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2022 DIGILAW 104 (UTT)

Arjun Dev v. State of Uttarakhand

2022-05-10

RAVINDRA MAITHANI

body2022
JUDGMENT : RAVINDRA MAITHANI, J. 1. Instant appeal is preferred against the judgment and order dated 24.06.2015 passed in Special Sessions Trial No. 14 of 2014, State vs. Arjun Dev, by the court of Sessions Judge, Pauri Garhwal. By the impugned judgment and order, the appellant has been convicted under Section 376(2)(f), 506 IPC and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012 (“the Act”) and has been sentenced as hereunder: (i) Under Section 376(2)(f) IPC - rigorous imprisonment for a period of ten years and a fine of Rs. 5,000/-. In default of payment of fine, imprisonment for a further period of six months. (ii) Under Section 5/6 of the Act - rigorous imprisonment for a period of ten years and a fine of Rs. 5,000/-. In default of payment of fine, imprisonment for a further period of six months. (iii) Under Section 506 IPC - rigorous imprisonment for a period of six months and a fine of Rs. 1,000/-. In default of payment of fine, imprisonment for a further period of fifteen days. 2. Facts necessary to appreciate the controversy, briefly stated, are as follows. The father of the victim died when she was only one and a half years old. Her mother remarried with the appellant. When the victim was 15 years of age, one day, she revealed it to her mother that the appellant, who happens to be her step-father, had been raping her for one and a half years since then. The mother of the victim asked as to why did she not reveal it earlier? To it, the victim replied that since the appellant had threatened her to life, she maintained silence. The mother of the victim questioned her husband. He tendered apologies with the assurance that he would not commit the said act again. The mother of the victim then consulted her neighbour Pushpa Devi. She suggested to report the matter to Police. The mother of the victim approached Mahila Samakhya, who wrote a report on behalf of the mother of the victim. It is this report, which is FIR Ex.A2. The report was lodged on 28.06.2014, under Sections 376 IPC and Section 5/6 of the Act. The matter was investigated. On the same date i.e. on 28.06.2004, the victim was medically examined by PW-4 Dr. Sangeeta Negi. It is this report, which is FIR Ex.A2. The report was lodged on 28.06.2014, under Sections 376 IPC and Section 5/6 of the Act. The matter was investigated. On the same date i.e. on 28.06.2004, the victim was medically examined by PW-4 Dr. Sangeeta Negi. She found the hymen torn and according to the Doctor, the victim was habitual of sexual intercourse. The statement of the victim and her mother as PW-1 and PW-2 respectively were recorded under Section 164 of the Code of Criminal Procedure, 1973, (“the Code”) on 02.07.2014. They reiterated the version of the FIR. The Investigating Officer (“IO”) prepared the site plan Ex.A9. After investigation, charge sheet was submitted against the appellant for the offences punishable under Sections 376(2)(f) IPC and Section 5/6 of the Act. On 02.09.2014, charge under Section 376(2)(f) and 506 IPC and Section 6 of the Act was framed, to which, the appellant pleaded not guilty and claimed trial. 3. The appellant was examined under Section 313 of the Code. According to the appellant, the victim is his step daughter. The mother of the victim wanted to get rid of the appellant. She wanted to grab his property, therefore, he has been implicated in a false case. After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced as stated hereinbefore. Hence, the appeal. 4. In order to prove the case, the prosecution examined in all eight witnesses, namely, PW-1, the victim, PW-2, the mother and the informant, PW-3 Archana Dhulia, PW-4, Dr. Sangeeta Negi, PW-5, Vandana Bhardwaj, teacher of Government Girls Inter College, where the victim was studying at the relevant time, PW-6 Constable Karamvir Singh, PW-7 SI Devendra Singh Aswal, and PW-8 SSI Vijay Singh. 5. Heard learned Amicus Curiae, learned counsel for the State and perused the record. 