Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2865 (RAJ)

Jabru Ram v. State of Rajasthan

2019-11-19

SANDEEP MEHTA, VIJAY BISHNOI

body2019
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide judgment dated 15.05.2015 passed by the learned Sessions Judge, Jodhpur District in Sessions Case No.175/2013: Offences Sentences Fine Fine Default sentences Section 376(2)(i) IPC Life Imprisonment Rs.5,000/- 06 Months' R.I. Section 3/4 of the POCSO Act Life Imprisonment Rs.5,000/- 06 Months' R.I. Section 7/8 of the POCSO Act 05 Years' R.I. Rs.2,000/- 03 Months' R.I. All the substantive sentences were ordered to run concurrently. 2. Being aggrieved of his conviction and sentences, the appellant has preferred this appeal under Section 374(2) Cr.P.C. 3. Brief facts relevant and essential for disposal of the appeal are noted herein below: Mst. 'P' (PW-1), aged about 12-13 years, resident of Chowkidaro Ka Bas, Barna, Police Station Bilara, District Jodhpur, was admitted at the bed No.3 of the Woman Ward, CHC, Bilara, on 05.11.2013. Her Parcha Bayan (Ex.P/4) was recorded by the SHO, Police Station Bilara Shri Pushpendra Verma wherein, the girl (hereinafter referred to as the 'victim') alleged that she was studying in the Class IV. She had four siblings. Her parents were alive and were present with her in the hospital where she was being treated. On the previous day i.e. on 04.11.2013, she had taken three buffaloes from her house to the grazing ground in the afternoon. When she reached near the Hanuman Pyau, a boy named Jabru Ram, who lives in her neighbourhood and whom she knew from before, was sitting there. She left the buffaloes in the field and went to the pond for drinking water. She was washing her limbs when Jabru Ram came there; caught hold of her hand and forcibly threw her on the ground. She resisted but, Jabru Ram dragged her to the Jalki tree and forced her to lie down. She told that she would raise a hue and cry and would hit him by a stone on which, Jabru Ram lifted her lehanga, removed her undergarment and tried to insert his penis into her private parts. He also caressed her private parts and she felt something sticky. His mouth was stinking of liquor. She tried to shout on which, the accused ran away after putting on his trouser. He was wearing a black coloured pant and a stripped shirt. She composed herself, collected the buffaloes and came back to her house. He also caressed her private parts and she felt something sticky. His mouth was stinking of liquor. She tried to shout on which, the accused ran away after putting on his trouser. He was wearing a black coloured pant and a stripped shirt. She composed herself, collected the buffaloes and came back to her house. There, she confided of the incident to her mother Geeta and she was crying at that time. Her mother sent Laxman Ram on a motorcycle to find out Jabru Ram and thereafter, the victim was brought to the hospital. 4. On the basis of the report aforestated, an FIR No.381/2013 (Ex.P/17) came to be registered at the Police Station Bilara for the offences under Sections 7/8 of the POCSO Act, 2012 and Section 376/511 of the IPC. The victim was subjected to medical examination at the CHC, Bilara by the Junior Medical Specialist who issued the report (Ex.P/5) wherein, no injuries, stains, discharge, etc. were noticed on her person. Vaginal swabs, smear, the saliva swab and blood samples were collected and were handed over to the I.O. for biological/ chemical analysis. The accused appellant was arrested on 06.11.2013. The victim's statement was recorded under Section 164 Cr.P.C. (Ex.P/2) on 18.11.2013 before the Judicial Magistrate (First Class), Pipar City. It is relevant to state here that in this statement, the victim stated that she had been subjected to rape by "an unknown man" about 2-4 days earlier and she was threatened that if she told of the incident to anyone, she would be killed by a knife. The accused was also got medically examined. As per the report (Ex.P/14), the accused was found capable of indulging in sexual intercourse. After concluding investigation, the I.O. proceeded to file a charge-sheet against the accused for the offences under Sections 376(2)(i) of the IPC and Section 3/4 and 7/8 of the POCSO Act in the court of the Sessions Judge, Jodhpur District. The trial court framed charges against the accused in the above terms. He pleaded not guilty and claimed trial. The prosecution examined as many as 13 witnesses and exhibited 17 documents to prove its case. The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution evidence which he refuted and claimed to have been falsely implicated. He pleaded not guilty and claimed trial. The prosecution examined as many as 13 witnesses and exhibited 17 documents to prove its case. The accused was questioned under Section 313 Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution evidence which he refuted and claimed to have been falsely implicated. Opportunity to lead evidence in defence was provided to the accused but, he chose not to do so. After hearing the arguments advanced by the prosecution and the defence and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the accused appellants as above. Hence this appeal. 