HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 466 / 2015
Ramswaroop Khati S/o Ramkishan Khati, aged 56 years, resident
of Khawas Police Station Kekari, District Ajmer. At present residing
at Sanganer Colony, Bhilwara P.S. Subhashnagar, District Bhilwara.
(At present lodged in District Jail, Bhilwara)
—-Appellant
Versus
State of Rajasthan
—-Respondent
__
For Appellant(s) : Mr Anil Joshi, Amicus Curiae
For Respondent(s) : Mr. SK Vyas, AAG
__
HON’BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
06/01/2018
The appellant was a teacher and was involved in
serious offence of making sexual advances towards the
deaf and dumb students. Further he showed those hapless
students, obscene photographs.
The instant criminal appeal has been filed by the accused
appellant under Section 374(2) Cr.P.C. against the judgment dated
14.05.2015 passed by the learned Special Judge, POCSO Act
Cases, Bhilwara in sessions Case No. 66/2013 by which the
learned Judge convicted the accused-appellant for offences under
Sections 7/8, 9/10, 11/12 POCSO Act and sentenced him as
under:-
U/S. 8 POCSO Act Five years’ S.I. with fine of Rs.10,000/-
and in default of payment of fine further
(2 of 11)
[CRLA-466/2015]under go two months S.I.
U/S. 10 POCSO Act Five years’ S.I. with fine of Rs.10,000/-
and in default of payment of fine further
under go two months S.I.
U/S. 12 POCSO Act Two years’ S.I. with fine of Rs.10,000/-
and in default of payment of fine further
under go two months S.I.
All the sentences were ordered to run concurrently.
Brief facts of the case are that on 16.05.2013 complainant
R.M. Logad, Secretary, Baghir Bal Kalyan Vikas Samiti, Bhilwara
submitted a written report to SHO, P.S. Subhash Nagar, Bhilwara
alleging that Baghir Bal Kalyan Vikas Samiti, Kunwanda Road,
Bhilwara operates the residential school of dumb and deaf girl
students near Sofiya School, in which some boy and girl
students study. In the said school, the appellant Ramswaroop
Khati worked as a Teacher. Previously some girl students
complained to the Hostel Warden and Principal that the appellant
is usually doing stag, scurrilous and aberrant activities to them
and showing blue photographs and videos on mobile. On this
complaint, the Principal constituted a committee for enquiry of
the complaint. The committee took the statement of the
students and after taking signatures of all the students
submitted the report to the Principal. Some parents have also
made written complaints to the Principal. On the basis of the
above report, the Police registered the FIR No.153/2013 for
(3 of 11)
[CRLA-466/2015]
offences under Section 354 IPC and Section 3/4, 8, 11 POCSO
Act against the appellant and started investigation. After usual
investigation, the police filed charge sheet against the accused-
appellant for offences punishable under Sections 354 IPC and
Section 7, 9, 11 POCSO Act.
The learned trial court after hearing the arguments and
considering the material on record, framed charges against
accused-appellant for offences under Sections 354 IPC and Section
7/8 POCSO Act r/w Section 354 IPC, Section 9/10 POCSO Act r/w
Section 354 IPC and Section 11/12 POCSO Act r/w Section 354
IPC. The accused-appellant pleaded not guilty and claimed trial.
At the trial, the prosecution examined as many as 18
witnesses in all and exhibited 32 documents. Thereafter the
statements of the accused-appellant were recorded under section
313 Cr.P.C. In defence, the accused-appellant examined himself as
DW-1 and exhibited 18 documents.
At conclusion of the trial, the learned Special Judge,
POCSO Act Cases, Bhilwara vide judgment dated 14.05.2015
convicted and sentenced the accused-appellant as mentioned
earlier.
Mr. Anil Joshi, Amicus Curiae argued that false case has been
lodged against the appellant and there are material contradictions
in the statements of the so-called deaf and dumb girl students
witnesses i.e. PW-1 to PW-5. It is further submitted that there was
a civil dispute between the appellant and the school authority for
recovery of money and the appellant succeeded in the said suit
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against the school authority. Since the school authority did not
want to pay the money to the appellant, a false case has been
foisted against the appellant. Lastly it has been argued that
considering the fact that the accused-appellant is in jail since
17.05.2013 and he has suffered maximum period of sentence,
therefore sentence awarded to the accused-appellant be reduced
to the period already undergone by him.