6. Learned Amicus Curiae would submit that the FIR is much delayed in this case. It is lodged on 28.06.2014 and it records that 15 days prior to it, the victim had revealed the incident to the informant. It is argued that there is no explanation as to why for about one year the victim kept silence and as to why, her mother did not lodge the FIR for complete 15 days? It is lodged on 28.06.2014 and it records that 15 days prior to it, the victim had revealed the incident to the informant. It is argued that there is no explanation as to why for about one year the victim kept silence and as to why, her mother did not lodge the FIR for complete 15 days? It is argued that this delay in lodging the FIR doubts the prosecution case and it shakes the credibility of the statements of PW-1, the victim and PW-2, the informant and the mother of the victim. Learned Amicus Curiae has also raised the following points in his submission: (i) There is no independent witness to the incident. (ii) If the incident took place for a period of more than one year, any relative or neighbour could have been informed by the victim or her mother, but it has not been done. (iii) PW-1, the victim and PW-2, the mother of the victim, both are interested witnesses. (iv) The mother of the victim had strained relations with the appellant. She wanted to get rid of the appellant. Hence, the appellant has been falsely implicated. 7. It is argued that the prosecution has utterly failed to prove the case beyond reasonable doubt. The appellant ought to have been acquitted of the charge, but the court below has committed an error in convicting and sentencing the appellant. Hence, the appeal deserves to be allowed. 8. On the other hand, learned State counsel would submit that the prosecution has been able to prove its case beyond reasonable doubt. It is argued that PW-1, the victim has categorically stated that she was raped for more than one year by her step father. She could not reveal it to anyone out of fear. It is argued that there has been no delay. PW-1, the victim and PW-2, the mother of the victim have proved the prosecution case and it has been supported with the statement of PW-3 Archana Dhulia, Mahila Samakhya. Medical examination also proves and supports the prosecution case. Therefore, it is argued that there is no reason to make interference and the appeal deserves to be dismissed. 9. According to the prosecution case, the appellant raped his step daughter, who was minor. Corroboration in the cases of sexual assault is not a rule. What is important is the credibility and truthfulness of the statement of the victim. Therefore, it is argued that there is no reason to make interference and the appeal deserves to be dismissed. 9. According to the prosecution case, the appellant raped his step daughter, who was minor. Corroboration in the cases of sexual assault is not a rule. What is important is the credibility and truthfulness of the statement of the victim. If in the cases of sexual assault, corroboration is insisted upon, it has been held that it would be adding insult to the injuries caused to the victim. But, a statement still requires scrutiny. The statement of any witness, whosoever, cannot be accepted as true. 10. In her examination, PW-1, the victim has categorically stated that her date of birth is 06.08.1999, though it is recorded as 15.04.2001. She was studying in Class IX. According to her, when her father died, she was one and a half years old. Her mother remarried the appellant. When she was 15 years of age, the appellant started raping her. She did not reveal it to anyone, even to her mother. The appellant had threatened her to life, in case, she would reveal the incident to anyone. She revealed the incident to her mother in the month of June, 2014. Then, her mother consulted Smt. Pushpa, her neighbour. She was taken to Mahila Samakhya and thereafter, a report was lodged. PW-1, the victim has proved her statement recorded under Section 164 of the Code as Ex.A1. 11. PW-2 is the mother of the victim. She has corroborated the statement of PW-1, the victim. She also proved her statement recorded under Section 164 of the Code, Ex.A3. 12. PW-3 Archana Dhulia is the Mahila Samakhya, who was posted in the town where the incident took place. According to her, on 28.06.2020, the victim alongwith her mother came to her office and revealed that the appellant raped her. This witness advised them and wrote an FIR on their behalf, which is Ex.A4. 13. PW-4 Dr. Sangeeta Negi conducted medical examination of the victim on 28.06.2014. She did not find any injury on the person of the victim. According to PW-4 Dr. Sangeeta Negi, the hymen was torn and the victim was habitual to sexual intercourse. She proved her report Ex.A4. 14. PW-5 Vandana Bhardwaj was working as a Lecturer in the school, where the victim was studying at the relevant time. She did not find any injury on the person of the victim. According to PW-4 Dr. Sangeeta Negi, the hymen was torn and the victim was habitual to sexual intercourse. She proved her report Ex.A4. 