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2019 DIGILAW 357 (UTT)

SATISH v. STATE OF UTTARAKHAND

2019-05-28

ALOK KUMAR VERMA, SUDHANSHU DHULIA

body2019
JUDGMENT Hon'ble Sudhanshu Dhulia, J. (Oral) This criminal jail appeal has been filed by the appellant against the judgment and order dated 25.01.2016 passed by FTC/Special POCSO Judge, Rudrapur, District Udham Singh Nagar in Special Session Trial No.95 of 2015, whereby the appellant/accused has been convicted under Sections 376(2) and 366 of the Indian Penal Code (in short “IPC") and has been sentenced to undergo rigorous life imprisonment with a fine of Rs. 50,000/- (Rupees Fifty Thousand Only) under Section 376(2) of IPC, and to undergo rigorous imprisonment for a period of ten years with a fine of Rs.10,000/- (Rupees Ten Thousand Only) under Section 366 of IPC, with default stipulation. 2. Brief facts of the case are that a first information report was lodged by the father of the victim on 13.03.2015 at 02:10 pm at Police Station Transit Camp, Rudrapur, District Udham Singh Nagar stating that the accused Satish who is the resident of Village “Seohara", District Bijnor, Uttar Pradesh is his tenant. Yesterday i.e. on 12.03.2015 his daughter who is about 11 years of age and is a student of Class V returned to her house at about 02:45 pm. At that relevant time, the accused was also in the same house as he was living in the tenanted accommodation. The accused took his daughter to his room where she was raped. His daughter raised an alarm and meanwhile, the wife of the complainant also reached the spot. His wife is an eyewitness to this dastardly act in which she caught the accused red-handed. 3. On the same day i.e. on 13.03.2015, the victim was first taken to “Mahila Helpline", by the police where her statement was recorded by the “Mahila Helpline". On being questioned by the Helpline, she said that she is a student of Class V and they have a tenant in their house by the name of Satish, who from time to time also gives tuition to her. Yesterday i.e. on 12.03.2015, she returned from her school at about 02:00 in the afternoon. Her mother was not in the house and only her brother Rohan was in the house. She then says that at about 04:30 pm the accused Satish, on the pretext that he would show her something, took her to his room, where she was pushed on a bed and then the accused started “misbehaving" with her. Her mother was not in the house and only her brother Rohan was in the house. She then says that at about 04:30 pm the accused Satish, on the pretext that he would show her something, took her to his room, where she was pushed on a bed and then the accused started “misbehaving" with her. First her “salwar" was taken off and then Satish climbed on top of her, after dropping off the towel he was wearing. The victim kept on shouting and pleaded with the accused to have mercy, but in vain. She then says that she has been wronged. Meanwhile her mother also came to the spot and the accused ran away. 4. Immediately after the prosecutrix gave her statement, she was medically examined at Jawahar Lal Nehru Hospital, Rudrapur, District Udham Singh Nagar. The medical report says as under:- “No injury seen on external examination. Internal ex.- No injury seen over the vulva, vagina and perineum region. No discharge/bleeding seen. Hymen torn old. Smear taken from posterior/.. for slide for detection of spermatozoa. Vag swab taken and sealed in dry condition. Remarks- (1) Two sealed vag. smear slides for pathologist along with requisition form for detection of spermatozoa. (2) DNA analysis form and sample for DNA analysis handed over for needful via proper channel." 5. Since in the medical report it has come that the victim had old hymen torn, the victim was again questioned by the “Mahila Helpline", as to such incident had happened with her earlier as well, to which she says that a month prior to the incident, the accused had made physical relations with her when her mother was not present in the house, and it was early in the morning. The exact date and time she did not remember. She was then threatened by the accused that she should not disclose this incident to anyone otherwise her parents will be harmed. 6. The victim was then taken before the learned Magistrate for recording of her statement under Section 164 of CrPC. She states before the learned Magistrate that on the fateful day i.e. on 12.03.2015 after giving her exam, she returned to her house where they have some tenants. Out of these tenants, only one tenant Rohan was present and she asked him as to the whereabouts of her mother and father. She states before the learned Magistrate that on the fateful day i.e. on 12.03.2015 after giving her exam, she returned to her house where they have some tenants. Out of these tenants, only one tenant Rohan was present and she asked him as to the whereabouts of her mother and father. She was told that her parents had gone to the market. Meanwhile, another tenant called Satish (accused/appellant) came to the house. He asked Rohan to fetch something from the market and then the accused dragged the victim inside his room. The clothes of the victim were taken off. The accused also took off his clothes and raped her. The victim also states that she kept on crying in pain and for help, but in vain. At that time her mother somehow reached the spot and slapped Satish. Satish ran away from the spot. She then says that even previously Satish had done some “ched-chad" with her. 7. As is clear from the two statements of the victim, except for minor discrepancies she has stuck to her story. 