Rajasthan High Court - Jaipur
Jagdish Singh @ Tillu S/O Roopsingh B/C ... vs State Of Rajasthan Through Pp on 9 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Jail Appeal No. 338/2018
Jagdish Singh @ Tillu S/o Roopsingh B/c Rajput, Rajasthan.
----Appellant
Versus
State Of Rajasthan Through Pp, Rajasthan.
----Respondent
For Appellant(s) : Mr. Govind Prasad Rawat
For Respondent(s) : Mr. Javed Chaudhary PP
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
HON'BLE MR. JUSTICE BANWARI LAL SHARMA
-/Judgment/-
09/04/2019
Per: Kanwaljit Singh Ahluwalia, J (ORAL)
Jagdish Singh @ Tillu son of Roop Singh through jail
has preferred the present appeal under Section 374 Cr.P.C. to
assail his conviction for the offences under Sections 363, 366,
376(2)(i) and (m) IPC and Section 5(i) and (m) / 6 of Protection
of Children from Sexual Offences Act, 2012, recorded by the court
of Special Judge, POCSO Act Cases, Kota.
The said court vide impugned judgment dated
23.7.2018 convicted the appellant for the above said offences and
vide a separate order of even date sentenced the appellant as
under:-
U/ 376(2)(i) and (m) IPC read with Section 5(i) and (m) / 6
POCSO Act:- to undergo life imprisonment and to pay a fine of
Rs.50,000/-, in default thereof to further undergo additional six
months imprisonment.
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U/s 363 IPC :- to undergo four years RI and to pay a fine of
Rs.25,000/-, in default thereof to undergo additional three months
imprisonment.
U/s 366 IPC :- to undergo four years RI and to pay a fine of
Rs.25,000/-, in default thereof to undergo additional three months
imprisonment.
All the sentences were ordered to run concurrently.
The present appeal was preferred through jail and
subsequently, Mr. Govind Prasad Rawat filed his Vakalatnama on
behalf of the appellant.
The case of the prosecution, as it emerges in the
charges formulated against the appellant is that the appellant on
7.2.2014 at about 5:30 PM, from near about Vyas Ji Chowk
kidnapped victim, a child less than eighteen years of age and
thus, the appellant committed offence punishable under Section
363 IPC. The second charge stated that since the appellant had
kidnapped the child in order to commit sexual intercourse, he
committed offence punishable under Section 366 IPC. The third
charge stated that the appellant took the victim child in his room
situated at Retwali Kota and by inserting finger in the vagina of
the child, committed offence punishable under Section 376(2)(h)
and (L) of IPC.
The fourth charge stated that since the victim was
about seven years of age, the appellant committed offence
punishable under Section 5(i) and (m) / 6 of POCSO Act.
The appellant pleaded not guilty and claimed trial.
In the present case, the criminal proceedings were set
into motion on the basis of written report (Exhibit-P/1) presented
by Rishika (not examined) and Gopi (P.W.2) mother and father of
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the victim, respectively. The true translation of written report
(Exhibit-P/1) reads as under:-
"To,
SHO,
Police Station Kethunipol.
Subject: Regarding lodging of the report.
Sir,
It is submitted that my daughter (name withheld
to protect the identity of the victim) upon return from
her coaching class, at 5:00 PM slept. In the night at
10:00 PM, she went to bathroom. It was found that
she was bleeding. Upon asking she had not told
anything. In the morning, on putting the child at ease,
we asked her and then she narrated that at 3:00 PM
when she was returning the incident had taken place.
We had taken the child at the place of occurrence. In
the room there was a photograph of the boy which
the child identified. We asked the name of the boy
and the same was disclosed as Jagdish @ Tillu. On
return to our home, we felt it appropriate to lodge the
report. We need justice for our child. Legal action be
taken.
Applicant
Rishika (w/o) Gopi by caste Sindhi
Retwali (P.S. Kethunipol).
On the basis of aforesaid written report (Exhibit-P/1),
formal FIR bearing No.42/2014 (Exhibit-P/6) was registered at the
Police Station Kaithunipol, Kota City for the offences under
Sections 376 IPC and Sections 3 and 4 of POCSO Act. The FIR was
investigated and the appellant was arrested.
The victim appeared in the court as P.W.1. The victim
stated that after school hours, she used to go for playing and
thereafter, for taking tuition to the shop of one Deepak. The victim
identified the accused and told his name as Jagdish @ Tillu and
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further stated that the accused picked her up and had inserted a
finger in her private parts and thereafter had given chocolate and
Rs.5/-. The victim further stated that the accused removed her
clothes and thereafter had left her.
