Mukesh Bhuian vs The State Of Jharkhand
2024 Latest Caselaw 9935 Jhar

Jharkhand High Court

Mukesh Bhuian vs The State Of Jharkhand on 15 October, 2024

Author: Ananda Sen

Bench: Ananda Sen

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Criminal Appeal (DB) No. 628 of 2017

    [Against the Judgment of conviction 28.02.2017 and order of
    sentence dated 01.03.2017 passed by the learned 1 st Addl.
    Sessions Judge-Cum- Special Judge, Latehar in POCSO Case No.
    03/2015].

   Mukesh Bhuian, son of Ashok Bhuian, resident of village Ghure, P.O
   and P.S. Herhanj, District- Latehar, Jharkhand.
                                                 ............APPELLANT
                                 Versus
    The State of Jharkhand                      ............RESPONDENT
                                       ......

     For the Appellant :   M/s Prabhash Kumar and Ganesh Ram, Advocates.
     For the State     :   Ms. Nehala Sharmin, Spl. P.P.
                                  ......

                             PRESENT
                           SRI ANANDA SEN, J.
                           SRI GAUTAM KUMAR CHOUDHARY, J.

                             JUDGMENT

Dated: 15.10.2024

Per, Ananda Sen, J.

This criminal appeal is directed against the Judgment of conviction dated 28.02.2017 and order of sentence dated 01.03.2017 passed by the learned 1st Addl. Sessions Judge-Cum- Special Judge, Latehar in POCSO Case No. 03/2015, whereby and whereunder, the appellant having been found guilty of charge under Sections 4 and 6 of the POCSO Act and has been convicted and sentenced to undergo rigorous imprisonment for life with a fine of Rs.3,000/-.

2. Challenging the judgment of conviction and order of sentence, learned counsel for the appellant submitted that the medical report does not suggest that any sexual assault has been committed upon the victim girl. He further submitted that there is delay of seven days in lodging the First Information Report, without any explanation. He also submitted that P.W. 1, who is none but the grand-mother of the victim girl, has been declared hostile. He further Page/1 submitted that while deposing, the victim girl has stated that she could not identify the person, who had entered her room. It has been further submitted that as per the prosecution the occurrence had taken place on 6.2.2015, thereafter the victim was given medical treatment, but no document/paper of such treatment was produced by the prosecution nor the doctor, who had treated the victim was produced as a witness, which suggests that the entire allegation is false. He lastly submits that the punishment of life is too harsh, which needs to be reduced.

3. Counsel for the State submitted that the victim girl has supported the prosecution version of sexual assault upon her so did the mother, who is P.W.3, the eye witness of the said occurrence. She further contended that the Forensic Science Laboratory Report also suggests that the victim girl sustained injury on her private part as bleeding was found in her undergarments. So far as delay in lodging the FIR is concerned, it has been submitted that the said delay has been well explained as the victim was subjected to some treatment. As per the prosecution, non- production of the doctor as a witness, who had treated the victim during intervening period, is not fatal. It has also been submitted that no ground has been put forth by the defence to suggest as to why he has been falsely implicated in this case.

4. The FIR is at the instance of the mother of the victim (P.W.3) who stated that leaving her daughter and mother-in-law, she went to bring back her goats, when she heard cry of her daughter, who was aged about 6 years (the victim) at the time of occurrence. She rushed and found that this appellant holding her daughter on the ground had penetrated his finger in her private part. On seeing the victim, the appellant fled away. The informant saw that blood was oozing out from private part of the victim and she remained under pain. She further narrated that the people residing nearby gathered. Since they are very poor, they could not mange enough money for treatment, thus the family members of the victim took her for local Page/2 treatment. She was not fully cured, she was later on taken to Balumath Hospital on 11.2.2015.

The family members of the appellant started threatening the informant, thus on 13.2.2015, FIR being Herhanj P.S. Case No. 07 of 2015 was registered.

5. After investigation, the police submitted chargesheet and accordingly, cognizance of the offence was taken under Sections 4 and 6 of the POCSO Act. Thereafter, the case was committed to the Court of Sessions for trial. As the appellant pleaded not guilty, charges were framed against him for the aforesaid sections.

6. In order to prove the charges against the accused, the prosecution had examined altogether seven witnesses, who are as follows:-

P.W.1- Ugni Devi, P.W.2- The victim, P.W.3- Dhanmatia Devi (the mother and the informant), P.W.4- Arvind Ram P.W.5- Santu Kumar, P.W.6- Sanoj Kumar Chaudhary (the I.O. of this case). P.W.7- Dr. Dharam Shila Chaudhary.

