Rajasthan High Court - Jodhpur

Pawan Kumar vs State Of Rajasthan ... on 23 September, 2024

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                D.B. Criminal Appeal (Db) No. 74/2019

Pawan Kumar S/o Santosh Kumar, Aged About 37 Years, By
Caste Nai, Resident Of Khasoli, Tehsil And District Churu
(Appellant Is Lodged In The Distt. Jail, Churu)
                                                                      ----Appellant
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Appellant(s)             :     Mr. Hasti Mal Saraswat
For Respondent(s)            :     Mr. C.S. Ojha, AGC



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE MUNNURI LAXMAN

Order

23/09/2024

1. This criminal appeal under Section 374(2) Cr.P.C. has been

preferred by the accused-appellant claiming the following relief:

"It is, therefore, most humbly and respectfully prayed that the appeal under section 374 (2) Cr.P.C. filed by the appellant may kindly be accepted and allowed and the impugned judgment passed by the learned Special Judge, Protection of Children from Sexual Offences Act, Churu on dated 09/01/2019 may kindly be quashed and be set aside and it is further prayed that the appellant may be acquitted from the offence u/s. 450 IPC and Sec. 3/4 Special Judge, Protection of Children from Sexual Offences Act, 2012 from the above mentioned charges / offences leveled against him and the appellant may be exonerated from the offences and charges or any other order which is in favour of the appellant may kindly be passed in the interest of justice."

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2. The appellant laid a challenge to the judgment of conviction

and order of sentence dated 09.01.2019 passed by the learned

Special Judge, Protection of Children From Sexual Offences Act

Cases, Distt. Churu, in Session Case No.52/2018 (14/2016) (State

of Rajasthan Vs. Pawan Kumar), whereby the accused-appellant

has been convicted and sentenced as below:

Offence under               Sentence(s)                       Fine(s)
Section(s)
 3/4, POCSO Act,            Life Imprisonment                 Rs.5,000 /-, in
2012                                                          default of which, to
                                                              undergo further 06
                                                              months S.I.
450 IPC                     Five Years R.I.                   Rs.10,000 /-, in
                                                              default of which, to
                                                              undergo further 03
                                                              months S.I.

3. Brief facts of the case are that the incident took place on

19.07.2015, when the accused-appellant Pawan, who resided in

the neighboring house of the prosecutrix, who is said to be 15

years of age and at the time when she was alone at home, came

with a mechanic for getting the cooler repaired and asked for a

screw driver from the prosecutrix and when she went inside to

bring the same, the accused made her smell something and she

became unconscious, thereafter he committed rape upon her.

While such act was taking place, mother of the prosecutrix

returned home and the accused ran away.

3.1. On the basis of the aforementioned information, an FIR

bearing No.49/2015 (Ex.P-2) dated 19.07.2015 was registered at

the Police Station Mahila Thana, District Churu for the offence

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under Sections 376 of IPC and Section 3/4 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred to

as 'POCSO Act, 2012') and the investigation commenced

thereafter. After investigation, the police filed a charge-sheet in

the concerned court for the offences under Sections 450 & 376 of

IPC and Section 4 of the POCSO Act, 2012. The learned Trial Court

framed charges against the accused-appellant under the

aforementioned provisions of law; the said charges were read over

to the accused-appellant, which he denied and claimed to stand

due trial and the trial commenced accordingly.

3.2. During the course of trial, the prosecution produced

witnesses (PW-1 to PW-8) and got exhibited the documents (Ex.P-

1 to Ex.P-14), whereafter, the accused-appellant was examined

under Section 313 Cr.P.C., in which he pleaded innocence and his

false implication in the criminal case in question.

3.3. Thereafter, upon hearing the contentions of both the parties

as well as considering the material and evidence placed on record,

the learned Trial Court, convicted and sentenced the accused-

appellant, as above, vide the impugned judgment of conviction

and order of sentence dated 09.01.2019 against which the present

appeal has been preferred by the accused-appellant.

