Himachal Pradesh High Court
Jagtar Singh vs The State Of H.P on 23 December, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No.166 of 2019
.
Reserved on: 20.12.2022
Pronounced on: 23.12.2022
Jagtar Singh ......Petitioner
Versus
The State of H.P. ......Respondent
_________________________________________________
Coram:
Hon'ble Ms. Justice Sabina, Judge.
Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?
For the appellant : Mr. N.K. Thakur, Senior Advocate
with Mr. Karan Veer Singh and
Mr. Divya Raj Singh, Advocates.
For the respondent :Mr. Ashwani Sharma, Additional
Advocate General.
_________________________________________________
Sabina, Judge.
JUDGMENT
Appellant has filed the appeal, challenging the
judgment of conviction and sentence dated 19.03.2019,
passed by learned Special Judge, Sirmour at Nahan, District
Sirmour, H.P., in Sessions Trial No.29-ST/7 of 2019,
whereby, he has been convicted and sentenced as under:-
Under Section 6 : To undergo rigorous
of the Protection imprisonment for a
of Children from period of 10 years and
Sexual to pay a fine of
.
Offences Act, Rs.50,000/- and in
1212 read with default of payment of
Section 376 of fine to undergo further
Indian Penal imprisonment for a
Code, 1860. period of one year.
2.
Prosecution case was set in motion on the basis of
the statement of the prosecutrix/victim, wherein, she alleged
that she had taken 10th Class Examination. Her parents were
doing agriculture work. They were three brothers and one
sister. In September, 2015, after school hours, Jagtar Singh
(appellant), her English teacher, handed over to her some
packet and told her to keep the same in his room. Whatever
had been given to her by her teacher was wrapped in a
newspaper. However, when she reached the room, the
appellant was already present in the room and on her
reaching the room, he told her to keep the packet in his room.
The moment she entered the room, the appellant bolted the
door from inside. She raised alarm, but appellant told her that
she should not raise alarm otherwise he would kill her.
Thereafter, appellant made her lie on his bed and committed
a wrong act with her. She tried to get up but he caught hold of
her from her arms and after some time he left her. The
.
appellant had told her that she should not tell about the
incident to her parents otherwise he would kill her and would
not give her school certificate. Thereafter, she reached home
and did not narrate the incident to anybody. After two months,
her health deteriorated and in the month of December she
was taken to Nahan Hospital by her uncle Bansi Lal and
sister Raksha Devi. Thereafter, the Doctor told her that she
was anemic, but after a few months her abdomen started
swelling and she suspected that there might be a child in her
womb. She did not inform the Doctor in this regard. She had
not had her period for the last 6-7 months. Appellant had
committed sexual intercourse with her in September, 2015
and due to this reason she had become pregnant. She got
recorded her statement to the effect that her medical
examination be got conducted and necessary action be taken
against the appellant.
3. On the basis of the statement of the
prosecutrix/victim, formal FIR No.15 of 2016, dated
01.04.2016, was registered against the appellant at Police
Station Rainuka, District Sirmour, H.P., under Section 376,
506 of the Indian Penal Code, 1860 (hereinafter referred to
as the "IPC" in short) and Section 4 of the Protection of
.
Children from Sexual Offences Act, 2012 (hereinafter referred
to as the "Act" in short).
4. After completion of investigation and necessary
formalities, Challan was presented against the appellant.
Charges were framed against the appellant under Section
5(f) of the Act and under Sections 376, 506 IPC.
5. Appellant did not plead guilty to the charges framed
against him and claimed trial.
6. In order to prove its case, prosecution examined
fifteen witnesses during trial. Appellant when examined under
Section 313 of Code of Criminal Procedure, 1973, after the
closure of prosecution evidence, prayed that he was innocent
and a false case had been registered against him with a view
to oust him from the School. Appellant did not examine any
witness in his defence.
7. Learned counsel for the appellant has submitted
that no reliance could be placed on the Birth Certificates of
the prosecutrix/victim placed on record. As per the Birth
Certificates Ex.PW-1/B & Ex.PW-3/A, the date of birth of the
prosecutrix/victim in both the certificates was 07.12.1999 and
date of registration was 06.12.1999. The certificate
Ex.PW-1/B was issued on 04.04.2016. The certificate was
.
apparently false as registration could not have been done
before the birth of the prosecutrix. There was unexplained
delay in lodging the F.I.R. Parents of the prosecutrix/victim
had not been examined during trial in support of the
prosecution case nor any class-fellow of the prosecutrix/
victim had been examined in support of her case. The
prosecutrix/victim was aged more than 16 years and at the
most could be said to be less than 18 years. Appellant has
already spent seven years in custody and in case the
testimony of the prosecutrix/victim was believed, then the
sentence of the appellant was liable to be reduced to the
period already undergone by him.