8. The police after completing its investigation filed the charge-sheet against the accused on 26.05.2015 and thereafter the matter was committed to the Special Court POCSO at Udham Singh Nagar where charges were framed against the appellant/accused under Sections 376(2), 366, 323 of IPC and under Section 5(m)/6 of the Protection of Children from Sexual Offences Act, 2012. 9. The prosecution in order to establish its case has examined as many as 8 witnesses. Out of which, PW1, PW2, PW3 and PW7 are extremely relevant witnesses. 10. PW1 is the prosecutrix herself who in her examination-in-chief narrates the incident as she has already stated in her statement before the “Mahila Helpline" as well as before the learned Magistrate under Section 164 of CrPC. She says that on 12.03.2015 she had returned from her school after her drawing examination. In the house there was Rohan from whom she asked about the whereabouts of her parents and she was told that they had gone to the market. Meanwhile, Satish also came to the house and asked Rohan to fetch milk from the market and then on pretext that he would show her something, the accused took the victim to his room. In the room her clothes were taken off by Satish, who took off his clothes as well. Meanwhile, Satish also came to the house and asked Rohan to fetch milk from the market and then on pretext that he would show her something, the accused took the victim to his room. In the room her clothes were taken off by Satish, who took off his clothes as well. Then the victim was pushed towards the bed and Satish climbed on top of her and raped her. Meanwhile, the mother of the victim also came to the spot and the victim was rescued by her mother and the mother of the victim also slapped the accused. The victim then gives a precise date and time which is 24.02.2015 at 10:30 am when the accused had done a similar act. This though is unbelievable and to this incident, no reliance can be placed as in her earlier statement given before the “Mahila Helpline", the victim has categorically stated that she does not remember either the date or time of the earlier alleged incident. Therefore we put no reliance as to the earlier incident as no worthwhile evidence has been placed except from the statement of the prosecutrix which appears to be an afterthought. 11. PW 2 Rohan is another child witness. The victim in her earlier statement which she gave before the “Mahila Helpline" had said that Rohan is her brother, but in her examination-in-chief she says that Rohan who is a child of 12 year is one of the tenants of his father in the same premises. PW2 in his examination-in-chief states that the incident is of 12.03.2015 at about 04:00 pm. Hesays that he stays as a tenant in the house of the victim and there are 4 to 5 such tenants in the premises, including the accused Satish. He then narrates the incident as has already been disclosed in the statement of the prosecutrix with minor discrepancies which are not material. 12. PW3 is the mother of the prosecutrix who is also an eyewitness to the incident. She corroborates the story of the prosecution in detail. There is absolutely no reason to disbelieve this particular witness who was a witness to this dastardly act where her daughter was a victim. 13. PW4 Chandra Kanta Nayal is the Principal of the School where the prosecutrix has studied. She corroborates the story of the prosecution in detail. There is absolutely no reason to disbelieve this particular witness who was a witness to this dastardly act where her daughter was a victim. 13. PW4 Chandra Kanta Nayal is the Principal of the School where the prosecutrix has studied. This witness corroborates that as per the school record the date of birth of the prosecutrix is 24.08.2004 and we have absolutely no reason to disbelieve this. 14. PW7 Tanuja Sinha is the doctor who had conducted the medical examination of the prosecutrix. This witness in her examination-in-chief states that she did not find any injury on the body of the prosecutrix either internal or external. She further states that hymen of the victim was old torn. Vaginal smear was taken and sent for pathological examination in which no spermatozoa was found. She does not give any definite opinion about the rape and shown her inability to give definite opinion as to the commission of rape. 15. On these set of facts all we have to see is whether the prosecution has been able to prove its case beyond reasonable doubt. 16. What is absolutely relevant in this case is not only the statement given by the prosecutrix firstly before the “Mahila Helpline" on 13.03.2015 but also the statement given by the victim before the learned Magistrate under Section 164 of CrPC, and then whether she has been consistent in her testimony given before the trial court on 26.08.2015, except for her statement regarding earlier commission of crime, to which we give no credibility for obvious reasons inasmuch as in her earlier statement given before the “Mahila Helpline", she has categorically given a statement that she does not remember the date and time of the earlier incident. Giving the precise date and time later on in her examination-in-chief raises certain doubt as to her earlier statement regarding the earlier commission of the same nature of crime. 