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2019 DIGILAW 695 (RAJ)

Hawasingh Jat v. State of Rajasthan

2019-02-28

PANKAJ BHANDARI

body2019
JUDGMENT Pankaj Bhandari, J. - Appellant-Hawasingh had preferred this Criminal Appeal aggrieved by judgment and order dated 15.12.2017 passed by Special Judge, Protection of Children From Sexual Offences Act, (Special Judge, Scheduled Caste & Scheduled Tribes) (Prevention of Atrocities) Cases, Jhunjhunu, Raj., whereby the Court has convicted the appellant for offence under Section 3/4 & 7/8 of the POCSO Act and passed the sentence of four years simple imprisonment for offence under Section 7/8 of POCSO Act and ten years rigorous imprisonment for offence under Section 3/4 of POCSO Act. Court below has also imposed a fine and sentence in lieu of non payment of fine. 2. Appellant-Hawasingh expired on 25.04.2018, his wife Kamlesh moved an application seeking permission to contest the appeal, being legal heir of the deceased-appellant. The application was allowed by the Court and consequently, amended cause title was filed. 3. It is contended by counsel appearing for legal representative of the deceased-appellant that the Court below has erred in convicting the appellant for the alleged offences, as there was no eye witness to the incident. The incident is stated to have taken place in a Government School. No teacher or staff have been made a witness. It is also contended that there is delay of one day and seventeen hours in lodging of FIR. Site plan was prepared after two days. There are no independent witnesses in the site plan and hence the same is not admissible. 4. It is contended that as per the prosecution's story, deceased-appellant-Hawasingh asked the prosecutrix to bring hot water from the kitchen, the key of kitchen and the jug were not recovered by the Police. It is also contended that name of Sonam is not appearing in the statement of prosecutrix recorded by the Police and her statement was recorded before the Magistrate under Section 164 Cr.P.C. She was later on made a witness by the prosecution. It is also contended that from the statement of witnesses produced by the prosecution, it is not revealed that offence under the POCSO Act was committed. Deceased-appellant only scolded the prosecutrix, on which family members of prosecutrix along with villagers reached the school and in order to pacify the villagers, deceased-appellant gave a written pardon noting. 5. It is contended that in the noting seeking pardon, it was merely mentioned that appellant would not repeat the mistake. Deceased-appellant only scolded the prosecutrix, on which family members of prosecutrix along with villagers reached the school and in order to pacify the villagers, deceased-appellant gave a written pardon noting. 5. It is contended that in the noting seeking pardon, it was merely mentioned that appellant would not repeat the mistake. It was no where mentioned that he has done any criminal act with the prosecutrix. It is contended that the contents of the letter written by the Principal of the School is on similar lines. It is contended that father of prosecutrix wanted the appellant to be transferred from the school and for that reason the criminal case was filed. It is argued that in Ex.P2 also it was mentioned that the teacher will not come to the school and he would be transferred. It is also contended that appellant has now expired and his son has applied for compassionate appointment but the application for compassionate appointment is not being dealt with by the Authorities on the ground that appeal is pending. 6. Learned Public Prosecutor has opposed the present Criminal Appeal. His contention is that PW6 prosecutrix is a 14 years old girl who has given a detailed version of what happened with her. It is also contended that PW17 friend of the prosecutrix has also deposed that the prosecutrix informed her about the incident and she along with prosecutrix took permission from the Headmaster and returned home. 7. It is also contended that compassionate appointment has no bearing on the merit of the appeal. It is also argued that the appellant himself gave a written apology to the villagers that he would not repeat the mistake committed with the prosecutrix, the note was in relation to the criminal act committed by the appellant. It is argued that no one would get annoyed if teacher merely scolds a girl and it is only due to the criminal act committed by the appellant that villagers and the family members got enraged. 8. As far as delay is concerned, it is contended that FIR was lodged on the next day, taking note of the fact that prosecutrix was aged 14 years, the delay cannot be said to be inordinate. 9. 8. As far as delay is concerned, it is contended that FIR was lodged on the next day, taking note of the fact that prosecutrix was aged 14 years, the delay cannot be said to be inordinate. 9. With regard to non recovery of key and jug, it is contended that allegations in the FIR is with regard to touching the private parts of the prosecutrix, hence, key and jug is not material evidence and non-recovery of the same has no bearing on the outcome of the case. 10. Counsel for the complainant has also opposed the present Criminal Appeal. His contention is that prosecutrix has clearly deposed about the act done by the appellant. 11. I have considered the contentions and have perused the record as well as statement of the witnesses. 12. Pw6 prosecutrix has in detail stated about the act committed by the appellant. She has stated that the appellant pressed her private parts and after opening her clothes, pushed his finger inside her vagina, she has also stated that when she objected the teacher threatened her. PW17 friend of the prosecutrix has also stated that prosecutrix narrated the incident to her and she along with prosecutrix took permission from the Principal and returned home. There is no reason why prosecutrix or PW17 friend of prosecutrix would falsely implicate the appellant who was their teacher. 13. Ex.P1 is the document written by the appellant in which he has mentioned that he will not repeat the act which he has done with the girl. Principal has also given a letter to the villagers that mistake which has been committed by the appellant would not be repeated and that appellant would be transferred from the school. If a teacher would have scolded the student, villagers would not have gone to the extent of taking letters seeking apology from the complainant as well as the Principal. 14. There is no reason to disbelieve the statement of the prosecutrix and reaction of a 14 years old girl with whom such an incident takes place, would vary from person to person. Hence, the contention that prosecutrix did not raise an alarm and none of the teachers or the staff members witnessed the incident or came to the rescue of the prosecutrix, cannot be accepted. Hence, the contention that prosecutrix did not raise an alarm and none of the teachers or the staff members witnessed the incident or came to the rescue of the prosecutrix, cannot be accepted. The villagers reached the school immediately after the prosecutrix informed her family members about the incident which had taken place with her and the document Ex.Pl & P2 was written by the appellant and the Principal on the same day. The delay in lodging of FIR by a day, cannot thus be considered to be inordinate. 15. The case of the prosecutrix is that the teacher told her to get hot water from the kitchen and gave her the keys and the jug, appellant followed her and committed the offence. Keys and jug are not material evidence for establishing the case of the prosecution hence their non-recovery is not material. 16. Pw1 Ramnaresh has stated that prosecutrix along with her sister and a girl came to him and prosecutrix wanted to leave the school for which he told her to seek permission from the Principal. 17. Pw3 Jagdish has also stated that he had received information that the appellant had done some wrong act with a girl. Similar is the statement of PW7. Dharampal, father of prosecutrix has also stated that the prosecutrix narrated the incident to her mother. PW8 Rajbala has also deposed what the prosecutrix narrated to her. 18. From the entire statement adduced by the prosecution, it is evident that appellant had committed offence with a 14 years old girl. Court below has not committed any illegality in convicting the appellant. 19. I do not find any force in the present Criminal Appeal. The present Criminal Appeal is accordingly dismissed. 20. Application for suspension of sentence also stands disposed.