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Judgment
Hon'ble Justice Mr. Ravindra Kumar Agrawal, Judge
The present criminal appeal has been filed by the appellant under Section 374 (2) of Code of Criminal Procedure against the impugned judgment of conviction and sentence dated 29.01.2019 passed by learned Special Judge (Protection of Children from Sexual Offences Act, 2012), Mahasamund, in Special Criminal Case No. H-22/2018, whereby the appellant has been convicted and sentenced in the following manner :-
| S.No. | Conviction | Sentence |
| 1. | Under Section 363 of IPC | R.I. for 3 years and Rs. 500/- fine, in default of fine, 1 month rigorous imprisonment. |
| 2. | Under Section 325 of IPC | R.I. for 3 years and Rs. 500/- fine, in default of fine, 1 month rigorous imprisonment. |
| 3. | Under Section 8 of Protection of Children from Sexual Offences Act, 2012. | R.I. for 3 years and Rs. 500/- fine, in default of fine, 1 month rigorous imprisonment. |
The case of the prosecution, in brief, is that on 18.06.2018, a written complaint (Ex-P/1) has been lodged by the mother of the victim with the allegation that on 17.06.2018, in the evening, she sent her minor daughter to call her maternal aunt and after 10-15 minutes, (PW/3) came to her house and informed that her minor daughter is being kidnapped by an unknown person then she started searching her and during her search, she was found near the house of PW/3. She disclosed that she was being taken by a person on the pretext that he will provide her toys. When she refused to go with him, he gagged her mouth and then she shouted. By gagging her mouth, her tooth was broken and received injury on her neck. Subsequently, she came to know that the person, who kidnapper her minor daughter is named as Janak Ram Diwan, who is the present appellant. Based on the written complaint, FIR (Ex-P/2) was registered against the appellant for the offence under Section 363 and 323 of IPC. The victim was sent for her medical examination to Community Health Centre, Bagbahra, where she was medically examined by (PW/9) Dr. Nagesh Patel, who gave his report (Ex-P/16). While medically examined the victim, the doctor has noticed scratch mark on right hand, left hand, multiple contusion mark on neck, lower incisor teeth broken and opined that the victim received grievous injuries. With respect to the age and date of birth of the victim, the Police has seized school register (Ex-P/7C) of the victim vide seizure memo (Ex-P/12), in which the date of birth of the victim is recorded as 13.08.2011. Spot map (Ex-P/3) was prepared by the Police and (Ex-P/15) was prepared by the Patwari. The Recovery Panchanama of the victim (Ex-P/4) was prepared. Statement under Section 164 of Cr.P.C. of the victim (Ex-P/6) has been recorded. The appellant was arrested on 18.06.2018. Statement of the witnesses under Section 161 of Cr.P.C. has been recorded and after completion of usual investigation, charge-sheet has been filed against the appellant before the learned trial Court for the offence under Section 363, 323, 325 of IPC and Section 12 of POCSO Act.
The learned Trial Court framed charges against the appellant for the offences under Sections 363, 325 of IPC and Section 8 of POCSO Act. The appellant denied the charge and claimed trial.
In order to prove the charges against the appellant, the prosecution has examined as many as 9 witnesses. The statement of the appellant under Section 313 of the Code of Criminal Procedure was also recorded, in which he denied the circumstances appearing against him, pleaded innocence and has submitted that he has been falsely implicated in the alleged offence.
After appreciation of the oral as well as documentary evidence adduced by the prosecution, the learned trial Court has convicted and sentenced the appellant as has been mentioned in the earlier part of this judgment, hence this appeal.
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the offence in question. In the FIR itself the victim did not identify the person who took her with him and it is her mother who subsequently came to know that it is the appellant who kidnapped the victim. There is no test identification parade conducted by the prosecution to identify the person who kidnapped the victim. Even in the evidence of the victim the contents of sexual assault is missing and her evidence and her evidence does not satisfy the requirement of Section 7 of POCSO Act. Though, she made allegation that the accused gagged her mouth by which her tooth were being broken, however, there is absolutely no evidence that she was being sexually assaulted by the appellant. In absence of any cogent and clinching evidence, the appellant cannot be convicted for the alleged offence and by giving benefit of doubt, he may be acquitted from the alleged offence and the impugned judgment of conviction and sentence may be set aside.
