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2019 DIGILAW 2144 (RAJ)

Manaram v. State

2019-08-08

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. The appellant has been convicted and sentenced as below vide judgment dated 15.11.2018 passed by the learned Special Judge, POCSO Act, 2012 & Commission For Protection of Child Rights Act, 2005 Sirohi, in Special Session Case No. 15/2018 (05/2017) (16/2016). Accused Appellant Conviction for offence under Sections Sentence Default Sentences Manaram S/o. Jotaram 363 IPC 5 Years S.I. with fine of Rs. 20,000/- 1 Years S.I. 366-A IPC 7 Years S.I. with fine of Rs. 30,000/- 2 Years S.I. 344 IPC 2 Years S.I. with fine of Rs. 10,000/- 1 Years S.I. 5 (g)/6 POCSO Act L.I. with fine of Rs. 50,000/- 3 Years S.I. 2. All the substantive sentences were ordered to run concurrently. 3. Being aggrieved of the sentences as above, the convict forwarded the instant appeal to the State Legal Service Authority expressing therewith that he is not having the means to engage a lawyer on his behalf. After ascertaining the entitlement of the convict to get legal assistance, Shri Ashok Upadhyay, Advocate, was appointed as Amicus Curiae to file the appeal on behalf of the convict. Accordingly, Shri Upadhyay submitted the appeal, which has been taken up for hearing today. 4. Brief facts relevant and essential for disposal of the appeal are that the complainant Ramesh Kumar (PW-2) lodged a written report (Ex. P-2) to the SHO, Police Station Paladi Metro on 04.02.2016, at 8:15 p.m. alleging inter alia that his minor daughter Mst. 'C' (hereinafter referred to as 'the victim'), aged 13 years, had gone to the forest with the other boys and girls of the village to collect firewood. Manaram S/o. Jotaram, Resident of Jhadoli, abducted and kidnapped his daughter from his lawful guardianship. The other persons accompanying the girl tried to thwart the accused, but he was armed with a sharp weapon and thus, being afraid, they ran away and informed the complainant. The complainant searched for his daughter for four days, but could not succeed and having failed in his attempt, the complainant approached the SHO for lodging the report against the accused Manaram. 5. On the basis of the report aforesaid, an FIR No. 14/2016 (Ex. P-26) was registered at the Police Station Paladi, District Sirohi, for the offences under Sections 363 and 366-A IPC. The victim was traced out on 18.02.2016 and was handed over to her parents. 5. On the basis of the report aforesaid, an FIR No. 14/2016 (Ex. P-26) was registered at the Police Station Paladi, District Sirohi, for the offences under Sections 363 and 366-A IPC. The victim was traced out on 18.02.2016 and was handed over to her parents. She was medically examined at the Govt. Hospital Sirohi, from where the Medical Report (Ex. P-5) was issued reserving opinion for sexual assault till the receipt of the FSL report. The statements of the victim were recorded under Sections 161 as well as 164 Cr.P.C. In her statement under Section 164 Cr.P.C. the victim alleged that she studied at the Govt. School, Radbar for couple of years and then stopped going to school. She had gone to the forest in Pindwara from where, Manaram took her forcibly and kept there for two days. He threatened her that if she did not accompany him, he would beat her with the koont. She was taken to stone factory at Pindwara. Manaram confined her in a room inside the factory premises and subjected her to sexual assault. She was kept in the room for about 20 days. Manaram also stayed with her and subjected her to sexual assault on a number of occasions. She also alleged that Manaram's father also visited them on a few occasions. 6. During the course of investigation, the Investigating Officer recovered the clothes of the victim; the vaginal swab and smear were collected from the medical jurist. The articles so seized were forwarded to the FSL for examination, from where, a report Ex. P-25 was received indicating the presence of human semen on the 'ghaghra' worn by the victim. The Investigating Officer procured the admission form (Ex. P-12-A) of the victim from the Govt. Upper Primary School, Radbar, as per which, the victim was admitted to the said school on 29.07.2011 and her date of birth is mentioned in this form as 04.01.2002. The accused-appellant Manaram and his father Jotaram were arrested and remanded to the judicial custody. Physical examination of the accused Manaram was carried out and a report (Ex. P-1) was received. 7. The accused-appellant Manaram and his father Jotaram were arrested and remanded to the judicial custody. Physical examination of the accused Manaram was carried out and a report (Ex. P-1) was received. 7. After concluding the investigation, the Investigating Officer proceeded to file charge sheet against the accused for the offences under Sections 363, 366A, 376, 344 IPC, Section 5(L)/6 of the POCSO Act and against co-accused Jotaram under Sections 376, 120-B IPC and Section 5(1)/6 of the POCSO Act in the Court of Special Judge, POCSO Act, 2012 & Commission For Protection of Child Rights Act, 2005 Sirohi. The trial Court framed charges against the accused-appellant for the offences under Sections 363, 366-A, 344 IPC and Section 5(1)/6 of the POCSO Act and in the alternative Section 376 (2) (i) of the IPC. The accused-appellant pleaded not guilty and claimed trial. The co-accused Jotaram was discharged from all the charges. 8. The prosecution examined as many as 17 witnesses and exhibited 26 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with the prosecution allegations, the accused denied the same, claimed to be innocent and stated that he had been falsely implicated because there is a farming dispute going on between him and the father of the victim. 