5. Shri Anil Bidan Halu, learned counsel representing the appellant vehemently and fervently urged that the entire prosecution case is false and fabricated. The prosecution did not lead any credible evidence on record so as to prove that the victim was a child on the date of the incident. Neither her school certificate was proved as per law nor was any medical examination got conducted to find out her age. He urged that the trial court erred while referring to the medical certificate (Ex.P/5) and holding that in the said certificate, the age of the victim was opined to be 13 years. Learned counsel urged that a perusal of the certificate (Ex.P/5) would indicate that the medical officer made no assessment regarding the age of the victim. He further urged that if the evidence of the victim's father (PW-8) Mohan Ram is seen, manifestly, the age of the victim would come out to be nearly 18 years. Learned defence counsel further submitted that there is no allegation in the Parcha Bayan of the victim (Ex.P/4) that the accused committed penetrative sexual assault with the victim. He thus urged that the trial court was absolutely unjustified in holding that the charges under the POCSO Act were made out against the accused. Thus, at best, the case is of attempted sexual assault. When the victim was examined under Section 164 Cr.P.C., she did not utter that the appellant was the person who subjected her to sexual assault. He urged that as per the evidence of the medical officer (PW-3) Dr. Madhu Jeengar, who carried out medical examination for rape upon the victim, clearly stated that the hymen of the girl was intact and there were no marks of fresh intercourse on her private parts. He urged that as per the evidence of the medical officer (PW-3) Dr. Madhu Jeengar, who carried out medical examination for rape upon the victim, clearly stated that the hymen of the girl was intact and there were no marks of fresh intercourse on her private parts. He thus urged that the entire prosecution case is false and fabricated. The wavering testimony of the victim is not substantiated by the medical evidence or any other corroborative evidence which could even remotely indicate that the appellant subjected the victim to sexual intercourse. Learned counsel further submitted that the victim, upon being examined on oath, categorically stated that the accused penetrated her private parts but such allegation is contradicted by the medical evidence. He further submitted that even the investigating officer Pushpendra Verma (PW-13) admitted in his cross-examination that it could not be concluded from the evidence collected by him during investigation, that the accused had penetrated the victim's private parts and prayed that the appellant deserves to be acquitted of the charges while giving him the benefit of doubt. 6. Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions of the appellant's counsel. He contended that the accused appellant was specifically named by the victim in her Parcha Bayan (Ex.P/4). The victim upon being examined as PW-1, clearly identified the appellant as being her assailant. No significant cross-examination was made from the victim regarding identification of the accused appellant. He further submitted that the defence did not raise any dispute regarding the age of victim during trial. If at all, her age was to be questioned, the defence could have filed an application for age determination before the trial court. He further submitted that actual penetration is not required to constitute the charge under Section 3/4 of the POCSO Act and mere act of a man in touching private parts of the victim would complete the act of penetrative sexual assault. He submitted that the minor contradictions regarding non-mentioning of the name of the accused in 164 Cr.P.C. statement, the nonproduction of the school certificate loose significance when the victim's own testimony is seen which is free from any kind of infirmity. On these grounds, he implored the Court to dismiss the appeal and uphold the conviction of the appellant. 7. He submitted that the minor contradictions regarding non-mentioning of the name of the accused in 164 Cr.P.C. statement, the nonproduction of the school certificate loose significance when the victim's own testimony is seen which is free from any kind of infirmity. On these grounds, he implored the Court to dismiss the appeal and uphold the conviction of the appellant. 7. We have given our thoughtful consideration to the submissions advanced at bar and have minutely re-appreciated the evidence on record. 8. From a perusal of the Parcha Bayan of the victim (Ex.P/4), it is clear as day light that she did not state that the accused actually penetrated/inserted his penis into any of her bodily orifices. In the statement (Ex.P/2), a bald and vague assertion was made by the victim that the accused committed wrong act with her (xyr dke). There is no allegation whatsoever in this statement that the accused penetrated his private parts or any other part of his body in her vaginal, urethral or anal orifices. Therefore, the allegation to this effect made by the victim in her sworn testimony that the accused actually penetrated her vagina by his penis is a sheer exaggeration unworthy of credence. The allegation of the victim in her sworn testimony that the accused subjected her to sexual penetration is also contradicted by the evidence of the Medical Officer Dr. Madhu Jeengar (PW-3) who, while deposing, ruled out the possibility of the victim's private parts having been penetrated by any external object. The victim was extensively cross-examined by the defence by confronting her with her previous statement (Ex.P/2) recorded under Section 164 Cr.P.C. wherein, she did not name the accused as her assailant. She did not offer any reply to this important omission. If the statement (Ex.P/2) is seen, manifestly there is a serious discrepancy regarding the date on which the alleged incident took place because the statement was recorded on 18.11.2013 and the victim alleged therein that the incident took place 2-4 days earlier. Be that as it may. These discrepancies can be attributed to the ignorance of the girl. If the statement (Ex.P/2) is seen, manifestly there is a serious discrepancy regarding the date on which the alleged incident took place because the statement was recorded on 18.11.2013 and the victim alleged therein that the incident took place 2-4 days earlier. Be that as it may. These discrepancies can be attributed to the ignorance of the girl. The trial court, at para No.20 of the impugned judgment, concluded that the victim was below 18 years of age taking note of the fact that the victim herself stated her age to be 12 years and the Court asked her question regarding her ability to understand the consequences of her own deposition. Thereafter, she was put under oath. The trial court held that no significant cross-examination was made from the victim regarding her age. Reference was made to the medical certificate (Ex.P/5) wherein, the victim's