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2018 DIGILAW 2185 (RAJ)

Kali Charan Alias Bhagwan v. State of Rajasthan

2018-11-03

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Appellants have preferred these appeals aggrieved by judgment and order dated 05.12.2014, passed by Special Judge, POCSO Cases (Session Judge), Tonk in Special Sessions Case No.82/2013, whereby appellant Kali Charan @ Bhagwan has been convicted for offence under Section 458, 363, 366-A, 376 of I.P.C and Section 5/6 of POCSO Act. For offence under Section 458 I.P.C., he has been sentenced for seven years rigorous imprisonment and fine of Rs. 5,000/-, on non payment of fine to further undergo fifteen days rigorous imprisonment, for offence under Section 363 I.P.C., he has been sentenced for seven years rigorous imprisonment and fine of Rs. 15,000/-on non payment of fine to further undergo one month rigorous imprisonment, for under Section 366-A I.P.C., he has been sentenced for ten years rigorous imprisonment and fine of Rs. 20,000/- on non payment of fine to further undergo one month rigorous imprisonment, for offence under Section 376 I.P.C., he has been sentenced for ten years rigorous imprisonment and fine of Rs. 50,000/- on non payment of fine to further undergo three months rigorous imprisonment and for offence under Section 5/6 of POCSO Act, he has been sentenced for ten years rigorous imprisonment and fine of Rs. 20,000/- on non payment of fine to further undergo one month rigorous imprisonment. Appellant Chand @ Chandu @ Chandra Singh has been convicted for offence under Section 458, 363, 366-A IPC and Section 17 of POCSO Act. For offence under Section 458 1. P.C., he has been sentenced to seven years rigorous imprisonment and fine of Rs. 2,500/-, on non payment of fine to further undergo fifteen days rigorous imprisonment, for offence under Section 363 I.P.C., he has been sentenced for seven years rigorous imprisonment and fine of Rs. 15,000/- on non payment of fine to further undergo one month rigorous imprisonment, for offence under Section 366-A I.P.C., he has been sentenced for ten years rigorous imprisonment and fine of Rs. 10,000/- on non payment of fine to further undergo one month rigorous imprisonment and for offence under Section 17 of the POCSO Act, he has been sentenced for ten years rigorous imprisonment and fine of Rs. 5,000/- on non payment of fine to further undergo one month rigorous imprisonment. 2. 10,000/- on non payment of fine to further undergo one month rigorous imprisonment and for offence under Section 17 of the POCSO Act, he has been sentenced for ten years rigorous imprisonment and fine of Rs. 5,000/- on non payment of fine to further undergo one month rigorous imprisonment. 2. In brief, the factual matrix of the case are that complainant Ashik Ali lodged an F.I.R. on 07.01.2013 that he along with his daughter was sleeping at his residence, at around 2:00 am, three persons entered his house, one of them was Kali Charan. They forcefully took away his daughter and when he objected, he was beaten. It is mentioned in the F.I.R. that earlier also Kali Charan had enticed her elder daughter. It is also mentioned in the F.I.R. that age of his daughter is fifteen to sixteen years. Police got the complainant medically examined and got recorded statement of the proseutrix under Section 164 Cr.P.C., 1973 and after due investigation submitted charge-sheet against Kali Charan @ Bhagwan Singh, Dholu and Chand @ Chandu. 3. Charges were framed against the appellants as well as Dholu Lal. Appellants and Dholu Lal denied the charges and sought trial, whereupon as many as nineteen witnesses were examined on behalf of the prosecution and forty one documents were exhibited. Explanation of appellants and Dholu were sought under Section 313 Cr.P.C., 1973 No witness was produced in defence. Ex.D-1 to Ex.D-3 were got exhibited in defence. 4. Trial Court after hearing final arguments has acquitted Dholu Lal but has convicted the present appellants and has sentenced them as mentioned herein above, aggrieved by which Kali Charan and Chand @ Chandu have preferred separate appeals. Since both the appeals arise from a common F.I.R., both the appeals are decided by a common order. 5. It is contended by counsel for the appellants that no documentary evidence was produced to establish the age of prosecutrix. The only evidence which was adduced was her medical examination report Ex.P-3, wherein her age was mentioned as between seventeen to nineteen years. It is also argued that when there is variance in the age, the age which is beneficial to the accused should be accepted. In this regard counsel for the appellants has placed reliance on " Babloo Pasi vs. State of Jharkand & Anr.", 2008 (4) RCR (Criminal) 756 and "Deepak vs. State of Maharashtra", 2017 (3) AIR Bom. It is also argued that when there is variance in the age, the age which is beneficial to the accused should be accepted. In this regard counsel for the appellants has placed reliance on " Babloo Pasi vs. State of Jharkand & Anr.", 2008 (4) RCR (Criminal) 756 and "Deepak vs. State of Maharashtra", 2017 (3) AIR Bom. R (Cri) 93. 