High Court
Case Details
Cr. Appeal (S.J.) No. 156 of 2020 (Against the judgment of conviction and order of sentence dated 20.01.2020 passed in Spl. POCSO Case No. 1374 of 2016 by the learned Special Judge (POCSO), Jamshedpur) --- Samir Khan @ Sonu, aged about 25 years, son of Masooq, resident of Jhoparpati, informant of Bistupur Cold Store, P.O. and P.S Bistupur, District-East Singhbhum ……Appellant Versus The State of Jharkhand ...Respondent PRESENT: HON’BLE MR. JUSTICE DEEPAK ROSHAN ---- For the Appellant For the State ---- : Mr. Jitendra Nath Upadhyay, Advocate : Mr. Prabhu Dayal, Spl. P.P ---- 05/14.06.2024 This appeal is directed against the judgement of conviction and order of sentence, both dated 20.01.2020, passed in Spl. POCSO Case No. 1374 of 2016 by the learned Special Judge (POCSO), Jamshedpur; whereby the learned trial court has convicted the appellant under section 323/376/511 of the I.P.C and 4/18 & 8 of Protection of Children from Sexual Offences Act, (POCSO Act) and sentenced him to undergo rigorous imprisonment for three years and six months and fine of Rs. 5,000/- for the offence under section 4/18 of POCSO Act and in default of payment of fine, the appellant was to undergo further imprisonment for two months. The appellant was further sentenced to undergo R.I for three years and fine of Rs. 2,000/- for the offence under section 8 of POCSO Act and in default of fine, the appellant was to undergo further imprisonment for one month. The appellant was also sentenced to undergo S.I for one year and fine of Rs, 1,000/- for offence under section 323 of the I.P.C and in default of fine, the appellant was to undergo further imprisonment of one month and all the sentences were directed to run concurrently and no separate sentence was 1. passed under 376/511 of I.P.C. 2. The prosecution case as per F.I.R. in brief is that on 16.05.2016 at about 2:30 PM, the informant was sleeping in her house. Her sister Rokaya and her victim daughter "X" (Particulars of whom are reflected in the charge sheet and withheld in order to conceal her identity and hereinafter also referred to as the victim "X") came and told that when my victim daughter "X" aged about 11 years went to toilet situated in front of house, the appellant entered into the toilet after breaking the rope of the door of toilet and started disrobing the panty of victim and started opening the chain of his pant. When the victim opposed, then the appellant told her to put out her panty otherwise he will kill her. On that she started shouting. On hearing the said shouting, the sister of informant Rokaya who was present in another toilet came there. Due to that the appellant fled away. One month ago, the appellant had also committed same type of occurrence. The complaint of said act was made to his mother and father, on that they assured that no such type of occurrence will be committed in future. 3. Learned counsel for the appellant submits that
Legal Reasoning
learned trial court has not appreciated that P.W.1, 2 and 3 have been declared hostile. He further submits that the P.W.4 is the mother of the victim, P.W. 5 is aunty of the victim, as such they are interested witness and their evidence is not reliable, acceptable and trustworthy. He further submits that trial court has not appreciated that the age of victim has not been properly proved by the prosecution. He also submits that the I.O has not seized any broken rope from the place of occurrence and has not 2. recorded statement of staff of said public toilet, so occurrence is suspicious. He further submits that learned trial court has not appreciated that the occurrence is of 16.05.2016 at about 02.30 P.M and case was lodged on 16.05.2016 at 6.00 P.M. He lastly submits that independent witnesses have not supported the case of prosecution and have been declared hostile and there is discrepancies and inconsistencies in the prosecution witnesses In view of aforesaid submission learned counsel for the appellant pray for acquittal as the judgement of conviction is not sustainable in the eyes of law. 4. Learned A.P.P. submits there is no error in the judgement of conviction passed by the learned trial court as such no interference is required. 5. Having heard learned counsel for the parties and after going through the L.C.R. it transpires that in order to prove prosecution case, 8 prosecution witnesses have been examined namely Bharat Sah as P.W.-1, Achhay Lal Thakur as P.W.-2, Anil Kr. Tiwary as P.W.-3, "Y" Mother of victim as P.W.-4, Rukaiya @ Ruksar as P.W.-5, Victim "X" as P.W.-6, Anuj Kr. I.O. as P.W.-7 and Ramchandra Ram, I.O. as P.W.-8. P.W.1 to P.W.3 have been declared hostile by the prosecution. The P.W.-4 is "Y" mother of victim cum informant. In her chief-examination, she has deposed that her daughter and her sister went to toilet. Sonu (appellant) entered in the said toilet after breaking the rope of the toilet. He told the victim X to put out the panty. But the victim did not put out her panty, on that the appellant put out her panty. Her daughter shouted then my sister went there. After that the appellant fled away. Her daughter came to house and narrated about the occurrence. Thereafter the mother Y went to the house of the appellant 3. to complain about the occurrence. Prior to this occurrence also said appellant entered into the toilet when her victim daughter was present in the toilet. On that time she made complaint to the father of the appellant who assured that no any further occurrence will be committed in future. P.W.-5 - Rukaiya @ Ruksar in her chief-examination, has stated that the occurrence has occurred on 16.05.2016 at 2:00-2:30 PM. She went to toilet with victim. When she went inside the toilet, she heard sound of victim from the toilet then she went there. She saw that Sameer @ Sonu opened the chain of his pant and opened the pant of victim, when she reached there, then accused gave 2-3 slaps to victim. He wanted to do wrong act with her. Prior to this occurrence, he did the same type of act, for that she made a complaint to the father of accused who assured that no such type of occurrence will be committed in future. P.W.