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2017 DIGILAW 644 (UTT)

Anil v. State of Uttarakhand

2017-12-07

ALOK SINGH, RAJIV SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. Present appeal is instituted against the judgment and order dated 30.01.2017 rendered by the Fast Track Court/Special Judge (POCSO)/Additional District Judge, Dehradun, in Special Sessions Trial No. 65 of 2015, whereby the accused/appellant, who was charged with and tried for the offences under Sections 376, 323 and 506 I.P.C. and under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter to be referred as ‘the POCSO Act’). He was convicted under Section 376 and 323 of I.P.C. and Section 5/6 of POCSO Act and sentenced to undergo life imprisonment under Section 5/6 of POCSO Act, to pay a fine of Rs.30,000/-, and in default of payment of fine, to undergo simple imprisonment for a period of one month under Section 6 of the POCSO Act. He was sentenced to undergo one year simple imprisonment and to pay fine of Rs. 500/- and in default of payment of fine to under 15 days additional simple imprisonment under Section 323 of I.P.C. 2. The case of the prosecution, in a nutshell, is that on 05.07.2015, PW-2 Reeta (mother of the prosecutrix) has lodged a report to the effect that on 03.07.2015, her daughter had gone to attend the School at Barotiwala. One person met her, who was known to her family. Her daughter was aged 9 years. She was allured by that person and he took her to the sweet shop. He used to work in the sweet shop. Thereafter, he took her daughter to a garden. She was forced to consume liquor. He sexually assaulted her daughter. Her daughter was in bad shape when she came back to the house. She narrated the incident to her and named the appellant. The prosecutrix was taken for medical examination. An F.I.R. was registered against the appellant/accused. After investigation, challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 10 witnesses in support of his case. The accused was also examined under Section 313 of Cr.P.C. He denied the case of the prosecution. The appellant was convicted as noticed hereinabove. Hence this appeal. 4. Mr. Sachin Mohan Singh Mehta, learned counsel appearing for the appellant, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. The accused was also examined under Section 313 of Cr.P.C. He denied the case of the prosecution. The appellant was convicted as noticed hereinabove. Hence this appeal. 4. Mr. Sachin Mohan Singh Mehta, learned counsel appearing for the appellant, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Amit Bhatt, learned Deputy Advocate General appearing for the State has supported the judgment dated 30.01.2017. 6. We have heard learned counsel for the parties and gone through the impugned judgment and record carefully. 7. PW1 is the prosecutrix (name withheld). The Court after observing the intelligence of the prosecutrix recorded her statement. The trial judge should not have mentioned her name in the statement. PW1 testified that she knew the appellant. He used to come to their house. In the morning, when she was going to the school at Barotiwala, the appellant met her. He took her to the sweet shop. He used to work in the sweet shop. Thereafter, he took her to the jungle. She was forced to consume liquor. He sexually assaulted her. He removed her Salwar. He removed his trouser. He touched his private part with her private part. She felt pain. She cried. Thereafter, he left her at her house. She came back to her house. The door was locked. She narrated the incident to her aunt Sarita Devi. She put some ointment on her private part. Thereafter, her mother, uncle and aunt took her to the hospital for medical examination. In her cross examination, she told that she was studying in primary school. The accused was known to them. 8. PW2 Smt. Reeta is mother of the prosecutrix. She deposed that last year she had gone for plantation. Her daughter was ready to go to the school. When she came back, her sister in law told her that the appellant had sexually exploited her daughter by intoxicating her. The prosecutrix has also narrated the incident to her. She noticed blood stains on her Salwar. They went to the Police Station. 9. PW3 Smt. Sarita Devi has corroborated the statements of PW1 and PW2. She deposed that on 03.07.2015, her sister in law had gone for plantation. She noticed her niece in front of her door. She was picked up. She was unwell. She noticed blood stains on her Salwar. They went to the Police Station. 9. PW3 Smt. Sarita Devi has corroborated the statements of PW1 and PW2. She deposed that on 03.07.2015, her sister in law had gone for plantation. She noticed her niece in front of her door. She was picked up. She was unwell. She noticed blood stains on her Salwar. The prosecutrix told her that the appellant has sexually exploited her. The prosectrix was taken to the hospital. 10. PW4 Hoshiyar Singh (father of the prosecutrix) deposed that the appellant was known to their family. When he came back to his house, his daughter was smelling of liquor. She told him that she was forced to consume liquor by the appellant. The blood stains were noticed on her clothes. The prosecutrix was taken for medical examination. 