17. We have no reason to believe that the prosecutrix is giving a false story as to the incident dated 12.03.2015. She has been consistent in her testimony. Giving the precise date and time later on in her examination-in-chief raises certain doubt as to her earlier statement regarding the earlier commission of the same nature of crime. 17. We have no reason to believe that the prosecutrix is giving a false story as to the incident dated 12.03.2015. She has been consistent in her testimony. The medical evidence even though does not corroborate with the factum of rape, it is immaterial inasmuch as rape is concerned, for the reason that it would not be necessary that a child of 11 years of age would make any resistance and therefore invite injury as would be there in other circumstances. Therefore, merely because the victim/child has not sustained any injuries would not give any benefit to the defence. 18. The accused/appellant has been charged under the provisions of the Protection of Children from Sexual Offences Act, 2012 as well as under the Indian Penal Code. 19. Let we first examine the provisions of the Special Act i.e. the Protection of Children from Sexual Offences Act, 2012 (from hereinafter referred to as the “Special Act". Under the Special Act, “sexual assault" is defined under Section 7, 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." 20. The next aggravated crime under the Special Act is “aggravated sexual assault" which is defined under Section 9, which reads as under:- “9. The next aggravated crime under the Special Act is “aggravated sexual assault" which is defined under Section 9, which reads as under:- “9. Aggravated Sexual Assault.- (a) Whoever, being a police officer, commits sexual assault on a child- (i) within the limits of the police station or premises where he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as a police officer; or (b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child- (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the security or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where he is known or identified as a member of the security or armed forces; or (c) whoever being a public servant commits sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or (g) whoever commits gang sexual assault on a child. Explanation.- When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the sexual meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits sexual assault on a child, which- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (1) of section 2 of the Mental Health Act, 1987(14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or (k) whoever, taking advantage of a child's mental or physical disability, commits sexual assault on the child; or (l) whoever commits sexual assault on the child more than once or repeatedly; or (m) whoever commits sexual assault on a child below twelve years; or (n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or (o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or (p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits sexual assault on a child knowing the child is pregnant; or (r) whoever commits sexual assault on a child and attempts to murder the child; or (s) whoever commits sexual assault on a child in the course of communal or sectarian violence; or (t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault." 21. Then comes “penetrative sexual assault" which has been defined under Section 3 of the Special Act, which reads as under:- “3. Penetrative sexual assault.- A person is said to commit “penetrative sexual assault" if- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person." 22. Finally it is the “aggravated penetrative sexual assault" which is defined under Section 5 of the Special Act, which reads as under:- “5. Finally it is the “aggravated penetrative sexual assault" which is defined under Section 5 of the Special Act, which reads as under:- “5. Aggravated penetrative sexual assault.- (a) Whoever, being a police officer, commits penetrative sexual assault on a child- (i) within the limits of the police station or premises at which he is appointed; or (ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as, a police officer; or (b) Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child- (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the forces or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where the said person is known or identified as a member of the security or armed forces; or (c) whoever being a public servant commits sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child inthat institution; or (g) whoever commits gang penetrative sexual assault on a child. Explanation.