Dismissed

Durgalal S/O Shri Bansilal v. State of Rajasthan

Rajasthan HC15 Sept 2023CRLAD/368/2022

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against conviction and sentencing for sexual assault on a child under the POCSO Act. The court held that the presumption of guilt under Section 29 of the POCSO Act was not rebutted by the appellant, relying on DNA evidence and witness testimony, and affirmed the trial court's judgment.

What did the court decide?

Criminal appeal dismissed; judgment and order dated 02.09.2021 upheld.

Durgalal S/O Shri Bansilal Vs State of… — Child Sexual Offences (POCSO) | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Criminal Appeal (Db) No. 368/2022

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Durgalal S/o Shri Bansilal, Aged About 30 Years, Resident Of Badli Police Station Bhinay District Ajmer (Rajasthan) (At Present Confined In Central Jail, Ajmer)

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----Appellant

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Versus

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State Of Rajasthan, Through Public Prosecutor

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----Respondent

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For Appellant(s) : Mr. Kapil Gupta with Mr. Dharmendra Kumar & Mr. R.S. Sinsinwar For Respondent(s) : Mr. Javed Choudhary, AGA

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HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE BHUWAN GOYAL

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Judgment JUDGMENT RESERVED ON : 11/09/2023 JUDGMENT PRONOUNCED ON : 15/09/2023

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(PER HON'BLE BHUWAN GOYAL J.)

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The appellant has preferred instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against impugned Judgment and Order dated 02.09.2021 passed by the learned Special Judge, Special Court, Protection of Children from Sexual Offences Act, 2012 and Commission for Protection of Child Rights Act, 2005 No. 2, Ajmer in Sessions Case No. 37/2019 (State of Rajasthan vs. Durgalal), whereby the accused-appellant has been convicted and sentenced as under :-

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offence	sentence		fine	sentence in
				default
u/s 342 IPC	1year SI		Rs. 1,000/-	15 days SI
u/s 363 IPC	7years RI		Rs. 10,000/-	1 month RI
u/s 5(m)/6 of POCSO Act	Rigorous imprisonment	Life	Rs. 50,000/-	6 months RI

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(All the sentences are ordered to run concurrently)

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Brief facts relevant and germane for disposal of the present appeal are that on 18.02.2019, the complainant Narain (P.W. 4), who is grand-father of the victim, submitted the written report (Ex.P/14) before the Police Station Bhinay, District Ajmer at the place of incident alleging therein that Durgalal was grazing cows of his neighbour Gajraj Singh Rajput, therefore, Durgalal used to sit with them. On 18.02.2019 in the morning at around 9.00 a.m., he came to their house and after taking his grandson, aged 15 months, in his lap, he started to play with him and told that he will get 'kurkure' for him, then he allow him to take child with him. But after lapse of much time, when he did not return then, his daughter-in-law asked him to bring the child back, upon which, his son made a call to Durgalal to bring his child back, then Durgalal started to abuse him. Since there was some suspicion that something untoward might happen, therefore, his son went to the house of Durgalal and Bhanwar Singh accompanied him. They saw that gate of the house of Durgalal was closed, then both of them jumped over the wall and went inside. The gate of the room was closed from inside. They asked to open the gate but Durgalal did not open, then they opened the door by kicking and entered inside the room. Durgaram was in drunken condition and zip of

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his pent was open and his private part was outside. There was blood on the floor and hair of the child were lying on the floor. The bracelet and clip were lying on the floor but the child was not visible, upon which, they removed the bedsheet from the cot lying inside the room then, his grandson was lying in unconscious condition and blood was coming from his anus and mouth. Durgalal committed unnatural sexual act with his grandson. His grandson was brought to their house by his son, then he narrated entire story to them. His son took his grandson to Vijaynagar hospital as his condition became very bad.