-6 is victim "X". In her chief-examination, she has deposed that the occurrence is of 16.05.2016 at about 2:00 to 2:30 PM. When she went to bathroom with her Mousi. She went inside the one number bathroom and my mousi went inside the two number bathroom. She tied the door of bathroom with rope. There was no Sitkini in the door. Sonu broke the rope and entered in the said bathroom. He opened her panty and his own chain of pant. He was going to do wrong act with her, then she shouted. Her mousi came outside then Sonu slapped her 2-3 times and fled away. The said Sonu has committed such type of act prior to one month of this occurrence. When She went inside the bathroom, Sonu entered in the bathroom after breaking the rope. For that the mother made a complaint to the father of accused. Her mother has lodged this case. P.W.-7 is the I.O of the case. He has only submitted 4. the charge-sheet of the case. P.W.8 who has done the investigation of the case has proved the formal F.I.R. and memo of arrest of accused, which have been marked as Ext.- 1,2&3 respectively. 6. To decide the case it is necessary to peruse section 4,8 &18 of POCSO Act, which is quoted herein below: Section-4 of the POCSO Act stipulates, as punishment for penetrative sexual assault, rigorous imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life", along with fine. for attempt Section-18. Punishment to commit an offence. Whoever attempts to commit any offence punishable under this Act or to cause such an offence to be committed, and in such attempt, does any act towards the commission of the offence, shall be punished with imprisonment of any description provided for the offence, for a term which may extend to one half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for that offence or with fine or with both. Section-8 of the POCSO Act stipulates, as punishment rigorous sexual imprisonment for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. assault, for 7. It transpires from the deposition of the victim that the occurrence is of 16.05.2016 at about 2:00 to 2:30 PM, when the victim X went to the bathroom with her mousi. She went inside the bathroom number one and her mousi went inside the bathroom number two. Further the victim X tied the door of bathroom with rope as there was no sitkini (latch) in the door. Thereafter the appellant broke the rope and entered in the said bathroom and took off the panty of victim and opened the zip of his point. This proves the intention of the appellant that he entered the bathroom with the intent to commit the aforementioned offences. It is also apparent from the aforementioned discussion that appellant was about to commit aggravated penetrative 5. sexual assault upon P.W.6 (victim) but due to intervention of P.W.5 he could not succeed in his nefarious design, and, therefore, the act was in fact about to be accomplished by him since he already took off the panty of victim and opened the zip of his pant. Further Section 29 of the Act raises a compulsory presumption against the appellant that he has committed, abetted or attempted to commit the offence which the appellant has miserably in proving proving to the contrary even by preponderance of probability much less beyond reasonable doubt. Merely because few witnesses have been declared hostile; it will not help the appellant, inasmuch as, the law is well settled that even the testimony of one witness is sufficient to prove the case and in the instant case, the deposition of the victim X, her mother Y and also the maternal aunt who was also in the next bathroom stand unrebutted. Therefore, it can safely be inferred that the appellant, in fact, did an attempt towards an act of committing aggravated penetrative sexual assault punishable under section 4 r/w section 18 of the Act, sexual assault punishable under section 8 r/w section 18 of the Act and rape punishable under section 376 r/w section 511 of IPC. 8. It further transpires from the deposition of P.W. 5 and 6 that when P.W.5 intervened to prevent the appellant then the appellant slapped the victim 2-3 time and fled from the place of occurrence as such this act comes within the ambit of Section 323 IPC. 9. Coming to the point of sentence as to whether the trial court has rightly passed appropriate sentence. It will be profitable here to refer to Madan Gopal v. Naval Dubey, (1992)3 SCC 204 the relevant para is quoted herein below: “57.…though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences 6 committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms”. The dicta is loud and clear as to how such offences are required to be dealt with who are menace to the civilized society and, therefore, they should be mercilessly and inexorably punished. In the case of Shyam Narain v. State of NCT of Delhi, reportable in (2013) 7 SCC 77, the Hon'ble Supreme Court has made following observations which are quite relevant in the given set of facts and circumstances. It would be apposite to quote paragraph 14 of the judgment which reads thus; “14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed, regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim”. 10. This is a case in which there is no question of reformation of the appellant as he was quite a grown-up male who knew the consequences of his act. 11. The learned trial Judge has elaborately and succinctly 7. discussed each and every aspect of the case by correctly appreciating the evidence on record and reached a finding which does not warrant interference in the appeal. As such, the appeal is devoid of merits and, therefore, needs to be dismissed. 12. Since the appellant is on bail as such his bail bonds is cancelled and he is directed to surrender before learned trial court to serve rest of the sentence as directed by learned trial court. 13. Let the copy of this order and the LCR be sent to the Court concerned forthwith. jk (Deepak Roshan, J.) 8.