Himachal Pradesh High Court
Bakshi Ram vs State Of H.P on 29 October, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 191 of 2015.
.
Reserved on: October 28, 2015.
Decided on: October 29, 2015.
Bakshi Ram ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
of
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes.
For the appellant: rt Mr. Neel Kamal Sharma, Advocate.
For the respondent: Mr. M.A.Khan, addl. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment dated 26.5.2015, rendered by the learned Special Judge, Mandi, H.P. in Sessions Trial No. 07/2014, whereby the appellant-accused (hereinafter referred to as accused) who was charged with and tried for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as the POCSO Act), read with Section 376 (2)(i) of IPC, for committing aggravated penetrative sexual assault upon the victim aged about 4 years on 20.11.2013 at about 3:30 PM, was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 10,000/- for the commission of offence under Section 6 of the POCSO Act read with Section 376(2)(i) IPC and in default of payment of fine he was further ordered to undergo 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 2simple imprisonment for two months. The victim was also held entitled to a sum of Rs. 25,000/- as compensation under the Victim .
Compensation Scheme.
2. The case of the prosecution, in a nut shell, is that PW-15, victim (name withheld), is the minor daughter of PW-13 and PW-16 and granddaughter of PW-14. In the month of November, 2013, PW-13, father of of the victim was serving at Chandigarh. On 20.11.2013 at about 8:30 PM, the victim complained pain in her private part and requested her rt mother to apply some medicine. On enquiry, the victim disclosed that the accused had touched his private part with her private part. The mother of the victim informed her husband. She also made enquiry from the accused who threatened that the victim shall be defamed in case the occurrence comes to light. Application Ext. PW-9/A was moved before the Executive Magistrate, Sarkaghat by the grandfather of the victim.
Thereafter, the police visited the spot and recorded the statement of PW-
16 vide Ext. PW-9/B. On the basis of the statement, FIR Ext. PW-9/C was registered. The victim was produced before the Medical Officer and MLC Ext. PW-16/A was obtained. The statement of victim Ext. PW-12/A was recorded and also videographed. The bed sheet was taken into possession. The date of birth certificate of the victim Ext. PW-4/B was obtained according to which the victim was born on 14.10.2009. The statement of the victim was also recorded before the ACJM, Sarkaghat vide Ext. PX under Section 164 Cr.P.C. The accused was arrested and ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 3 produced before the Medical Officer. He issued MLC Ext. PW-2/B. The matter was investigated and challan was put up after completing all the .
codal formalities.
3. The prosecution has examined as many as 17 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. He examined three witnesses in his of defence. The learned Trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, the present appeal.
4. rt Mr. Neel Kamal Sharma, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. He also contended that it is not believable that a man aged 83 years old would commit rape on minor 4 years old. On the other hand, Mr. M.A.Khan, learned Addl. Advocate General, appearing for the State has supported the judgment of the learned trial Court dated 26.5.2015.
5. We have heard the learned counsel for the parties and have also gone through the impugned judgment and records of the case carefully.
6. PW-2 Dr. Neeraj Sharma, deposed that accused was produced before him by the police. He issued MLC Ext. PW-2/B. In his opinion, there was nothing to suggest that the accused was not capable of performing an attempt of sexual assault.
::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 47. Dr. Shweta examined victim and issued MLC Ext. PW-3/B. The victim was complaining of pain in vulval region with alleged history of .
hurting vulval region and touching of the part with his penis by a person known as "Palku Ke Dada". She noticed following injuries on the private part of the victim:
"1. Contusion bluish in colour 1 cm x 1 cm, present on the labia minora on each side.
of
2. Redness alongwith tenderness present in vulval region.
3. Slight bleeding occurred while taking vulval swab.
4. Hymen intact.
rt No other internal injury was present.
No evidence of any type of injury all over the body."
She gave her final opinion in red circle "B" of MLC Ext. PW-
3/B. According to her, the possibility of sexual assault could not be ruled out in this case. The injuries observed by her in the vulval region are possible in case of sexual assault. In young children, hymen is deeply situated and vagina is small. It is not necessary that the hymen would be torn in an attempt of sexual assault. The hymen would not be torn in case if there was slight penetration.
