POCSO Act; Dara Singh Vs. State of U.P. [Allahabad High Court, 17-06-2016]

Protection of Children from Sexual Offences Act, 2012 – Sections 11, 12 42 – Penal Code, 1860 – Sections 147, 323, 504, 506, 354D, 363, 341 – Information Technology Act, 2000 – Sections 66, 67 – Criminal Procedure Code, 1973 – Sections 216, 217, 218, 221 & 222 – Alternate punishment – What is meant by a minor offence for the purpose of Section 222 of the Code?


HIGH COURT OF JUDICATURE AT ALLAHABAD

Hon’ble Amar Singh Chauhan,J.

CRIMINAL APPEAL No. – 4756 of 2015

Appellant :- Dara Singh And Another Respondent :- State Of U.P. Counsel for Appellant :- Dharmendra Singhal,Dinesh Kumar Yadav Counsel for Respondent :- G.A.,Ajatshatru Pandey,Ajay Kumar Pathak 2.

CRIMINAL APPEAL No. – 4829 of 2015

Appellant :- Ramu Alias Ram Kumar And Anr. Respondent :- State Of U.P. Counsel for Appellant :- Devendra Dahma Counsel for Respondent :- G.A.,Ajatshatru Pandey,Ajay Kumar 3.

CRIMINAL APPEAL No. – 5006 of 2015

Appellant :- Ravi And Another Respondent :- State Of U.P. Counsel for Appellant :- Gopal Das Srivastava Counsel for Respondent :- G.A.

These are the three criminal appeals aforementioned have been filed before this court challenging the judgement and order dated 14.10.2015 passed by the Additional Sessions Judge, Court No. 1 Hathras in S.T. No. 27 of 2015 (arising out of Case crime No. 207 of 2015) State Versus Sanjay and others, P.S. Sadabad district Hathras whereby the appellants have been convicted and sentenced to undergo 2 years R.I. with fine of Rs. 1,000/- each under section 147 I.P.C.; to undergo one year with fine of Rs. 1,000/- each under section 323 I.P.C.; to undergo 2 years R.I. with fine of Rs. 1,000/- each under section 504 I.P.C.; to under to 2 years R.I. with fine of Rs. 1,000/- each under section 506 I.P.C.; to undergo 3 years R.I. with fine of Rs. 2,000/- each undersection 354-D I.P.C.; to undergo 1 month simple imprisonment with fine of Rs.5,00/- under section 341 I.P.C.; to undergo 7 years R.I. with fine of Rs. 10,000/- each under section 363 I.P.C.; to undergo 3 years R.I. with fine of Rs. 5,000/- each under section 11/12 Pocso Act and to undergo 5 years R.I. with fine of Rs. 20,000/- each under section 66/67 of I.T. Act and in default of payment of fine maximum six months additional sentence was ordered and all the sentences were directed to run concurrently.

Since the controversy and facts involved in these appeals are the same, therefore, they are being heard and decided together by a common judgement with the consent of the parties.

The prosecution case in brief is that Mukesh Chaudhary had lodged an FIR on 8.3.2015 at about 14.50 at P.S. Sadabad Kotwali district Hathras to the effect that the applicant is a resident of village Mansya Kalan P.S. Sadabad district Hathras. His nephew named Virendra Singh had told him on 7.3.2005 that he had been informed by Kala son of Atar Singh and other boys of the locality that the video clipping of his daughter was being viewed by the villagers. The clipping is very obscene. As soon as the applicant heard this news he made an enquiry about it from his daughter. Firstly, she hesitated to say anything, thereafter, she said that due to fear she could not tell this before. When he consoled his daughter then she narrated the whole story saying that they were intimidating her to kill all members of her family that is why she did not tell it before. She said that when retuning back to home from school on 20.2.2015 along with Dhirendra, she met Sanjay son of Than Singh, Dara Singh son of Laxman, Eloo son of Harish, Pankaj son of Som Prakash, Ravi son of Pritam Singh, all r/o village Mansya Kalan P.S. Sadabad district Hathras in the way and said ” lkyh vkt gkFk yxh gS ge rsjk ihNk dkQh le; ls dj jgsa Fks” the aforesaid persons started quarrelling with Dhirendra who was accompanied her. Her daughter made hue and cry, but all in vain, meanwhile, Sanjay made Dhirendra fall on the ground and compelled her daughter to sit on him. They started beating them and got uttered whatever they wanted to. In the meanwhile, one boy started making video clipping of the incident. Thereafter, the aforesaid persons made the daughter of the applicant sit on the motorcycle and went to Sadabad and other places where they started doing unbecoming/obscene behaviour with the girl of the applicant and started making video clipping and intimidated her by saying that we will kill all members of your family and make this video known to every one, if you dared to tell about it to anybody else, you and your family members will not be able to face the society.

