Allahabad High Court
Sudhir vs State Of U.P. on 19 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 233
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 27.01.2020
Delivered on : 19.02.2020
Case :- JAIL APPEAL No. - 5095 of 2017
Appellant :- Sudhir
Respondent :- State of U.P.
Counsel for Appellant :- From Jail,V.P.Singh Kashyap A.C.
Counsel for Respondent :- A.G.A.
Hon'ble Suresh Kumar Gupta,J.
1. Heard Sri V.P. Singh Kashyap, Amicus Curiae for the appellant and Sri Ratendra Kumar, learned A.G.A.
2. This jail appeal has been preferred by appellant- Sudhir against the judgment and order dated 05.08.2017, passed by Additional Session Judge (Court No. 1), Mahoba, in Special Session Trial No. 23 of 2016 (State Vs. Sudhir), whereby convicting the appellant under Section 354B IPC, for 5 years R.I. and fine of Rs. 1,000/- in default 1 month simple imprisonment, under section 323 IPC for 1 year R.I. and fine of Rs. 1,000/- in default 1 month simple imprisonment, under section 8 of Protection Of Children From Sexual Offences (In short the "POCSO Act"), for 4 years R.I. and fine of Rs. 1,000/- in default 1 month simple imprisonment. All the sentence shall run concurrently.
3. Brief facts of this case are as follows-:
The FIR Ext. Ka-5 lodged by father of the deceased with allegation that on 26.03.2016 at 8.00 a.m. her daughter was went for defecation in the field meanwhile the appellant Sudhir molested his girl and torn out the cloth of his daughter, then daughter shouted, meanwhile Munna Yadav and Chhiddu Ahirwar reached the spot and challenged him on which he attempted to flee away from the scene of occurrence, then the informant as well as eyewitnesses arrested the appellant from the spot and lodged the FIR against the appellant on 26.03.2016 at 10.30 a.m. The distance of the police station from the place of occurrence is one km.
4. After lodging the FIR the case was entered into the GD Sl. No. 14 10.30 Ext. Ka 6. Investigation of this case was entrusted to P.W. 5 S.I. Ramesh Kumar. During investigation Investigating Officer recorded the statements of constable and prepared the site plan on the behest of complainant, site plan proved as Ext. Ka 3. After recording the evidence and collecting the medical report of the victim, submitted charge-sheet against the appellant, which is also proved by Investigating Officer. Chick FIR as Ext. Ka 5 and G.D. Ext. Ka 6 by means of secondary evidence.
5. In this case the victim was got injured and injury report prepared by Dr. Ishwar Chandra Prajapati, P.W. 6 on 26.03.2016 at 11.00 a.m. The following injuries were found on the person of injured:-
1. One contusion on the back side of head read colour 2.4 x 2.4cm.
2. One abrasion on the right side of chest on upper part read colour 2.4 x 202cm.
Both the injury are simple in nature, fresh and caused by blunt object.
The injury report proved the by P.W. 6 as Ext. Ka 7.
6. After registration of the case against the appellant, the investigation of this case was conducted by investigating officer S.I. Ramesh Kumar P.W.5. During investigation, the investigating officer recorded the statement of complainant Kailash Kushwaha and on be haste of the complainant site plan was prepared, which is as Ext. Ka 3. After recording the statements of eyewitnesses, charge sheet was submitted by investigating officer under sections 354-B, 323 IPC and Section 8 POCSO Act.
7. After submission of charge-sheet, charge framed against the appellant under sections 354B, 323 IPC and Section 8 POCSO Act on 01.09.2016. Charge read over to the accused-appellant and accused denied the charge and claimed to be tried.
8. In order to substantiate the charge lelvelled against appellant prosecution examined 7 witnesses.
9. The prosecution examined P.W. 1 Kailash Kushwaha, father of the victim, who proved the written report as Ext Ka 1, P.W. 2 victim Kumari Suman, P.W. 3 Chhiddu, who is the eyewitness of the incident, P.W. 4 Munna Yadav, independent eyewitness of the case, P.W.5 S.I. Ramesh Kumar, investigating officer of the case, who proved the site plan Ext. Ka-3, charge sheet Ext. Ka-4, Chick FIR Ext. Ka-5 and entry of GD as Ext. Ka 6. P.W. 6 Dr. Ishwar Chandra Prajapati, who proved the injury report Ext. Ka-7, P.W. 7 Ashok Singh, who proved the date of birth of the prosecutrix Ext. Ka-8 ad photocopy of Scholar Register.
10. After conclusion of statement of prosecution witnesses, the statement of appellant-accused was recorded under section 313 Cr.P.C. in which he has totally denied the version of the prosecution and further submitted that due to enmity false prosecution has been launched against him.
11. In defence no witness examined on behalf of appellant.
12. P.W. 1 Kailash Kushwaha, father of the victim has examined as P.W. 1. He has stated in his statement that he was not educated. He only know how to make signature. The incident was taken about 7-1/2 months back at around 8.00 a.m. His daughter is was aged about 15 years had gone for defecation in the field and suddenly appellant Sudhir came there and caught the hand of his daughter with bad intention. He torn her clothes and pressed her mouth and threw her on the ground. After hearing her noise he, Munna Yadav and Chhiddu Ahirwar reached there and challenged the appellant and the appellant fled away from the place of occurrence and they caught the appellant and brought him to police station and had got the written report outside the police station and thereafter he had appended signature on it and verify the signature which was marked as Ext. Ka-1.
