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2021 DIGILAW 1151 (ALL)

Sheetal v. State Of U. P.

2021-09-30

NAVEEN SRIVASTAVA

body2021
ORDER : (Naveen Srivastava, J.) 1. The present criminal appeal under Section 374 (2) of Cr.P.C. has been filed against the judgment and order dated 04.05.2016 passed by Special Judge (POCSO)/Additional Sessions Judge, Etawah in Sessions Trial/Special Case No. 26 of 2014 (State Vs. Sheetal) convicting the appellant Sheetal to ten year rigorous imprisonment under Section 376 (2) (Jha) I.P.C. with fine of Rs. 10,000/- Further, accused-appellant Sheetal has been convicted under Section 506 I.P.C. and sentenced to two years imprisonment. Accused-appellant also convicted under Section 4 POCSO Act and sentenced to seven years imprisonment with fine of Rs. 5,000/-. 2. In brief the prosecution case is as follows:- On 25.06.2021, the victim/prosecutrix aged about 5 years, was playing outside of her house, at about 09:30 am accused induced her and committed rape on her in the field of Kushal Pal. The victim has reported the incident to one Man Singh. Man Singh and Robbin brought the victim to her house, where she narrated everything to her parents. Blood was also found on the underwear of the victim. 3. The matter was reported to the police and on the basis of written complaint of the informant Baburam (PW2), F.I.R. on 25.06.2014 at about 10:30 am was registered. 4. PW5 Chandraprakash Bhatt, Investigating officer took up the investigation, victim was sent for medical examination. On conclusion of the investigation, Police submitted the charge sheet against the accused under Sections 376 (2) (Jha), 506 I.P.C. and under Section 4 POCSO Act. 5. After framing of charge against accused under Sections 376 (2) (Jha), 506 I.P.C. & Section 4 POCSO Act, he was put for trial. Trial was concluded after recording the statements as many as seven witnesses. 6. PW1 is the victim herself. 7. PW2 is the informant and grand-father of the victim. 8. PW3 is the doctor who medically examined the victim on 25.06.2014 and furnished a report Ex. Ka2 and Ka3. PW4 is the Investigating Officer who submitted the charge sheet in this case, PW6 is the uncle of the victim and PW7 is the constable Moharrir who reduced the contents of the F.I.R. in G.D. 9. Accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the occurrence and alleged false implication and in support thereof produced DW1 and DW2. They also denied the occurrence having been taken place. 10. Accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the occurrence and alleged false implication and in support thereof produced DW1 and DW2. They also denied the occurrence having been taken place. 10. Trial court after evaluating the evidence on record, convicted and sentenced the accused-appellant as above. 11. Heard Sri Vishwanath Vishwakarma, learned counsel for the appellant and Dr. S.B. Maurya assisted by Sri Ansuman Singh, learned A.G.A. for the State and perused the record. 12. Learned counsel for the appellant in support of appeal contended that there are contradictions in the statements of the victim, her grandfather (PW2) and PW6. It is also submitted that medical evidence on record does not corroborate the charges against the accused-appellant. He also contended that hymen of the prosecutrix was found to be intact and no live spermatozoa was found on the person of the victim, so it cannot be said that offence of rape was committed on her. 13. Learned counsel for the appellant canvassed that prosecution have failed to establish the necessary ingredients for the offence under the POCSO Act. The Special Court could not have relied on any presumption available under the provisions of POCSO Act especially ignoring the defence that accused-appellant has been falsely implicated in the present case because of certain property dispute. 14. Learned A.G.A. in support of the impugned judgment contends that it is settled law that in a case of rape/penetrative sexual assault, the consistent testimony of prosecutrix would be sufficient to bring in the guilt of the accused and courts except in rarest of rare cases should not seek corroboration of the prosecutrix testimony. He also argued that it is also settled that primacy must be given to the prosecutrix testimony over the medical evidence in the event they are at variance with each other. 15. He further submitted that in the present case the victim has made allegations against accused-appellant for committing penetrative assault on her and her clear and cogent evidence would suffice to establish the ingredients both under Sections 376 (2)(Jha) of I.P.C. and Section 4 of POCSO Act, therefore, the impugned judgment of Special Court is neither perverse nor contrary to law. 16. 16. In light of rival submissions made on behalf of learned counsel for the appellant and learned A.G.A., the question which arises for consideration is (Whether Special Court finds that prosecution has established the accused-appellant culpability for punishment under the provisions of Sections 376 (2) (Jha) I.P.C. and Section 4 of the POCSO Act is either perverse or otherwise contrary to law). 17. In view of the grounds urged above, it would be helpful to refer the law elucidated by the Hon'ble Supreme Court as regards the appreciation of evidence of the victim as well as minor victim, in cases where the accused is charged with the offence of rape/penetrative sexual assault. Hon'ble Apex Court in State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny, (2017) 2 SCC 1 : ( AIR 2017 SC 463 ) has held that:- "It is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. As regards the appreciation of a minor victim's testimony, it has been held thus:- "By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. As regards the appreciation of a minor victim's testimony, it has been held thus:- "By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well." The evidence on record will have to be appreciated in light of the above settled legal propositions. 