9. After hearing the arguments advanced by the prosecution and the defence counsel and after appreciating the evidence available on record, the trial Court proceeded to convict and sentence the convict-appellant as above. Hence this appeal. 10. Shri Ashok Upadhyay, learned Amicus Curiae, representing the appellant, vehemently and fervently contended that the entire prosecution case is false and fabricated. The victim accompanied the accused of her own free will and desire. The allegation that she was subjected to sexual assault is clearly falsified by her Medical Report (Ex. P-5). The prosecution failed to lead appropriate evidence so as to prove the age of the girl and hence it has to be presumed that she was major on the date of the incident. On these grounds, he implored the Court to accept the appeal and set aside the impugned judgment and acquit the accused-appellant of the charges. 11. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the victim when examined as PW-11 made a categoric deposition alleging that she had gone to forest for fetching firewood. 11. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that the victim when examined as PW-11 made a categoric deposition alleging that she had gone to forest for fetching firewood. Manaram came there and forcefully took her inside the forest and kept her there for two days. From there Manaram took her to Jhadoli and kept her at a factory where she was confined for 20 days, Manaram regularly subjected her to sexual assault at the factory during this period. The girl also stated that she had studied at the Govt. Upper Primary School. In her sworn testimony, the girl gave out her age to be 15 years. No significant cross examination was made from the victim regarding her age. The only suggestion given by the defence to the victim in her cross examination was that she went with Manaram on her own free will and volition and that Manaram did not subject her to sexual assault which the victim emphatically denied. 12. PW-10 Vaga Lal, being the Principal of the Govt. Upper Primary School, Radbar, proved the admission form (Ex. P-12 A) of the victim, wherein, her date of birth is mentioned as 04.01.2002. The victim's mother Smt. Phanki (PW-3) stated that she was married about 17-18 years ago. Her eldest son was aged 15 years. She had five offsprings. The victim was her second child. 13. In view of these facts, it is clear that the date of birth of the victim as recorded in the admission form is duly corroborated from the statements of the associated witnesses. 14. As per the evidence of the Medical Officer Dr. Usha Chouhan (PW-4), the physical attributes of the girl showed appearance of primary sexual features. She had gone into menstruation three months prior to her medical examination. Her hymen was missing. 15. The victim's 'ghaghra' was seized by the Investigating Officer and was forwarded to the FSL, from where, the report Ex. P-25 was received indicating the presence of human semen thereupon. In view of these facts and evidence, the allegation that the victim had been subjected to sexual assault is duly corroborated by the medical opinion and the forensic report. 16. The accused took up a defence theory that there was an enmity between him and the father of the victim regarding farming jobs. In view of these facts and evidence, the allegation that the victim had been subjected to sexual assault is duly corroborated by the medical opinion and the forensic report. 16. The accused took up a defence theory that there was an enmity between him and the father of the victim regarding farming jobs. However, on a perusal of the cross examination of Ramesh Kumar PW-2 being the victim's father, it is clear that not even a vague suggestion was given to him in this regard. 17. In view of the above discussion, we are of the firm opinion that the prosecution has proved its case beyond all manner of doubt that the victim was a girl aged about 14 years as on the date of the incident. The accused abducted her from the lawful guardianship of her parents and kept her confined for about 20 days and frequently subjected her to sexual assault during this period. 18. A presumption that the accused has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved, is provided by virtue of Section 29 of the POCSO Act, which the accused has to rebut by leading evidence so as to establish his innocence beyond all manner of doubt. In the present case, other than offering a bald denial, the accused could not lead any evidence whatsoever so as to rebut the testimony of the victim. 19. Having gone through the impugned judgment and testing the same on the anvil of the evidence available on record, we are of the firm opinion that the trial court evaluated and appreciated the entire evidence in an absolute apropos manner and arrived at the only possible conclusion i.e. the guilt of the accused. The impugned judgment does not suffer from any illegality, infirmity or irregularity whatsoever warranting interference. 20. As a result of the above discussion, the appeal is dismissed as the same lacks merit. 21. Since, the appellant was provided services of a free legal aid counsel for filing the appeal and as we have dismissed the same, copy of this judgment shall be forthwith transmitted to the prisoner at the Central Jail, Jodhpur. The Rajasthan State Legal Service Authority shall provide assistance/legal aid to the convict for filing of appeal before the Hon'ble Supreme Court, if he so desires.