Per contra, the learned public prosecutor has supported the
impugned judgment and argued that offences committed by the
accused-appellant are of very serious nature. In this case, minor
deaf and dumb girl students were sexually abused by the accused-
appellant and were shown obscene photographs. Therefore, no
leniency should be shown in favour of the accused-appellant and
the appeal should be dismissed.
I have heard the learned counsel for the appellant as well as
learned public prosecutor, perused the impugned judgment passed
by the learned trial court and gone through the record of the case.
This is a case in which minor deaf and dumb girl students,
aged between 7 to 12 yeas, were sexually abused by the accused-
appellant. PW/1 Priyanka, aged about13 years, has given the
following statement :
^^xokg us fy[k dj crk;k fd eSa ewd c/khj fo HkhyokM+k
esa d{kk 4 esa i+rh gwWaA xokg us b”kkjksa ls crkdj VªkalysVj us
dgk fd esjs diM+s mij djokrk gS xans b”kkjs djrk gSA djus
okys dk uke jkeLo:i crk;kA eqyfte gkftj vnkyr gSA
xokg us b”kkjs djds Hkns dke djus dk b”kkjk fd;k vkSj
vka[k ekjus dk b”kkjk Hkh fd;kA ;g dke izkFkZuk lHkk ds ckn
dkyk”k vkrk gS rc djrk FkkA **
(5 of 11)
[CRLA-466/2015]PW/2 Antima Ranka, aged about7 years, has given the
following statement :
^^eSa nwljh d{kk esa irh gwaA xokg us Ldwy dk uke dkxt ij
fy[kus ij ftl Ldwy esa irh gS og crk;k ysfdu Lo;a
Ldwy dk uke ugha crk;k gSA jkeLo:i [kkrh eqyfte ges
esFk ikrs gSA eqyfte jkeLo:i /kDdk ekjrk Fkk fQj dgk
fd fdl djrk Fkk fQj dgk fd xksn esa cSBkrk FkkA eqyfte
ifgus gq, diMs Åij djrk Fkk vkSj ykyp esa pkWdysV nsrk
Fkk vkSj iSls Hkh nsrk FkkA**PW/3 Urmila Sharma, aged about 6-7 years has given the
following statement :
^^jkeLo:i eqyfte esjs dwYgs ds gkFk yxkrk Fkk vkSj ;g Hkh
dgrk Fkk fd rqe cgqr lqUnj gksA**PW/4 Rinku Kanwar Jat, aged about 13 years, has given the
following statement :
^^bl le; eSa d{kk 4 esa i jgh gwaA eSa ewd cf/kj fo esa
irh gwaA vfHk;qDr jkeLo:i [kkrh lkekftd Kku ikrk gSA
izΠ% jkeLo:i [kkrh vfHk;qDr vkids lkFk D;k gjdr
djrk FkkA
mΠ% xokg us fy[k dj crk;k fd vka[k ekjuk] xans fp
fijukuk fdlh dks ugha cksyuk] Nkrh fn[kkvks vkSj xans
b”kkjs djds fn[kkrk FkkA**PW/5 Priyanka Kumawat, aged about 12 years, has given the
following statement :
^^eSa igys rhljh d{kk esa irh vc pkSFkh d{kk esa irh FkhA
eSa ewd cf/kj fo esa gkWLVy esa jgrh gwaA eqyfte
jkeLo:i lkekftd Kku ikrk FkkA
izΠ% eqyfte vkids lkFk D;kD;k djrk Fkk
mΠ% xokg us fy[kdj mRrj fn;k fd] iqLrd esa ls xUns
cukrk Fkk] Nkrh vPNk fn[kkuk] viuk vax fy[kdj
cksyuk esjk cM+k rqEgkj NksVk] diM+s fy[kdj fn[kkuk]
est ij ikl cqykuk] eksckbZy] cky Nwdj dgk vPNk
fn[kkukA
(6 of 11)
[CRLA-466/2015]jkeLo:i eqs cqykrk FkkA vkSj cPpksa ls dgrk Fkk fd ;g
vPNh vkSj ;g cqjh gSA eqyfte esjs ls dgrk Fkk fd vki
vPNh gks vkSj nwljh dks xanh crkrk FkkA eqyfte esjs ls
dgrk Fkk fd rqEgkjh Nkrh vPNh gSA eqyfte eqs diMs
mij djus ds fy, cksyrk FkkA **PW-6 Rodumal Logad is the complainant in this case and in
his statement he has corroborated the prosecution story. PW-7
Sister Lusil who was the Principal of the deaf and dumb school
stated that a complaint was made before her by the minor deaf
and dumb girl students and after receiving the complaint, she
constituted a committee for inquiry of the matter. The statements
of the girl students were taken by the Committee and statements
of parents of some girl students were also taken. The perusal of
these statements shows that the accused-appellant has committed
stag, scurrilous and aberrant activities with the minor deaf and
dumb girl students. The statement of PW-7 was also corroborated
