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2023 DIGILAW 420 (UTT)

Nakli v. State of Uttarakhand

2023-07-25

PANKAJ PUROHIT

body2023
JUDGMENT : This appeal is preferred by the appellant from Jail assailing the judgment and order dated 23/25.01.2019 passed by learned FTC/Additional Sessions Judge/Special Judge POCSO, Haridwar in Special Sessions Trial No.130 of 2017, whereby the learned trial court vide the impugned judgment and order has convicted and sentenced the accused–appellant as under:- S. No Conviction Sentence Fine Sentence in-default of fine 1. 376(2)(i) IPC Ten years Rigorous Imprisonment Rs.20,000/- One month additional imprisonment 2. 5(m)/6 of Protection of Children from Sexual Offences Act, 2012 Ten years Rigorous imprisonment. Rs.20,000/- One month additional imprisonment 3. 506 IPC One year Rigorous Imprisonment Rs.5,000/- 15 days’ additional imprisonment All the aforesaid sentences were directed to run concurrently and the period already spent in jail by the appellant was directed to be set off with the imprisonment so awarded. The learned Additional Sessions Judge awarded Rs.30,000/- as compensation to the victim. 2. The case of the prosecution starts with the lodging of an un-dated first information report (Ext.Ka-1) in Police Station Bahadrabad, District Haridwar wherein it was mentioned that the informant (PW1) was resident of Village Morna, Police Station Bhopa, Muzaffarnagar and appellant-Nakli, S/o Sri Mukanda of his own village resided in his neighborhood at Rawli Mehdood. It was stated by the informant that since both of them opened a tea shop at Nehar Patri, Bahadrabad during Kanwar festival, both were good friends. It was also stated that on 25.08.2017 at about 10 in the morning, appellant was going to Bahadrabad, informant sent his daughter aged about 13 years with him to bring an iron; appellant after taking his daughter fed her ‘Kadi Chawal’ at Bahadrabad Chowk and told his daughter that he had some work and took her to jungle near Nehar Patri where he committed wrong deeds (galat kaam) with her and threatened his daughter with life in case she narrated this incident to anyone. It was further stated by the informant that his daughter did not disclose the incident to him and on the date of FIR, she told her mother that Nakli had committed rape on her. The informant requested to register a report and to take the proper action. 3. It was further stated by the informant that his daughter did not disclose the incident to him and on the date of FIR, she told her mother that Nakli had committed rape on her. The informant requested to register a report and to take the proper action. 3. On the basis of the aforesaid first information report, a chick FIR (Ext.Ka-8) was registered in Police Station Bahadrabad, District Haridwar on 28.09.2017 at 00:45 hours and a Case Crime No.245 of 2017, under Sections 376, 506 IPC and Section 3/4 of the Protection of Children From Sexual Offences Act, 2012 was lodged against the appellant. 4. In the first information report, the date and time of the incident was recorded at 10:00 a.m. on 25.08.2017. After lodging of the first information report, the investigation ensued; the victim was medically examined at Chainrai District Women Hospital, Haridwar at 04:00 p.m. and medical examination report (Ext.Ka-6) was prepared by the Doctor. In the said report, the age of the victim, according to her mother, was recorded as 13 years. According to the medical officer, no injury was found either on the person or on the private parts of the victim. However, the hymen was found old torn and according to the Doctor, even after the supplementary report, no definite opinion about sexual assault could be given. According to the Doctor, final opinion could only be given after getting the reports of sample sent to the Forensic Science Laboratory for DNA analysis, and further the victim was directed to be referred to the CMO for age determination. However, from the record it is not reflected that any age determination test was conducted. 5. It is worth noticeable that the victim has given the description of the incident, which was noted by the Doctor with the endorsement put by the victim that “these statements are given by me”. According to the description of the incident, one person aged about 65 years, a distant relative of the victim, took the victim to Bahadrabad from her home; he took her to jungle and established physical relations with the victim. According to the victim, he used a thing like balloon on his private part, which could be condom. The incident was of 25.08.2017. According to the victim, he used a thing like balloon on his private part, which could be condom. The incident was of 25.08.2017. The statement of the victim was further recorded under Section 164 of Cr.P.C. by learned Additional Chief Judicial Magistrate, Haridwar on 03.10.2017, wherein the entire incident was narrated by the victim. The same is reproduced as under:- “I study in Government Junior High School Rawli Mehdood in class VI. I have 5 brothers and sisters. My father works as a labourer. Nakli resides in front of our house. He is my uncle. On 25.08.17 at around 10 am, my uncle asked me to go along with