Chhotak Banvasi vs State Of U.P.
2017 Latest Caselaw 5996 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

												AFR
 
Court No. - 24
 

 
Case :- JAIL APPEAL No. - 1326 of 2016
 

 
Appellant :- Chhotak Banvasi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Siya Ram Pandey
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Aniruddha Singh,J.

1. The present jail appeal has been filed by the appellant Chhotak Banvasi against the judgment and order dated 30.10.2015 passed by Special Judge (POCSO)/ Additional Sessions Judge, Court No. 5 Varanasi, in Sessions Trial No. 172 of 2013 arising out of Case Crime No. 296 of 2013, Police Station Rohaniya, District Varanasi convicting the appellant under Section 376 IPC and Section 6 of Protection of Children from Sexual Offences Act (in short the POCSO Act) and sentencing him under Section 6 of POCSO Act to twelve years rigorous imprisonment with fine of Rs. 15,000/-; and in default of fine two years' additional rigorous imprisonment. It was further directed by the lower court that half of the fine shall be paid to the victim and District Legal Services Authority was directed to pay compensation of Rs. 25,000/- separately as per rules.

2. Prosecution story in brief is that on 1.7.2013 written report (Ext. Ka-2) was moved by complainant/informant Subhash at concerned police station mentioning therein that yesterday on 30.6.2013 at 9.30 p.m. his niece (victim) aged about five years was sleeping with her sister in a room of tin shed in which there was no door. At 11 p.m. Accused appellant aged about 19 years, brought up the victim to the field and committed sexual intercourse with the victim. They also found the symptom of rape on the body of the victim. Hindi version of the F.I.R. is quoted below:-

"udy rgjhj fgUnh oknh %& lsok esa Jheku Fkkuk/;{k egksn; Fkkuk jksgfu;k tuin okjk.klh egksn; fuosnu gS fd eSa izkFkhZ lqok"k iq= Jh esokyky ouoklh lk0 cPNkWo lRrh ij eqlgj oLrh Fkkuk jksgfu;k tuin okjk.klh dk eqy fuoklh gwWA esjh HkkWth iwue dy fnukad 30-6-13 dks jk=h 9-30 cts lc ifjokjhtu ds lkFk HkkstuksijkUr esjh cgu iwtk nsoh ds lkFk mDr iwue mez djhc 8 o"kZ Vhu 'ksM ds dejs es lks x;h Fkh dejs es njoktk ugh Fkk rks jkf= djhc 11 cts lHkh yksxks dks xgjh uhan es lks tkus ij NksVd iq= Jh oynso ouoklh gk0 eq0 mijksDr mez djhc 19 o"kZ esjh mDr HkkWth iwue dks ?kj ls nf{k.k rjQ pjh ds [ksr es xksn es mBk ys x;k vkSj ogha pjh ds [ksr es esjh mDr HkkUth iwue ds lkFk cykRdkj fd;k vkSj ygqyqgku :i es mBkdj esjs ?kj ds fiNs NksM+dj vius ?kj tkus yxk rks esjh cgu mls nkSM+k;h rks ?kj es vius ?kql x;k HkkUth ds djkgus ij esjh cgu ekSds ij fiN+okM+s x;h rks ?kVuk dh iwjh tkudkjh gqbZ esjh HkkUth dh xEHkhj gkyr cuh gqbZ gS vr% Jh eku th ls fuosnu gS fd esjh fjiksVZ ntZdj vko';d dk;Zokgh djus dh d`ik djsA izkFkhZ lqok"k lk0 cPNko lRrhij Fkkuk jksgfu;k okjk.klh fnukad 1&7&2013A

uksV& eSa dka0 eq0 izekf.kr djrk gwW fd rgjhj dh udy fpd ij v{kj vafdr fd;k x;kA

f=Hkqou flag

Fkkuk jksgfu;k

okjk0

1&7&13"

3. On the basis of written report (Ext. Ka-2) F.I.R. was lodged on 1.7.2013 at 6.20 a.m. against the accused appellant and entry was made in G.D. (Ext. Ka-6). Accused was medically examined. Victim girl brought by police concerned was also medically examined on 1.7.2017 at I.M. Hospital Varanasi brought by police concerned. Injury report is (Ext. Ka-3), Statement recorded u/s 164 Cr.P.C. of the victim is (Ext Ka-1). Half pant of the victim (Ext. Ka-9) and T-shirt of the accused (Ext. Ka-10) were recovered and sent to the Forensic Science Laboratory. Chemical examination report is (Ext. Ka-12). Age certificate of victim is (Ext. Ka-7) in which her age was found about 5 years. After interrogating the witnesses preparing the site plan and also fulfilling the entire formalities charge sheet (Ext. Ka-11) was filed.