We need not refer to the testimony of Gopi (P.W.2) the
complainant father of the victim, as in the court he reiterated as
to what was stated to him by the victim.
Dr. Suman Meena (P.W.5) had examined the child. She
stated that hymen was freshly torn, bleeding was not present and
vagina admitted one finger.
Dr. Vinod Garg (P.W.6) on 10.2.2014 examined the
appellant and opined that there was nothing to show that the
appellant was not capable of performing sexual intercourse.
We need not refer to the testimony of other witnesses,
who had participated in the investigation.
Learned counsel for the appellant has not assailed
conviction of the appellant.
Having perused the entire evidence, we are convinced
that the victim child in the court has identified the appellant as the
one who had inserted finger in her vagina. It is a case of sexual
exploitation of the child. On the very next day of the occurrence,
the child had taken the parents to the room where the accused
had taken advantage of the child.
The defence has given no suggestion that the accused
was having any enmity with the parents or he has been falsely
implicated due to some inimical relations or monetary dispute.
We are convinced that the learned counsel for the
appellant has rightly not assailed the conviction of the appellant.
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Counsel appearing for the accused-appellant has made
alternative prayer for reduction of the sentence. It is contended by
the learned counsel that the ld. trial Court has gravely erred in
awarding maximum sentence of life imprisonment to the
appellant. It is further canvassed by the learned counsel that it is
not a case where maximum sentence prescribed ought to have
been awarded. It is urged by ld. counsel that legislature in its
wisdom for offence of rape under Section 376(2)(i) and (m) IPC
and Section 5(i) and (m) / 6 of Protection of Children from Sexual
Offences Act, 2012 has prescribed minimum sentence of ten-
years, therefore, there being no aggravating circumstances
available even if entire testimony of the prosecutrix is taken at
face value, no case for awarding maximum sentence is made out.
We are conscious that after the amendment of Section
376 IPC, even insertion of finger in the private part of child or
woman constitute offence of rape but we cannot become oblivious
of fact that the appellant has made no attempt to penetrate his
male organ. We may notice here that the occurrence in the
present case has taken place in the year 2014 and hence, sub-
clause (3) of Section 376 IPC is not attracted in the present case.
Counsel appearing for the accused-appellant has relied
upon the judgment rendered by the Division Bench of this Court in
the case of Sohan Lal Vs. State of Rajasthan (D.B. Criminal Appeal
No.13/2006), decided on February 18, 2015.
We reproduce here the operative portion of the
aforesaid judgment rendered in Sohan Lal (supra), wherein
Division Bench of this Court had noted the contentions of the
learned counsel in that case and thereafter, has held as under :-
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"Considering the overwhelming evidence produced by the
prosecution, Mr. Anshuman Saxena, the learned amicus curiae,
and Mr. Chandra Singh, the learned counsel for the appellant,
have confined their arguments only to the sentence to which
the appellant had been subjected to.
According to the learned counsel, in order to award the
maximum sentence there must be compelling reasons for the
trial court to do so. Moreover, the trial court must give cogent
reasons for inflicting the maximum sentence. In order to
buttress this contention, the learned counsel have relied on the
case of Sunil Dutt Sharma v. State (Government of NCT of
Delhi) [(2014) 4 SCC 375] and on the case of Bavo @ Manubhai
Ambalal Thakore v. State of Gujarat [AIR 2012 SC 979]. Relying
on the latter case, the learned counsel have 6. further argued
that considering the fact that the appellant has suffered
protracted trial, and has undergone a sentence of about nine
years, the sentence ought to be reduced from life imprisonment
to ten years.
On the other hand, Mr. Aladeen Khan, the learned Public
Prosecutor, has emphasized the age of the victim. But he could
not forcefully argue against the reduction of sentence.
Heard the learned counsel for the parties, perused the
record and examined the impugned judgment.
In the case of Sunil Dutt Sharma (supra), the Hon'ble
Supreme Court has opined that although the principles of
sentencing evolved by the Supreme Court deal generally with
the cases of death penalty, however, the said principles will also
govern offences which prescribe lesser sentences. Therefore,
the courts should not only look at the circumstances of
particular crime, but should also consider the circumstances
evolved around the criminal. Repeatedly, the Hon'ble Supreme
Court has held that maximum sentence prescribed by law
should be imposed only in the rarest of rare cases. Therefore, in
case a higher punishment is given from the minimum one,
aggravating circumstances must be spelt out by the court
before the maximum sentence can be inflicted.
