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Madhya Pradesh High Court · body

2020 DIGILAW 150 (MP)

Pooran Bansal v. State of M. P.

2020-01-28

VISHNU PRATAP SINGH CHAUHAN

body2020
JUDGMENT 1. The appellant has preferred the present appeal being aggrieved by judgment dated 17.7.2014 passed by the learned Seventh Additional Sessions Judge, Bhopal in S.T. No. 432/2014, whereby the appellant has been convicted for offence under section 354-A(1) a of IPC and sections 7/8, 9/10 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act") and conjointly sentenced to undergo 7 years Rigorous Imprisonment with fine of Rs. 25,000/-, in default of payment of fine to undergo additional 6 months rigorous imprisonment. 2. The prosecution's case, in short, is that, the prosecutrix (PW1) is the real daughter of the appellant who was a minor girl of 12 years of age at the time of incident and was living with her parents. She has lodged a report, Ex.P-1 at Police StationChunabhatti, District-Bhopal, alleging therein that the appellant who is her father, after consuming liquor, was used to commit sexual assault upon her. Whenever the appellant comes home after consuming liquor and find the prosecutrix alone, he used to touch, kiss and press her body with bad intention by laying her down on bed and removing her clothes. On resistance from the prosecutrix, the appellant was used to threaten her and continue to commit sexual assault with her. The prosecutrix narrated about these incidents to her mother. When her mother questioned the appellant of these incidents, the appellant threatened her as well as the prosecutrix and continued to commit sexual assault upon her. Once the mother of the prosecutrix also saw the incident when the appellant was committing sexual assault upon the prosecutrix. When she objected, the appellant beaten her and the prosecutrix as well. Then, the prosecutrix went along with her mother and lodged a report at Police Station-Chunabhatti, District-Bhopal which was registered as crime No. 82/2014 for offence punishable under section 354 of IPC and other offences under the POCSO Act. After due investigation, charge-sheet was filed and case was committed to the Court, which was registered as S.T. No. 432/2014. The trial Court framed the charges of offence under section 354- A(1)a of IPC and sections 9/10, 7/10 of POCSO Act against the appellant. The appellant denied all the charges. Prosecution has examined five witnesses. 3. After due investigation, charge-sheet was filed and case was committed to the Court, which was registered as S.T. No. 432/2014. The trial Court framed the charges of offence under section 354- A(1)a of IPC and sections 9/10, 7/10 of POCSO Act against the appellant. The appellant denied all the charges. Prosecution has examined five witnesses. 3. The appellant was examined under section 313 of the CrPC He has admitted that the prosecutrix was his daughter but denied the other incriminating evidence and took a specific plea that his wife and sister of his wife committed maarpeet with him and lodged a false report against him by using his daughter as a tool. He has also stated that his daughter started working as a maid and he objected the same, therefore, she along with her mother lodged a false report against him. However, no witness was examined in defence. 4. The trial Court after hearing the learned counsel for the parties and on considering the prosecution's evidence, delivered a judgment on 17.7.2014, thereby convicted and sentenced the appellant as mentioned above. 5. Learned counsel for the appellant submits that the trial Court has not appreciated the evidence in proper perspective. There are so many contradictions and omissions found in the statements of witnesses. No case is made out against the appellant. The learned trial Court has committed an error in convicting and sentencing the appellant. It is therefore, prayed that conviction and sentence of the appellant be set aside and he be acquitted from the charges of the aforesaid offences. In alternate, it is submitted that the appellant has already undergone more than 5 years of his jail sentence. He has suffered a paralysis attack and is undergoing treatment at Government Hamidiya Medical Hospital, Bhopal. Looking to the medical condition of the appellant and the period of jail sentence already undergone by the appellant, his jail sentence may be reduced to the period which he has already undergone in the custody. 6. Learned Government Advocate for the State submits that sufficient evidence and material is available on record against the appellant and the learned trial Court has properly considered and appreciated the same. Prosecutrix (PW1), who is the real daughter of the appellant, has categorically stated that the appellant after consuming liquor, used to commit sexual assault upon her. 6. Learned Government Advocate for the State submits that sufficient evidence and material is available on record against the appellant and the learned trial Court has properly considered and appreciated the same. Prosecutrix (PW1), who is the real daughter of the appellant, has categorically stated that the appellant after consuming liquor, used to commit sexual assault upon her. The learned trial Court has not committed any error in convicting and sentencing the appellant, therefore, there is no need to interfere in the conviction and sentence passed by the trial Court. 