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2019 DIGILAW 2101 (RAJ)

Firoz Khan v. State of Rajasthan

2019-08-02

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : 1. The appellant Firoz Khan has been convicted and sentenced as below vide judgment dated 18.09.2017, passed by the learned Sessions Judge, Jalore, District Jalore in Sessions Case No. 43/2014: Offence Under Section Sentence Fine Fine Default sentences 344 IPC 2 Years R.I. Rs. 2,000/- 1 Months S.I. 366 IPC 5 Years S.I. Rs. 5,000/- 5 Months S.I. 363 IPC 3 Years S.I. Rs. 5,000/- 3 Months S.I. 376 IPC 7 Years R.I. Rs. 10,000/- 6 Months S.I. 376(2)(n)(i) IPC 10 Years R.I. Rs. 15,000/- 1 Year S.I. 3(2)(v) SC/ST Act Life Imprisonment Rs. 10,000/- 6 Months S.I. 3(1)(w) SC/ST Act 5 Years R.I. Rs. 10,000/- 6 Months S.I. 3/4 POCSO Act 7 Years R.I. Rs. 5,000/- 5 Months S.I. All the substantive sentences awarded to the accused were ordered to run concurrently. All the substantive sentences awarded to the accused were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. Initially, the appeal was a represented one, however, the counsel representing the appellant, pleaded no instruction upon which, we appointed Shri Bhagat Dadhich, Advocate as Amicus Curiae under the Free Legal Aid Scheme to assist the Court on behalf of the appellant. 4. Brief facts relevant and essential for the disposal of the appeal are noted hereinbelow:- One Shri Manoj Kumar Harijan son of Mataaji, resident of Raniwara Khurd, Tehsil Raniwara submitted a typed report (Ex. P/18) to the SHO, Police Station Raniwara, District Jalore on 01.08.2014 alleging inter alia that his daughter Mst. 'C' had gone out to bring vegetables from the village on 20.07.2014 at 12.30 in the afternoon. But, she did not return home till the evening. They made fervent efforts to trace the girl out but could not succeed and hence, the report was being filed. On further inquiry by the SHO, Manoj Kumar stated that his daughter was a minor and that somebody had lured her away. On the basis of the report aforesaid, an FIR No. 150/2014 was registered at the Police Station Raniwara for the offences under Sections 363 and 366 of the IPC. The missing girl Sushri 'C' was traced out at Balotra and taken into protection of the police vide memorandum (Ex. P/13) dated 08.08.2014. She was subjected to medical examination at the Government Hospital, Jalore. The missing girl Sushri 'C' was traced out at Balotra and taken into protection of the police vide memorandum (Ex. P/13) dated 08.08.2014. She was subjected to medical examination at the Government Hospital, Jalore. Her statement was recorded under Section 161 Cr.P.C. (Ex. D/1) wherein, she clearly stated that she came in touch with Firoz Khan about 3-4 months ago at the house of their immediate neighbour Ramesh. She procured the mobile number of Firoz Khan and used to talk to him. Thereafter, they developed a mutual friendship with each other. Firoz Khan used to provide for the recharge of her phone. Firoz Khan called her and asked her that he wanted to marry her to which, she replied in the affirmative. He confirmed that whether she would not cheat him, whereupon, she re-assured that nothing of this sort would happen. She called Firoz Khan and asked him to take her away. Firoz Khan called her to Bhinmal but she stated that she would not be able to come there and instead, asked him to come to Raniwara. On 20.07.2014, she misguided her family members that she was going to the shop and instead, she went to the Raniwara Bus-stand where Firoz Khan was waiting for her. She and Firoz Khan boarded a jeep and went to Bhinmal from where, they took a bus and went to Balotra via Jalore. At Balotra, they went to the house of Firoz Khan where, his mother, aunt, etc. were present. A little later, Firoz Khan's brothers also came there. She and Firoz Khan stayed in the same room in the night where, Firoz Khan established physical relations with her. She stayed at the house of Firoz Khan for 20 days where, they regularly cohabited with each other. On 07.08.2014, police came to the house of Firoz Khan and took her away. The girl expressed that she wanted to go with her parents. The statement of the girl was also recorded under Section 164 Cr.P.C. (Ex. P/17) wherein also, she virtually repeated the version as given by her in her statement recorded by the I.O. under Section 161 Cr.P.C. However, what is significant to note here is that the girl gave her age to be of 15 years in both the statements. She was medically examined and thereafter, on her desire, she was sent with her parents. She was medically examined and thereafter, on her desire, she was sent with her parents. After concluding the investigation and, as the victim belonged to a Scheduled Caste, the I.O. proceeded to file a charge-sheet against the accused appellant for the offences under Sections 363, 366, 376, 376(2) (n), 376(2)(i), 344 IPC and Sections 3(2)(v), 3(1)(w) and 3(1) (xii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as 'the SC/ST Act') and Section 3/4 of the Protection of Children from Sexual Offenses Act (hereinafter referred to as 'the POCSO Act'). 