14. PW-5 Vandana Bhardwaj was working as a Lecturer in the school, where the victim was studying at the relevant time. She issued a certificate with regard to the date of birth of the victim as per the school record. According to it, the date of birth of the victim as per school records was 15.04.2001. The victim had stated in her statement that she was raped by the appellant since 2013. 15. In view of the statement of PW-5, a Lecturer in the school, the victim was a child, when for the first time the incident took place. PW-5 Vandana Bhardwaj proved the certificate of date of birth of the victim Ex.A5. 16. PW-6 Karamveer Singh, is the Police Constable. He has proved certain police documents. 17. PW-7 Devendra Singh Aswal initially took up the investigation, arrested the appellant, prepared site plan Ex.A9 etc. 18. PW-8 SSI Vijay Singh is another IO, who finally submitted the charge-sheet. 19. It is a case of sexual assault by a stepfather. In the case of State of M.P. vs. Dayal Sahu, (2005) 8 SCC 122 , the Hon’ble Supreme Court considered the law on the point and in para 14 observed that “a plethora of decisions by this Court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.” 20. On appreciation of evidence in the cases of sexual assault, in the case of State of Himachal Pradesh vs. Sanjay Kumar, (2017) 2 SCC 51 , the Hon’ble Supreme Court in Para 30 observed as hereunder: “30. On appreciation of evidence in the cases of sexual assault, in the case of State of Himachal Pradesh vs. Sanjay Kumar, (2017) 2 SCC 51 , the Hon’ble Supreme Court in Para 30 observed as hereunder: “30. 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 the 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. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevents such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor-centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long-lasting effects on such victims.” 21. In the instant case, definitely, FIR is much delayed. It is true that the victim opened her mouth after almost one year from the date when for the first time she was raped. But, the question is as to whether this delay per se creates any doubt on the authenticity of the prosecution case or shakes the credibility of the witnesses, particularly, the victim and her mother? 22. It is true that the victim opened her mouth after almost one year from the date when for the first time she was raped. But, the question is as to whether this delay per se creates any doubt on the authenticity of the prosecution case or shakes the credibility of the witnesses, particularly, the victim and her mother? 22. It may not be lost sight of that generally the offences of sexual offences are not reported in the prevalent society for number of reasons, including societal pressures, reputation of the family, life and future prospects of the victim etc. But, instant is the case graver than the general cases as such. In the instant case, the allegations are against the step father. A person who otherwise would have protected the victim, according to the victim, ruined her life, raped her not once, twice but for complete one year in the same house, where the victim was staying with her mother. 23. It is also true that according to the FIR, the victim had revealed the incident to her mother 15 days prior to lodging of the FIR. PW-2, the mother of the victim also did not promptly lodge the FIR. She consulted her neighbour, namely, Pushpa. But, she has not been examined. Argument has been advanced that non examination of Pushpa also creates doubt in the prosecution case. But, this argument has less force. PW-1, the mother of the victim had stated that she consulted Mahila Samakhya. She was told to lodge the FIR and it is thereafter, she lodged the FIR. 24. The mother of a minor girl took time to lodge the FIR. The condition of the mother may well be understood. She had lost her first husband. She was living with her second husband. Her minor daughter was raped by her second husband. The FIR was not promptly lodged. It does not doubt the prosecution case. 25. It has been argued that no independent witness has been produced. In a case of rape insisting for the production of independence witness would be asking too much from the prosecution for an act, which is committed in secrecy. 26. In the instant case, an act which was committed within the house by the step father. Not only in secrecy, but as per victim under the threat also. In a case of rape insisting for the production of independence witness would be asking too much from the prosecution for an act, which is committed in secrecy. 26. In the instant case, an act which was committed within the house by the step father. Not only in secrecy, but as per victim under the threat also. The threat to the victim, not to reveal the incident to anyone; it was threat to life as per PW-1, the victim. 