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Bhinya Ram vs State on 3 July, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 14/2015

Bhinyaram S/o Bheraram B/c Kumhar R/o Ramsar, P.S. Napasar,
Distt. Bikaner (Raj.).

—-Appellant
Versus
State of Rajasthan.

—-Respondent

For Appellant(s) : Mr. Naresh Khatri.
For Respondent(s) : Mr. Anil Joshi, PP.

HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE ABHAY CHATURVEDI

Judgment

02/07/2019

The appellant herein has been convicted and sentenced as

below vide judgment dated 02.12.2014 passed by the learned

Sessions Judge, Bikaner in Sessions Case No.32/2013:

Offences Sentences Fine Fine Default
sentences
Section 367 7 Years’ Rigorous Rs.10,000/ 6 Months’ R.I.
IPC Imprisonment

Section 4 of Life Imprisonment Rs.15,000/ 6 Months’ R.I.
the POCSO Act

Being aggrieved of his conviction and the sentences awarded

by the trial court, the accused appellant has preferred the instant

appeal under Section 374(2) Cr.P.C.

The prosecution case centers around the allegations that the

appellant herein, subjected the minor child Master ‘H’, nephew of

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the first informant Bhanwar Singh to unnatural sexual intercourse

on 08.01.2013 as a result whereof, the boy received number of

injuries on his anal orifice. A complaint to this effect was lodged

by Bhanwar Singh to the SHO Police Station Napasar on

08.01.2013 at 10.30 pm. on the basis whereof, FIR No.4/2013

was registered at the Police Station for the offences under

Sections 367 and Section377 IPC. The accused appellant was

apprehended. The child was subjected to medical examination at

the hands of the medical jurist Dr. Indira Prabhakar (PW-4) who

issued the Medico Legal Report (Ex.P/6) noticing multiple tears on

the anal region of the child with a clear opinion that the injuries

were the result of penetration of a hard erected male organ on the

orifice. After completion of investigation, a charge-sheet came to

be filed against the appellant herein for the offences under

Sections 367 and Section377 IPC and Section 4 of the POCSO Act, 2012.

The case was committed to the court of the Sessions Judge,

Bikaner who framed charges against the accused for the above

offences. The accused pleaded not guilty and claimed trial. The

prosecution examined as many as 8 witnesses to prove its case.

Upon being questioned under Section 313 Cr.P.C. and when

confronted with the circumstances appearing against him in the

prosecution case, the accused averred a bald denial thereto and

claimed to have been false implicated. One witness was examined

in defence.

After hearing the arguments advanced by the prosecution

and the defence, and upon going through the material on record,

the learned Trial Judge, proceeded to convict and sentence the

accused appellant as above. The trial court held that the offence

under Section 377 IPC was a part and parcel of the charge under

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Section 4 of the POCSO Act and thus, it did not think fit to record

the conviction of the accused for the said offence. Hence this

appeal.

Shri Naresh Khatri, learned counsel representing the

appellant, though feebly tried to assail the impugned judgment

but after referring to the statement of the child victim Master ‘H’

aged 5 years, he could not dispute the fact that the child has

given unwavering testimony to the effect that the accused

Bhinyaram, sexually assaulted him and subjected him to forcible

anal intercourse as a result whereof, he received large number of

injuries. Not a single question was put to the witness regarding

the identity of the accused. The child correctly identified the

accused in the court when particular question to this effect was

put by the defence in cross-examination. Though Shri Khatri

fervently tried to convince the Court that the medical evidence

does not support the allegation that the child was subjected to

anal intercourse but after going through the statement of Dr.

Indira Prabhakar (PW-4) and the medical report (Ex.P/6), we are

of the firm opinion that it is duly established that the child was

subjected to forcible anal sexual assault as a result whereof, he

received multiple tears on the anal region. Faced with this

situation, Shri Khatri submitted that he gives up the challenge to

the conviction of the accused appellant but prays that the Court

may sympathetically consider the prayer of the accused for

reduction of sentences awarded to him keeping in view the fact

that he was bordering the age of a child offender when the

incident took place. He urged that the accused raised an objection

of juvenility before the trial court, however, the learned trial court

did not accept this contention. He urges that in those proceedings,

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the school admission form of the accused was summoned wherein,

his date of birth is recorded as 15.12.1994. He submitted that

incident took place on 08.01.2013 and thus, the accused was just

18 years and a few days old when the incident took place. He

urges that the accused was blinded by lust but he had no other

motive to harm the child. On these grounds, he pleaded that the

Court may consider suitable reduction of the sentence awarded to

the accused contending that the offence under Section 4 of the

POCSO Act carries imprisonment which shall not be less than 7

years but may extend to imprisonment for life. He urges that

looking to the young age of the accused appellant, the maximum

sentence of life imprisonment was not at all warranted, and

implored the Court to suitably reduce the sentence awarded to the

accused by the trial court on this count.

Learned Public Prosecutor, on the other hand, opposed the

submissions advanced by Shri Khatri and urged that the accused

brutally assaulted the minor child as a result whereof, his anal

orifice was torn apart. The accused did not show any mercy

whatsoever while assaulting the child victim and thus, he does not

deserve any clemency from this Court on the aspect of sentences.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned judgment and the record.

After going through the evidence of the material prosecution

witnesses viz. the child victim Master ‘H’ (PW-3) and the Medical

Officer Dr. Indira Prabhakar (PW-6), we are of the firm opinion

that the conviction of the accused for the offences under Section

367 IPC and Section 4 of the POCSO Act does not warrant any

interference because the child has given positive testimony

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identifying the accused as the offender who sexually assaulted him

in an unnatural manner. The medical report and the evidence of

the medical officer corroborate the testimony of the child to the

hilt.

Thus, we affirm the conviction of the appellant recorded by

the trial court by the impugned judgment dated 02.12.2014

passed by the learned Sessions Judge, Bikaner. On the aspect of

sentence, we have considered the submissions advanced by Shri

Khatri. The accused raised a plea on juvenility before the trial

court pleading that his date of birth was recorded in the school

certificate as 15.12.1994. However, the documents which the

accused submitted in these proceedings before the trial court,

were not found to be genuine and were rather fabricated. The date

of birth of the accused as recorded in his school admission form

was 15.12.1994. The incident took place on 08.01.2013 and thus,

the accused was aged 18 years and 23 days on that date. He had

just crossed the age of juvenility. It appears to us that the sexual

assault was perpetrated in an impulse of carnal lust without

realising the consequences thereof on the child and the penal

consequence thereof. The maximum punishment of life

imprisonment provided under Section 4 of the POCSO Act is an

exception whereas the minimum sentence which is mandatorily

required to be awarded is 7 years.

In this background, considering the tender age of the

accused at the time of the incident, we feel that ends of justice

would be served by reducing the sentence of life imprisonment

awarded by the trial court to the accused for the offence under

Section 4 of the POCSO Act to a term of 10 years R.I. The

sentence of fine is however maintained. In addition thereto, we

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hereby direct that the District Legal Service Authority, Bikaner

shall forthwith take up the matter of the victim Master ‘H’ for

grant of compensation under the provisions of the Victim

Compensation Scheme. The maximum permissible compensation

shall be awarded to the victim after following the requisite

formalities.

The appeal is partly allowed in these terms.

Record be returned to the trial court forthwith.

(ABHAY CHATURVEDI),J (SANDEEP MEHTA),J

2-Tikam/-

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