5. The offences were Sessions triable and thus, the case was committed to the Court of the Sessions Judge, Jalore who framed charges against the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 17 witnesses and exhibited 20 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the allegations levelled in the prosecution evidence, the accused denied the same and claimed to have been falsely implicated. However, no evidence was led in defence. After appreciating the arguments advanced by the prosecution and the defence and evaluating the evidence available on record, the learned Trial Judge proceeded to convict and sentence the accused appellant as above. Hence this appeal. 6. Shri Bhagat Dadhich, learned Amicus Curiae representing the appellant primarily contended that conviction of the appellant as recorded by the learned trial court for the offence under Section 3(2)(v) of the SC/ST Act is unsustainable. He submitted that there is no allegation that the accused committed the offences under the IPC or the POCSO Act solely with the intention that he was doing so on a member of the Scheduled Caste. He further submitted that from the statement of the victim Mst. 'C' (PW-10), it is clear that the relations between her and the appellant were purely and totally consensual. As per Sh. Dadhich, the evidence led by the prosecution to prove the date of birth of the victim is not of sterling worth and thus, as per him, the learned trial court was unjustified in holding that she was below 18 years of age. As per him, the girl was a major and as her relationship with the appellant was consensual, the appellant deserves to be acquitted of the charges. 7. As per him, the girl was a major and as her relationship with the appellant was consensual, the appellant deserves to be acquitted of the charges. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that as per the school certificates (Ex. P/7 and Ex. P/9), which were duly proved on record, the date of birth of the victim was 05.08.1999. The incident took place in the month of July, 2014 and thus, the girl was less than 15 years of age when she was taken away by the accused. The fact that the appellant took away the girl from the lawful guardianship of her parents and established sexual relations with her is virtually an admitted case of the defence and thus, as per the learned Public Prosecutor, there is no escape from the conclusion that the accused subjected the victim to penetrative sexual assault. Hence, as per him, the conviction of the appellant and the sentences awarded to him by the trial court do not call for any interference whatsoever. 8. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the material available on record. 9. Firstly, we proceed to deal with the issue as to whether the trial court was justified in convicting the appellant for the offences under the SC/ST Act. Suffice it to say that on going through the statement of the girl Mst. 'C' (PW-10), it is clearly a case wherein, she and the accused developed a mutual friendship and then eloped together. There is not even an iota of allegation in the entire prosecution case that the accused indulged in the offences on the ground that he was doing so with a person belonging to the Scheduled Caste community. Hon'ble the Supreme Court in the case of Masumsha Hasanasha Musalman vs. State of Maharashtra reported in AIR 2000 SC 1876 , held that for bringing home the charges under Section 3(2)(v) of the SC/ST Act, the prosecution must prove that the accused committed the offence under the IPC on a member of the Scheduled Caste or Scheduled Tribe with the intention that he was doing so on the ground that the victim belonged to such caste or tribe. The case at hand does not manifest any such feature which can persuade the Court to believe that the accused committed the offences with the victim on the ground that he was doing so on a member of Schedule Caste and Schedule Tribe. 10. Furthermore, as regards the offence under Section 3(1)(w) of the SC/ST Act is concerned, suffice it to say that this offence was introduced in the SC/ST Act by an amendment which came into force on 26.01.2016 and thus, obviously the trial court has proceeded to convict the accused for a provision which did not even exist in the statute book as on the date of commission of the offence. It is a well settled principle of law that a penal statute can never operate retrospectively and thus, the conviction of the appellant for the offences under the SC/ST Act amounts to gross illegality and he deserves to be acquitted of these charges. 