8. PW-12 LC Anjana Kumari deposed that SHO directed her to accompany Parkash to PP Hatli for further verification of the complaint.
Thereafter, she alongwith the IO went to the house of the victim. The IO recorded the statement of the mother of the victim vide Ext. PW-9/B in her presence. Thereafter, they came back to the Police Post Hatli. On 23.11.2013, she produced the child before the doctor alongwith her mother for medical examination. She recorded the statement of the child ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 5 vide Ext. PW-12/A. The victim identified the place of commission of offence. She identified a place in the verandah of second floor of the .
house. The victim also identified the bed. She also identified the bed sheet which was taken into possession vide memo Ext. PW-12/B in the presence of Rup Lal.
9. PW-13 Raj Kumar deposed that he was working at of Chandigarh. On 20.11.2013, he received a telephonic call from his wife to the effect that their daughter had complained of pain in her private part.
rt She also disclosed that the child disclosed her that grandfather of Palku had touched her private part with her private part and due to this she was feeling pain. He reached his village on 22.11.2013 in the evening.
10. PW-14 Parkash Chand deposed that he moved an application Ext. PW-9/A before the Executive Magistrate Sarkaghat. He visited the Police Station. The police official recorded statement of his daughter-in-
law. They were called to the Police Station for medical examination of his granddaughter. The enquiries were also made by the police from the victim. The victim identified the spot and bed sheet where accused had made an attempt of sexual assault. His daughter-in-law also produced clothes of victim to the police.
11. The statement of PW-15, victim was recorded without oath.
She identified the accused sitting in the Court. He had touched her private part with his private part. In her cross-examination, initially she stated that her grandfather and mother had tutored her to make ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 6 allegations against the accused. But, in a Court question put to her, she reiterated that the occurrence had taken place with her and she had not .
falsely stated at the instance of grandfather and mother. She also denied the suggestion that nothing has happened with her and she was told to make this statement by her grandfather and mother.
12. PW-16 Punam Devi is the mother of the victim. According to of her, on 20.11.2013, her minor daughter aged 4 years disclosed at about 8:30-9:00 PM that she was feeling pain in her private part and requested rt her to apply some medicine. She enquired from her daughter for the pain and she disclosed that accused touched her private part with his private part. Thereafter, she informed her husband. On 21.11.2013, she enquired from the accused and he threatened that his daughter shall be defamed and he would not loose anything. She disclosed this fact to her grandfather on 21.11.2013. On 22.11.2013, her father-in-law made complaint. The police came to her house in the evening. They recorded her statement Ext. PW-9/B. On 23.11.2013, they were called for medical examination of the child. Her daughter was medically examined. She has denied the suggestion in her cross-examination that they used to send their child for playing in the house of the accused.
13, PW-17 SI Sunil Kumar, deposed that the statement of the victim was recorded vide Ext. PW-9/B. Thereafter, the victim was ordered to come to hospital for medical examination. Rukka was sent to the Police Station Sarkaghat and FIR Ext. PW-9/C was registered. The victim ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 7 was examined. The statement of the victim was also recorded vide Ext.
PW-12/A. The videography was also undertaken. The victim identified .
the place of occurrence.
14. The accused has also examined DW-1 Rup Lal. He deposed that daughter-in-law of Prakash had called Village Panchayat. He came to the house of Parkash. 5 ladies and 2-3 other persons were already of present in the house of Parkash. He inquired from them and they disclosed that it was a case of rape. The daughter-in-law of Parkash rt disclosed that rape had occurred 3-4 days prior to the incident. She also stated that they will not take any action. The police never came in his presence in the house of Parkash. In his presence, two police officials in civil uniform and one lady police official made inquiries from the mother of the victim about the clothes.
15. DW-2 Manorma Devi is the daughter-in-law of accused.
According to her, she had gone to her fields and came back at about 4:00 PM. Her three children were playing in the compound. Accused was sitting on the stairs. The victim alongwith her brother was also playing in the ground. She offered tea to her children. The verandah is open on all four sides. The verandah is visible from the compound. There are 5 houses adjoining to their houses. Parkash is not residing in his house.
The relations between accused and Parkash are strained due to enmity.