age is mentioned as 13 years. It may be stated here that this reference to the victim's age in the medical certificate (Ex.P/5) is not based upon the conclusion of the medical officer but is simply mentioned on the basis of the information provided to the Medical Officer for conducting the medical examination. The document (Ex.P/13) on which the trial court placed reliance, was simply a requisition by the police to carry out the medical examination of the victim and thus, the age of the victim mentioned in this letter could not have been considered in the nature of positive proof. Nonetheless, we are in conformity with the finding recorded by the trial court that the defence made no effort whatsoever to dispute the deposition of the victim regarding her age. The victim clearly stated that she was 12 years of age. If at all, the defence was desirous of disputing this aspect then, questions were required to be put to her in cross-examination to controvert this assertion made by her. Failure of the defence to put any question to the victim on this aspect, is a strong reason to presume that the defence never intended to question the prosecution case that the age of the victim was about 12 years on the date of the incident. In addition thereto, it is noteworthy that the defence did not apply to the trial court for determination of the victim's age. In addition thereto, it is noteworthy that the defence did not apply to the trial court for determination of the victim's age. Though the learned defence counsel, while referring to the statement of the victim's father Mohan Lal (PW-8) contended that from his crossexamination, a doubt is created that the victim might have been nearly 18 years of age but, we feel that these contradictions as pointed out in the evidence of Mohan Ram can be attributed purely to his being a semi-literate and rustic villager. Therefore, we confirm the findings recorded by the trial court in the impugned judgment that the victim was below 18 years of age on the date of the incident and was a child within the meaning of the POCSO Act. 9. Now coming to the contention of the defence counsel that the charges of penetrative sexual assault punishable under Section 3/4 of the POCSO Act and Section 376(2)(i) of the IPC are not made out against the accused. The defence counsel had argued that there is no evidence to support the allegation that the accused appellant subjected the victim to penetrative sexual assault. In this regard, we have carefully gone through the testimony of the victim and more particularly, the FIR (Ex.P/17), Parcha Bayan (Ex.P/4) and 164 Cr.P.C. statement (Ex.P/2) with which she was confronted during her cross-examination and the statement of the medical officer Dr. Madhu Jeengar (PW-3). As noted above, the medical officer categorically stated that she noticed no marks of fresh sexual intercourse on the person of the victim when she was subjected to medical examination. These facts are mentioned in the medical report (Ex.P/5). The hymen of the victim was intact. When examined on oath, the victim made a gross improvement from her previous statements and alleged that the accused penetrated her sexually because this allegation does not find place either in the Parcha Bayan (Ex.P/4) or in her 164 Cr.P.C. statement (Ex.P/2). Furthermore, the allegation to this effect is not corroborated and is rather contradicted by the medical evidence. Even the I.O. Pushpendra Verma (PW-13) admitted in his cross-examination that in the Parcha Bayan and during further steps of investigation, the victim did not allege that she was subjected to penetrative sexual assault and that even her parents did not corroborate this allegation. 10. Even the I.O. Pushpendra Verma (PW-13) admitted in his cross-examination that in the Parcha Bayan and during further steps of investigation, the victim did not allege that she was subjected to penetrative sexual assault and that even her parents did not corroborate this allegation. 10. In wake of the discussion made herein above, we are of the firm opinion that necessary ingredients of the charges under Section 3/4 of the POCSO Act and Section 376(2)(i) of the IPC are not made out against the accused appellant and his conviction as recorded by the trial court for these charges deserve to be quashed and set aside. However, considering the fact that the victim had no occasion to name the accused falsely, the conviction of the appellant for the offences under Section 7/8 of the POCSO Act as recorded by the trial court deserves to be affirmed and the sentence awarded to him for this charge deserves to be maintained. 11. Thus, the appeal is allowed in part. While affirming the conviction and sentences awarded to the appellant for the offence under Section 7/8 of the POCSO Act vide the Judgment dated 15.05.2015 passed by the learned Sessions Judge, Jodhpur District in Sessions Case No.175/2013, his conviction and the sentence of life awarded to him for the offences under Section 3/4 of the POCSO Act and Section 376(2)(i) of the IPC are set aside. The maximum sentence for the offence under Section 7/8 of the POCSO Act is five years with fine. The appellant has already served substantive custodial period of more than 6 years. Thus, he has already remained in custody for a long period than the maximum sentence awardable under Section 7/8 of the POCSO Act for which his conviction has been confirmed. Accordingly, we direct that the appellant, if not wanted in any other case, shall be released from prison upon payment of fine awarded by the trial court failing which, he shall be made to suffer the imprisonment in default of payment of fine. 12. Accordingly, we direct that the appellant, if not wanted in any other case, shall be released from prison upon payment of fine awarded by the trial court failing which, he shall be made to suffer the imprisonment in default of payment of fine. 12. However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellant is directed to furnish a personal bond in the sum of Rs.40,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. 13. Record be returned to the trial court forthwith.