Rajasthan High Court - Jodhpur
Ramswaroop vs State on 6 January, 2018
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 466 / 2015
Ramswaroop Khati S/o Ramkishan Khati, aged 56 years, resident
of Khawas Police Station Kekari, District Ajmer. At present residing
at Sanganer Colony, Bhilwara P.S. Subhashnagar, District Bhilwara.
(At present lodged in District Jail, Bhilwara)
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr Anil Joshi, Amicus Curiae
For Respondent(s) : Mr. SK Vyas, AAG
_____________________________________________________
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment 06/01/2018 The appellant was a teacher and was involved in serious offence of making sexual advances towards the deaf and dumb students. Further he showed those hapless students, obscene photographs.
The instant criminal appeal has been filed by the accused appellant under Section 374(2) Cr.P.C. against the judgment dated 14.05.2015 passed by the learned Special Judge, POCSO Act Cases, Bhilwara in sessions Case No. 66/2013 by which the learned Judge convicted the accused-appellant for offences under Sections 7/8, 9/10, 11/12 POCSO Act and sentenced him as under:-
U/S. 8 POCSO Act Five years' S.I. with fine of Rs.10,000/-
and in default of payment of fine further (2 of 11) [CRLA-466/2015] under go two months S.I. U/S. 10 POCSO Act Five years' S.I. with fine of Rs.10,000/-
and in default of payment of fine further under go two months S.I. U/S. 12 POCSO Act Two years' S.I. with fine of Rs.10,000/-
and in default of payment of fine further under go two months S.I. All the sentences were ordered to run concurrently. Brief facts of the case are that on 16.05.2013 complainant R.M. Logad, Secretary, Baghir Bal Kalyan Vikas Samiti, Bhilwara submitted a written report to SHO, P.S. Subhash Nagar, Bhilwara alleging that Baghir Bal Kalyan Vikas Samiti, Kunwanda Road, Bhilwara operates the residential school of dumb and deaf girl students near Sofiya School, in which some boy and girl students study. In the said school, the appellant Ramswaroop Khati worked as a Teacher. Previously some girl students complained to the Hostel Warden and Principal that the appellant is usually doing stag, scurrilous and aberrant activities to them and showing blue photographs and videos on mobile. On this complaint, the Principal constituted a committee for enquiry of the complaint. The committee took the statement of the students and after taking signatures of all the students submitted the report to the Principal. Some parents have also made written complaints to the Principal. On the basis of the above report, the Police registered the FIR No.153/2013 for (3 of 11) [CRLA-466/2015] offences under Section 354 IPC and Section 3/4, 8, 11 POCSO Act against the appellant and started investigation. After usual investigation, the police filed charge sheet against the accused- appellant for offences punishable under Sections 354 IPC and Section 7, 9, 11 POCSO Act.
The learned trial court after hearing the arguments and considering the material on record, framed charges against accused-appellant for offences under Sections 354 IPC and Section 7/8 POCSO Act r/w Section 354 IPC, Section 9/10 POCSO Act r/w Section 354 IPC and Section 11/12 POCSO Act r/w Section 354 IPC. The accused-appellant pleaded not guilty and claimed trial.
At the trial, the prosecution examined as many as 18 witnesses in all and exhibited 32 documents. Thereafter the statements of the accused-appellant were recorded under section 313 Cr.P.C. In defence, the accused-appellant examined himself as DW-1 and exhibited 18 documents.
At conclusion of the trial, the learned Special Judge, POCSO Act Cases, Bhilwara vide judgment dated 14.05.2015 convicted and sentenced the accused-appellant as mentioned earlier.
Mr. Anil Joshi, Amicus Curiae argued that false case has been lodged against the appellant and there are material contradictions in the statements of the so-called deaf and dumb girl students witnesses i.e. PW-1 to PW-5. It is further submitted that there was a civil dispute between the appellant and the school authority for recovery of money and the appellant succeeded in the said suit (4 of 11) [CRLA-466/2015] against the school authority. Since the school authority did not want to pay the money to the appellant, a false case has been foisted against the appellant. Lastly it has been argued that considering the fact that the accused-appellant is in jail since 17.05.2013 and he has suffered maximum period of sentence, therefore sentence awarded to the accused-appellant be reduced to the period already undergone by him.