16. DW-3 Amar Nath deposed that accused Bakshi Ram is having good character and good image in the eyes of other villagers. The police ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 8 had come to the village in his presence in the evening. He did not remember the date and month. The police made enquiries. The victim .
refused to make statement and statement of the mother of the victim was recorded by the police. In his cross-examination, he admitted that he has not made statement in this case before the police or any Authority.
17. PW-15, victim (name withheld) has categorically stated in her of examination-in-chief that the grandfather of Palku had touched his private part with her private part. She has reiterated that the occurrence rt had taken with her and she has not falsely stated at the instance of grandfather and mother. She also denied the suggestion that nothing has happened with her and she was told to make this statement by her grandfather and mother. PW-16 Punam Devi has corroborated the statement of the victim. She deposed that on 20.11.2013, her minor daughter aged 4 years disclosed at about 8:30-9:00 PM that she was feeling pain in her private part and requested her to apply some medicine.
She enquired from her daughter for the pain and she disclosed that accused toughed her private part with his private part.
18. PW-14 Parkash Chand deposed that he moved an application Ext. PW-9/A before the Executive Magistrate Sarkaghat to the effect that accused had sexually assaulted his granddaughter and tried to commit rape. Thereafter, he visited the Police Station. The police official recorded statement of his daughter-in-law. The enquiries were also made by the ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 9 police from the victim. PW-13 Raj Kumar, father of the victim has also deposed the manner in which he was narrated the incident by his wife.
.
19. PW-3 Dr. Shaweta has noticed contusion bluish in colour 1 cm x 1 cm, present on the labia minora on each side. She also noticed redness alongwith tenderness present in the vulval region. There was slight bleeding while taking vulval swab. According to her final opinion, of as per MLC Ext. PW-3/B, the possibility of sexual assault could not be ruled out in this case. The accused, as per the statement of PW-2 Dr.
20. rt Neeraj Sharma, was capable of performing sexual act.
The statement of the victim was also recorded under Section 164 Cr.P.C. vide Ext. PX. She has categorically stated in Ext. PX that the grandfather of Malku has touched his private part with her private part.
The witness produced by the accused DW-2 Manorma Devi has admitted that her children were playing in the compound. The victim alongwith her brother was also playing in the ground. Thus, she has admitted the presence of the victim in the compound. DW-1 Rup Lal has also deposed that the daughter-in-law of Parkash disclosed that rape had occurred 3-4 days prior to the incident. DW-3 Amar Nath in his cross-examination, as noticed hereinabove, has categorically stated that he has never made any statement before the police or any Authority. The victim was born on 14.10.2009, as per Ext. PW-4/B. The prosecution has proved the case against the accused beyond reasonable doubt.
::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 1021. The accused was 83 years of age while recording his statement under Section 313 Cr.P.C. on 23.3.2015. No doubt, the .
accused has committed the heinous crime but the punishment in criminal cases is both, punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realize his fault and is deterred from repeating such acts in future. The purpose is also to of enable the person to relent and repent for his action and make himself acceptable to the society. The persons who commit rape are
22. rt psychologically sadistic persons.
Their Lordships of the Hon'ble Supreme Court in T.K. Gopal alias Gopi v. State of Karnataka reported in (2000) 6 SCC 168, have held that those who commit rape are psychologically sadistic persons exhibiting this tendency in the rape forcibly committed by them. In some States in U.S.A., therefore, emphasis was laid on psychotherapic treatment of the offender while he was under detention. In the matter of punishment for offence committed by a person, there are many approaches to the problem. On the commission of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a notoriously dangerous person, who must be inflicted severe punishment to protect the society from his criminal assaults. The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment, while the third is the preventive approach which seeks to ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 11 eliminate those conditions from the society which were responsible for crime causation. Their lordships have held as under:
.
"[13] In the matter of punishment for offence committed by a person, there are many approaches to the problem. On the commission of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a notoriously dangerous person who must be inflicted severe punishment to of protect the society from his criminal assaults. The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment, while the third is the preventive approach which seeks to eliminate those conditions from the society which were responsible for rt crime causation.
[14] Under the punitive approach, the rationalisation of punishment is based on retributive and utalitarian theories. Deterrent theory which is also part of the punitive approach proceeds on the basis that the punishment should act as a deterrent not only to the offender but also to others in the community.
