kumar, Dinesh and Tinchu @ Suresh respectively. The accused persons denied of the charges and pleaded not guilty.

6. The prosecution produced as many as 7 witnesses in support of their case. P.W.-1 Mannu is the father of the victim. P.W.-2 Ranno Devi is mother of the victim, P.W-3 Shivnath is the Principal of the school where victim is said to have studied, P.W.-4 is the victim herself, P.W.-5 Jai Prakash Singh is the first Investigating Officer, P.W.-6 Dr. Sunita Kumari has proved the medical report of the victim. P.W.-7 Vijay Kumar is the second Investigating Officer.

7. As documentary evidence, the prosecution has produced chik FIR as exhibit K-1, School leaving certificate of the victim as exhibit K-2, statement of victim under section 164 Cr.P.C. as exhibit-K-3, siteplan as exhibit-K-4, Supurdaginama as exhibit K-5, Chargesheet no. 284 of 2017 against the accused Pramod Kumar as exhibit K-6. Medical report exhibit K-7, pathologist report exhibit K-8, X-ray report and report of C.M.O. as exhibit K-9. Charge sheet no. 284-A of 2017 against Tinchu @ S