Allahabad High Court
Deshraj Pasi vs State Of U.P. on 20 February, 2019
Author: Aniruddha Singh
Bench: Aniruddha Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 50 Case :- CRIMINAL APPEAL No. - 5204 of 2016 Appellant :- Deshraj Pasi Respondent :- State Of U.P. Counsel for Appellant :- Rajendra Kumar Sonker Counsel for Respondent :- G.A. Hon'ble Aniruddha Singh,J.
1. Heard Sri Rajendra Kumar Sonker, learned counsel for the appellant as well as Sri P.K. Srivastava, learned AGA and perused the record.
2. This criminal appeal under Section 374(2) Cr.P.C. has been preferred by Deshraj Pasi against State of U.P. challenging judgment and order dated 1.10.2016 passed by Special Judge, POCSO Act, 2012/ Additional Session Judge Court No.1, Kanpur Dehat in Special Session Trial No. 10 of 2014(State vs. Deshraj Pasi) arising out of Case Crime No. 385 of 2013, Police Station Gajner, District Kanpur Dehat convicting and sentencing appellant to undergo ten years' rigorous imprisonment with fine of Rs.20,000/- under Section 4 POCSO Act and three years' R.I. with fine of Rs.5000/- under Section 457 IPC and in case of default in payment of fine to further undergo additional imprisonment for six months and three months under Section 4 of POCSO Act and Section 457 IPC respectively. All the sentences to run concurrently and period spent in jail by the appellant shall be adjusted in the sentence awarded by the Court.
3. According to prosecution case, FIR was lodged against the appellant alleging that on 7.12.2013 at 9:30 P.M. Deshraj Pasi entered into house of complainant, raped forcibly daughter(17 years) of complainant Suraj Bali without her will and consent. When she informed about the incident to her mother, FIR was lodged on 10.12.2013 at 17:50 at police station concerned under section 376(2) Jha, 457 IPC and section 4 of POCSO Act. Statement of victim was recorded under Section 164 Cr.P.C. on 17.12.2013 wherein she stated same version as complainant stated in the FIR. She clearly stated that she was aged 16 years on the date of incident and she was raped by the appellant in her house at night. She was medically examined by the concerned doctor and doctor found that her hymen was torn at 3 o' clock, 9 o' clock & 6 o' clock and six injuries were found on the body:-
1) Abrasion on right side of face about 1 cm. In front of angle of mandible 1 cm x 0.5 cm size, brownish black in colour.
2) Abrasion on right side of upper part of neck 1 cm x 1.5 cm in size brownish black in colour .
3) A linear abrasion about 1.5 cm below injury no. 2, 1.5 cm x 0.1 cm in size, brownish black in colour.
4) A linear abrasion in front of neck 2 cm x 0.1 cm in size brownish black in colour.
5) A bruise over upper part of right breast 15 cm x 7 cm in size bluish black in colour.
6) A bruise over inner side of left breast 6 cm x 3 cm in size bluish black in colour.
Injury nos. 1,2,3 & 4 caused by friction of hard blunt . injury no. 5 & 6 caused by hard blunt object. Duration about four days. No spermatozoa was found as per supplementary medical report.
4. According to X-ray report, age of victim was found 17 years. After investigation, charge sheet was submitted against Deshraj Pasi under Section 376(1), 457 IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012. After taking cognizance by the concerned Court on the charge-sheet, on 4.7.2014 charges were framed under Section 4 of Protection of Children from Sexual Offences Act, 2012 and section 457, 376 IPC against accused appellant to which he pleaded not guilty and claimed for trial.
5. In order to prove the charges on behalf of prosecution besides documentary evidence, Court examined P.W.1 Surajbali, P.W.2 victim girl, P.W.3 Head Constable Alpana Yadav, P.W.4 Dr. Archana Srivastava, P.W.5 Jitendra Kumar( Investigating Officer).
6. After closure of prosecution evidence, statements of accused-person under Section 313 Cr.P.C were recorded. He denied and specifically stated that he has been falsely implicated due to previous enmity. In defence, no evidence was produced.