4. Mr. Hastimal Saraswat, learned counsel for the accused-

appellant submits that neither was there any kind of brutality, nor

was there any kind of force which had been used by the accused-

appellant.

4.1. Learned counsel submits that the minimum imprisonment for

the offence under Section 3 of the POCSO Act, 2012, as provided

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under Section 4 of the POCSO Act, 2012 (prior to the amendment

of the year 2019) is not less than seven years; the same reads as

under:-

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

4.2. Learned counsel further submits that though Section 4 of the

POCSO Act, 2012 stood amended in the year 2019, but at the

time when the offence in question was committed in the year

2015, Section 4 of the POCSO Act as quoted above was fully

applicable. He also submits that any retrospective applicability of

the amendment of 2019 in Section 4 of the POCSO Act is not

permissible under the law.

4.3. He produced the custody report, which indicates that the

appellant had undergone a total custody of 08 years, 02 months &

21 days as on 03.01.2023 and thereafter about 01 year and 09

months have passed, and therefore, the custody period of the

accused-appellant is almost 10 years by now.

4.4. Learned counsel however, makes a limited prayer that rather

than going into the merits of the case, looking to the peculiar

factual matrix and taking into consideration the minimum

punishment i.e. seven years imprisonment for the offence in

question, the life imprisonment as awarded to the accused-

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appellant vide the impugned judgment, may be reduced to the

custody period (i.e. almost 10 years) already undergone by him.

4.5. Learned counsel for the appellant has drawn attention of this

Court to the medical report of the prosecutrix, which indicates that

there was not even a single injury on her body, however, he fairly

submits that it was a case where the hymen was torn and thus

intercourse cannot be ruled out. He has also drawn attention of

this Court towards the statement of the prosecutrix recorded

under Section 164 of Cr.P.C. (Exhibit-5), in which the prosecutrix

stated that the accused came in her house in the pretext of

getting a screw driver and despite her telling him not to indulge in

such act, he committed rape upon her and it was only when her

mother came, that he ran away.

5. On the other hand, Mr. C.S. Ojha, learned Additional

Government Counsel submits that POCSO is a law, which requires

a strict scrutiny by the Court. He further submits that the offence

is proved and the age is not in conflict and that once the learned

counsel for the appellant has accepted the order of conviction, the

learned Court should adopt a strict approach in order of sentence.

6. Heard learned counsel for the parties and perused the

material available on record.

7. This Court finds that any law which is amended has to gain

currency prospectively. However, it is an admitted position that

amendment in Section 4 of the POCSO Act, increasing the

minimum punishment i.e. from seven to ten years imprisonment,

was incorporated only in the year 2019, whereas the alleged

incident happened in the year 2015, thus, the language of Section

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4 of the POCSO Act, which has been reproduced above clearly

provides for a punishment between 07 years to life imprisonment.

7.1. This Court has taken the overall facts and circumstances of

the case, and since, the accused-appellant himself has given up

the prayer of contesting the conviction on merits, therefore, the

limited prayer made by learned counsel for the accused-appellant

was that the accused-appellant should be released on the basis of

sentence undergone. The custody report clearly indicates that the

accused-appellant has undergone custody of about 10 years. The

custody report is taken on record.

8. At this juncture, this Court considers it appropriate to

reproduce the relevant portion of the judgment rendered by the

Hon'ble Apex Court in the case of State of M.P. v. Udham,

(2019) 10 SCC 300, as hereunder:-

"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).

13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of

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the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach."

9. This Court while looking to the peculiar factual matrix of the

case and on conjoint consideration of the medical report and

Exhibit-5 (statement of the prosecutrix) finds that it is particularly,

when the law in existence permitted that the sentence in a

particular case can be revisited looking to the prolonged custody.

10. In light of the limited prayer made on behalf of the accused-

appellant, the present appeal is partly allowed. Accordingly,

while maintaining the accused-appellant's conviction under Section

450 IPC & Section 3/4 of POCSO Act, 2012 and imposition of fine,

the sentence awarded to him is reduced to the period already

undergone by him. The accused-appellant is in custody; he be

released forthwith, if not required in any other case, subject to