AVNISH KUMAR SHARMA Vs. STATE OF HARYANA

JUDGEMENT

(1.) The appellant is aggrieved against the order of conviction passed against him by the learned Addl.Sessions Judge, Jind in FIR No.738 dtd. 10/9/2013 under Ss. 376 (2) (f) (i) IPC and Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'). The sentence awarded to the appellant is to the tune of 14 years of rigorous imprisonment and Rs.20,000.00 as fine and in default, 2 years of rigorous imprisonment under Sec. 376(2)(f)(i) and Sec. 6 of the POCSO Act whereas under Sec. 506 IPC, it is for a period of 2 years along with Rs.5000.00 as fine and default clause is of one year.

(2.) The victim in the present case is none else but a child in the school and was a student of 11th class where the appellant was teaching as a Maths Teacher. The Trial Court found that there was medical evidence in support of the case of the prosecution since there was an opinion of PW-5, Manju on seeing the FSL report that the possibility of rape upon the prosecutrix cannot be ruled out. Keeping in view the fact that the date of birth of the victim was 15/3/1998, as per the Admission & Withdrawal Register and the fact that the victim had been admitted in school by her sister, it was held that the age of the victim had been proved to be 15/3/1998. She being less than 16 years and being a minor at the time of the registration of the FIR and since she had supported the case in affirmative about the sexual exploitation under threat by the accused-appellant and the medical evidence corroborated the same, weighed with the Trial Court. The defence taken qua the dispute of seniority inter-se school teachers and that he had been falsely implicated was rejected since neither the uncle of the prosecutrix who was teaching in the same school nor Ram Niwas Bhardwaj were going to be the Principal for which the appellant was in line for. It was noticed that the victim had reiterated her version which had already been recorded by the Illaqa Magistrate on 13/9/2013 at the initial point of time under Sec. 164 Cr.P.C. (Ex.PB). Merely because no date of the incident had been mentioned and only the month and year had been mentioned and since nothing in contradiction had come on record to falsify the allegations, by applying the provisions of Sec. 29 of the POCSO Act, presumption was raised that the accused could not prove to the contrary, while convicting the appellant. The delay of 6 months in lodging the FIR was also brushed aside on the ground that the appellant was Class In-charge of the victim at the time of lodging of the FIR and that he was threatening her that he would get her brother killed and uncle removed from the school and fail her in the subject of Maths. He had also tried to spread rumours against her in school and it was only on that account the incident had come to light and the present case had been registered. Resultantly, while placing reliance upon the judgment of the Apex Court in Ashok Surajlal Uike Vs. State of Maharashtra, 2011 (2) RCR (Crl.) 63, it was held that the delay was of little significance.

(3.) Mr.Punia has taken us through the records and vehemently contended that the testimony of the victim is not reliable as there are contradictions in her statements, to the extent that neither the appellant was her teacher or directly In-charge of her or her class and neither was teaching her Maths, and neither was the Examination-in-charge and therefore, the reasoning adopted by the Trial Court was not justified. There was discrepancy in the date and time of the occurrence and there was a delay of 6 months in lodging the FIR and no reasonable explanation had been given if such a incident had taken place. There was reason for false implication as some incident had happened in school which was in September, 2013 and she had been sent back on account of the suspicion having been raised of her character. Thereafter, deliberations had taken place and on account of the fact that her uncle was teaching in the school and was close friend of Ram Niwas Bhardwaj who was aggrieved on account of the fact that the appellant was to become Principal after retirement of the incumbent Principal who was already holding the said post, the issue had been raked up. The age of the prosecutrix could not be said to be conclusively proved to be 15/3/1998 since there was no evidence in the form of certificate from the Registrar (Births and Deaths) and no attempt had been made by the Investigating Officer to get the same. The admission in school had been made by her sister and she herself was not in a position to give the exact date of birth and thus, reliance was placed upon the radiology report and the fact that she was about 16-17 years of age and therefore, the benefit of 2 years was sought to argue that she was not a minor at the time of incident.