7. Trial Court after hearing parties, vide impugned judgment and order, convicted and sentenced accused appellant for the offences under Section 4 POCSO Act and Section 457 IPC. Hence this appeal.
8. Learned counsel for the appellant submitted that the appellant has been falsely implicated due to previous enmity; there is no legal evidence against him, impugned judgment is illegal and is liable to be quashed.
9. Learned A.G.A submitted that there is sufficient evidence against the appellant to convict him under Section 4 POCSO Act and Section 457 IPC.
10. I have considered rival submissions made by the learned counsel for the appellant and learned A.G.A. for the State and gone through entire record.
11. Before discussion, the Court finds necessary to reproduce section 3 and 4 of POCSO Act :-
3. Penetrative sexual assault.- A person is said to commit "penetrative sexual assault" if-
a. he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or b. he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or c. he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or d. he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
"4. Punishment for penetrative sexual assault.-
Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."
12. From perusal of statement of girl and medical evidence, it is proved beyond reasonable doubt that girl was minor(aged 17 years 8 months and 16 days) on the date and time of incident on 7.12.2013 as her date of birth is 20.3.1997. There is no doubt that girl was minor on the date of incident when she was raped and there is no question of consent. Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') was published in Gazette of India, Extra on 9.11.2012 and came into force on 14.11.2012. Hence it is very clear that on the date of incident, this Act was applicable and according to Section 2(d) 'Child' means any person below the age of eighteen years. Question of consent of a minor is immaterial.
13. Learned counsel for the appellant submitted that incident is of night and the place was house of the complainant, it means that the appellant entered into the house with the consent of girl otherwise there was no chance of any person entering into the house and made sexual relation with her. But on this point the Act is very clear because the girl was aged below 18 years, hence consent is immaterial and presumption of Section 29 of the POCSO Act would lie against the appellant. Section 29 of the POCSO Act is reproduced as below:-
"29. Presumption as to certain offences.-
Where a person is prosecuted for committing or abetting or attenuating to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
14. P.W.2 is the natural witness and she has clearly stated about the incident and specifically stated that she has been raped by the appellant and the evidence is corroborated by medical reports because six injuries were found on the body of victim, she was unmarried and hymen was found torn. Question of consent does not arise.
15. It is also pertinent to mention here that it is not a case of appellant that the girl was of bad character. In these circumstances, inference would be drawn against the appellate according to Section 29 of POCSO Act as the witness P.W.1 has proved the date of incident which finds support as narrated by P.W.2 victim.
16. This Court finds that the view taken by the Court below is possible view. Hence no interference is called for on the point of conviction.
17. Learned counsel for the appellant submitted that the appellant is languishing in jail since 12.12.2013 having spent five years and two months in jail and he is aged 31 years now. The victim girl is also in living relationship with another man. The appellant belongs to rural family, his social and economic status is very poor. Hence lenient view may be taken on the point of sentence.
18. On this point, learned AGA submitted that lenient view may be taken by the Court.
19. Minimum sentence under Section 4 of POCSO Act is seven years rigorous imprisonment with fine. This Court is of the opinion that ends of justice would be served if sentence of imprisonment and fine are reduced.
20. The appeal is partly allowed. Impugned Judgment & order dated 1.10.2016 is hereby modified. Appellant Deshraj Pasi is sentenced to seven years rigorous imprisonment with fine of Rs.3000/- under Section 4 of POCSO Act and three years rigorous imprisonment with fine of Rs.2000/- under section 457 IPC. In case of default in payment of fine, he has to undergo additional imprisonment for three months each under both sections. All the sentences shall run concurrently and period of imprisonment already spent in jail shall be adjusted.
21. Trial Court is directed to ensure that appellant Deshraj Pasi shall be released from jail after his serving out sentence awarded by this Court.
22. Copy of this judgment be also supplied to the appellant through the concerned Superintendent of Jail.
23. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. compliance report be submitted to this Court. Office is directed to keep the compliance report on record.
Order Date :- 20.2.2019 P.P.