On the other hand, learned State counsel opposes the submission made by learned counsel for the appellant and submits that prosecution has proved its case beyond reasonable doubt. But for minor omission or contradictions, the evidence of prosecution witnesses are sufficient to convict the appellant for alleged offence. The victim has duly identified the appellant that he kidnapped her and gagged her mouth by which her tooth was broken. When she shouted other persons came there including her mother and then she disclosed the incident to her mother. He would further submit that Section 7 of POCSO Act provided that if any person does any other act with sexual intent which involves physical contact without penetration, is said to commit sexual assault. In the present case, the evidence of the witnesses, it has been proved that the appellant has kidnapped the victim, gagged her mouth, caused injury on her neck and when she shouted he fled away which does content the allegation of any other act with sexual intent and therefore, the learned trial court has rightly convicted the appellant for the alleged offences. The appellant could not demonstrate any illegality or infirmity in the judgment passed by learned trial Court and therefore, the appeal is liable to be dismissed.
I have heard learned counsel for the parties and perused the record of the learned trial Court.
In the present case, the victim is aged about 7 years and her age has not been specifically challenged by the defence. The prosecution sought to prove the age of the victim by her school register (Ex-P/7C) which is proved by PW/5, who was the Principal of the school. He stated in his evidence that the Police has seized the school record with respect to age and date of birth of the victim and it was seized by the Police. The school record is (Ex-P/7) and its attested true copy is (Ex-P/7C). In the said school register, the date of birth of the victim is recorded as 13.08.2011. This witness has not been cross-examined by the defence, though he was provided opportunity to cross-examine this witness and not a single question is being asked in his cross-examination and thus, the date of birth of the victim stands proved that her date of birth is 13.08.2011 and on the date of incident i.e. on 17.06.2018, she was aged about 7 years.
So far as, the allegation of voluntarily causing grievous injuries and sexual assault are concerned, this Court again examined the evidence of the victim and other witnesses.
PW/3, who is the victim, stated in her evidence that she knew the appellant from the date of incident. On the date of incident, she had gone to temple along with her mother and then her mother asked her to call her maternal aunt and after calling her when she was returning, on the way, the appellant came there, allured her that he will give her balloons and toys, he forcefully took her near the house and gagged her mouth and neck by which her tooth was broken. When she shouted, a person came there, her mother also reached there and then the appellant fled away and the victim disclosed the incident to her mother. Her statement was also recorded before the Magistrate which is (Ex-P/6). In cross-examination, a positive suggestion was given by the defence that at the time when the appellant gagged her mouth, then she shouted. She denied that the appellant was remained present there at the time when other person came there and voluntarily stated that he fled away from the place. She could not know the person who came there but her mother knew him. From the evidence of the victim, it clearly transpires that she was being forcefully taken by the appellant towards a house, gagged her mouth and pressed her neck and when she shouted the other persons came there and then the appellant fled away.
The evidence of this witness has been supported by the evidence of (PW/9), Dr. Nagesh Patel, who medically examined her. PW/9 has stated in his evidence that on 18.06.2018, the victim was brought before him for her medical examination and on being examination he found scratch mark on right hand, left hand, multiple contusion mark on neck, lower incisor tooth broken and gave his report (Ex-P/16). As per his opinion, the injuries found on the body of the victim were grievous in nature. In cross- examination, he admitted that the injuries found on the body of the victim could have been caused by fallen on the pointed object or any tree. He voluntarily explained that the mark of compression of neck by hand was visible on her neck. He admitted that the tooth was not separated but it was loosed. The injury found on the hand of the victim was simple in nature and the loosing of tooth and injury on neck was grievous in nature.
PW/1, who is the mother of the victim, immediately reached on the spot when the victim shouted. She stated in her evidence that on the date of incident she sent her daughter to call her maternal aunt and after 10-15 minutes, PW/3 informed her that her minor daughter was being kidnapped by a person and when she was in search of her minor daughter she found her near the house of PW/3. Her daughter informed her that the accused took her on the pretext that he will provide her balloons but gagged her mouth and pressed her neck by which her tooth was broken. On the next day, she lodged the report, which is (Ex-P/1). In cross-examination the defence could not be able to extract any material from her evidence that the victim does not disclose any incident. She denied that the victim had fallen on the road by which she suffered broken of her tooth. She further stated in her cross-examination that she subsequently came to know about the name of the appellant as he was being caught hold by the villagers.