27. It is true that Smt. Pushpa, the neighbour of the informant, to whom, the mother of the victim first confided, has not been examined. As stated, it also does not doubt the prosecution case. What is to be seen is as to whether the statements of the PW-1, the victim and PW-2, the mother of the victim transpire any confidence. In case, the statement of PW-1, the victim is found inspiring confidence, conviction can be based on her statement alone. 28. PW-1, the victim and PW-2, the mother of the victim have been cross examined. But, nothing has been elicited in their cross examination, which may, in any manner, doubt their credibility. Suggestions have been given to these witnesses that since the mother of the victim wanted to get rid of her husband and grab her property, the appellant has been falsely implicated. How, by false implication, the victim or her mother could grab the property of the appellant? The appellant is the owner of his property. He remains the owner, even if he remains behind the bars. The statements of the PW-1, the victim and PW-2, the mother of the victim find corroboration with the statement of PW-3, Archana Dhulia. She has stated that the victim had come to her alongwith her mother and they told her about the incident. It supports the prosecution case. It supports and corroborates the statement of the victim. PW-4 Dr. Sangeeta Negi has observed about the genitals of the victim. The opinion of PW-4 Dr. Sangeeta Negi also supports the statement of PW-1, the victim. 29. Having considered the entirety of fact, this Court is of the view that the statement of PW-1, the victim is totally reliable statement. The conviction can be based solely on her statement. The statement is supported with other statements, including PW-2 her mother, PW-3 Archana Dhulia, Mahila Samakhya and the medical evidence. 29. Having considered the entirety of fact, this Court is of the view that the statement of PW-1, the victim is totally reliable statement. The conviction can be based solely on her statement. The statement is supported with other statements, including PW-2 her mother, PW-3 Archana Dhulia, Mahila Samakhya and the medical evidence. The prosecution has been able to prove its case beyond reasonable doubt. The court below did not commit any error in convicting the appellant. Consequently, the appeal deserves to be dismissed. 30. The conviction of the appellant does not need any interference, but the part of sentence has to be seen. The appellant has been conducted under Section 376 (2) (f) IPC as well as under Section 5 read with 6 of the Act. Neither prosecution nor the defence has raised the issue of sentence. In the matters of sentence, Section 42 of the Act, as it stood prior to amendment in the year 2018 is relevant, which is as hereunder: “42. Alternative punishment - Where an act or omission constitute an offence punishable under this Act and also under any other law for the time being in force, 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 only under such law or this Act as provides for punishment which is greater in degree.” 31. In view of Section 42 of the Act, in case of punishment under the provision of the Act or under any other law, an accused has to be punished under a law, which is greater in degree. An accused cannot be punished for the same act under this Act or any other law. The punishment under Section 6 of the Act may extend upto imprisonment for life, whereas under Section 376(2)(f) IPC, the punishment may extend to imprisonment for life, which shall mean imprisonment for remainder of that person’s natural life. It means, the punishment under Section 376(2)(f) is greater in degree. Therefore, while maintaining the conviction, the impugned judgment and order has to be modified to the extent that the appellant shall be awarded punishment only under Section 376(2)(f) and 506 IPC. 32. The appeal is partly allowed. The conviction of the appellant under Sections 376(2)(f) and 506 IPC and Section 6 of the Act is upheld. 33. Therefore, while maintaining the conviction, the impugned judgment and order has to be modified to the extent that the appellant shall be awarded punishment only under Section 376(2)(f) and 506 IPC. 32. The appeal is partly allowed. The conviction of the appellant under Sections 376(2)(f) and 506 IPC and Section 6 of the Act is upheld. 33. The appellant shall undergo the sentence as imposed on him for the offence punishable under Sections 376(2)(f) and 506 IPC. 34. The impugned judgment and order stands modified as indicated above. 35. Let the copy of this judgment alongwith the Lower Court Record be sent to the court below for compliance.