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Gujarat High Court · body

2018 DIGILAW 755 (GUJ)

Rasikbhai Himatbhai Makwana v. State of Gujarat

2018-06-15

SONIA GOKANI

body2018
JUDGMENT : Sonia Gokani, J. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'the Code'), arising from the judgment and order of conviction passed by the learned Special Judge (POCSO), City Civil & Sessions Court No. 20 ('trial Court', for short), Dated: 09.08.2017, in Special (POCSO) Case No. 61 of 2014. 2. The brief facts leading to the present appeal are as follows: It is the case of the prosecution that on 04.06.2014, at around 03:30 a.m., wile the prosecutrix was sleeping with her parents, she suddenly woke up and shouted and her parents found her in disturbed condition crying. They also found the accused, who had pressed her breast and also had touched her private part. He was caught immediately and police was called and he was taken to Kagdapith Police Station, where, an FIR came to be lodged by he mother of prosecutrix, namely Nirmalaben W/o. Dharmendrabhai Leuva, being I-C.R. No. 86 of 2014. On completion of the due investigation, charge-sheet came to be filed for the offence punishable under Section 354A of the Indian Penal Code, 1860, so also under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in brief, 'POCSO Act'). The appellant did not plead guilty and desired to engage a private lawyer to represent him. However, later on, he was provided legal aid, on being requested. 2.1 The prosecution examined five witnesses in support of its case, including the prosecutrix and some of the documentary evidences were also duly brought on record. Thereafter, the further statement of the accused came to be recorded in detail, where, he denied all the charges emphatically and the offence that has been lodged against him. According to him, he is innocent and has not committed any offence since there was a dispute of thoroughfare, he had been falsely involved. 2.2 The trial Court after availing opportunity to both the sides, delivered the judgment and order, as mentioned in Paragraph-1 herein above, after perusing the entire material on record and thereby, held the accused guilty of the charges framed against him, which has led the appellant to approach this Court by way of present appeal. 3. It is the say of the learned Advocate, Mr. 3. It is the say of the learned Advocate, Mr. Barod, appearing in legal-aid for the appellant-convict that the trial Court has committed a serious error in not appreciating the evidence on record, as per the well settled principles of criminal jurisprudence. The court also has not regarded the fact that only on legally reliable and un-impeachable evidence, the prosecution can succeed in proving the guilt of a person. The place of recovery and discovery panchnama also have not been proved, according to the appellant. It is, further, his say that there was no evidence of the molestation of the child and the ingredients of Section 354A of the IPC are also not successfully and satisfactorily proved. It is, further, urged that the punishment imposed by the trial Court is too harsh and disproportionate and the Court needs to strike a balance even if it finds the guilt of the appellant to have been proved. 3.1 During the course of argument, learned Advocate, Mr. Barod, kept the first informant present before this Court, who submitted that at the request of the mother of the appellant, who is a widow and has nobody else in the family to look after her, a request was made to reduce the sentence, if, this Court, otherwise, deems it fit. 4. Learned Advocate, Mr. P.V. Patadia, appearing for Respondent No.2-first informant urged that leniency can be shown in the instant case in awarding punishment as stated by the complainant. He, further, urged that the age of the prosecutrix also has been duly proved by the prosecution and she clearly falls within the definition of 'Child', as given under the POCSO Act, as her date of birth is 14.03.1998 and therefore, at the time of incident, she was about 16 years of age. It is not the case of defence that it was an act of consent and such kind of behaviour would put any common man to jeopardy. 5. Learned APP, Mr. Soni, appearing for the State has also argued not to disturb in any manner the judgment and order of the trial Court. According to him, there would be no safety, if, anybody can enter the premise and would not allow the family to have their own privacy of sleeping in open place of their house. 5. Learned APP, Mr. Soni, appearing for the State has also argued not to disturb in any manner the judgment and order of the trial Court. According to him, there would be no safety, if, anybody can enter the premise and would not allow the family to have their own privacy of sleeping in open place of their house. He urged that the prosecutrix does not hail from the strata, where, the parties would have luxury of not only air conditioner but also of separate rooms or personal terrace. Such an incident is going to leave a permanent mark on the victim and therefore, this Court should not show any leniency. He, further, urged that it is impermissible for a party to compound the offence punishable under Section 354A of the IPC. He, therefore, prayed that this appeal be dismissed. 