4. Concerned Magistrate took the cognizance on the charge sheet. Case being exclusively triable by Sessions Court was committed to the court of Sessions for trial. Accused appellant appeared before the trial court and charges for the offence under Section 376 IPC and Section 6 POCSO Act were framed against him to which he denied and claimed the trial.

5. In order to prove its case, prosecution examined, seven witnesses in all i.e. P.W. 1 Poonam (victim), P.W. 2 Subhash Banswasi (maternal uncle of the victim), P.W 3 Pooja (sister of the victim), P.W. 4 Dr. Sweta Singh who has examined the victim and has prepared the injury report. P.W. 5 constable Tribhuwan Singh, P.W. 6 Dr. R.P. Tiwari who has examined the accused and P.W. 7 S.I. Sageer Ahmad.

6. After closure of the prosecution evidence, statement of the accused-appellant under Section 313 Cr.P.C. was recorded. He specifically stated that he is innocent and has not committed any offence.

7. Trial Court after hearing the parties vide impugned judgment and order convicted the accused under Section 376 IPC & Section 6 POCSO Act and sentenced the applicant for the offence under Section 6 POCSO Act. Hence this appeal.

8. In this matter, on previous occasion when the matter was taken up, no one appeared to argue the appeal on behalf of the appellant, hence, notice was sent through concerned Superintendent of Jail to the accused appellant to engage counsel. On showing his un-ability to engage private counsel, Court appointed Sri Siya Ram Pandey as amicus curiae.

9. Heard Sri Siya Ram Pandey, amicus curiae for the appellant and Sri S.A. Naseem, learned A.G.A. for the State.

10. It is admitted fact that the accused appellant belongs to the Scheduled Tribe category and he was 19 years old at the time of incident.

11. Submission of the learned counsel for the appellant is that incident is said to have been committed in the night and there was no identification. The victim was sleeping with her sister. First Information report is delayed. No plausible explanation was given. It is improbable and unbelievable that appellant would have committed such type of offence against a girl aged 5 years. Trial court has not appreciated the evidence correctly and has reached at wrong conclusion. Appellant is innocent and has not committed the present offence. He was not arrested on the spot. Entire prosecution story is false. According to medical report, no definite opinion about rape can be given. P.W. 3 has not lodged the F.I.R. Prosecution was not able to prove its case beyond reasonable doubt. Findings recorded by the trial court on point of guilt of the appellant are perverse. Appellant is in jail since the date of arrest, hence adopting lenient view, appellant be released on the basis of period already undergone.

12. Learned A.G.A. argued that witnesses of fact (P.W.1 to P.W.3) have proved the prosecution case without reasonable doubt and it is corroborated by the evidence of formal witnesses (P.W.4 to P.W.7), medical evidence and chemical examination report. Hence, this appeal is liable to be dismissed.

13. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record.

14. Word 'proved is defined under Section 3 of Evidence Act as under:-

"Proved".- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon supposition that exists."

15. The Court expects from the prosecution to produce the evidence to prove the guilt in a particular case. In my opinion, it depends upon case to case and according to case and circumstances, the expectation of producing evidence from the side of prosecution be made. In this case, the informant P.W. 2 and the sister of the victim deposed and proved the prosecution story. Prosecutrix has also deposed and proved the same story. Medical reports also corroborated the prosecution case and chemical examination report is also very material evidence and supported the prosecution case. Ext. Ka-4 medical examination report of prosecutrix shows the age of prosecutrix as five years. Some signs of attempt of sexual activity was present; Ext. Ka-12 shows in underwear spermatozoa and human sperm was present. It is settled proposition of law that single testimony is sufficient to hold guilt for the offence under Section 376 IPC as well as under POCSO Act.

16. P.W. 1 (victim) has deposed that "tks vkneh esjs lkFk xUnk dke fd;k eS mldh uke crk ldrh gwW eSa mldks igpkurh gwWA mldk uke lksVd ¼NksVd½ gSA og xUnk dke fd;k Fkk esjs eqag es yqXxk Mkyk FkkA cPph us vius is'kkc ds jkLrs ij viuk gkFk ys tkdj crk;k fd esjs lwlw okys LFkku ij xUnk dke fd;k Fkk eq>s dkQh nq[kk jgk FkkA xokg us vius is'kkc ds jkLrs ds ikl gkFk ys tkdj crk;k fd ogk ls eq>s [kwu fxj jgk Fkk eq>s mBkdj fiNokM+s pjh ds [ksr es ys x;k FkkA esjh pM 17. Accused-appellant has been convicted and sentenced under Section 6 POCSO Act, this section is quoted as under:

"Punishment for aggravated penetrative sexual assault.- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."

