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2023 DIGILAW 527 (UTT)

Suresh Kumar @ Kana v. State of Uttarakhand

2023-09-12

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

body2023
JUDGMENT : Pankaj Purohit, J. This appeal is preferred by the appellant from Jail assailing the judgment and order dated 07/08.05.2019 passed by FTC/Additional District and Sessions Judge/Special Judge (POCSO), Haldwani, District Nainital in Special Sessions Trial No.29 of 2017, State vs. Suresh Kumar @ Kana, whereby the said court, after conclusion of the trial, convicted the appellant under Section 376 (2)(i) IPC and Section 5 (m)/6 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter to be referred to “the POCSO Act”), but in view of Section 42 of the POCSO Act, sentenced the appellant only under Section 376 (2)(i) IPC and directed him to undergo 12 years’ rigorous imprisonment with fine of Rs.50,000/- and in case of not making the payment of fine, he shall undergo additional simple imprisonment for a period of six months. 2. The prosecution story as unfolded during trial is that the informant gave a typed report (Ext.Ka-1) at Police Station Lalkuan to the effect that when on 17.04.2017 at about 1:00 p.m., she had gone along with her husband to search for a rented house; her daughter aged about 8 years and three children were there in the house. When at about 02:30 p.m., they came back home, the door was bolted from inside. When she called her daughter, appellant opened the door of the house and ran away. When she and her husband tried to caught hold the appellant, he pushed them and ran away towards jungle. When they went inside the house, her daughter was crying. On being asked the reason of crying, the victim told that the appellant committed forcible rape upon her. With these averments, the FIR was lodged. 3. On the basis of the above report, the chick FIR was lodged on 17.04.2017 at about 16:52 hours at Police Station Lalkuan, which is Ext.Ka-4. The matter was investigated. The Investigating Officer recorded the statements of witnesses and got the victim medically examined. On the pointing out of victim, the investigating officer inspected the place of occurrence and prepared the site plan (Ext.Ka-10). From the spot, a cream colour piece of cloth and a piece of mattress cover violet in colour were taken in possession. The appellant was arrested. The clothes and specimen taken and were sent for examination at Forensic Science Laboratory, Dehradun. From the spot, a cream colour piece of cloth and a piece of mattress cover violet in colour were taken in possession. The appellant was arrested. The clothes and specimen taken and were sent for examination at Forensic Science Laboratory, Dehradun. The victim statement under Section 164 Cr.P.C. was also recorded on 15.12.2017 by Additional Civil Judge (Junior Division) Nainital. 4. On completion of investigation, the investigating officer submitted a charge-sheet (Ext.Ka-12) under Sections 376 (2)(h) IPC and Section 5/6 of the POCSO Act, whereupon the cognizance was taken by the court on 21.06.2017. The learned Special Sessions Judge (POCSO) framed charges against the appellant on 03.11.2017 under Section 376(2)(i) IPC and under Section 5 (m) read with Section 6 of the POCSO Act. The appellant was read over the charges to which the pleaded not guilty and claimed for trial. 5. The prosecution examined as many as ten witnesses to prove its case. PW1-mother of the victim and informant, PW2-victim, PW3-father of the victim, PW4-Constable Anand Kumar, PW5-uncle of the victim, PW6-Dr.Alpana Mishra, PW7-S.I. Suresh Kamboj, PW8-S.I. Sonika Joshi, PW9-Yogesh Kumar and PW10-Dr. Manoj Aggrawal. 6. Thereafter, the statement of appellant was recorded under Section 313 Cr.P.C. in which he stated that he has falsely been implicated in the crime and he was innocent. No defence evidence was led by the appellant in his defence. 7. The trial court after hearing the learned counsel for the parties and perusal of the entire evidence led by the prosecution and the statement of appellant under Section 313 Cr.P.C., proceeded to convict and sentence the appellant as mentioned in paragraph no.1 of this judgment. Feeling aggrieved, the present jail appeal has been preferred by the appellant. 8. Before proceeding any further, we would like to advert to the evidence of prosecution witnesses. In this case, the victim, who was a minor child of 8 years, was examined as PW2. 