13. The prosecution has examined the victim as P.W. 2. She has stated in her statement that the incident had taken place on 26.03.2016 at about 8.00 a.m. when she gone to attend natural call in the crusher side towards the fields when she was prepare her for defecation meanwhile appellant hiding in the bushes caught her and threw in the bushes and had sat on her chest holding her neck and stuffed handkerchief in her mouth . When she had bitten his finger and he slapped her twice on the cheek, she had taken out the handkerchief and had run towards her house. Then the appellant threw her on the stones and due to this she had fallen down and it is also stated that the appellant had torn her cloth. Meanwhile, Munna Yadav PW. 4, Chhiddu Ahirwar, P.W. 3 and her father P.W. 1 runs towards on the spot and caught the appellant from some distance. She further submitted that the appellant could not succeed in sexual assault, but the appellant keep her in grip and pressed her breast. She has also stated that the name of appellant was not known at the time of the incident After this incident she was medically examined and thereafter her statement was recorded under section 164 Cr.P.C. Statement under section 164 Cr.P.C. is duly corroborated with the statement of victim.
14. Learned counsel for the appellant has submitted that the judgment passed by the trial court is on the basis of surmise and conjuncture, learned trial court without appreciating the prosecution evidence passed the order of conviction. He further submitted that the prosecution evidence is not supported by any public witness and also submitted that the FIR was lodged on the basis of false, fabricated and concocted version FIR is 2 ½ hours delay without giving due explanation, while the distance of the police station is only 1 km. He next submitted that there is no grievous injury found on the person of victim and all the injury are simple in nature. He next submitted that all the witnesses examined by the prosecution is interested witnesses. It is also submitted that there is several contradiction, exaggeration and improvement in the statements of witnesses oral evidence of victim is not corroborated by medical evidence. He lastly humbly submitted that the applicant is the resident of Jharkhand State and he is daily wage worker and working at a stone crusher plant. He is very poor person and is not able to engage counsel of his choice. Appellant was spot arrested on 26.03.2016 and he remain in incarceration from 26.03.2016 to 05.08.2017, during trial and after conviction he is in jail from 05.08.2017 to till date. Due to poor condition he could not move bail application before trial court as well as appellate court. So last prayer of the appellant that his sentence reduce to period which is already undergone by him in jail.
15. Per contra learned AGA has vehemently opposed and submitted that there is no occasion for false implication of the appellant. He has not proved any enmity of appellant with the complainant. He further submitted that the prosecution has fully established the case beyond shadow of reasonable doubt and the offence is very serious in nature such type of offence impact large section of society. Accused was arrested red handed hence the appellant deserves no sympathy and there is no reason for reduction the sentence as awarded by learned trial court.
16. After perusal of the entire evidence, first argument of the appellant is that the FIR was lodged after two and half hours delay due to delay the prosecution case is doubtful but delay has been duly explained by adducing credible evidence. So many reason caused due to delay some time. Police personal refused to register the case immediately due to absent of S.H.O. and so may other significant reason for delay in lodging the FIR. So many other factor such as shame of society and slander of victim's family such delay is naturally caused in such type of cases. The FIR was lodged 2.30 hours of delay, so these 2.30 hours delay is inevitable in such circumstances, hence such delay is insignificant and delay is properly explained by the prosecution. The victim is minor, her age at the time of occurrence was below 15 years. As per educational certificate the age of the victim is below 15 years at the time of incident. P.W. 1 stated in his statement and in FIR that the age of the victim was below16 years at the time of incident. The victim has stated in her statement that at the time of incident she did not know the name of the appellant but he recognized him by face. As per the prosecution case the appellant's room is near the residence of the first informant.
17. Oral evidence of the witness is fully corroborated by the medical evidence. In this case, the learned trial court has rightly convicted the appellant under section 354B, 323 IPC and 8 POCSO Act .
18. So far as the quantum of sentence is concerned, the appellant is a poor person. He is daily wages labour working in crusher plant, he is resident of Jharkhand State. The convict appellant have no criminal antecedent. There is likelihood on him being brought in main stream of society after repent and reformation, he is in jail since the date of lodging of the FIR i.e. 26.03.2016 till date, so the appellant deserves leniency by the court for punishing the appellant.
19. Since the appellant is in jail since 26.03.2016, in the interest of justice would be met, if the appellant punished for 4 years R.I. in place of 5 years under section 354 B IPC. So on the point of sentence, appeal is partly allowed.
20. Considering the peculiar facts and circumstances of the case, On the point of conviction under sections 354B, 323 IPC and 8 POCSO Act, the appeal is hereby dismissed. So far on point of sentence, appeal is partly allowed. The conviction of appellant under section 354B IPC is reduced from 5 years rigorous imprisonment to 4 years rigorous imprisonment. Sentence under section 8 POCSO Act and under Section 323 IPC shall remain unaltered.
21. The office is directed to transmit back the record of the Lower Court with a copy of judgment and order of this Court for immediate compliance.
22. Office of the Registrar General of this Court is directed to ensure payment Rs. 10,000/- to Sri V.P. Singh Kashyap, Amicus Curiae, for the services rendered.
Order Date:- 19.02.2020.
v.k. updh.