8. Learned Additional Advocate General, on the other
hand, has submitted that the prosecutrix/victim, a minor,
while appearing in the witness-box, has duly supported the
prosecution case. Moreover, as per the report of the Forensic
Science Laboratory, appellant was the biological father of the
male child delivered by the prosecutrix/victim.
9. As per the prosecution story, appellant had raped
the prosecutrix/victim. Appellant was admittedly English
Teacher in the School where the prosecutrix was a student.
.
Prosecutrix/victim while appearing in the witness-box, has
categorically deposed that in the year 2015 she was a
student of 10th Class and the appellant was her English
Teacher. Appellant had given her something wrapped in a
newspaper and had told her to keep the packet in his room.
When she went to drop the packet in the room of the
appellant, he was already there inside the room and he
bolted the door from inside. She made hue and cry but
appellant threatened her that he would kill her. Thereafter,
appellant laid her on the bed and did wrong act with her and
told her not to disclose the incident at her residence. Out of
fear, she does not disclose the incident to anybody. However,
after two months her health started deteriorating and she was
taken to the hospital by her uncle & father and she was
informed that she was anemic. Her abdomen had started
swelling. After 6-7 months, she came to know that she was
pregnant. On inquiry by her mother, she had told her that
something was moving in her abdomen. When her sister did
pregnancy test, it turned out to be positive. Thereafter, the
matter was reported to the police and she was medically
examined. On 09.05.2016, she had delivered a male child at
Nahan Hospital.
.
10. Thus, the prosecutrix/victim while appearing in the
witness-box, has categorically deposed with regard to the fact
that she had been raped by the appellant.
11. As per report of the Forensic Science Laboratory
Ex.PY, appellant was the biological father of the child
delivered by the prosecutrix/victim and the prosecutrix/victim
was the biological mother of the said child. Thus, from the
report of the Forensic Science Laboratory, it stands
established on record that the appellant was the father of the
child delivered by the prosecutrix.
12. The question that arises for consideration is as to
whether the appellant was guilty of offence of rape.
Prosecutrix/victim in her testimony has duly deposed with
regard to the fact that she had been raped by the appellant.
Offence in the present case had allegedly taken place in the
year 2015. At the relevant time, as per Section 376(2)(f),
whoever being a teacher commits rape of a woman, then he
was liable to be punished with rigorous imprisonment for a
term which shall not be less than ten years but may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life and shall also be liable
to fine.
.
13. So far as POCSO Act is concerned, as per Section
5(f), whoever being staff of an educational institution,
commits penetrative sexual assault on a child in that
institution, is said to have committed aggravated penetrative
sexual assault. As per Section 5(j)(ii) of the Act, whoever
commits penetrative sexual assault on a child, which in case
of female child, makes the child pregnant as a consequence
of sexual assault, is said to commit aggravated penetrative
sexual assault. At the relevant time, the punishment for
aggravated penetrative sexual assault was 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. As per the definition of child under
Section 2(d) of the POSCO Act, "child" means any person
below the age of eighteen years.
14. Ex.PW-1/B is the Date of Birth Certificate of the
prosecutrix/victim and a perusal of the said certificate reveals
that her date of birth has been written as 07.12.1999.
However, the date of registration has been given as
06.12.1999 and the certificate was issued on 04.04.2016.
15. As per Ex.PW-3/A, the Date of Birth Certificate
.
attached at the time of admission of the prosecutrix/victim in
the School, the date of birth of the prosecutrix/victim has
been written as 07.12.1999 and the date of registration was
06.12.1999. Leaving aside the Date of Birth Certificates
Ex.PW-1/B and Ex.PW-3/A, in the School record, the date of
birth of the r prosecutrix/victim has been entered as
07.12.1999. The said record was proved on record by PW-3
Hari Chand. There is nothing available on record to the
contrary.
16. Learned counsel for the appellant has submitted
that in the application Ex.PW-3/A-1, in the column of date, it
has been initially written as unknown and later the same was
over-written with date 01.09.2005. However, after carefully
perusing the said document, we are of the opinion that
inadvertently Naiya Ram, father of the prosecutrix, had
signed in the column of date and due to this reason there is a
cutting on his signatures in the column of date and thereafter
the date has been written as 01.09.2005. Signatures of
Naiya Ram also exist in the column of signature of father or
guardian. On the reverse side of the said document, the date
of birth of the prosecutrix/victim has been given as
07.12.1999. In Ex.PW-3/A, School Leaving Certificate, the
.
date of birth of the prosecutrix/victim has been mentioned as
07.12.1999. Even if document Ex.PW-1/B is ignored, then
from the School record, it is evident that the date of birth of
the prosecutrix/victim was 07.12.1999. The incident in the
present case had taken place in September 2015. Thus, at
the time of incident, the prosecutrix/victim was aged less than
16 years.