with the statements of the complainant PW-6 as well as the
statement of the minor deaf and dumb girl students i.e. PW-1 to
PW-5.
PW-9 Rekha Agarwal was a member of enquiry committee.
She inquired about the incident from the girl students, recorded
their statements and filed a thorough report before the Principal
about the wrong act committed by the accused-appellant with the
minor deaf and dumb girl students. Another witness PW-10 Anil
Kumar Jain in his statement mentioned that his two daughters
were studying in the deaf and dumb school and both of them told
him about scurrilous and aberrant activities committed to them by
the accused-appellant. Upon then, PW-10 filed a complaint before
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the Principal of the school. The said report was also taken on
record and marked as Ex-10. PW-11 Smt. Meena Kothari and PW-
12 Vidhya were also member of the committee. They also inquired
from the deaf and dumb girls about the complaint, recorded their
statements and thereafter submitted the report before the
Principal. PW-17 Manoj Kumar Mishra mentioned in his statement
that his daughter Priyanka Mishra was also studying in that deaf
and dumb school and his daughter made complaint against the
accused-appellant Ramswaroop that he teased her and showed
obscene photographs. Thereafter he went to the school and made
complaint before the Principal against the accused-appellant
Ramswaroop. These all the statements corroborate the statements
of deaf and dumb girl students i.e. PW-1 to PW-5.
Sections 7 of the POCSO Act reads as under:–
“Sexual assault : Whoever, with sexual intent
touches the vagina, penis, anus or breast of the
child or makes the child touch the vagina, penis,
anus or breast of such person or any other person,
or does any other act with sexual intent which
involves physical contact without penetration is
said to commit sexual assault. ”
Sections 9 of the POCSO Act reads as under:–
“Aggravated sexual assault:
(a) Whoever, being a police officer, commits sexual
assault on a child–
(i) within the limits of the police station or premises
where he is appointed; or
(ii) in the premises of any station house whether or
not situated in the police station to which
appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as a police
officer; or
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(b) whoever, being a member of the armed forces
or security forces, commits sexual assault on a
child-
(i) within the limits of the area to which the person
is deployed; or
(ii) in any areas under the command of the security
or armed forces; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known or identified as a member
of the security or armed forces; or
(c) whoever being a public servant commits sexual
assault on a child; or
(d) whoever being on the management or on the
staff of a jail, or remand home or protection home
or observation home, or other place of custody or
care and protection established by or under any
law for the time being in force commits sexual
assault on a child being inmate of such jail or
remand home or protection home or observation
home or other place of custody or care and
protection; or
(e) whoever being on the management or staff of a
hospital, whether Government or private, commits
sexual assault on a child in that hospital; or
(f) whoever being on the management or staff of
an educational institution or religious institution,
commits sexual assault on a child in that
institution; or
(g) whoever commits gang sexual assault on a
child.