After coming to know the applicant went to the house of Sanjay alongwith Subhas son of Giriraj, Bhola son of Ramveer, then they bent to quarrel with him and said that I will defame your daughter and made her video viral on internet and nobody would touch us. The applicant came to known that Sanjay and others made the video of her daughter advertised on many places. Sanjay took out his mobile and said now I will show the video clipping of your daughter to you, when applicant and one Danveer try to apprehend Sanjay, then he escaped from the place leaving his mobile. I am coming here alongwith his mobile in which there is an obscene video of my daughter. The incident came to the knowledge of the me(applicant) on 7.3.2015, hence I am here to lodge a report. Please take proper legal action against Sanjay and others on the basis of my report.

On the basis of the aforesaid report, a case was registered against the appellants under sections 147,323,504,506,354-D 342 I.P.C. which was entered in G.D. Vide rapat no. 31 at 14.50 on 8.3.2015 at Police Station Sadabad district Hathras. After registration of the case, the investigation was handed over to the Investigating Officer, who investigated the case and recorded the statements of P.W.1, Mukesh Chaudhary, P.W. 2 Victim, P.W. 3 Ravindra Singh, P.W. 4 Dhirendra, P.W. 5 Constable 141 Chatrasal Singh, P.W. 6 Manoj Singh and P.W. 7 Munesh Kumar.

The investigation of the case was entrusted to S.I. Manoj Singh, P.W. 6. who visited the place of occurrence and prepared site plans, which is marked as Exhibit Ka-5 and ka-6. The Investigating Officer had tried to indicate by the site plan that on two places the incident occurred. He had also recorded the statement of P.W.1, P.W.2, P.W.3, P.W. 4. After completing the investigation he submitted a charge sheet against the appellants under sections 147,323,504,506,354-D 342I.P.C., in the court below, thereafter, the case was committed to the court of Sessions which framed the charges under sections 147,323,504,506,341, 354D I.P.C. read with sections 11/12 Pocso Act and sections 66/67 of I.T. Act to which the accused appellants denied and claimed to be tried.

To bring home the guilt of the accused, the prosecution has examined P.W. 1, Mukesh Chaudhary, who in his statement stated that the victim is his daughter, whose age is 16 years. On 7.3.2015, he was told by his son that video clipping of his daughter is being seen by some boys of the village. When he asked about aforesaid fact to his daughter then she started weeping and told that they were intimidating her that they would kill me and the members of her family. When he consoled his daughter then she narrated the whole story saying that on 20.2.2015 when she was returning home from the school, Dhirendra met her on the way at about 3.00 P.M. He in order to drop her got her seated on his motorcycle. He said that he is going to Mathura and he will drop her in his village. At some distance of Sadabad Chungi, on two motorcycles Sanjay, Dara Singh, Ilu alias Ram Naresh, Pankaj, Ramu and Ravi came and stopped the motorcycle and said to her that ” lkyh vkt gkFk yxh gS rsjk ihNk dkQh fnuksa ls dj jgsa Fks” They got her and Dhirendra sat on their motorcycle by force and came to a lonely place and attempted to rape the victim, they take Dhirendra and Rekha (victim) to Koopa field, where they done marpeet with Dhirendra and the victim and attempted to do obscene behaviour with the victim, on being protested they make video. It was a day time that is why they could not succeed in their efforts. They preceded to another lonely place and attempted to rape the victim but could not succeed because of the people working in the field. They made Dhirendra fall on the ground and compelled her to sat on Dhrendra and started doing unbecoming behaviours with his daughter and got uttered whatever they wanted and intimidated her by saying that they would kill all members of her family. On next day at 9.00 a.m. at 8.3.2015 he went to the house of the Sanjay alongwith other witness Subhas, Bhola, Danveer etc. they bent to quarrel with him and said that he will make the video of his daughter viral on the internet and her daughter would not be able to face the society and said to him let you too see the video of your daughter. When Danveer approached to catch Sanjay then he escaped from the place leaving his mobile. They came with the mobile at police station and lodged the FIR scribed by Chandrapal dictated by the complainant, on which the complainant put his signature, which is Exhibit ka-1.