14.(PW/3) has stated in his evidence that on the date of incident when he was in his house and religious function was going on at Jagganath Temple, he heard a noise of crying of a girl towards his Badi. When he had gone there he saw a person running from there and the victim was crying there. He called his wife along with torch and his son also came there. Then the victim informed him that a person gagged her mouth and pressed her neck. His son identified the victim and then the parents of the victim has been informed. In cross-examination, though, he stated that he could not see any other person in the spot but he stated that he heard the noise of running a person from there. He reiterated the information given by the victim about the offence committed by the accused.
PW/4 is the son the PW/3, who too has stated that when they heard the noise of crying of a girl, they had gone there and saw that the victim received injuries and she was crying. This witness has also not been cross-examined by the defence despite providing opportunity of cross-examination.
From all these evidences, particularly the evidence of the victim and the medical evidence (PW/9), the prosecution has able to prove that it is the appellant who kidnapped the victim on the road and took her near the house of PW/3, gagged her mouth by which she received injury of broken tooth and pressed her neck by which she also received injury on her neck. The identification of the appellant by the victim and other witnesses have not been challenged by the appellant and thus, the offence of kidnapping as provided under Section 363 of IPC and voluntarily causing grievous hurt has been duly proved by prosecution.
So far as the sexual assault is concerned, the definition of sexual assault under Section 7 of POCSO Act which reads as under :-
7. 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.
Though, the victim would not disclose any specific word that she was being sexually assaulted by the appellant, but the manner in which she was being kidnapped by the appellant, gagging her mouth and pressing her neck clearly demonstrate the appellant does any other act with sexual intent which involves physical contact without penetration and committed the offence of sexual offence.
In the case of "Attorney General for India v. Satish" 2022 (5) SCC 545, the Hon'ble Supreme Court has held that "touches" in the first part of Section 7 of the POCSO Act are not to be construed as "skin-to-skin" contact and "any other act" involving physical contact in the second part of Section 7 of the POCSO Act need not be similar to the act mentioned in the first part of Section 7 of the Act. It has been held that:-
35.The word "touch" as defined in the Oxford Advanced Learner's Dictionary means "the sense that enables you to be aware of things and what are like when you put your hands and fingers on them". The word "physical" as defined in the Advanced Law Lexicon, 3rd Edn., means "of or relating to body...." and the word "contact" means "the state or condition of touching; touch; the act of touching...". Thus, having regard to the dictionary meaning of the words "touch" and "physical contact", the Court finds much force in the submission of Ms Geetha Luthra, learned Senior Advocate appearing for the National Commission for Women that both the said words have been interchangeably used in Section 7 by the legislature. The word "touch" has been used specifically with regard to the sexual parts of the body, whereas the word "physical contact" has been used for any other act. Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with "sexual intent" would amount to "sexual assault" within the meaning of Section 7 of the Pocso Act.
36.There cannot be any disagreement with the submission made by Mr Luthra for the accused that the expression "sexual intent" having not been explained in Section 7, it cannot be confined to any predetermined format or structure and that it would be a question of fact, however, the submission of Mr Luthra that the expression "physical contact" used in Section 7 has to be construed as "skin-to-skin" contact cannot be accepted. As per the rule of construction contained in the maxim "ut res magis valeat quam pereat", the construction of a rule should give effect to the rule rather than destroying it. Any narrow and pedantic interpretation of the provision which would defeat the object of the provision, cannot be accepted. It is also needless to say that where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. Restricting the interpretation of the words "touch" or "physical contact" to "skin-to-skin contact" would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the Pocso Act, but it would lead to an absurd interpretation of the said provision. "Skin to skin contact" for constituting an offence of "sexual assault" could not have been intended or contemplated by the legislature. The very object of enacting the Pocso Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the Pocso Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the "sexual intent" and not the "skin-to-skin" contact with the child.