9. PW1 is the mother of victim. According to her, she is having three children. About 08 months before, she along with her husband had gone out to search for a rented house. Her all children were in the house. When they came back home at about 02 p.m., the door was closed from inside. She called her elder daughter to open the door, but after lapse of considerable time, appellant opened the door, he came out and stood in the yard. Her all children were in the house. When they came back home at about 02 p.m., the door was closed from inside. She called her elder daughter to open the door, but after lapse of considerable time, appellant opened the door, he came out and stood in the yard. When she went inside, she saw that her elder daughter was weeping. On being inquired, the victim told that the appellant gave her ten rupees note, on the pretext of which, he committed bad work with her. After coming out of house, she caught hold the appellant and hit him with a stick. The appellant pushed her aside and ran away. Thereafter, she gave written report of this incident after getting it typed at Police Station Lalkuan whereon Ext.Ka-1 was marked. She has also deposed that the victim was studying in Class-3 at the relevant time. 10. PW2 is the victim. After compliance of Section 36 of the POCSO Act, the court made preliminary examination of judging her competency to depose. The court after being satisfied that the victim was competent to depose recorded her evidence. PW2 stated in her examination-in-chief that on the relevant day, her parents had gone to search for a house. Thereafter, one person who had one lesser opened eye, whom she did not know came inside her house and bolted the door. At that time, her siblings were sleeping. Thereafter, the said person committed rape upon her. Then after that, her parents came. He himself opened the door. He had given ten rupees to her. In the process of catching hold of appellant, her mother had sustained injuries. Thereafter, she narrated the entire incident to her mother. She was taken to a Doctor at Hospital. Her statement under Section 164 Cr.P.C. was also recorded, which she duly proved whereon Ext.Ka-2 was marked. 11. PW3 is the father of the victim. He has also corroborated the story put forth by his wife (PW1) and his daughter (PW2) regarding the commission of rape by the appellant upon his daughter. 12. PW4-Constable Anand Kumar is the formal police witness, who has proved preparation of G.D. on the basis of FIR (Ext.Ka-1) given by the informant. Ext.Ka-3 was marked on the G.D. 13. PW5-Sadiq Hussain is the elder brother of PW3. 12. PW4-Constable Anand Kumar is the formal police witness, who has proved preparation of G.D. on the basis of FIR (Ext.Ka-1) given by the informant. Ext.Ka-3 was marked on the G.D. 13. PW5-Sadiq Hussain is the elder brother of PW3. He has stated that he is a person before whom the recovery of a cloth, piece of mattress was taken into possession by the police. He also signed on the recovery memo. 14. PW6-Dr. Alpana Mishra has medically examined the victim. She has proved preparation of Ext.Ka-5 i.e. medical report of the victim. On the basis of preparation of pathology report, she has prepared the supplementary report (Ext.Ka-6). 15. PW7- S.I. Suresh Kamboj is the police witness. He has proved that the accused was arrested on 18.04.2017 at 16:15 hours. Ext.Ka-7 was marked on the arrest memo. 16. PW8-S.I. Sonika Joshi is the Investigating Officer of the case. She has done the investigation, arrested the accused, prepared the site plan of the place of occurrence, recovered the clothes of victim and sent the same for FSL examination. On completion of investigation, she submitted a charge-sheet (Ext.Ka-11) in the court on the basis of the statements of other witnesses under Section 161 Cr.P.C. and the victim under Section 164 Cr.P.C. 17. PW9-Yogesh Kumar is a person who has proved the admission of victim in the school. He has deposed that at the time of admission on 02.04.2014, her parents had produced the vaccination card of the victim wherein her date of birth was mentioned as 22.03.2009. The witness also produced the admission register in original in the court, wherein at Serial No.332, details of the victim were mentioned and marked as Ext.Ka-12. 18. PW10-Dr.Manoj Aggrawal is the Scientific Officer, FSL Dehradun. He has deposed that on 21.04.2017, two sealed envelopes were received in the lab for the purpose of DNA test was performed on the exhibits provided, it was concluded that:- “(1) The DNA obtained from the Exhibits-5,6, 7 & 9 (nail clipping & scrapping of victim, oral swab of victim, vulval swab of victim and vaginal swab of victim) are from a single female human source and matching with the DNA obtained from the Exhibit-11 (blood sample of victim). (2) The DNA obtained from the Exhibits-3 and 12 (salwar of victim and underwear of accused) is from a single male human source and matching with the DNA obtained from the Exhibit-14 (blood sample of accused). (3) The DNA obtained from the Exhibit-8 (anal swab of victim) is matching with the DNA obtained from the Exhibits-11 and 14 (blood sample of victim and blood sample of accused). (4) DNA could not be obtained from the Exhibits-2 and 10 (purple coloured piece of mattress cover and head hair of victim).” He has proved the FSL report Ext.Ka-13. 