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On the basis of said written report, an F.I.R. No.31/2019 (Ex.P/15) came to be registered at the Police Station Bhinay, District Ajmer for the offences under Sections 363 & 377 of I.P.C. and Section 5/6 of Protection of Children from Sexual Offences Act, 2012 and investigation was commenced. After conclusion of investigation, the police submitted charge-sheet against the accused-appellant for the offences under Sections 363, 377 & 342 of I.P.C. and Sections 3/4 & 5(m)/6 of POCSO Act before the court of learned Special Judge, Special Court, Protection of Children from Sexual Offences Act, 2012 and Commission for Protection of Child Rights Act, 2005 No. 1, Ajmer, who took cognizance of aforesaid offences against accused-appellant. Thereafter, the case was transferred to the court of learned Special Judge, Special Court, Protection of Children from Sexual Offences Act, 2012 and Commission for Protection of Child Rights Act, 2005 No. 2, Ajmer (hereinafter referred to as "learned trial court").

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Learned trial court framed charges against the accusedappellant for the offences under Sections 363, 342 & 377 of I.P.C. and Sections 3/4 & 5(m)/6 of POCSO Act. The accused-appellant pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited Ex.P/1 to Ex.P/28 documents to prove its case. After conclusion of the prosecution evidence, accused-appellant was examined under Section 313 of Cr.P.C. and was confronted with the circumstances appearing against him in the prosecution case, which he denied and claimed that prosecution evidence was false, he was innocent and had been falsely implicated in the case. The accused-appellant did not produce any evidence in his defence.

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Learned trial court, thereafter, proceeded to hear the arguments of the Public Prosecutor and the defence counsel, appreciated the evidence available on record and delivered the impugned judgment dated 02.09.2021, whereby the accusedappellant has been convicted and sentenced as stated above. Aggrieved with the same, present appeal has been filed by the accused-appellant before this Court.

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Heard learned counsel for the parties.

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Learned counsel appearing for the appellant has submitted

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that there are material contradictions in the statements of the prosecution witnesses, which do not inspire confidence for acceptance. Learned counsel has further submitted that P.W. 3 - Bhanwar Singh, whose name was mentioned in the FIR as the person, who along with father of victim, namely, Bheru Singh (P.W. 2) went to the house of Durgalal, has not supported the

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prosecution story and turned hostile. He has further submitted that from perusal of documents Ex.P/2 to Ex.P/6, it reveals that FIR number has been mentioned therein in handwriting later on, which shows that said documents were prepared even before registration of F.I.R. and thus, entire prosecution story is post investigation. Learned counsel has also submitted that blood sample of the accused was taken without following due procedure, which vitiates the entire proceedings. he has also submitted that accused-appellant has not been granted proper opportunity of producing defence evidence. He has further submitted that there is non-compliance of Section 157 of Cr.P.C. because F.I.R. was registered on 18.02.2019 at 2.00 p.m. and it was presented before the concerned Magistrate on 19.02.2019 at 4.15 p.m. He has further submitted that accused-appellant has falsely been enroped in the present case on account of enmity between the parties. He has further submitted that the learned trial court has failed to rightly appreciate the material as well as evidence available on record and thus, has committed an error in passing the judgment of conviction and order of sentence. Learned counsel has, therefore, prayed that present appeal may be allowed and the accused-appellant may be acquitted of charges levelled against him.

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Per contra, learned Additional Government Advocate appearing for the State while supporting the judgment and order of sentence has submitted that the prosecution has produced cogent evidence and proved its case against the accused-appellant beyond all reasonable doubt. The learned trial court after

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appreciating entire material as well as evidence on record has rightly recorded conviction against the accused-appellant for the offences alleged in the present case. By referring to Section 29 of the POCSO Act, 2012, learned Additional Government Advocate has submitted that in a case, where the accused is prosecuted for offence committed under Sections 3, 5, 7 and 9 of the POCSO Act, the court is empowered to draw presumption of guilt of the accused. Learned trial court, having regard to the facts and circumstances of the case as well as evidence brought on record, has rightly held that the accused was guilty and sentenced him under Section 5(m)/6 of the POCSO Act, 2012. In such view of the matter, no interference with impugned judgment and order by this Court is called for.

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We have given our thoughtful consideration to the arguments advanced at the Bar and have gone through impugned judgment and have minutely sifted through the evidence available on record. 10. Firstly, we propose to decide the question as to whether the victim in the present case falls within the definition of 'child'. In this regard, P.W. 13 - Dr. Sidhya, from whose office birth certificate of victim was issued, has stated in examination-in-chief that she was posted as Medical Officer at Primary Health Centre, Govindgarh from 20.07.2017 to 17.05.2019 and birth certificate of victim (Ex.P/9) was issued from their office, which bears her signature at place marked C to D and name of victim was mentioned at place marked X, name of his mother was mentioned at place marked Y and name of his father was mentioned at place marked Z.