11. PW5 Shravan Singh told that on 03.07.2015, when he came back, her wife Sarita told her that something bad has happened with her niece. He identified the accused in the Court. They have taken the prosecutrix to the Hospital. 12. PW6 Dr. Shikha Thakur has medically examined the prosecutrix. According to her observation, she was crying. She was not normal. She was feeling pain near her stomach. She noticed many abrasions on her back and on her left thigh. There was vaginal puss coming out of her private part. She was feeling acute pain when her thighs were examined. She sent the slides for pathological examination. According to her, no spermatozoa was found. In her cross examination, she deposed that prosecutrix was not able to separate her legs due to injuries. According to her, no blood was oozing out of the private parts of the prosecutrix but puss was coming out. 13. PW8 Sub Inspector, Jyoti Chauhan Negi was the Investigating Officer in the matter. She recorded the statement of the prosecutrix under Section 164 Cr.P.C. 14. PW9 Sub Inspector, Pratibha has also investigated the matter. 15. PW10 Smt. Sarla has proved the date of birth of the prosecutrix. Her date of birth was 30.12.2006. 16. According to the F.S.L report the semen was not detected on Exhibits-1, 2 and 3. Human blood was detected on Exhibits-1 and 2. Blood could not be detected on Exhibit-3. 17. According to DNA obtained from the Exhibits-1 and 2 (paizami of victim and sanitary pad of victim) was from the single female human source and matching with each other. According to the F.S.L report the semen was not detected on Exhibits-1, 2 and 3. Human blood was detected on Exhibits-1 and 2. Blood could not be detected on Exhibit-3. 17. According to DNA obtained from the Exhibits-1 and 2 (paizami of victim and sanitary pad of victim) was from the single female human source and matching with each other. DNA could not be obtained from the Exhibit-3 (underwear of accused). 18. According to supplementary report of PW6 Dr. Shikha Thakur, no definite opinion could be given about the intercourse. 19. What emerges from the statements as discussed hereinabove is that the prosecutrix was a student of primary school. She was going to the school. She was allured by the appellant. She was taken to the isolated place. The appellant committed rape on her. The prosecutrix came back to her house and narrated the incident to her aunt PW3 Smt. Reeta and thereafter, to her mother. She was medically examined. 20. The prosecutrix (name withheld) has categorically submitted that she was allured by the appellant and taken to the sweet shop and thereafter, to an isolated place. The appellant has touched his private part with her private part. She felt pain. She was forced to take liquor. She came back to her house. The door was locked. She narrated the incident to her aunt and thereafter to her mother. She was taken for medical examination by her aunt PW3 Smt. Reeta and PW4 Hoshiyar Singh. The statement of PW1 has been duly corroborated by the statements of PWs, 2, 3 and 4. The date of birth of the prosecutrix was 30.12.2006. PW6 Dr. Shikha Thakur has categorically noticed abrasion marks on her back as well as on her left thigh. The girl was crying with pain. She could not separate her legs. The blood stains were found as per the F.S.L. report. PW2 and PW4 have noticed blood stains on the clothes of the prosecutrix. The Doctor’s opinion is not a substantive piece of evidence. In the present case, it is evident from the statement of PW1 that the appellant has raped her. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. Though, there is delay in registration of FIR but court can take judicial notice of the fact that since the members of the family is at stake, it takes them time to take final decision. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. Though, there is delay in registration of FIR but court can take judicial notice of the fact that since the members of the family is at stake, it takes them time to take final decision. In this case the incident has happened on 03.07.2015 and the FIR was registered on 05.07.2015. The absence of semen in the F.S.L. report was due to late examination of the prosecutrix. 21. Their Lordships of the Hon’ble Supreme Court in (2012) 10 SCC 476 in the case of Darbara Singh Vs. State of Punjab have held that unless oral evidence available is totally irreconcilable with the medical evidence, oral evidence would have primacy. It is only when contradiction between two is so extreme that medical evidence completely rules out all possibilities of ocular evidence being true at all, that occular evidence is liable to be disbelieved. Their Lordships have held as under:- “10. So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.” 22. Accordingly, there is no merit in the appeal and the same is hereby dismissed. Impugned judgment and order dated 30.01.2017 is affirmed. Appellant is already in jail. He shall serve out the sentence, so awarded by the trial court. 23. Let a copy of this judgment and order along with the LCR be transmitted to the Court concerned.