19. Thereafter, the statement of appellant under Section 313 Cr.P.C. was recorded, in which he pleaded that he was falsely implicated and stated that he was innocent. He also stated that parents of victim demanded Rs.5 lacs from him, when he refused, he was falsely implicated. 20. Heard Mr. Trilochan Pandey, learned Amicus Curiae counsel for the appellant/ accused and Mr. Amit Bhatt, learned Deputy Advocate General for the State. 21. It is argued by the learned Amicus Curiae that it is a case where the appellant has been falsely implicated with the crime as the family members of the victim had asked for a sum of Rs. 5 Lakhs as loan from his family members and when he refused, he was falsely implicated with the aforesaid criminal case. Learned Amicus Curiae vehemently argued that there is material contradiction in the case of the prosecution, inasmuch as, the statement recorded under section 164 Cr.P.C. of the victim before the learned First Additional Civil Judge (Junior Division) Nainital immediately after the incident gave a completely different story as against the story given in evidence of the PW2-Victim recorded during the trial. He argued that in the 164 Cr.P.C. statement, the victim narrated that he touched his private part and touched her with his private part and kissed her while in the evidence recorded before the court after being tutored, she deposed penetration of his private part into her vagina. According to learned Amicus Curiae this was a fatal improvement in the story of the prosecution. He further submitted that in the medical examination report prepared immediately after 3-4 hours of the alleged incident, no external injuries were found over whole of the body and even on internal examination no injury, redness or swelling were found by the doctor. 22. According to learned Amicus Curiae this was a fatal improvement in the story of the prosecution. He further submitted that in the medical examination report prepared immediately after 3-4 hours of the alleged incident, no external injuries were found over whole of the body and even on internal examination no injury, redness or swelling were found by the doctor. 22. It is strenuously submitted by learned Amicus Curiae that in view of the statements of the victim coupled with the existence of no injury whatsoever either external or internal, the case of the prosecution of aggravated penetrative sexual assault is completely ruled out. Learned Amicus Curiae took us to the evidence of PW6-Dr. Alpana Mishra especially in para 3 of the examination-in-chief, in which she deposed that PW-1 Zamila Begum stated that the victim stated her (PW-1) on asking that the appellant touched her body from front and back. Referring the statement regarding the incident recorded by PW6-Dr.Alpana Mishra at the time of medical examination, she submitted that according to PW2 as narrated by her to PW6 that the appellant touched on her buttocks and over front side. On the strength of these contradiction and improvement, it is argued by learned Amicus Curiae that the theory of the prosecution of penetrative sexual assault with the victim by appellant is not at all proved beyond all reasonable doubt and the appellant is entitled to be acquitted of the charges. 23. Per contra, learned Deputy Advocate General supported the conviction and sentence imposed upon the appellant by the learned trial court. It is submitted by him that the appellant committed rape upon the victim who was merely 8 years of age at the time of incident, while the appellant was fully grown up young man of 27 years of age. According to the learned State Counsel, victim (PW2) and her mother (PW1) all throughout supported the case of the prosecution. The age the victim was also proved by PW9-Yogesh Kumar, Head Master of the Government Primary School. According to the Admission Register, the date of birth of the victim was recorded in the said register as 22.03.2009 and accordingly, the prosecution was also proved beyond all reasonable doubt that the victim was minor child of below 12 years of age on the date of incident. According to the Admission Register, the date of birth of the victim was recorded in the said register as 22.03.2009 and accordingly, the prosecution was also proved beyond all reasonable doubt that the victim was minor child of below 12 years of age on the date of incident. It is submitted by learned State counsel that the contradictions pointed by the learned Amicus Curiae are simple and minor in nature and would have no bearing in the case of the prosecution. He strenuously submitted that even if there is no injury reported either external or internal over the person of the victim by the doctor who medically examined her immediately after the incident, the same would lose its significance for the reason that the FSL report is against the appellant. Learned State Counsel took us to the FSL report (Ext.Ka-13) and argued that when DNA obtained from Ext. Ka-3 (salwar of the victim) and Ext. Ka-12(underwear of the appellant) matched with the DNA obtained from the Ext.Ka-14 (blood sample of the appellant), the charges are proved beyond all reasonable doubt. He further submitted that the DNA obtained from Exts.Ka-5, 6, 7 & 9 also matched with the DNA obtained from Ext.11. This fact further proved the case of the prosecution of penetrative sexual assault upon the victim by the appellant. He pointed out that Exts.6, 7 & 8 are the oral swab, vulval swab and vaginal swab of the victim. 