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2019 DIGILAW 432 (GUJ)

Vilasbhai Barsubhai Koli v. State of Gujarat

2019-04-16

R.P.DHOLARIA

body2019
JUDGMENT : R.P. Dholaria, J. 1. The present appeal has been filed by the appellant-accused under Section 374 of the Criminal Procedure Code, 1973, against the judgment and order dated 09.11.2017 passed by learned 3rd Additional Sessions Judge, Surat in Special POCSO Case No. 188 of 2015, whereby the appellant-accused was convicted for the offence punishable under Sections 506(2) of the Indian Penal Code (herein after referred to as IPC for short) and under Section 3(b)(c), 4, 7 and 8 of the POCSO Act, 2012. By the impugned judgment, under Section 506(2) of the IPC, the appellant was sentenced to undergo rigorous imprisonment for a period of two years and ordered to pay Rs. 1,000/- fine and in default of payment of fine, simple imprisonment for a period of one month was imposed, under Section 3(b)(c) read with Section 4 of the POCSO Act, the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs. 3,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 7 read with Section 8 of the POCSO Act, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and ordered to pay Rs. 2,000/- fine and in default of payment of fine, simple imprisonment for a period of one month was imposed. All the sentences are ordered to run concurrently. 2. The case of the prosecution in short is that on 30.09.2015, at about 3:00 p.m., the appellant had taken the complainant's daughter-victim aged about 8 years behind the school and put finger in her private part and tried to physically abuse her and also threatened her not to tell about the said incident to anyone or else he will kill her. Therefore, the complaint was lodged with the police. 2.1. Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2. After filing of closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2. After filing of closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.3. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellant-accused. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 09.11.2017 passed by learned 3rd Additional Sessions Judge, Surat in Special POCSO Case No. 188 of 2015, the appellant-accused has preferred the present appeal before this Court. 3. Learned advocate Mr. Utpal Panchal appearing for the appellant pointed out that learned trial court has wrongfully applied Section 4 read with Section 3 of the POCSO Act, 2012. As per the medical evidence available on record, there was no penetration, no injury was found either internal or external over the genitalia of the victim and at the most there may be offence of sexual assault only, according to his submission. He has prayed that since the accused is found to be indulging into the aforesaid offences and no aggravated offence is proved against the appellant-accused, in that view of the matter he will not challenge his conviction, but he will concentrate upon reduction of sentence taking into consideration the aforesaid provisions of law as well as during trial whatever the guilt is established against him. 4. On the other hand, learned APP Ms. Hansa Punani strongly opposed for reduction of sentence and argued that the appellant-accused aged about 47 years had exploited a girl of 8 years and no mercy would be shown towards him and further argued that the judgment and order rendered by learned trial court is not such which calls for interference on the facts and the conviction of the accused should not be interfered with. 5. Since the conviction of the appellant as regards to the sexual assault alleged to have been made upon the victim is not questioned, in that view of the matter, this Court has perused the evidence of P.W. 6 Dr. 5. Since the conviction of the appellant as regards to the sexual assault alleged to have been made upon the victim is not questioned, in that view of the matter, this Court has perused the evidence of P.W. 6 Dr. Bharatbhai Bhimjibhai Patel where he deposed that he was serving in New Civil Hospital, Surat and he had examined the victim and as per the history given by the victim, there was an allegation of an attempt to put finger into her vagina. While she was examined physically, neither any external nor any internal injury was found on the private part of victim. He certified that there was no external injury found over her person and she was referred to Gynecology Department, but it appears from the records and proceedings that the prosecution failed to bring on record any opinion from Gynecology Department. Taking into consideration the aforesaid medical opinion in consonance with the allegations leveled by the mother of the victim, her mother also alleged that the appellant-accused attempted to put finger in the vagina of the victim and even there appears no allegation that the accused had fingered or inserted his finger into the vagina of the victim or any part of the body of the victim. 6. In view of aforesaid nature of evidence, on plain reading of Section-3(a) and (b) of the POCSO Act, it appears that the provisions of the said sections would not be applicable in the facts of the case on hand. Section-3(a) and (b) are reproduced herein: "3(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or" Indisputably, as per the medical opinion, there was no penetration and no such injury was found over the person of the victim. In that view of the matter, taking into consideration the allegations leveled by the mother of the victim that accused attempted to put finger over her vagina, in that case, Section 7 of the POCSO Act would be applicable which reads as under: "7. In that view of the matter, taking into consideration the allegations leveled by the mother of the victim that accused attempted to put finger over her vagina, in that case, Section 7 of the POCSO Act would be applicable which reads as under: "7. Whoever, with sexual intent touches the 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 commit sexual assault." 7. In view of aforesaid clear position of factual aspects established against the appellant-accused who touched the private part namely vagina of the victim due to which provisions of Section 7 of the POCSO Act would be attracted and it would be punishable under Section 8 of the POCSO Act wherein the legislature has provided minimum sentence of three years which may extend to five years. 8. In view of aforesaid clear position of law on the overall evaluation of evidence on record, this Court deems it appropriate that the ends of justice would meet if the minimum sentence provided under the said provision of law would made applicable and therefore, the appellant-accused is to be punished for a period of three years. 9. In the result, present Criminal Appeal stands partly allowed. The judgment and order of conviction dated 09.11.2017 passed by learned 3rd Additional Sessions Judge, Surat in Special POCSO Case No. 188 of 2015 recording conviction under Section-4 of the POCSO Act, 2012 is quashed and set aside, while maintaining the conviction so recorded under Section 8 of the POCSO Act, 2012 and accordingly, sentenced to undergo rigorous imprisonment for a period of three years is maintained and other directions as regards to fine and default sentence shall remain unaltered. Appeal stands disposed of in terms of above order. R & P be sent back to the learned trial court, forthwith.