Ram Khilawan vs State on 16 June, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: June 16, 2017

+ CRL.A. 406/2015
RAM KHILAWAN ….. Appellant
Through: Mr. Amar Nath, Amicus Curiae
Counsel with Ms. Rakhi Dubey,
DHCLSC panel counsel

Versus

STATE ….. Respondent
Through: Mr. Mukesh Kumar, Additional
Public Prosecutor for respondent-
State with WSI Sunita Kumai,
Police Station Delhi Cantt.

CORAM:
HON’BLE MR. JUSTICE SUNIL GAUR

JUDGMENT

% ORAL

1. In this appeal, challenge is to appellant’s conviction under Section
9 of The Protection of Children from Sexual Offences Act, 2012 and order
of 28th November, 2014 vide which appellant has been awarded minimum
sentence of rigorous imprisonment for five years with fine of `5,000/-
and in default of payment of fine, appellant has been directed to undergo
sentence of simple imprisonment for four months.

Crl.A.406/2015 Page 1 of 5

2. The facts as noted in the impugned judgment are as under:-

“The facts in brief, as stated in the complaint, are
that on 19.02.2013, an information was received about the
prosecutrix having been molested by the accused, while
she was sitting at the bus stop at about 10:30 AM to return
to her house, after finishing her school. The accused was
present at the bus stop, was apprehended by the public and
handed over to the police. On the complaint of the
prosecutrix, a case under
Section 354 IPC and 10 POCSO
Act was registered against the accused. The investigations
were carried out by W/SI Krishna who got registered the
FIR. During the investigation, she got the medical
examination of the prosecutrix conducted and also got
recorded her statement under
Section 164 Cr.P.C. She
also got the accused medically examined in the hospital,
after his arrest. She recorded the statements of the
witnesses and after completion of the investigations,
chargesheet was filed in the court on 19.10.2003 u/s 354A
IPC and Section 10 POCSO Act.”

3. Out of deposition of ten witnesses recorded by the trial court, the
material evidence is of prosecutrix (PW-8) and that of her father (PW-3)
and also of public witness (PW-9). Apart from this, the remaining
evidence pertains to school record of prosecutrix and regarding the steps
taken during the investigation of this case. W/ASI Krishna (PW-10) is the
Investigating Officer of this case. The stand of appellant-accused before
the trial court was of denial, which has been discarded by trial court while
convicting and sentencing him as noted hereinabove.

4. Learned Amicus Curiae Counsel submits that in pursuance to
production warrants issued against appellant, he had appeared in court in

Crl.A.406/2015 Page 2 of 5
custody on the last date of hearing and with the assistance of learned
Amicus Curiae Counsel and Ms. Rakhi Dubey, learned DHCLSC panel
counsel, an interaction with appellant had taken place.

5. On behalf of appellant, it is contended that even if prosecution case
is taken as it is, still the offence, if any, committed by appellant-accused
would come within the domain of
Section 8 of The Protection of
Children from Sexual Offences Act, 2012 and not under
Section 9 of the
aforesaid Act. It is pointed out by appellant’s counsel that minimum
sentence prescribed under
Section 8 of the aforesaid Act is of three years,
which appellant has already undergone. To submit so, attention of this
Court is drawn to appellant’s Nominal Roll of 31 st March, 2017. It is
further submitted on behalf of appellant that the conviction of appellant
needs to be altered to one under
Section 8 of The Protection of Children
from Sexual Offences Act, 2012, and as appellant is a poor person, so, the
sentence in default of payment of fine be also reduced.

6. On the other hand, learned Additional Public Prosecutor for
respondent-State supports the impugned judgment and submits that the
sentence awarded to appellant-accused is just and fair in the facts of this
case and needs no interference.

7. Upon hearing and on perusal of impugned judgment, order on
sentence, evidence on record and appellant’s Nominal Roll of 31 st March,
2017, I find that it stands proved from the evidence on record that
appellant had committed sexual assault on the prosecutrix. However, it is

Crl.A.406/2015 Page 3 of 5
to be seen as to whether the manner of sexual assault brings this case
within the ambit of
Section 8 or Section 9 of The Protection of Children
from Sexual Offences Act, 2012. On scrutiny of prosecutix’s evidence, I
find that the manner in which sexual assault was committed upon
prosecutrix does not bring this case within the sweep of
Section 9 of
aforesaid Act. Trial court has erred in convicting appellant for offence
under
Section 9 of The Protection of Children from Sexual Offences Act,
2012. However, appellant deserves to be convicted for offence under
Section 8 of aforesaid Act, which carries minimum sentence of three
years with fine. As per appellant’s Nominal Roll 31st March, 2017 on
record, appellant has already undergone sentence of three years, four
months and a few days with remission and his conduct in jail has been
satisfactory and that he is not involved in any other case. Considering
that appellant belongs to poor strata of society and is not a previous
convict, I find that the sentence already undergone by appellant would
meet the ends of justice.

8. Consequentially, conviction of appellant is accordingly altered and
the order on sentence of 28th November, 2014 stands modified. It is made
clear that appellant is convicted under
Section 8 of The Protection of
Children from Sexual Offences Act, 2012 and the sentence awarded to
appellant is reduced to three years, which he has already undergone and
in default of payment of fine, appellant shall undergo simple
imprisonment for four months and that too, appellant has already
undergone. Appellant be released forthwith, if not wanted in any other

Crl.A.406/2015 Page 4 of 5
case.

9. With aforesaid modification, this appeal is disposed of.

10. A copy of this order be sent to the concerned Jail Superintendent to
apprise appellant about the fate of his appeal and for compliance.

(SUNIL GAUR)
JUDGE
June 16, 2017
r

Crl.A.406/2015 Page 5 of 5

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