Aggravated sexual assault is defined under Section 5 of the Act. Section 5 (m) is quoted as under:-

(m) Whoever commits penetrative sexual assault on a child below twelve years.

Penetrative sexual assault is defined under Section 3 of the Act. Section 3 is quoted as under:-

3. Penetrative sexual assault.:- A person is said to commit "penetrative sexual assault" if-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina anus, urethra of the child or makes the child to do so to such person or any other persons.

Section 2 (1) (a) and (f) of the Act is quoted as under:-

(a) "aggravated penetrative sexual assault" has the same meaning as assigned to it in section 5;

(f) "Penetrative sexual assault" has the same meaning as assigned to a Section 3;

18. According to Section 2(1)(a), Sections 3, Section 5(m) and Section 6 of the Act, a person commits aggravated penetrative sexual assault if on a child below twelve years of the age, he penetrates his penis or inserts any object or manipulates any part of the body or applies his mouth to the penis, vagina, urethra, anus and shall be punished under Section 6 of POCSO Act as having done aggravated penetrative sexual assault. Hence, it is very clear that for the punishment under Section 6 of POCSO Act penetration of penis in vagina is not necessary. If it is proved beyond reasonable doubt that accused has penetrated his penis in her vagina or applied his mouth to the penis shall be convicted under Section 6 of POCSO Act. Hence, conviction of the accused-appellant under Section 6 POCSO Act is just and legal.

19. From the definition of Sections 2, 3 5, and 6 of the POCSO Act, it is made clear that to punish a person for the offence under Section 6 POCSO Act, offence defined under Section 375 IPC is not necessary to prove. If the ingredients of Sections 2, 3, 5 and 6 of the POCSO Act are proved, then a person can be convicted under section 6 of the POCSO Act.

20. Submission advanced by the learned amicus curiae that the incident took place in the night and no definite opinion about rape can be given, hence accused is liable to be acquitted, does not inspire confidence. Both the parties were neighbours and known to each other. In my opinion, testimony of these witnesses are reliable and trustworthy as the statements of witnesses of fact are corroborated by the medical evidence and by evidence of formal witnesses.

21. On close scrutiny of the entire evidence, this Court is of the view that findings recorded by the trial court on point of guilt of the accused appellant for committing the offence under Section 6 POCSO Act & 376 IPC need no interference. There is no illegality or infirmity in the findings recorded by the trial court on point of guilt of the accused appellant.

22. Minimum sentence provided for the offence under Section 6 POCSO Act is ten years. The trial court vide impugned judgment and order has imposed sentence of 12 years rigorous imprisonment upon the appellant.

23. In my opinion, on the basis of mental status, social and economic conditions, family background, age and other relevant position of the accused-appellant, the sentence and fine imposed by the trial court can be reduced to 10 years with fine of Rs. 1000/-. So that justice may be done.

24. In the light of foregoing discussions, the appeal is liable to be partly allowed. Conviction of the accused appellant Chhotak Banvasi for the offence punishable under Section 6 POCSO Act is liable to be confirmed but the sentence imposed upon the appellant is liable to be modified as discussed above.

25. Hence, the jail appeal is partly allowed. The conviction of the accused appellant for the offence punishable under Section 6 POCSO Act is hereby confirmed but sentence imposed upon appellant Chhotak Banvasi awarded for the offence under Section 6 POCSO Act is reduced/ modified to the extent of ten years rigorous imprisonment. Fine imposed upon him by the trial court is reduced to the extent of 1000/- and the imprisonment in default of deposit of fine is reduced to the extent of seven days' simple imprisonment. District Legal Services Authority is directed to pay compensation of Rs. 25,000/- to the victim separately as per rules, if not paid. Exhibits, if any, be dealt with in accordance with law.

26. Let a copy of this judgement along with lower court record be sent to the Sessions Judge concerned for compliance. A compliance report be sent to this Court within a month.

27. Sri Siya Ram Pandey, learned Amicus Curiae who assisted the Court in Jail Appeal No. 1326 of 2016, is entitled to be paid Rs. 5,000/- towards his legal fee.

Order Date :- 28.10.2017

A. Singh