In Bavo @ Manubhai Ambalal Thakore (supra), the
Hon'ble Supreme Court dealt with a case where the prosecutrix
was only seven years old, and in a case of offence under
Section 376(2)(f) IPC, where the appellant was also sentenced
7. to life imprisonment. In the said case the Apex Court opined
that "considering the fact that the victim, in the case on hand,
was aged about 7 years on the date of the incident, and the
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accused was in the age of 18/19 years and also of the fact that
the incident occurred nearly 10 years ago, the award of life
imprisonment, which is maximum prescribed, is not warranted
and also in view of the mandate of Section 376(2)(f) IPC, we
feel that the ends of justice would be met by imposing RI for 10
years".
Recently, in the case of Chanda Lal @ Harchanda v. State
of Rajasthan, D.B. Criminal Appeal No.947/2005, decided on
26.11.2014, this court has also reduced the sentence from life
imprisonment to ten years under circumstances similar to the
present case. In the said case, age of the prosecutrix was
between five to six years. However, considering the fact that
there was no aggravating circumstances for imposing the
maximum punishment, this court had reduced the sentence
from life imprisonment to ten years.
In the present case, the victim is a small girl. But there
are no other aggravating circumstances beyond the age of the
victim. The appellant happens to be a young man, aged about
thirty years, when the occurrence had occurred; he has faced a
long criminal trial; he has served a sentence of about nine
years. Therefore, the case does not have any aggravating 8.
circumstances which would warrant imposition of the maximum
sentence provided by law for offence under Section 376(1) IPC.
Therefore, keeping in mind the principles laid down by
the Hon'ble Supreme Court in the case of Sunil Dutt Sharma
(supra), and in the case of Bavo @ Manubhai Ambalal Thakore
(supra) and followed by this court in the case of Chanda Lal @
Harchanda (supra), this court confirms the conviction of the
appellant, Sohan Lal, for offences under Sections 363, 366 and
376(1) IPC and confirms the sentence for offences under
Sections 363 and 366 IPC, but reduces the sentence for offence
under Section 376(1) IPC from life imprisonment to ten years of
rigorous imprisonment. However, we enhance the fine from
Rs.1000/- to Rs.10,000/- while maintaining the default clause
prescribed by the trial court. The amount of fine shall be paid to
the victim by way of compensation."
After hearing the learned counsel appearing for the
accused-appellant, as well as, the learned Public Prosecutor
appearing for the State of Rajasthan, we find no good ground to make departure from the view formulated by the Division Bench of this Court in the case of Sohan Lal (supra).
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(8 of 9) [CRLAD-338/2018] Following the dictum of the law laid down in the case of Sunil Dutt Sharma Vs. State (Government of NCT of Delhi), reported as [(2014) 4 S.C.C. 375] and in the case of Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat, reported as A.I.R. 2012 S.C. 979, while maintaining the sentence of the appellant for offences under Section 376(2)(i) and (m) IPC and Section 5(i) and
(m) / 6 of Protection of Children from Sexual Offences Act, 2012, we reduce the sentence of life imprisonment awarded upon the appellant to ten-years rigorous imprisonment. However, we maintain the fine of Rs.50,000/- awarded by the trial Court and the default clause prescribed. Sentences awarded upon the appellant on other counts is also maintained and same as ordered by the trial court, shall run concurrently with the main offences under Sections Section 376(2)(i) and (m) IPC and Section 5(i) and
(m) / 6 of Protection of Children from Sexual Offences Act, 2012.
Since in the present case, the appellant had filed an appeal through jail, we feel that the appellant may not be in a capacity to pay the fine imposed by the trial Court.
In these circumstances, we direct the Secretary, Rajasthan State Legal Services Authority to ensure that the compensation as per the scheme prepared by the Rajasthan State Government under Section 357(A) Cr.P.C. is paid to the victim through her parents. The Secretary, Rajasthan State Legal Services Authority shall take all active steps for payment of the compensation under Section 357 (A) Cr.P.C. in consonance with the Victim Compensation Scheme prepared by the State of Rajasthan, and amount of compensation shall be deployed for the welfare of the victim. The amount shall be paid without disclosing identity of the victim. The Secretary, Rajasthan State Legal (Downloaded on 27/06/2019 at 11:20:47 PM) (9 of 9) [CRLAD-338/2018] Services Authority shall show great sensitivity towards the victim while disbursing the amount.
A copy of this order be sent to the Secretary, Rajasthan State Legal Services Authority, and to the Secretary, Rajasthan High Court Legal Services Committee, Jaipur.
With the above modification and reduction of the sentence, the present appeal is disposed of. (BANWARI LAL SHARMA),J (KANWALJIT SINGH AHLUWALIA),J Mak/-
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