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From perusal of the birth certificate (Ex.P/9), it reveals that date of birth of victim was mentioned as 11.11.2017. The incident is stated to have taken place on 18.02.2019. Both the parties also do not dispute this fact and thus, it has been proved that age of victim at the time of incident was 1 year and 3 months, therefore, he falls within the definition of 'child'.

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Now coming to the question as to whether any sexual assault was committed upon the victim, it is to be noted that the victim was a minor child of 15 months, therefore, his statement could not be recorded before the trial court. However, in order to prove its case, the prosecution has examined P.W. 2 - Bheru Singh and P.W. 5 - Sunita, who are father and mother of the victim, respectively. They have clearly deposed in their statements that on 18.02.2019 in the morning at 9.00 a.m., accused-appellant came to their house; he took victim with him under the pretext of giving 'kurkure'; when he did not return, they went to his house; door of the house was got opened by kicking; they saw that blood was coming from anus and mouth of the victim and accusedappellant was in drunken condition with open zip of his pent. P.W. 2 has also stated that bracelet, Tagari , sandal of victim and empty liquor quarter were lying there.

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P.W. 6 - Dr. Shyam Sunder Dayma, who medically examined the victim on the next day of the incident i.e. 19.02.2019, has stated in his statement that he examined the victim on 19.02.2019 and found that there were abrasions on the head and face of the victim; red marks were present on the upper and lower portion of his anus; he drew samples of his blood which was

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marked 'A', saliva marked 'B', swab from anus marked 'C', slide of saliva marked 'D' and slides from anus marked 'E'. The medical report of victim was Ex.P/7. He further stated that he also medically examined the accused on 19.02.2019; he was capable of sexual intercourse. The medical report of the accused-appellant was Ex.P/11.

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P.W. 8 - Dr. Ravikant Saini, the then Medical Jurist at J.L.N. Medical College, Ajmer, has stated that he drew DNA sample of accused Durgalal on FTA card, the forwarding letter of which was Ex.P/13 and FSL report regarding blood sample was Ex.P/10. 16. P.W. 14 - Madanlal, the then Malkhana Incharge, has stated in his examination-in-chief that he deposited the articles i.e. sample of Durgalal marked 'A', samples of victim marked 'A', 'B', 'C', & 'E' and underwear of the accused marked 'F' in the malkhana at Serial No. 16/19 of the Malkhana Register (Ex.P/26). 17. P.W. 11 - Sandeep Kumar and P.W. 12 - Ravindra, who are carriers of Malkhana articles, have stated in their statements that they got issued Forwarding Letters (Ex.P/27 and Ex.P/28) from the office of Superintendent of Police and deposited the articles with the FSL, Jaipur vide Receipts Ex.P/25 and Ex.P/24, respectively. P.W. 9 - Amar Singh, the Investigation Officer, has stated in his examination-in-chief that he seized blood stained floor piece vide Ex.P/3, control sample of floor piece vide Ex.P/4, Plastic bracelet, black colour Tagari, payjeb and clip of victim vide Ex.P/5, empty liquor quarter vide Ex.P/6 from the place of incident on 18.02.2019, which bear signatures of witnesses at place marked 'A' to 'B' and his signature was at place marked 'E' to 'F'.

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He has also stated that he seized the underwear of the accused vide Ex.P/19 on 18.02.2019. He has also stated that he got conducted medical examination and DNA examination of victim as well as accused and after collecting the FSL Report, took the same on record.