Per contra, the learned public prosecutor has supported the impugned judgment and argued that offences committed by the accused-appellant are of very serious nature. In this case, minor deaf and dumb girl students were sexually abused by the accused-
appellant and were shown obscene photographs. Therefore, no leniency should be shown in favour of the accused-appellant and the appeal should be dismissed.
I have heard the learned counsel for the appellant as well as learned public prosecutor, perused the impugned judgment passed by the learned trial court and gone through the record of the case.
This is a case in which minor deaf and dumb girl students, aged between 7 to 12 yeas, were sexually abused by the accused-
appellant. PW/1 Priyanka, aged about13 years, has given the following statement :
^^xokg us fy[k dj crk;k fd eSa ewd c/khj fo|ky; HkhyokM+k esa d{kk 4 esa i<+rh gwWaA xokg us b"kkjksa ls crkdj VªkalysVj us dgk fd esjs diM+s mij djokrk gS xans b"kkjs djrk gSA djus okys dk uke jkeLo:i crk;kA eqyfte gkftj vnkyr gSA xokg us b"kkjs djds Hkns dke djus dk b"kkjk fd;k vkSj vka[k ekjus dk b"kkjk Hkh fd;kA ;g dke izkFkZuk lHkk ds ckn dkyk"k vkrk gS rc djrk FkkA ** (5 of 11) [CRLA-466/2015] PW/2 Antima Ranka, aged about7 years, has given the following statement :
^^eSa nwljh d{kk esa i<rh gwaA xokg us Ldwy dk uke dkxt ij fy[kus ij ftl Ldwy esa i<rh gS og crk;k ysfdu Lo;a Ldwy dk uke ugha crk;k gSA jkeLo:i [kkrh eqyfte ges esFk i<krs gSA eqyfte jkeLo:i /kDdk ekjrk Fkk fQj dgk fd fdl djrk Fkk fQj dgk fd xksn esa cSBkrk FkkA eqyfte ifgus gq, diMs Åij djrk Fkk vkSj ykyp esa pkWdysV nsrk Fkk vkSj iSls Hkh nsrk FkkA** PW/3 Urmila Sharma, aged about 6-7 years has given the following statement :
^^jkeLo:i eqyfte esjs dwYgs ds gkFk yxkrk Fkk vkSj ;g Hkh dgrk Fkk fd rqe cgqr lqUnj gksA** PW/4 Rinku Kanwar Jat, aged about 13 years, has given the following statement :
^^bl le; eSa d{kk 4 esa i< jgh gwaA eSa ewd cf/kj fo|ky; esa i<rh gwaA vfHk;qDr jkeLo:i [kkrh lkekftd Kku i<krk gSA izΠ%& jkeLo:i [kkrh vfHk;qDr vkids lkFk D;k gjdr djrk FkkA mΠ%& xokg us fy[k dj crk;k fd vka[k ekjuk] xans fp= fijukuk fdlh dks ugha cksyuk] Nkrh fn[kkvks vkSj xans b"kkjs djds fn[kkrk FkkA** PW/5 Priyanka Kumawat, aged about 12 years, has given the following statement :
^^eSa igys rhljh d{kk esa i<rh vc pkSFkh d{kk esa i<rh FkhA eSa ewd cf/kj fo|ky; esa gkWLVy esa jgrh gwaA eqyfte jkeLo:i lkekftd Kku i<krk FkkA izΠ%& eqyfte vkids lkFk D;k&D;k djrk Fkk \ mΠ%& xokg us fy[kdj mRrj fn;k fd] iqLrd esa ls xUns cukrk Fkk] Nkrh vPNk fn[kkuk] viuk vax fy[kdj cksyuk esjk cM+k rqEgkj NksVk] diM+s fy[kdj fn[kkuk] est ij ikl cqykuk] eksckbZy] cky Nwdj dgk vPNk fn[kkukA (6 of 11) [CRLA-466/2015] jkeLo:i eq>s cqykrk FkkA vkSj cPpksa ls dgrk Fkk fd ;g vPNh vkSj ;g cqjh gSA eqyfte esjs ls dgrk Fkk fd vki vPNh gks vkSj nwljh dks xanh crkrk FkkA eqyfte esjs ls dgrk Fkk fd rqEgkjh Nkrh vPNh gSA eqyfte eq>s diMs mij djus ds fy, cksyrk FkkA ** PW-6 Rodumal Logad is the complainant in this case and in his statement he has corroborated the prosecution story. PW-7 Sister Lusil who was the Principal of the deaf and dumb school stated that a complaint was made before her by the minor deaf and dumb girl students and after receiving the complaint, she constituted a committee for inquiry of the matter. The statements of the girl students were taken by the Committee and statements of parents of some girl students were also taken. The perusal of these statements shows that the accused-appellant has committed stag, scurrilous and aberrant activities with the minor deaf and dumb girl students. The statement of PW-7 was also corroborated with the statements of the complainant PW-6 as well as the statement of the minor deaf and dumb girl students i.e. PW-1 to PW-5.