17. Assuming that the age of the prosecutrix/victim was
between 16 years to 18 years, even then the said fact would
not advance the case of the appellant as the offence
committed by the appellant would fall within the definition of
Section 376(2)(f) IPC and Section 5(j)(ii) punishable under
Section 6 of the Act. Although, the trial Court has ordered the
conviction of the appellant under Section 6 of the Act by
treating it as a case falling under Section 5(f) of the Act, but in
our opinion the case would fall within the definition of Section
5(j)(ii) read with Section 6 of the Act. The offence in the
present case was not committed in the School but was
committed by the appellant in his rented premises, as is
evident from the cross-examination of the prosecutrix/victim.
On account of sexual assault committed by the appellant,
victim/child had become pregnant. Merely because the
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learned trial Court has considered wrong provision, cannot be
said to be fatal to the prosecution case as in any case
sentence has been ordered under Section 6 of the Act. With
regard to offence falling under Section 5(j)(ii) of the Act also,
punishment has been provided under Section 6 of the Act.
18. Learned counsel for the appellant has also argued
to the effect that there was delay in lodging the F.I.R. In the
present case, the victim was less than 16 years of age at the
time of incident and has been raped by none other than her
teacher. The position occupied by the appellant was of trust
and it was expected that he would protect her from any
person who wanted to sexually abuse her. However, the
protector himself, in the present case, has betrayed the trust
and has sexually assaulted the prosecutrix/victim, resulting in
her pregnancy. It appears that out of fear the prosecutrix/
victim did not inform her family members about the incident. It
is only when the prosecutrix/victim became pregnant that the
need arose for her to inform about the offence committed by
the appellant to her parents. Apparently when the
prosecutrix/victim reached advanced stage of pregnancy, she
informed about the offence committed by the appellant to her
family members. Moreover, as per the report of the Forensic
.
Science Laboratory, appellant is the father of the child
delivered by the prosecutrix/victim. Keeping in view the age
of the prosecutrix/victim and the relationship between the
parties, the consent of the prosecutrix/victim, if any, was
irrelevant. So far as the offence under Section 376 (2)(f) IPC
and Section 5(j)(ii) read with Section 6 of the Act are
concerned, the consent of the prosecutrix/victim (child) is not
material.
19. Learned counsel for the appellant has also laid
much stress on the fact that PW-5 Raksha Devi was not the
sister of the prosecutrix/victim. In this regard, learned counsel
has made a reference to Ex.PW-1/A, wherein, Raksha Devi
has been described as daughter of Godu Ram and not
daughter of Naiya Ram.
20. PW-5 Raksha Devi while appearing in the witness-
box, has disclosed herself to be daughter of Naiya Ram. In
her cross-examination, she has stated that she is grand-
daughter of Godu Ram. Hence, it is probable that in Ex.PW-
1/A, Parivar Register, Raksha Devi was, though, required to
be described as daughter of Naiya Ram, but has been
described as daughter of Godu Ram. In any case, even if the
testimony of PW-5 Raksha Devi is ignored, the prosecution
.
case stands duly established from the testimony of the
prosecutrix/victim, which is duly corroborated by scientific
evidence. The fact that the parents of the prosecutrix/victim
have not been examined or her other class-fellows have not
been examined, does not render the prosecution story
doubtful. The statement of the prosecutrix/victim, being
natural, inspires confidence. The testimony of prosecutrix/
victim could not be shattered during her cross-examination
with regard to offence committed by the appellant. The
prosecutrix/victim, who was aged less than 16 years, has
delivered a child on account of sexual assault committed by
the appellant and as per the report of the Forensic Science
Laboratory, appellant is the biological father of the child
delivered by the prosecutrix/victim.
21. Since in the present case, the minimum punishment
provided with regard to the offence committed by the
appellant is ten years, there is no force in the argument
raised by the learned counsel for the appellant to the effect
that sentence qua imprisonment of the appellant be reduced
as in the present case only minimum sentence has already
been imposed on the appellant by the trial Court.
22. In the facts and circumstances of the present case,
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learned trial Court had, thus, rightly ordered the conviction
and sentence of the appellant vide the impugned/order. No
ground for interference is made out.
23. Accordingly, the appeal is dismissed.
24. Pending miscellaneous application(s), if any, shall
also stand disposed of.
( Sabina )
Judge
( Sushil Kukreja )
December 23, 2022 Judge
(Yashwant)