him to Bahadarabad to bring an iron, but I refused. But he kept on insisting me to accompany him. When I asked to take my small sister, he refused and said I will feed you a ‘Samosa’. I told uncle to come back home early. He took me on his bike to Bahadarabad. There he fed me Rice and Kadhi. Then he stated of having some work near canal road. I told him to drop me home, then he said that it would cost fuel to come again and again. Uncle Nakli took me along with him to the bank of the canal and from there took me inside the bushes and spread an orange colored sheet there. He made me lie there and did wrong deed with me. I tried to make noise but no one came there. He dropped me back home. My uncle had threatened me that if you tell it to anyone, then I would cut your cord and would implicate or blame you instead. When my uncle did wrong deed with me, then he applied a balloon over his penis; ‘Nirodh’ was written on the packet from which balloon was drawn. This all is my statement.” 6. During the investigation, educational records i.e. school leaving certificate and photocopy of the scholar register were collected by the Investigating Officer from the Government Junior High School, Rawli Mehdood, Block Bahadrabad, Haridwar and according to the Investigating Officer, the date of birth of the victim was 03.03.2006 as per her school records. 7. This all is my statement.” 6. During the investigation, educational records i.e. school leaving certificate and photocopy of the scholar register were collected by the Investigating Officer from the Government Junior High School, Rawli Mehdood, Block Bahadrabad, Haridwar and according to the Investigating Officer, the date of birth of the victim was 03.03.2006 as per her school records. 7. After investigation, the charge-sheet was submitted on 08.11.2017 and the Special Judge took the cognizance there-upon against the appellant under Sections 376(2)(i) & 506 of IPC as well as u/s 5(m)/6 of the Protection of Children from Sexual Offences Act, 2012. The prosecution documents were also supplied to the appellant. 8. On 18.01.2018, the charges were framed against the appellant by learned trial court under Sections 376(2)(i) & 506 of IPC and under Section 5(m)/6 of the Protection of Children from Sexual Offences Act, 2012 to which the appellant pleaded not guilty and claimed for trial. 9. During the trial, prosecution examined PW1, Mahendra-informant, PW2 victim, PW3 mother of the victim, PW4 Vikram Singh, In-charge Principal of Government Junior High School Rawli Mehdood, PW5 Dr. Alpana Khare, PW6 Constable Subhash Bhandari and PW7 S.I. Sanjay Sharma. 10. Apart from oral testimony, the prosecution also produced the documentary evidence viz. FIR (Ext.Ka-1), statement under Section 164 of Cr.P.C. (Ext.Ka-2), copy of admission register (Ext.Ka-3), school leaving certificate (Ext.Ka-4), certificate issued by Head Master, Government Junior High School Rawli Mehdood (Ext.Ka-5), medical examination report (Ext.Ka-6), supplementary report (Ex.Ka-7), Chick FIR (Ext.Ka-8), copy of the report (Ext.Ka-9), memo of arrest (Ext.Ka-10), memo of information (Ext.Ka-11), Site plan (Ext.Ka-12) and charge-sheet (Ext.Ka-13). 11. The appellant was examined under Section 313 Cr.P.C. wherein, he raised a plea of false implication that he is innocent and the case was filed against him due to some arrears of money. 12. After hearing public prosecutor as well as the appellant-accused, the trial court found the charges proved against the appellant beyond all reasonable doubt and it convicted and sentenced him, accordingly, as stated above. 13. In the case of POCSO involving sexual assault, two things are very important, firstly, the age of victim and secondly, her statement. It is to be seen by the Court as to whether the age of the victim was conclusively proved by any cogent evidence. 13. In the case of POCSO involving sexual assault, two things are very important, firstly, the age of victim and secondly, her statement. It is to be seen by the Court as to whether the age of the victim was conclusively proved by any cogent evidence. In order to bring the case within the clutches of the provisions of POCSO Act, it is further required to examine the deposition of victim during trial. On these two aspects, learned Amicus Curiae for the appellant, learned A.G.A. for the State and Mr. Tapan Singh, learned counsel for the informant were heard at length. 14. According to learned Amicus Curiae, at the time of commission of alleged offence, appellant was 65 years of age, and according to him, it is a case of false implication of accused due to settling some scores, which, according to her, related to some money to be paid by the appellant to the victim’s father. 15. So far as the age of victim is concerned, the attention of this Court was drawn by learned Amicus Curiae to the evidence of PW1 Mahendra Singh, father of the victim, and she tried to make out a case on the basis of the cross examination of PW1 Mahendra Singh that the victim was more than the age written by informant in the school and first information report. 