18. The incident has occurred on 25.06.2014 in the morning at about 09:30 am, the victim narrates the incident to her grand-father, when she came to her house. The F.I.R. was lodged at around 10:30 a.m. on the same day and the victim was sent for her medical examination. These circumstances, indicate that victim parent despite being grief-stricken have acted with alacrity. In fact the PW2 the informant has stated in his statement that victim related the incident on enquiry. 19. After ascertaining that victim was aged about 6 years and competent to give her statement before the Court below, the trial court recorded her statement in which she explained how the accused-appellant taken her to the field and removed her under garments and penetrate on her, she felt pain and cried. She also stated that bleeding started but accused-appellant tried to rape her closing her mouth with her under garments. She further stated that she was also bitten by the accused-appellant. The victim PW1 who was about five years of age at the time of incident, could not know the significance or the implication of the expressions such as a sexual intercourse or rape or such other expressions has described, what happened to her. 20. She further stated that she was also bitten by the accused-appellant. The victim PW1 who was about five years of age at the time of incident, could not know the significance or the implication of the expressions such as a sexual intercourse or rape or such other expressions has described, what happened to her. 20. It is seen that F.I.R. had been lodged with the jurisdictional police station in the most natural circumstances and victim has been consistent in her statement right from the time she related the incident to informant PW2, she not only consistent in her statement recorded under Section 161 Cr.P.C. before the Investigating Officer but deposed in similar lines before the court below, thus her statement about the incident is consistent and cogent and cannot be termed unbelievable. 21. PW3 Dr. Jaya Srivastava, who examined the victim has stated that hymen was ruptured and fresh bleeding was present. As per pathological report the dead or alive sperm was not found but examination of the internal part of the victim shows some sexual act has been done. According to PW3 at the time of internal examination of the victim, fresh bleeding @ clots present. 22. I have carefully examined the report of the F.S.L. where the vaginal Swab of the victim and accused were scientifically examined. As per F.S.L. report the blood stains were found on the wearing apparels of the victim and underwear of the accused spermatozoa and semen was found present. Ex. Ka2 F.S.L. report suggest that seminal stains were found on the underwear. 23. PW4 Dr. Rajeev Kumar Gupta who medically examined the victim has stated before the Court that at the time of her medical examination- (I) An abrasion 1.0 cm. X 1.5 cm. present on base of tongue and floor of mouth red. (II) No other visible mark of injury (external) is present. (III) Profuse bleeding per vaginum present. The medical report which was furnished by the Dr. PW3 suggest that child has undergone some sexual assault. 24. X 1.5 cm. present on base of tongue and floor of mouth red. (II) No other visible mark of injury (external) is present. (III) Profuse bleeding per vaginum present. The medical report which was furnished by the Dr. PW3 suggest that child has undergone some sexual assault. 24. No suggestion was put to the victim at the time of her cross-examination that immediately before the incident, she had occasioned to play and sustained injury by falling down in course of her play in agriculture field without which such vaginal injury could not be sustained by the victim because it was the definite statement of the victim that she forcefully sexually assaulted by the accused-appellant. 25. It is grossly contended by learned counsel for the appellant that since hymen of the prosecutrix was found to be intact and no spermatozoa was found on her private part, no offence of rape is made out. 26. It would be relevant here to refer the explanation, for our present purpose, appended to Section 375 I.P.C. The explanation reads as follows:- "Explanation-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." The consistent view of the Apex Court in this regard is that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration would be in con-sequential. 27. In the present case the victim has given the statement that accused-appellant dis-robed her waist below and tried to penetrate which she described as (Ganda Kam), causing her pain and she started bleeding from her private part. 28. The Hon'ble Supreme Court in Parminder @ Ladka Pola Vs. State of Delhi, (2014) 2 Supreme Court Cases 592 in a case arising from a similar incident in the year 2001, referring to its earlier decision in Wahid Khan Vs. State of Madhya Pradesh, (2010) 2 SCC 9 has referred to an extract from Modi on Medical Jurisprudence and Toxicology (Twenty First Edition) and held as follows:- "Thus, to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains." Section 375, IPC, defines the offence of 'rape' and the Explanation to Section 375, IPC, states that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. This Court has accordingly held in Wahid Khan v. State of Madhya Pradesh, [ (2010) 2 SCC 9 ] that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. In the aforesaid case, this Court has relied on the very same passage from Modi in Medical Jurisprudence and Toxicology. 