- When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits penetrative sexual assault causing grievous hurt orcausing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits penetrative sexual assault on a child, which- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) in the case of female child, makes the child pregnant as a consequence of sexual assault; (iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily orpermanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or (k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; or (l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or (m) whoever commits penetrative sexual assault on a child below twelve years; or (n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or (o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or (r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or (s) whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence; or (t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Actor any sexual offence punishable under any other law for the time being in force; or (u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault." 23. We have no reason to disbelieve the story of the prosecution that this is a case of “aggravated penetrative sexual assault". All evidence point towards the commission of this crime. The accused has also been charged under the provisions of Section 376 (2) of IPC, however, this has to be read in the light of Section 42 of the Special Act, where it has been given that if the offender is found guilty of such offence, he shall be liable to punishment under the Special Act or under the Indian Penal Code as provides for punishment which is greater in degree. Since the minimum punishment under Section 376 (2) of IPC is ten years and the maximum punishment is life, which shall mean “imprisonment for the remainder of that person's natural life", the appellant/accused has been sentenced under Section 376 (2) of IPC, which is greater in degree. Life imprisonment has been defined to be “imprisonment for the remainder of that person's natural life". 24. Section 42 of the Special Act reads as under:- “42. Alternate punishment.- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370,370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree." 25. We therefore find no reason to disturb the findings of the trial court as regarding the conviction of the accused/appellant under Section 376(2) of IPC or even under Section 6 of the Special Act i.e. “aggravated penetrative sexual assault". Section 6 of the Special Act reads as under:- “6. Punishment for aggravated penetrative sexual assault.- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine." 26. Section 6 of the Special Act reads as under:- “6. Punishment for aggravated penetrative sexual assault.- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine." 26. As far as offence under Section 366 of IPC is concerned, under the facts and circumstances of the case and even on the facts presented by the prosecution, charge under this section ought not to have been framed against the appellant/accused as it is not a case of kidnapping from the lawful custody of her parents or kidnapping for the purpose as is specifically given under the provisions of Section 366 of IPC. There is also no separate or specific finding of the trial court as to how and under what circumstances an offence under Section 366 of IPC has been made out. The ingredients of Section 366 IPC are not present. The trial court has not applied its mind while convicting the appellant under Section 366 of IPC and sentencing him for a period of ten years of rigorous imprisonment. The accused is liable to be acquitted under Section 366 of IPC. We therefore acquit the accused/appellant under Section 366 of IPC. 27. Heard the learned counsel for the appellant as well as learned State Counsel on the sentence. 28. The trial court having convicted the accused/appellant under Sections 376(2) and 366 of IPC has sentenced the accused for life imprisonment under Section 376(2) of IPC where life means remainder of that person's natural life. We are afraid that the trial court has not taken into consideration various mitigating circumstances in favour of the appellant, which ought to have been taken into consideration at the time of awarding the sentence. We find that the accused was only 22 years of age at the relevant time. The allegation that this act is repetitive has not been proved. On this aspect, we have already given reasons in the preceding paragraphs of the present order. The appellant does not have any criminal history. He is a young person and we have absolutely no doubt in our mind that sending the appellant in jail for the rest of his natural life would be an extremely harsh under the present facts and circumstances of the case. The appellant does not have any criminal history. He is a young person and we have absolutely no doubt in our mind that sending the appellant in jail for the rest of his natural life would be an extremely harsh under the present facts and circumstances of the case. We therefore modify the sentence and reduce it to ten years of rigorous imprisonment, which is the minimum provided under Section 6 of the Protection of Children from Sexual Offences Act, 2012 as well as under sub-section (2) of Section 376 of IPC. 29. In view of the above observations, the appeal is partly allowed. The judgment and order dated 25.01.2016 passed by FTC/Special POCSO Judge, Udham Singh Nagar in Special Session Trial No.95 of 2015 is modified to the above extent. The appellant has already undergone five years of sentence, he shall serve the remaining part of sentence. 30. Let a copy of this judgment along with the lower court records be sent back to the court concerned for onward compliance.