7. The Trial Court thereafter considering the evidences had convicted the appellant for committing the offence as aforesaid.

8. Admittedly, the victim girl was aged about six years at the time of occurrence. P.W. 1 has been declared hostile. P.W. 7 is the doctor, who examined the victim after the FIR was registered. Be it noted that the girl was examined on 13.2.2015 whereas the occurrence had taken place on 6.2.2015. As per the prosecution case the finger was inserted in private part of the victim girl. The doctor assessed the age of the victim to be 5-6 years. Neither injury on private part of the victim was found nor symptom of sexual intercourse was found by the doctor but specific opinion of the doctor was that there is old rupture of hymen. The medical report was signed by two other doctors and their signatures were marked as Ext. 2/a and 2/b. From the aforesaid report, we find that though the doctor had opined that there was no sign of sexual intercourse but Page/3 the fact that the hymen was ruptured, is glaring.

9. The girl was aged about six years on the date of occurrence and the allegation is of inserting finger in vagina of the victim and it is not the allegation of conventional sexual intercourse. Ext. 5 and 5/a are the report of the Forensic Science Laboratory and as per the report, the blood found in the panty which was worn by the victim, matched with the blood of the victim, which was separately obtained. This clearly suggests that the prosecution has been able to prove that the victim was sexually assaulted.

10. The victim girl is P.W.2, who stated that in the evening, this appellant came and penetrated his finger in her private part, causing injury and bleeding. The fact that her blood was present in the panty was proved by the FSL report. Though the girl stated that she could not identify who came and entered her room, but seeing the appellant in court, she identified him to be the person, who had done the act with her.

11. P.W.3 is the mother of the victim, who stated that on hearing cry of the girl, she rushed to the place of occurrence and saw this appellant fingering the victim girl in her private part and blood was oozing out. There is nothing in the entire evidence to disbelieve this witness. We find no element even to remotely conclude that there was enmity between the parties. Thus, we conclude that the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt. The Hon'ble Supreme Court in the case of Phool Singh Vs. State of M.P. reported in (2022) 2 SCC 74 has held that even the sole testimony of the prosecution witness is sufficient to prove the guilt of the accused, if the deposition of the victim is trustworthy. There is nothing in the evidence to doubt the testimony of the victim.

12. In this case, the appellant has been convicted and sentenced for committing the offence under Sections 4 and 6 of the POCSO Act. Section 4 of the POCSO Act provides for punishment for penetrative sexual assault. Section 3 of the Act defines Page/4 penetrative sexual act. Section 3(b) of the Act provides that if a person 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 then the same is penetrative sexual assault.

13. In this case the allegation is that the finger was inserted in the vagina of the victim girl. Thus, the appellant had committed penetrative sexual assault. Since the victim is below the age of 16 years, the punishment would be in terms of Section 4(2) of the POCSO Act, which provides imprisonment for a term, which shall not be less than 20 years, which may extend to imprisonment for life. The life means the remainder of natural life. Accused shall be liable to pay fine also.

14. Section 6 of the POCSO Act provides the punishment for aggravated penetrative sexual assault. As per this section, the punishment shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. As per Section 5(m) of the Act, whoever commits penetrative sexual assault on a child below twelve years, it will be aggravated penetrative sexual assault. In this case the victim girl was definitely below the age of 12 years at the time of occurrence.

14. In this case, the punishment imposed upon the appellant is life which as per the provision of law is for rest of his natural life. The appellant was aged about 28 years in the year 2017, which is evident from the impugned judgment. If the minimum sentence of 20 years is awarded, after completion of 20 years, the appellant loses his prime age. Thus considering the age of the appellant, we modify the sentence of imprisonment directing the appellant to undergo rigorous imprisonment for a period of 20 years with a fine of Rs.3,000/- and on failure of payment of fine, he is further directed to undergo simple imprisonment for three months.

15. With the aforesaid modification in sentence, this appeal is, Page/5 accordingly, dismissed. Pending interlocutory application, if any, also stands disposed of.

16. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment.

(ANANDA SEN, J.)

(GAUTAM KUMAR CHOUDHARY, J.)

Jharkhand High Court, Ranchi.

Dated: the 15th October, 2024.

NAFR/Anu-Cp.-3.

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