6. It is also contended that there was enmity between appellant Kali Charan and complainant and appellant Kali Charan has been made an accused due to enmity. It is also contended that from the statement of PW-4 Dr. Rajesh Jain, it is revealed that the complainant sustained injuries six hours prior to his medical examination, as per which, time of incident would have been around 7:00 am in the morning, whereas in complaint, the time of incident is shown as 2:00 am, thus it is argued that the statements are not reliable. 7. With regard to recovery of the prosecutrix, it is contended that there is variance in the place of recovery which cast shadow of doubt on the prosecution version. It is also contended that prosecutrix was a major and she stayed with the appellant Kali Charan for more than three months without raising any alarm, thus, it is a case of consent rather than rape. 8. Counsel for Chand @ Chandu contends that Chand is not named in the F.I.R. and statement recorded under Section 161 Cr.P.C., 1973 and for the first time his name has appeared in the statement recorded under Section 164 Cr.P.C., 1973 It is also contended that case of Chand @ Chandu is similar to that of Dholu Lal who has been acquitted by the trial Court. 9. Learned Public Prosecutor has opposed the appeal. His contention is that when the medical opinion mentions the age between seventeen to nineteen years, the lower age is to be considered by the Court in cases under the POCSO Act. In this regard reliance has been placed on the judgment of Apex Court " Mahadeo vs. State of Maharashtra and Ors." (2013) 11 SCC 637 . 10. It is further contended that the ground of consent as raised by counsel for the appellants would not apply as the prosecutrix is a minor and consent is immaterial when rape is committed with the minor. 10. It is further contended that the ground of consent as raised by counsel for the appellants would not apply as the prosecutrix is a minor and consent is immaterial when rape is committed with the minor. It is also contended that prosecutrix has deposed before the Court that she was kidnapped by the appellants. She has also specifically alleged that she was raped by Kali Charan. Further, being an illiterate girl belonging to the rural area, minor discrepancy in her statement cannot be made basis for acquitting the appellants. It is also contended that the Court below has discussed the evidence in detail and has not committed any error in convicting the appellants. 11. I have considered the contentions. 12. First of all, I would like to deal with the objection with regard to age as raised by counsel for the appellants. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2017 (in brief "the Rules") deals with the procedure to be followed for determining the age of a Juvenile. As per Rule 12 of the Rules, if matriculation certificate, the date of birth certificate from the school first attended and birth certificate by Corporation or a Municipal Authority or a Panchayat is not available, age is to be determined by the Medical Board according to medical opinion and the benefit to the child or juvenile is to be given considering his/her age on lower side within the margin of one year. 13. This Court in "Rakesh Kumar vs. State of Rajasthan" S.B. Criminal Revision No.808/2017 decided on 23.08.2017, considered the view taken by Apex Court in " Mahadeo vs. State of Maharashtra and Ors." (2013) 11 SCC 637 & "State of Madhya Pradesh vs. Anoop Singh" (2015) 7 SCC 773 and held that for determining the age under the Protection of Children from Sexual Offence Act, age of the victim is to be determined in accordance with Rule 12 of the Rules, 2017. 14. In "Babloo Pasi vs. State of Jharkhand" (supra), Apex Court held that if two views may be possible on the same evidence, the Court should lean in favour of holding the accused to be a Juvenile in borderline cases. The said judgment referred by the counsel for the appellant is of no help to the accused as that case pertained to determination of age of a person who was an accused. The said judgment referred by the counsel for the appellant is of no help to the accused as that case pertained to determination of age of a person who was an accused. Applying the same yardstick for determining the age of the victim as held in Mahadeo vs. State of Maharashtra (supra), age of the victim as per the opinion of medical board and Rule 12 would be below sixteen years. 15. In the present case before the Court, there is no matriculation certificate, the date of birth certificate from the school first attended and birth certificate by Corporation or a Municipal Authority or a Panchayat. Prosecutrix has been examined by medical Board which has mentioned her age between seventeen years to nineteen years on the date of examination i.e. 22.04.2013, offence in this case was committed on 07.01.2013 and considering her age on the lower side, as per Rule 12 of the Rules, 2017, her age on 07.01.2013 would be below sixteen years. 