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2019 DIGILAW 1865 (RAJ)

Bhinyaram v. State of Rajasthan

2019-07-02

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : 1. The appellant herein has been convicted and sentenced as below vide judgment dated 02.12.2014 passed by the learned Sessions Judge, Bikaner in Sessions Case No. 32/2013: Offences Sentences Fine Fine Default sentences Section 367 IPC 7 Years' Rigorous Imprisonment Rs. 10,000/- 6 Months' R.I. Section 4 of the POCSO Act Life Imprisonment Rs. 15,000/- 6 Months' R.I. 2. Being aggrieved of his conviction and the sentences awarded by the trial court, the accused appellant has preferred the instant appeal under Section 374(2) Cr.P.C. 3. The prosecution case centers around the allegations that the appellant herein, subjected the minor child Master 'H', nephew of the first informant Bhanwar Singh to unnatural sexual intercourse on 08.01.2013 as a result whereof, the boy received number of injuries on his anal orifice. A complaint to this effect was lodged by Bhanwar Singh to the SHO Police Station Napasar on 08.01.2013 at 10.30 pm. on the basis whereof, FIR No. 4/2013 was registered at the Police Station for the offences under Sections 367 and 377 IPC. The accused appellant was apprehended. The child was subjected to medical examination at the hands of the medical jurist Dr. Indira Prabhakar (PW-4) who issued the Medico Legal Report (Ex. P/6) noticing multiple tears on the anal region of the child with a clear opinion that the injuries were the result of penetration of a hard erected male organ on the orifice. After completion of investigation, a charge-sheet came to be filed against the appellant herein for the offences under Sections 367 and 377 IPC and Section 4 of the POCSO Act, 2012. The case was committed to the court of the Sessions Judge, Bikaner who framed charges against the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 8 witnesses to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the circumstances appearing against him in the prosecution case, the accused averred a bald denial thereto and claimed to have been false implicated. One witness was examined in defence. 4. After hearing the arguments advanced by the prosecution and the defence, and upon going through the material on record, the learned Trial Judge, proceeded to convict and sentence the accused appellant as above. One witness was examined in defence. 4. After hearing the arguments advanced by the prosecution and the defence, and upon going through the material on record, the learned Trial Judge, proceeded to convict and sentence the accused appellant as above. The trial court held that the offence under Section 377 IPC was a part and parcel of the charge under Section 4 of the POCSO Act and thus, it did not think fit to record the conviction of the accused for the said offence. Hence this appeal. 5. Shri Naresh Khatri, learned counsel representing the appellant, though feebly tried to assail the impugned judgment but after referring to the statement of the child victim Master 'H' aged 5 years, he could not dispute the fact that the child has given unwavering testimony to the effect that the accused Bhinyaram, sexually assaulted him and subjected him to forcible anal intercourse as a result whereof, he received large number of injuries. Not a single question was put to the witness regarding the identity of the accused. The child correctly identified the accused in the court when particular question to this effect was put by the defence in cross-examination. Though Shri Khatri fervently tried to convince the Court that the medical evidence does not support the allegation that the child was subjected to anal intercourse but after going through the statement of Dr. Indira Prabhakar (PW-4) and the medical report (Ex. P/6), we are of the firm opinion that it is duly established that the child was subjected to forcible anal sexual assault as a result whereof, he received multiple tears on the anal region. Faced with this situation, Shri Khatri submitted that he gives up the challenge to the conviction of the accused appellant but prays that the Court may sympathetically consider the prayer of the accused for reduction of sentences awarded to him keeping in view the fact that he was bordering the age of a child offender when the incident took place. He urged that the accused raised an objection of juvenility before the trial court, however, the learned trial court did not accept this contention. He urges that in those proceedings, the school admission form of the accused was summoned wherein, his date of birth is recorded as 15.12.1994. He urged that the accused raised an objection of juvenility before the trial court, however, the learned trial court did not accept this contention. He urges that in those proceedings, the school admission form of the accused was summoned wherein, his date of birth is recorded as 15.12.1994. He submitted that incident took place on 08.01.2013 and thus, the accused was just 18 years and a few days old when the incident took place. He urges that the accused was blinded by lust but he had no other motive to harm the child. On these grounds, he pleaded that the Court may consider suitable reduction of the sentence awarded to the accused contending that the offence under Section 4 of the POCSO Act carries imprisonment which shall not be less than 7 years but may extend to imprisonment for life. He urges that looking to the young age of the accused appellant, the maximum sentence of life imprisonment was not at all warranted, and implored the Court to suitably reduce the sentence awarded to the accused by the trial court on this count. 6. Learned Public Prosecutor, on the other hand, opposed the submissions advanced by Shri Khatri and urged that the accused brutally assaulted the minor child as a result whereof, his anal orifice was torn apart. The accused did not show any mercy whatsoever while assaulting the child victim and thus, he does not deserve any clemency from this Court on the aspect of sentences. 7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and the record. 8. After going through the evidence of the material prosecution witnesses viz. the child victim Master 'H' (PW-3) and the Medical Officer Dr. Indira Prabhakar (PW-6), we are of the firm opinion that the conviction of the accused for the offences under Section 367 IPC and Section 4 of the POCSO Act does not warrant any interference because the child has given positive testimony identifying the accused as the offender who sexually assaulted him in an unnatural manner. The medical report and the evidence of the medical officer corroborate the testimony of the child to the hilt. 9. Thus, we affirm the conviction of the appellant recorded by the trial court by the impugned judgment dated 02.12.2014 passed by the learned Sessions Judge, Bikaner. The medical report and the evidence of the medical officer corroborate the testimony of the child to the hilt. 9. Thus, we affirm the conviction of the appellant recorded by the trial court by the impugned judgment dated 02.12.2014 passed by the learned Sessions Judge, Bikaner. On the aspect of sentence, we have considered the submissions advanced by Shri Khatri. The accused raised a plea on juvenility before the trial court pleading that his date of birth was recorded in the school certificate as 15.12.1994. However, the documents which the accused submitted in these proceedings before the trial court, were not found to be genuine and were rather fabricated. The date of birth of the accused as recorded in his school admission form was 15.12.1994. The incident took place on 08.01.2013 and thus, the accused was aged 18 years and 23 days on that date. He had just crossed the age of juvenility. It appears to us that the sexual assault was perpetrated in an impulse of carnal lust without realising the consequences thereof on the child and the penal consequence thereof. The maximum punishment of life imprisonment provided under Section 4 of the POCSO Act is an exception whereas the minimum sentence which is mandatorily required to be awarded is 7 years. 10. In this background, considering the tender age of the accused at the time of the incident, we feel that ends of justice would be served by reducing the sentence of life imprisonment awarded by the trial court to the accused for the offence under Section 4 of the POCSO Act to a term of 10 years R.I. The sentence of fine is however maintained. In addition thereto, we hereby direct that the District Legal Service Authority, Bikaner shall forthwith take up the matter of the victim Master 'H' for grant of compensation under the provisions of the Victim Compensation Scheme. The maximum permissible compensation shall be awarded to the victim after following the requisite formalities. 11. The appeal is partly allowed in these terms. 12. Record be returned to the trial court forthwith.