Upon re-appreciation of the entire evidence available on record, this Court finds that the testimony of the victim (PW-3) is natural, consistent and inspires confidence with regard to the material particulars of the incident. She has categorically stated that while she was returning after calling her maternal aunt, the appellant approached her and enticed her on the pretext of providing toys and balloons, forcibly took her towards a house, gagged her mouth and pressed her neck, resulting in injury to her tooth. Her testimony further reveals that when she raised an alarm, a person came to the spot, whereupon the appellant fled away. The defence, in cross-examination, itself put a suggestion that the victim had shouted when the appellant gagged her mouth, which lends support to the circumstances narrated by her. The testimony of the victim is further corroborated by her mother (PW-1), who reached the spot and was informed by the victim about the incident, and by PW-3 and PW-4, who reached the place upon hearing the cries of a girl and found the victim crying and injured. Though PW-3, the person who reached the spot, could not identify the appellant while he was fleeing, this circumstance does not undermine the prosecution case, as the victim herself knew and identified the appellant, and her identification has not been materially challenged.
The medical evidence of Dr. Nagesh Patel (PW-9) also lends substantial corroboration to the ocular account. On examination, he found scratch marks on both hands, a contusion mark on the neck and a loosened lower lateral incisor tooth. Although the doctor admitted that certain injuries could possibly be caused by a fall on a pointed object or a tree, he specifically noticed marks indicative of compression of the neck by hand. Moreover, the mere possibility of an alternative cause of injury does not displace the consistent ocular evidence when the medical findings are otherwise compatible with the account given by the victim. The explanation of the victim regarding the manner in which the injuries were sustained has remained substantially unshaken. The fact that the report was lodged by her mother on the following day also does not, in the facts of the present case, furnish any sufficient ground to discard the prosecution version. The evidence, when considered cumulatively, establishes that the appellant forcibly took the minor victim from the road and subjected her to physical force, causing injuries to her neck and tooth. Accordingly, this Court finds that the learned Trial Court has rightly appreciated the evidence and recorded the finding of guilt for the offence punishable under Section 363 of the Indian Penal Code and the offence of voluntarily causing grievous hurt, as established by the medical and ocular evidence on record. The findings recorded by the learned Trial Court in this regard are based on a proper appreciation of the evidence and do not suffer from any perversity or illegality warranting interference in the present appeal.
So far as the conviction under Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012, is concerned, it is necessary to examine whether the act attributed to the appellant satisfies the statutory ingredients of sexual assault. Section 7 of the POCSO Act contemplates not only touching the specified parts of the body with sexual intent but also any other act involving physical contact without penetration, provided such act is committed with sexual intent. Therefore, the absence of penetration or the absence of an express description by the child that she was sexually assaulted cannot, by itself, be treated as conclusive against the prosecution; at the same time, the requisite sexual intent cannot be presumed merely because physical force was used against a child. In Attorney General for India (supra), the Hon'ble Supreme Court emphasised that Section 7 must be interpreted in accordance with its statutory language and that the requirement of physical contact cannot be diluted by an interpretation inconsistent with the provision.
In the present case, the prosecution evidence establishes that the appellant enticed the minor victim, forcibly took her towards a house and gagged her mouth while pressing her neck. These circumstances undoubtedly establish the use of force and physical contact; however, the finding of sexual assault must rest upon the existence of sexual intent, as discernible from the proved facts and the surrounding circumstances. Having considered the testimony of the victim, the manner in which she was enticed and forcibly taken away, the nature of the physical acts committed against her, and the findings recorded by the learned Trial Court, this Court finds no sufficient ground, in the facts as presented, to displace the conclusion reached by the learned Trial Court regarding the appellant's guilt.
Consequently, the impugned judgment of conviction and order of sentence do not call for interference. The appeal is, accordingly, dismissed.
It further appears from the record that the appellant was released on bail pursuant to the order dated 25.09.2019. However, subsequently, despite issuance of a bailable warrant on 26.02.2026 and a non-bailable warrant on 24.06.2026, the appellant could not be apprehended, and as per the report dated 10.08.2026 submitted by the Station House Officer, Police Station Tendukona, District Mahasamund, he was not found at his given address, and his whereabouts could not be ascertained. The aforesaid circumstances indicate that the appellant is absconding and evading the execution of the sentence. Accordingly, the learned Trial Court is directed to take all necessary steps, in accordance with law, to arrest the appellant to serve the sentence imposed upon him.
The Trial Court record, along with a copy of this judgment, shall be sent back to the concerned Trial Court immediately for compliance and necessary action.