16. It is also submitted by learned Amicus Curiae that the entire incident was concocted one as the first information report was lodged after an unexplained delay of more than one month on 28.09.2017 while the alleged incident of rape was took place on 25.08.2017. 17. It was further submitted that on a perusal of the medical examination report together with supplementary report besides FSL report, there is nothing on record to suggest that any sexual assault with the victim was committed by the appellant. 18. Per contra, learned A.G.A. supported the case of the prosecution and the impugned judgment contending that the evidence of the victim remained consistent and unshaken throughout the trial, and no material contradiction could be elicited even on lengthy cross-examination of victim. He further submitted that even if the medical examination report does not support the version of the victim about rape, the conviction can be sustained only on the basis of uncontroverted evidence of the victim. 19. He further submitted that even if the medical examination report does not support the version of the victim about rape, the conviction can be sustained only on the basis of uncontroverted evidence of the victim. 19. In order to determine the age, as contended by learned A.G.A., the documents viz. admission register (Ext.Ka-3) of Government Junior High School Rawli Mehdood, Haridwar and school leaving certificate (Ext.Ka-4) are available on record, according to which, the date of birth of victim was 03.03.2006, and thus, she was less than 13 years of age i.e. running 13 years, on the date of occurrence. 20. I have heard learned counsel for the parties and perused the lower court’s record very carefully. The victim was examined as PW2 by the prosecution and she has given a very natural and candid version of the occurrence in her evidence. She has fully supported her 164 Cr.P.C. statement recorded by learned Magistrate and clearly stated that it was given by her voluntarily. There is no material difference in the evidence given by the victim in Court and in her 164 Cr.P.C. statement. 21. So far as the argument advanced on behalf of learned Amicus Curiae regarding the medical examination report is concerned, it is the case of the prosecution that the incident was committed on 25.08.2017 at 10:00 a.m. and the victim was medically examined on 28.09.2017 at about 04:00 p.m. In these circumstances, the absence of injuries and the presence of spermatozoa in the vaginal smear slides would not make any difference and would not dent the case of the prosecution at all. Therefore, in the opinion of this Court, even if the medical examination report, nowhere, and in no manner, indicates about any evidence of injuries, swelling, bruising etc. on the private parts or over the whole body, the prosecution case cannot be weakened. 22. One more thing is worthy of considerable that the victim narrated the incident to the doctor, who conducted her medical examination, and there too, there appears to be no contradiction regarding the story of victim on the material particulars. 23. So far as the contention of learned Amicus Curiae regarding false implication on account of some money transaction/arrears between victim’s father and appellant is concerned, there is nothing on record except the bald suggestions. 23. So far as the contention of learned Amicus Curiae regarding false implication on account of some money transaction/arrears between victim’s father and appellant is concerned, there is nothing on record except the bald suggestions. The delay, which according to the learned Amicus Curiae, is fatal to the case of the prosecution, is also completely ruled out for the simple reason that the victim was less than 13 years of age on the date of occurrence. The crime of the sexual assault committed upon her came to light only when the said fact was narrated by the victim to her mother on 28.09.2017, and on the same day FIR was lodged by PW1-Mahendra, father of the victim. 24. I have examined the age proof i.e. the admission register (Ext.Ka-3), school leaving certificate (Ext.Ka-4) which had been proved by the Head Master-PW4 Vikram Singh, and according to these two documents, the age of the victim has been proved beyond all reasonable doubt and it has been duly proved by the prosecutions that the date of birth of the victim is 03.03.2006. 25. On the basis of the material available on record, there is no considerable force in the submissions made by the learned Amicus Curiae for the appellant. In view of the foregoing discussion, it is proved beyond doubt that the victim was less than 13 years of age on the date of occurrence, and further the incident was proved by the consistent and unflinching evidence of the victim beyond all reasonable doubt. The prosecution has proved the charges beyond doubt against the appellant. Thus, there is no cogent reason to interfere with a well-reasoned judgment and order impugned in the present appeal. 26. As a result, the appeal preferred by the appellant, being bereft of any merit, is dismissed. The judgment and order under challenge is accordingly, affirmed. 27. The appellant is already in jail. He shall serve out the sentence, so awarded. Registry to send a copy of this judgment along with the LCR to the court concerned for information and compliance.