6. This enunciation as regards what amounts to penetration to constitute an offence of Rape would continue to apply even after the Amendment Act of 2013 by which the provisions of Section 375 of I.P.C. are substituted. The provisions of Section 375 of I.P.C. are substituted. The provisions of section 375 of I.P.C., prior to amendment stipulated that a person is said to have committed Rape, subject to exceptions provided therein, when such person has intercourse with a woman under the circumstances described therein. The Explanation to this unamended Section 375 of I.P.C. stipulated that penetration, without defining the expression penetration, would be sufficient to constitute the sexual intercourse necessary for an offence of Rape. After amendment by the Amendment Act of 2013, section 375 of I.P.C. stipulates that a man is said to commit Rape under four circumstances mentioned in sub-clauses (a), (b), (c) and (d) thereof, and sub-clause (a) reads, "penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes are to do so with him or any other person. The expression penetrates his penis, to any extent, into the vagina ….. ., in the light of the victim's consistent and cogent evidence that the appellant-accused inserted his male organ in the victim's pudendum and pushed himself to penetrate would constitute Rape as contemplated under Section 375 of I.P.C. as well as Penetrative Sexual Assault as contemplated under Section 3 of the provisions of the POCSO Act." 29. ., in the light of the victim's consistent and cogent evidence that the appellant-accused inserted his male organ in the victim's pudendum and pushed himself to penetrate would constitute Rape as contemplated under Section 375 of I.P.C. as well as Penetrative Sexual Assault as contemplated under Section 3 of the provisions of the POCSO Act." 29. PW2 the informant who is grand-father of the victim in his statement stated that victim reported the incident and the F.I.R. was lodged on the very same day after a written report Ex. Ka1 was described by Rajeev Yadav. During his entire cross-examination, PW2 could not be dented as regards the incident. I do not find any material contradiction as regards the sequence of the occurrence as also the identity of accused-appellant. 30. The settled proposition of law is that even statement of victim in a case of rape has to be critically appreciated with utmost sensitivity keeping in view the broader probability of the incident. It is understood when a self respected woman like the victim would come forward in a Court to make a humiliating statement against her honour such as is involved in the commission of rape on her it is beyond of imagination that parents of the victim would manufacture a false case at the cast of assassinating the character of their own daughter though victim was a minor girl but in any rate she is woman with all attributes showing modest to her. 31. So far as the plea of alibi is concerned, it is argued on behalf of appellant that on the date of occurrence he was on duty in another village and in support of his contention DW1 and DW2 have also been examined as defence witness, they deposed that accused-appellant was present at that time in Village Pathakpura. 32. The plea of alibi reflected under Section 11 of the Evidence Act. It has been held in number of citations such as Narendra Singh Vs. State of M.P., (2004) 10 SCC 699 that- "Strict proof is required to prove the alibi and burden is upon the accused." It has further been held that- "accused must provide the strict proof of impossibility of the presence of the accused at the place of occurrence at the time of incident." In Doodh Nath Pandey Vs. State of M.P., (2004) 10 SCC 699 that- "Strict proof is required to prove the alibi and burden is upon the accused." It has further been held that- "accused must provide the strict proof of impossibility of the presence of the accused at the place of occurrence at the time of incident." In Doodh Nath Pandey Vs. State of U.P., AIR 1981, SC 911, the Apex Court has laid-down- "The plea of alibi succeeded only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. Distance thus would be material factor in the matter of acceptability of plea of alibi." 33. In the present case the accused-appellant was present in the adjoining village and it was not such a great distance that it would be impossible for the accused-appellant to be absent at the place of occurrence when the incident took place. In these circumstances, the testimonies of DW1 and DW2 do not inspire confidence as the testimony of PW1 the victim has undoubtedly established the incident which also finds corroboration from the medical evidence as well as testimony of PW2. In the statement recorded under Section 313 Cr.P.C., accused-appellant had taken plea that to grab his land, one Rajeev Yadav, Corporator in collusion with the informant has falsely implicated him in the present case but the details of such property had not been given by the accused-appellant. So in the absence of any proof of hostility between the parties, it would be very difficult to believe that accused-appellant has been falsely implicated in the present case. 34. In view of the above discussions, I am impressed to hold that victim was violated by the accused-appellant in the field which she not only narrated to her parents but also disclosed the same before the Court below. The evidence tendered by the victim that she was sexually assaulted by the accused has been corroborated by the evidence tendered by the doctor. I have, therefore, no doubt that the prosecution has proved its case beyond all reasonable doubts. The trial Court has considered all the probable aspects of the case after critically evaluating the evidence adduced in this case. I find sufficient reason to uphold the conviction of the appellant. 35. The appeal lacks merit and is accordingly dismissed. 36. I have, therefore, no doubt that the prosecution has proved its case beyond all reasonable doubts. The trial Court has considered all the probable aspects of the case after critically evaluating the evidence adduced in this case. I find sufficient reason to uphold the conviction of the appellant. 35. The appeal lacks merit and is accordingly dismissed. 36. The impugned judgment/order dated 04.05.2016 of the trial court is hereby confirmed. 37. Let a certified copy of the judgment/order along with lower court record be sent to the court concerned for necessary compliance.