16. Reverting back to the merits of the case, complainant PW-2 Ashik Ali has deposed before the Court that at mid night around 2:00 am, three persons out of which one was Kali Charan entered his house and gave him beatings and forcefully took away his daughter. The fact that Ashik Ali sustained injuries while protecting the commission of offence of kidnapping is established by statement of PW-4 Dr. Rajesh Jain. He has also mentioned that he was medically examined and his medical report is Ex.P-14. PW1. Prosecutrix has also deposed before the Court that at midnight of 6th January, at around 2:00 am two persons entered their house from which one was appellant Chand and another was Kali Charan @ Bhagwan Singh and they gave beatings to her father and after gagging her forcefully, kidnapped her. She has also stated that appellant Kali Charan after kidnapping her committed rape with her and used to threaten her that if she objected he would kill her family members. She has also stated that from Ganesh Factory, Chand along with his wife and Kali Charan took her to Gujarat to Goswara, a village of Gujarat and there also Kali Charan committed rape and unnatural offence with her. She has also stated that from Gujarat she was taken to Madina Factory, Kota, there also Kali Charan committed rape with her. She has also stated that from Ganesh Factory, Chand along with his wife and Kali Charan took her to Gujarat to Goswara, a village of Gujarat and there also Kali Charan committed rape and unnatural offence with her. She has also stated that from Gujarat she was taken to Madina Factory, Kota, there also Kali Charan committed rape with her. He also took her to Nimach and Hyderabad and committed rape with her. 17. Contention of counsel for the appellant that prosecutrix did not raise any alarm when she was taken by road from one place to another, cannot be considered to be a ground as prosecutrix is a minor who has deposed that she was threatened. The fact that she was kidnapped is established from the F.I.R. as well as statement of her father Ashik Ali. The fact that she was taken from one place to another and rape was committed by Kali Charan is also established from her own statement. Minor discrepancy in her statement cannot be made a basis for acquitting the accused as the prosecutrix in this case is a child who is illiterate and belongs to a rural background. 18. It is a clear case of the prosecution that Kali Charan along with two persons entered the house of complainant-Ashik Ali and gave beating to Ashik Ali and forcefully took away his daughter, the prosecutrix of this case. Name of Chand is not appearing in the F.I.R. but subsequently his name has appeared in the statement recorded under Section 164 Cr.P.C., 1973 Prosecutrix in her Court statement has named Chand as the person who along with Kali Charan kidnapped her. She has also stated that Chand and his wife and Kali Charan took her to Gujarat where Kali Charan was staying with her and others were staying in a separate room, thus, the allegation against Chand of having committed offences under Sections 458, 363, 366-A and Section 17 of the POCSO Act is established. 19. As per the initial case set by the prosecution, case of Dholu was on similar lines with that of Chand. Dholu was stated to be the driver of the vehicle in which prosecutrix was kidnapped but prosecutrix did not identify him in court as a result of which Dholu was acquitted. 19. As per the initial case set by the prosecution, case of Dholu was on similar lines with that of Chand. Dholu was stated to be the driver of the vehicle in which prosecutrix was kidnapped but prosecutrix did not identify him in court as a result of which Dholu was acquitted. Prosecutrix however identified Chand in court and has deposed against him, hence, Chand's case cannot be now considered to be akin to be that of Dholu. 20. It would be relevant to quote Section 29 of POCSO Act which reads as under: "Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved." 21. In the present case no evidence was adduced by the appellant to rebut the evidence produced on behalf of the prosecution. Hence, the Court below was not in error in coming to the conclusion that the accused has committed the offence. The conviction of Kalicharan and Chand for the offences is thus based on proper appreciation of evidence. 22. As far as conviction under Section 376 I.P.C is concerned, this Court is of the firm view that trial Court cannot convict for offence under I.P.C and POCSO Act, at the same time and special law would prevail over general law. Since the offence would be covered under the POCSO Act, conviction under Section 376 I.P.C cannot be sustained. Conviction of the appellant Kali Charan under Section 376 I.P.C is thus quashed and set aside. 23. As far as sentence is concerned, sentence passed against Kalicharan for offence under section 376 I.P.C is quashed, rest of sentence need no alteration but Chand"s case being different and their being no allegation under Section 3 of the POCSO Act, this Court deems it proper to uphold the conviction of Chand for the alleged offences but at the same time reduce the sentence to seven years rigorous imprisonment in place of ten years under Section 366-A of I.P.C. and seven years rigorous imprisonment in place of ten years under Section 17 of the POCSO Act. The quantum of fine however would remain the same. The quantum of fine however would remain the same. The sentence awarded under Section 363 and 458 of I.P.C. remains unaltered. 24. Both the appeals are accordingly partly allowed. 25. Record of the Court below be returned forthwith.