6. Having, thus, heard learned Advocates on both the sides and having perused the material on record, firstly, the complaint given by the first informant on 04.06.2014 shall need to be regarded. The first informant, Nirmalaben Dharmendrabhai Leuva, was examined as PW-1. She deposed that her daughter was aged 16 years and due to summer entire family was sleeping outside their home. They were all sleeping on 'Charpai' (locally made couch), which included the first informant, herself, her husband and her son and the victim, who has been allegedly sexually assaulted and harassed by the appellant, while she was sleeping on a separate charpai. Since, in late night, she shouted suddenly, they all woke up and found that she was crying. She had complaint of the appellant having pressed her breast and also having touched her private part. Hue and cry made by her, gathered the crowd from the neighbourhood and the police was contacted by dialing 100 number and hence, police also rushed to the place of offence. An FIR being I-C.R. No. 86 of 2014 came to be lodged with Kagdapith Police Station. 6.1 Dharmendrabhai Leuva, who happened to be the father of the prosecutrix, was examined as PW-2 vide Exhibit-14. His deposition is similar to that of his wife, PW-1, which does not require to be dilated. 6.2 Likewise, Hansaben Manubhai Leuva, PW-3, is the paternal aunt of the prosecutrix. 6.1 Dharmendrabhai Leuva, who happened to be the father of the prosecutrix, was examined as PW-2 vide Exhibit-14. His deposition is similar to that of his wife, PW-1, which does not require to be dilated. 6.2 Likewise, Hansaben Manubhai Leuva, PW-3, is the paternal aunt of the prosecutrix. They all had woken-up on hearing the shouts of the prosecutrix on account of the harassment caused by the appellant-convict and when inquiry was made from him, he gave his name as Rasik Himmatlal Makwana. 6.3 The prosecutrix was examined as PW-4 at Exhibit-17. She deposed that on 04.06.2014, at night while she was sleeping with other members of her family in the compound of her house, she suddenly had woken-up feeling pain on her chest and finding the appellant touching her private part, she shouted and also caught the appellant-convict. The others in the family also had woken-up and caught the appellant, and then, he was taken to police station. 6.4 In her cross-examination, only denial is taken. She, of course, agreed that it was late night, and therefore, she was fast asleep. However, she denied the suggestion that since it was late night and they were sleeping, she was unsure as to who could have done the said act. She also denied the suggestion that the area, where, they were sleeping was a public road, which is a thoroughfare for the people in the society. 6.5 So far as the Investigating Officer, PW-5, is concerned, he also denied that during the course of investigation, it was revealed that there was any dispute with regard to thoroughfare between the parties. This witness narrated the details given by the witness noted in their statements as well as in the FIR. He, further, agreed that during the course of investigation the first informant had not produced any evidence with regard to the age of the prosecutrix. 6.6 In this backdrop of facts, the appreciation of the evidence, oral as well as documentary, made by the trial Court shall have to regarded so also the severity of the punishment inflicted on the appellant. The trial Court while appreciating the evidence of the witnesses, who are close relatives and who are also sleeping in the compound near the prosecutrix, have deposed in support of the version given by the prosecutrix, as mentioned in the FIR by the First Informant. The trial Court while appreciating the evidence of the witnesses, who are close relatives and who are also sleeping in the compound near the prosecutrix, have deposed in support of the version given by the prosecutrix, as mentioned in the FIR by the First Informant. Entire set of evidence, which is duly examined by the trial Court, led it to hold that there is neither any dispute with regard to thoroughfare between the parties nor does there exist any reason for the prosecutrix to falsely implicate him in the crime in question. The birth certificate of the prosecutrix also had been later on produced by the learned APP vide Exhibit-22 and this was since was not objected to by the other side, it was taken on record and exhibited vide Exhibit-22. The trial Court had examined the same, which stated her date of birth to be 14.03.1998, which would make her below 18 years of age on the date of incident. 