PW-9 Rekha Agarwal was a member of enquiry committee.
She inquired about the incident from the girl students, recorded their statements and filed a thorough report before the Principal about the wrong act committed by the accused-appellant with the minor deaf and dumb girl students. Another witness PW-10 Anil Kumar Jain in his statement mentioned that his two daughters were studying in the deaf and dumb school and both of them told him about scurrilous and aberrant activities committed to them by the accused-appellant. Upon then, PW-10 filed a complaint before (7 of 11) [CRLA-466/2015] the Principal of the school. The said report was also taken on record and marked as Ex-10. PW-11 Smt. Meena Kothari and PW-
12 Vidhya were also member of the committee. They also inquired from the deaf and dumb girls about the complaint, recorded their statements and thereafter submitted the report before the Principal. PW-17 Manoj Kumar Mishra mentioned in his statement that his daughter Priyanka Mishra was also studying in that deaf and dumb school and his daughter made complaint against the accused-appellant Ramswaroop that he teased her and showed obscene photographs. Thereafter he went to the school and made complaint before the Principal against the accused-appellant Ramswaroop. These all the statements corroborate the statements of deaf and dumb girl students i.e. PW-1 to PW-5.
Sections 7 of the POCSO Act reads as under:--
"Sexual assault : 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. "
Sections 9 of the POCSO Act reads as under:--
"Aggravated sexual assault:
(a) Whoever, being a police officer, commits sexual assault on a child--
(i) within the limits of the police station or premises where he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as a police officer; or (8 of 11) [CRLA-466/2015]
(b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child-
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the security or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known or identified as a member of the security or armed forces; or
(c) whoever being a public servant commits sexual assault on a child; or
(d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or
(g) whoever commits gang sexual assault on a child.
Explanation.--When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or
(h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or
(i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or
(j) whoever commits sexual assault on a child, which-
(9 of 11) [CRLA-466/2015]
(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause
(l) of section 2 of the Mental Health Act, 1987 or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or
(ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or
(k) whoever, taking advantage of a child's mental or physical disability, commits sexual assault on the child; or
(l) whoever commits sexual assault on the child more than once or repeatedly; or
(m) whoever commits sexual assault on a child below twelve years; or
(n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or
(o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or
(p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or
(q) whoever commits sexual assault on a child knowing the child is pregnant; or
(r) whoever commits sexual assault on a child and attempts to murder the child; or
(s) whoever commits sexual assault on a child in the course of communal or sectarian violence; or
(t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public."
(10 of 11) [CRLA-466/2015] Sections 11 of the POCSO Act reads as under:--
"Sexual harassment : A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
Explanation- Any question which involves "sexual intent" shall be a question of fact."
The victims, who are minor deaf and dumb girl students, in their statements have stated that the accused-appellant used to do scurrilous and aberrant activities to them and showed blue photographs and videos on mobile. The Trial Court after examining the statements, that were before it, had framed the charges under Sections 354 IPC and Section 7, 9, 11 POCSO Act. The girl students cannot tell a false story against the accused-appellant.
Therefore, the conduct of the accused-appellant, who was a teacher in the deaf and dumb school shows that he was involved in such type of an activity which is itself a very heinous and harmful act.
(11 of 11) [CRLA-466/2015] Section 7 of the POCSO Act is contained in two parts. The legislature had made it clear that if the "act is with sexual intent"
which involved "physical contact" without penetration then it would fall within the definition of Section 7 of the POCSO Act.
In view aforesaid discussion, this Court is of the view that no lienency can be shown in favour of the accused-appellant. The trial court has appreciated the evidence which came before it in proper and correct perspective and there is no reason to interfere with the said findings of the trial court. Therefore, the conviction of the accused-appellant recorded by the trial court is confirmed and upheld.
Hence, the appeal is devoid of any merit and hereby dismissed.
(MANOJ KUMAR GARG),J.
Ms/-8