[15] The therapeutic approach aims at curing the criminal tendencies which were the product of a diseased psychology. There may be many factors, including the family problems. We are not concerned with those factors as therapeutic approach has since been treated as an effective method of punishment which not only satisfies the requirements of law that a criminal should be punished and the punishment prescribed must be meted out to him, but also reforms the criminal through various processes, the most fundamental of which is that in spite of having committed a crime, may be a heinous crime, he should be treated as a human being entitled to all the basic human rights, human dignity and human sympathy. It was under this theory that this Court in a stream of decisions, projected the need for prison reforms, the need to acknowledge the vital fact that the prisoner, after being lodged in jail, does not lose his fundamental rights or basic human rights and that he must be treated with compassion and sympathy (See : Sunil ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 12 Batra (I) v. Delhi Administration, AIR 1978 SC 1675 : (1978) 4 SCC 494 : 1979 (1) SCR 392 : (1978 Cri LJ 1741); Sunil Batra (II) v. Delhi .
Administration, AIR 1980 SC 1579 : (1980) 3 SCC 488 : 1980 (2) SCR 557 : (1980 Cri LJ 1099); Charles Sobraj v. Superintendent, Central Jail, Tihar, AIR 1978 SC 1514 : (1978 Cri LJ 1534) and Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : AIR 1981 SC 746 : 1981 (2) SCR 516 : (1981 Cri LJ 306) etc.).
[16] Sexual offences, however, constitute an altogether different kind of of crime which is the result of a perverse mind. The perversity may result in homosexuality or in the commission of rape. Those who commit rape are psychologically sadistic persons exhibiting this tendency in the rape rt forcibly committed by them.
[17] In some States in the USA, therefore, emphasis was laid on psychotherapic treatment of the offender while he was under detention. For that purpose, Psychopath Sexual Offenders Laws have been enacted in certain jurisdiction in USA. These laws treat the sex offenders as neurotic persons and psychotherapic treatment is given to them during the period of their detention which may, in some cases, be an indefinite period, in the sense that they would not be released till they are cured. But the provision for indefinite detention even beyond the maximum period of imprisonment for that offence was seriously objected to by a group of lawyers and, therefore, in many of the States, this provision was dropped from the Statute.
[18] Here, in India, statutory provision for psychotherapic treatment during the period of incarceration in the jail is not available in India, but reformist activities are systematically held at many places with the intention of treating the offenders psychologically so that he may not repeat the offence in future and may feel repentant of having committed a dastardly crime."
23. Their Lordships of the Hon'ble Supreme Court in Karamjit Singh v. State (Delhi Admn.) reported in AIR 2000 SC 3467, have held ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 13 that punishment in criminal cases is both, punitive and reformative. The purpose is that the person found guilty of committing the offence is made .
to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. Within the parameters of law, an attempt has to be of made to afford an opportunity to the individual to reform himself and lead life of a normal, useful member of society and make his contribution to in rt that regard . denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Their lordships have held as under:
"[7] The punishment prescribed under Ss. 3, 4 and 6 of the TADA Act are imprisonment for a term of not less 5 years to life imprisonment and also fine. On a reading of these statutory provisions it is manifest that the Parliament has considered the culpability dealt with in these provisions as serious threats to society and the country, and, therefore, has provided stringent punishment for the offences. Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case the Court has to weight the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is what is needed in such a case, a balance ::: Downloaded on - 15/04/2017 19:15:33 :::HCHP 14 between the interest of the individual and the concern of the society weighing the one against the other. Imposing a hard punishment on the .
accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person of who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has rt to be avoided, again within the permissible limits of law."
24. In the present case also, as noticed hereinabove, accused is more than 83 years of age. He has no criminal background. His conduct in the Jail is satisfactory since nothing adverse has been brought to our notice by the State.
25. In view of the discussion and analysis made hereinabove, the present appeal is partly allowed. The sentence imposed vide judgment dated 26.5.2015 rendered by learned Special Judge, Mandi, H.P., in Sessions Trial No. 07/2014, is reduced to rigorous imprisonment for 4 years instead of 10 years rigorous imprisonment, alongwith a fine of Rs.
5,000/-.
( Rajiv Sharma ), Judge.
October 29, 2015, ( Sureshwar Thakur ),
(karan) Judge.
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