6.7 At this stage, profitable, it would be to regard to Sections 7 and 8 of the POCSO Act, which read thus:- "7. Sexual assault.-Whoever, with sexual intent touches the vagina, penis, anus oar breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does nay other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. XXX XXX XXX 8. Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall be not be less than three years but which may extend to five years, and shall also be liable to fine." 6.8 As can be seen above, as defined under Section 7 of the Act, the sexual assault is when, with sexual intent, there is touching of vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to have committed sexual assault. Further, as provided under Section 8 of the POCSO Act, anyone, who commits sexual assault on a child shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable liable to fine. 6.9 Here, it would also be profitable to refer to Section 354A of the IPC, which reads thus: "354A. Sexual harassment and punishment for sexual harassment. A man committing any of the following acts 1. physical contact and advances involving unwelcome and explicit sexual overtures; or 2. a demand or request for sexual favours; or 3. showing pornography against the will of a woman; or 4. making sexually coloured remarks, shall be guilty of the offence of sexual harassment. 2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of subsection (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. 3. Any man who commits the offence specified in clause (iv) of subsection (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both." 6.10 Thus, a man committing any of the following, viz. (1) physical contact and advances involving unwelcome and explicit sexual overtures; (2) a demand or request for sexual favours, (3) showing pornography against the will of a woman and/or (4) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. It, further, provides that any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both, whereas, Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 6.11 In the case on hand, the act of physical assault has come out on record from the deposition of the prosecutrix and other witnesses, who were sleeping near her on the date of the incident, and therefore, the trial Court is justified in holding the accused guilty of the offence punishable under Sections 354A of the IPC so also under Section 8 of the POCSO Act. 6.12 Ordinarily, appellate Court is not to interfere with the findings of the trial Court nor to replace it with its own findings, unless there is gross illegality leading to travesty of justice. 6.13 So far as the request for reducing the sentence is concerned, the entire emphasis on the part of the appellant is for reduction of sentence. More so on stating that the complainant having supported the case of the appellant and her sympathy is essentially with the mother of the appellant, who is a widow, and the appellant being only son, this Court had an occasion to verify from the complainant, who was not in any manner won over by the party nor was she under the awe of the appellant or anyone else in the neighbourhood. She sympathized with the cause of the family of the appellant. She also had urged that the Court may show leniency, considering the overall circumstances of the family of the appellant. 6.14 This Court had inquired from the prosecution with regard to the criminal antecedents of the appellant and there appears to be none. Considering the overall circumstances and in wake of the subsequent developments, while upholding the judgment and order of conviction passed by the trial Court, sentence requires to be reduced to three years. 7. Resultantly, this appeal is PARTLY ALLOWED. While CONFIRMING the judgment and order of conviction, for the offence punishable under Section 354(A) of the IPC read with Section 8 of the POCSO, passed by the learned Special Judge (POCSO), City Civil & Sessions Court No. 20, Dated: 09.08.2017, in Special (POCSO) Case No. 61 of 2014, sentence of the appellant is reduced to rigorous imprisonment for THREE YEARS. Rest of the judgment and order remains unaltered. 7.1 The appellant, since, is in jail, as is urged by the learned Advocate for the appellant and confirmed by the learned APP, no order is required to be passed in that regard. Rest of the judgment and order remains unaltered. 7.1 The appellant, since, is in jail, as is urged by the learned Advocate for the appellant and confirmed by the learned APP, no order is required to be passed in that regard. 7.2 Since, the victim has already been awarded Rs.50,000/- towards compensation under the Victim Compensation Scheme, 2016, and as the said amount has already been disbursed to her, no order is required to be passed in that regard. Office to send back R&P, if any received, to the trial Court concerned, FORTHWITH.