P.W. 2 is the victim herself. She stated on oath that at present she is a student of class XII. She had passed High School from S.S.A. Public Pariksha Mathura Road, Sikandra, Agra. She proved the High School mark sheet as Exhibit Ka-2. Further, the prosecutrix stated that on 20.2.2015 at noon at about 3.00 P.M. when she was returning on foot from the school, Dhirendra met her, who was acquainted with her. He offered to drop her at his village on his bike, she sat on the bike, after passing a short distance, near Bajnath temple, six boys on two motorcycles namely Dara, Ilu alias Ram Naresh, Sanjay, Ravi, Ramu and Pankaj stopped Dhirendra and snatched the key of motorcycle. Ravi and Ilu alias Ram Naresh got Dhirendra sat on his motorcycle by force and Dara and Sanjay got sat the victim on his motorcycle by force. When prosecutrix protected to sit on motorcycle Sanjay hit her lips by fist and said ” lkyh vkt rq gekjs gkFk yxh gS ge rsjk ihNk cgqr fnuksa ls dj jgsa Fks” and took her to a lonely place where she was molested by them and they tried to outrage her modesty. On protest she was beaten by them and after that they prepared video clip at the instance of Sanjay. After that they made the video viral.

P.W. 3 Ravindra Singh stated on oath that on 12.3.2015 a C.D. of the video clipping was given at the Police station and Head constable had prepared a Fard on which he, the complainant and one Ashok Chaudhary, put their signatures.

P.W. 4 Dhirendra Singh stated on oath that on 20.2.2015. When he was returning after leaving his Mausi from Sadabad, as he reached near the Statute of Chaudary Charan Singh, he met with prosecutrix whom he was acquainted. He offered lift, which she accepted. As soon as they reached near Agra Chungi six boys of Nansya village met him to whom he was not acquainted. When, he see the television and heard their names as Sanjay, Dara, Ilu alias Ram Naresh, Pankaj and Ravi,they gave threat to him and done the mar-peet and snatched the key of the motorcycle and made video clipping and again threaten him if you said about it we will kill you. This incident was at about 3.00 P.M.

P.W. 5, Constable 141 Chatrapal Singh, was examined by the prosecution who stated on oath that on 8.3.2015 he was posted as clerk at Kotwali Hathras, on that day on the complaint of complainant aforesaid case crime no. 207 of 2015 was registered and he further stated that on 8.3.2015 P.W. 1 Mukesh Chaudhary and another Karamveer Singh deposited a mobile set alongwith chip and C.D. Cassette, which was proved as Exhibit Ka-4.

P.W. 6 Manoj Kumar Sharma, who was the I.O. Of this case, was examined, who stated on oath that on 9.3.2015 he was posted as In-Charge officer of P.S. Sadabad. On that date, complainant Mukesh Chaudhary lodged case crime no. 207 of 2015 under sections 147,504,506,354-D I.P.C. read with section 66/67 I.T.Act and section 4 of Pocso Act. The statement of the prosecutrix was recorded by the lady constable Neetu Singh, who prepared Video C.D. Of her statement. On 103.2015 the statement of witnesses Subhash, Bhola Singh and Danveer were recorded, on 12.3.2015 the statement of Eye witness Dhirendra was recorded on whose instance,the inspected two places of occurrence and prepared the site plan. The witness has made his signature on the site plan, on 15.3.2015 the accused persons namely Dara Singh, Ilu alias Ram Naresh alias Ram Naresh, Pankaj, Ramu alias Ram Kumar were arrested and their statements were recorded. On 18.3.2015 accused persons Sanjay and Ravi were arrested and their statements recorded. On 19.3.2015, the statement of prosecutrix namely Km. Rekha was recorded under section 164Cr.P.C. They procured the certified copies, and got it written in the case diary, which is Exhibit 3.

P.W. 7, Munesh Kumar, Computer operator, was examined, who stated on oath that on 8.3.2015 he was posted as computer operator at Kotwali Sadabad, at about 14.50 P.M. on the basis of written complaint of the complainant Mukesh Chaudahry, a chik computer report was prepared by him, who proved Exhibit 9 Chik report.

After the evidence of prosecution was closed, the statement of the accused was recorded undersection 313 Cr.P.C. in which they denied the occurrence and stated that they had been falsely implicated due to village partibandi. In defence two witnesses namely DW1 Ramji Lal and DW2 Hari Om Sharma were examined. Their statements mainly remained confined to age of the prosecutrix.

Learned Additional Session Judge, Hathras after perusing the record and hearing the counsel of the parties came to the conclusion that prosecution had established its charge against the appellants under