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Learned counsel for the accused-appellant has advanced certain arguments but we are not in agreement with the same for the reason that though, there are minor contradictions in the statements of witnesses but in our considered opinion, such minor contradictions are natural. One person cannot remember the incident verbatim after few days of the incident, therefore, such minor contradictions in the statements of witnesses do not affect the core of the prosecution case. So far as question that witness P.W. 3 - Bhanwar Singh has turned hostile is concerned, it does not adversely affect the prosecution case because in our opinion, it is human nature that unless a person has any interest or disinterest in the matter, he will not talk about harm to others. So far as mentioning of FIR number in the handwriting and collecting blood sample of the accused without following due procedure is concerned, it is important to note that firstly the counsel for the accused-appellant during the arguments has not made it clear that as to what prejudice has been caused to the accused in mentioning the FIR number in the handwriting and not following the procedure while taking blood sample of the accused, secondly the accused-appellant has not challenged the Order dated 09.04.2019, whereby direction for collecting his blood sample was given. Even, the accused-appellant in his explanation recorded

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under Section 313 of Cr.P.C. or through any other mode of evidence has not stated that his sample was taken forcibly or against his wishes. So far as question of false implication of the accused on account of enmity and not affording opportunity of producing defence evidence is concerned, it is important to note that the accused has not proved this fact by producing any evidence that on account of which enmity, he would be falsely implicated in this case and even in his explanation under Section 313 of Cr.P.C., accused-appellant has not deposed that as to why he was falsely implicated in this case, rather, he himself refused to produce any evidence in his defence.

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So far as question of non-compliance of Section 157 of Cr.P.C. is concerned, a perusal of the record reveals that written report (Ex.P/14) was submitted by P.W. 4 - Narain on 18.02.2019 at 2.00 p.m. at the place of incident, upon which, F.I.R. (Ex.P/15) was registered on 18.02.2019 at 7.49 p.m. and it was presented before the learned trial court on 19.02.2019 at 4.15 p.m. i.e. within 24 hours and thus, there cannot be said to be noncompliance of Section 157 ibid.

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From the evidence which has come on record, it reveals that on the date of alleged incident i.e. 18.02.2019, accused-appellant took victim with him under the pretext of giving 'Kurkure' and thereafter, when he did not return, father of victim went to his house, where he was found present; injuries were found on the person of victim and blood was coming from his anus. This fact has also been proved from the medical report of the victim, in which injuries were shown on the person of the victim and there

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was reddishness shown around his anus. From the medical report (Ex.P/7) also, it reveals that there was evidence of anal penetration. The samples of blood, swab and semen of victim were collected during his medical examination and the blood and DNA samples of accused-appellant were also collected. The police has also recovered blood stained floor piece, underwear of the accused. The same were sent to FSL for examination and as per the FSL Report (Ex.P/10), DNA profile obtained from exhibit no. 1 (Blood stained floor piece) was matching with the DNA profile obtained from exhibit no. 2 (Blood sample of victim) and that same male DNA profile was obtained from exhibit no. 4 (Underwear of accused) and exhibit no. 3 (Blood sample of accused), which has linked the chain and proved the prosecution case against the accused-appellant beyond reasonable doubt that it was the accused-appellant and none else, who committed the offence.

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Section 29 of the POCSO Act permits the Court to draw rebuttable presumption regarding guilt of the accused being prosecuted under the provisions of the Act. In a trial conducted under the Cr.P.C., the accused can remain silent and the burden would be upon the prosecution to prove the charge beyond reasonable doubt by leading cogent evidence. However, an exception to this general rule has been introduced in case of prosecution under the POCSO. In view of Section 29 of the POCSO Act, there would be reverse onus upon the accused to displace any presumption of guilt.

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Section 29 of the POCSO Act is reproduced herein below for ready reference :-

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" 29. Presumption as to certain offences .Where a person is prosecuted for committing or abetting or attempting 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."

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In the instant case, from the material available on record, we are of the view that the accused-appellant has failed to rebut the presumption of guilt because there is no explanation given by the accused-appellant either in his statement recorded under Section 313 of Cr.P.C. or through any other evidence that as to how blood of the victim was found on the floor piece recovered from his house and his underwear both. In fact, a suggestion was put by the accused-appellant to P.W. 2 - Bheru Singh that his son may have fallen from Durgalal's hands, hence, he was bleeding but the witness (P.W. 2) denied from the same. It also proves that the victim was taken away by the accused-appellant and thereafter, he was recovered from his house, which the accused-appellant has failed to rebut.

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In view of the above discussion, we are of the considered opinion that the learned trial court has not erred in passing the judgment and order dated 02.09.2021 convicting and sentencing the accused-appellant for the offences alleged in the present case.

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