Explanation.–When a child is subjected to sexual
assault by one or more persons of a group in
furtherance of their common intention, each of
such persons shall be deemed to have committed
gang sexual assault within the meaning of this
clause and each of such person shall be liable for
that act in the same manner as if it were done by
him alone; or
(h) whoever commits sexual assault on a child
using deadly weapons, fire, heated substance or
corrosive substance; or
(i) whoever commits sexual assault causing
grievous hurt or causing bodily harm and injury or
injury to the sexual organs of the child; or
(j) whoever commits sexual assault on a child,
which-
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(i) physically incapacitates the child or causes the
child to become mentally ill as defined under clause
(l) of section 2 of the Mental Health Act, 1987 or
causes impairment of any kind so as to render the
child unable to perform regular tasks, temporarily or
permanently; or
(ii) inflicts the child with Human Immunodeficiency
Virus or any other life threatening disease or
infection which may either temporarily or
permanently impair the child by rendering him
physically incapacitated, or mentally ill to perform
regular tasks; or
(k) whoever, taking advantage of a child’s mental
or physical disability, commits sexual assault on the
child; or
(l) whoever commits sexual assault on the child
more than once or repeatedly; or
(m) whoever commits sexual assault on a child
below twelve years; or
(n) whoever, being a relative of the child through
blood or adoption or marriage or guardianship or in
foster care, or having domestic relationship with a
parent of the child, or who is living in the same or
shared household with the child, commits sexual
assault on such child; or
(o) whoever, being in the ownership or
management or staff, of any institution providing
services to the child, commits sexual assault on the
child in such institution; or
(p) whoever, being in a position of trust or
authority of a child, commits sexual assault on the
child in an institution or home of the child or
anywhere else; or
(q) whoever commits sexual assault on a child
knowing the child is pregnant; or
(r) whoever commits sexual assault on a child and
attempts to murder the child; or
(s) whoever commits sexual assault on a child in
the course of communal or sectarian violence; or
(t) whoever commits sexual assault on a child and
who has been previously convicted of having
committed any offence under this Act or any sexual
offence punishable under any other law for the
time being in force; or
(u) whoever commits sexual assault on a child and
makes the child to strip or parade naked in public.”
(10 of 11)
[CRLA-466/2015]Sections 11 of the POCSO Act reads as under:–
“Sexual harassment : A person is said to commit
sexual harassment upon a child when such person
with sexual intent,-
(i) utters any word or makes any sound, or makes
any gesture or exhibits any object or part of body
with the intention that such word or sound shall be
heard, or such gesture or object or part of body
shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his
body so as it is seen by such person or any other
person; or
(iii) shows any object to a child in any form or
media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or
contacts a child either directly or through
electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real
or fabricated depiction through electronic, film or
digital or any other mode, of any part of the body
of the child or the involvement of the child in a
sexual act; or
(vi) entices a child for pornographic purposes or
gives gratification therefor.
Explanation- Any question which involves “sexual
intent” shall be a question of fact.”
The victims, who are minor deaf and dumb girl students, in their
statements have stated that the accused-appellant used to do
scurrilous and aberrant activities to them and showed blue
photographs and videos on mobile. The Trial Court after examining
the statements, that were before it, had framed the charges under
Sections 354 IPC and Section 7, 9, 11 POCSO Act. The girl
students cannot tell a false story against the accused-appellant.
Therefore, the conduct of the accused-appellant, who was a
teacher in the deaf and dumb school shows that he was involved
in such type of an activity which is itself a very heinous and
harmful act.
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Section 7 of the POCSO Act is contained in two parts. The
legislature had made it clear that if the “act is with sexual intent”
which involved “physical contact” without penetration then it
would fall within the definition of Section 7 of the POCSO Act.
In view aforesaid discussion, this Court is of the view that no
lienency can be shown in favour of the accused-appellant. The trial
court has appreciated the evidence which came before it in proper
and correct perspective and there is no reason to interfere with
the said findings of the trial court. Therefore, the conviction of the
accused-appellant recorded by the trial court is confirmed and
upheld.
Hence, the appeal is devoid of any merit and hereby
dismissed.
(MANOJ KUMAR GARG),J.
Ms/-8