11. Now we come to the offences under the Indian Penal Code and the POCSO Act for which the accused appellant has been convicted. The entire prosecution case is based on the statement of the victim (PW-10) who virtually admitted in her sworn testimony that the relations between she and Firoz Khan were consensual. Even the defence took up a definite stand about consensual physical relationship between the accused and the victim. Thus, the fact that the accused indulged in penetrative sexual relationship with the victim is well proved by the prosecution evidence and is even admitted by the defence. Nonetheless, while deposing, the girl gave out her age to be of 17 years. The incident took place about 2 years before her statements were recorded. The defence tried to controvert the prosecution case regarding the age of the victim claiming that she had attained the age of majority as on the date of the incident. However, on going through the evidence of PW-17 Arjun Ram, the Principal of the School where the victim was initially admitted and where she studied, it is clear that in her admission form of the Ist standard (Ex. P/9), the date of birth of the victim is mentioned as 05.08.1999. The incident took place in July, 2014. Meaning thereby, the girl was below 15 years of age on the date of commission of offence. P/9), the date of birth of the victim is mentioned as 05.08.1999. The incident took place in July, 2014. Meaning thereby, the girl was below 15 years of age on the date of commission of offence. As this admission form was filled way back in the year 2004, there is no reason to doubt the veracity of the date of birth of the victim recorded therein. The victim clearly stated that the accused offered to marry her and thereafter, she went away from the house of her father and joined the accused at the Raniwara bus-stand. Manifestly thus, it is clearly a case of a minor girl being kidnapped from the guardianship of her father under an allurement of marriage. True it is, that on going through the statements of the victim (under Sections 161 and 164 Cr.P.C.) with which she was confronted in her cross-examination, it is manifest that in both these statements, the victim divulged that the physical relations between her and the accused appellant were established purely with her consent. However, the consent of a minor girl is irrelevant in view of the clear language of the Clause "Sixthly" of Section 375 IPC which reads that a man is said to commit rape if he penetrates his sexual organ into any orifice of a woman with or without her consent when she is under eighteen years of age. Thus, the consent of the minor is immaterial. 12. If we read the exception 2 provided under Section 375 IPC, it is apparent that even sexual intercourse by a man with his wife below the age of fifteen years would come within the definition of rape. Section 376(2)(i) as it stood before its omission vide Act 22 of 2018 provided that whoever commits rape on a woman when she is under sixteen years of age would be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life. Section 376(2)(n) reads that whoever commits rape repeatedly on the same girl/woman would be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life. Section 376(2)(n) reads that whoever commits rape repeatedly on the same girl/woman would be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life. Obviously, as per the statement of the victim, she at the age of 15 years was subjected to rape by the accused appellant repeatedly over a period of 20 days while she was confined at his house. Thus, the conviction of the appellant for the offences under Sections 376(2)(n) and 376(2)(i) is not liable to be interfered with. For both these offences, the statute provides a minimum sentence of 10 years and therefore, the sentences awarded to the appellant on these counts also cannot be questioned. 13. As a consequence of the above discussion, the impugned judgment dated 18.09.2017, passed by the learned Sessions Judge, Jalore, District Jalore is set aside to the extent of conviction and sentences awarded to the appellant for the offences under the SC/ST Act. The conviction of the appellant for the offences under Section 3(1)(w) and 3(2)(v) of the SC/ST Act recorded by the learned trial court vide the impugned Judgment dated 18.09.2017 and the sentences awarded to him by the trial court on these counts are hereby quashed and set aside. However, the conviction and sentences awarded to the appellant for the offences under Sections 344, 363, 366, 376, 376(2)(i) and 376(2)(n) and Section 3/4 of the POCSO Act are affirmed. The impugned judgment is modified to the above extent. 14. The appeal is partly allowed in the above terms. 15. Record be returned to the trial court forthwith.