7. Heard the learned counsel for the parties and perused the record of the trial Court and statement of witnesses. 8. Prosecutrix (PW1) has categorically stated that the appellant, who is her father, used to commit sexual assault upon her after consuming liquor. Whenever the appellant comes home after consuming liquor and found the prosecutrix alone, he used to commit sexual assault upon her by licking, kissing and pressing her body with bad intention after laying her on bed and removing her clothes. On the resistance being made by the prosecutrix, the appellant used to threaten her and continue to do the same act. She narrated these incidents to her mother. When mother of the prosecutrix objected, the appellant threatened her mother also. Once her mother saw such an incident and objected, the appellant beaten her mother and the prosecutrix as well. The statement of the prosecutrix is corroborated by the statement of her mother (PW2) who has categorically stated that the prosecutrix narrated about these incidents to her and on one occasion, she herself saw such an incident as narrated by the prosecutrix. Sunita (PW3), sister of PW2, is a hear-say witness. This witness has also categorically stated that the prosecutrix (PW1) and her mother (PW2) have narrated about these incidents to her. 9. Looking to the statement of these witnesses, no material contradiction is found in their statements. All these witnesses have supported the prosecution's case and have categorically stated about the act of the appellant. Even in their cross-examination, nothing has came out to establish the fact of animosity or inimical relationship between the parties, so that it can be assumed that the appellant is falsely implicated in the case. All these witnesses have supported the prosecution's case and have categorically stated about the act of the appellant. Even in their cross-examination, nothing has came out to establish the fact of animosity or inimical relationship between the parties, so that it can be assumed that the appellant is falsely implicated in the case. After considering the statement of these witnesses, this Court finds that the trial Court has appreciated the evidence in proper perspective and has not committed any error in convicting the appellant for the aforesaid offences. 10. It is admitted and undisputed fact that the prosecutrix was a minor girl of 12 years of age at the time of incident. On a specific query being put forth by the defence counsel, the prosecutrix in para 9 of her cross-examination has categorically stated that she was 12 years old and was studying in 5th standard at the time of incident. Even the appellant has not disputed this fact. Hence, it is proved beyond doubt that the prosecutrix was a minor girl of 12 years of age at the time of incident and the appellant who is father of the prosecutrix has committed aggravated sexual assault upon his daughter, which clearly falls under the purview of section 9(n) of the POCSO Act punishable under section 10 of the POCSO Act, which provides for an imprisonment of not less than 5 years. 11. During the pendency of this appeal, medical report of the appellant along with his treatment papers was submitted by the Superintendent, Central Jail, Bhopal, which is available on record. From a perusal thereof, it appears that the appellant is suffering from Hemiparesis since the year 2015 and is undergoing treatment at Government Hamidiya Medical College, Bhopal. Looking to the medical condition of the appellant and also the fact that the appellant has already undergone near about 5 years and 3 months of his jail sentence, this Court is of the view that custodial awarded sentence of the appellant is just the sentence of imprisonment and awarded sentence may be reduced to the period which he has already undergone in the custody. 12. 12. On the basis of the aforesaid discussion, the appeal filed by the appellant Pooran Bansal is hereby partly allowed by affirming the conviction for offence under section 354A(1) a of IPC and sections 7/8, 9/8 of Protection of Children from Sexual Offences Act, 2012, however, jail sentence imposed upon the appellant of 7 years Rigorous Imprisonment is reduced to the period which he has already undergone in custody. There shall be no change in the fine amount. 13. At present, the applicant is in jail, therefore, it is directed that he be released forthwith, if not required in any other case, subject to deposit of fine amount (If not already deposited). 14. Copy of the order be sent to the Court below along with its records for information and necessary compliance. ..................