24. We have given a very thoughtful consideration to the arguments submitted by learned counsel for the parties. We have gone through the entire evidence and the documents collected during investigation on record which have been exhibited during trial. In order to appreciate the submissions made by learned counsel for the parties, we have meticulously examined the contents of the FIR, statements recorded under section 164 Cr.P.C. of the victim (Ext.Ka-2), statements given by the mother of the victim-PW1 to PW6-Dr. Alpana Mishra who medically examined the victim immediately 3-4 hours after the incident and the evidence of PW-1, PW-2 and PW-6. It is proved beyond any doubt that the victim was sexually assaulted by the appellant. But the question which falls for the consideration before us is that as to whether the act of the appellant would reach to “penetrative sexual assault” or “sexual assault” which would be aggravated the victim being a child below 12 years. 25. It is proved beyond any doubt that the victim was sexually assaulted by the appellant. But the question which falls for the consideration before us is that as to whether the act of the appellant would reach to “penetrative sexual assault” or “sexual assault” which would be aggravated the victim being a child below 12 years. 25. On scrutiny of the material on record, it comes to the fore that the appellant committed an offence of “aggravated sexual assault” upon the victim and not the “aggravated penetrative sexual assault”. The reason for coming to this conclusion found support from the fact that the victim narrated to PW1 her mother, which PW1 in her turn narrated to the PW6-Dr. Alpana Mishra who conducted the medical examination 3-4 hours after the incident “her daughter said to Zamila that Suresh (appellant) touched her on her buttocks and over front side”. When her statements under Section 164 Cr.P.C. was recorded by learned First Additional Civil Judge (Junior Division) Nainital, she narrated lqjs'k vady vius private part ij gkFk yxk;k vkSj esjs dks Hkh vius private part ls Nqvk o eq>s pqeus yxk** and finally when the evidence of the victim was recorded as PW-2 before the Court on material fact she has deposed ^^rc mlus viuh iSaV mrkjh vkSj esjh iStkeh mrkjh vkSj viuk 'kq&'kq esjh ogk¡ ¼vius is'kkc okys vax dh vksj b'kkjs djds crk;k½ MkykA mlus esjs lkFk xyr&xyr dke fd;k**- If we scrutinized these material facts along with the medical examination report of the victim, we only come to the conclusion that there was no penetration by the appellant. Had it been the penetrative assault of any extent some injuries pain, swelling, redness would bound to happen upon the private parts of the victim, given the age of the appellant who was 27 years of age at the time of incident. 26. We do not think it safe to convict the appellant for penetrative sexual assault only on the basis of the FSL report. The reason being that the DNA may be found even in case when there was ejaculation without penetration. In this view of the matter, it can be safely inferred that the appellant/accused has committed sexual assault upon the victim and since the victim was a child below 12 years, he is guilty of “Aggravated Sexual Assault” defined under section 7 & 9 of the POCSO Act. In this view of the matter, it can be safely inferred that the appellant/accused has committed sexual assault upon the victim and since the victim was a child below 12 years, he is guilty of “Aggravated Sexual Assault” defined under section 7 & 9 of the POCSO Act. Sections 3 and 7 of the POCSO Act are quoted below:- “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.” 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.” 27. The upshot of the aforesaid discussion is that the criminal jail appeal preferred by the appellant is partly allowed. The conviction and sentence awarded by the learned court below is set-aside. The appellant is convicted under Section 9(m) read with Section 10 of the POCSO Act and is sentenced to undergo seven years rigorous imprisonment and a fine of Rs. 30,000/- and in default of payment of fine, the appellant shall undergo three months further simple imprisonment. Rs. 25,000/- out of the amount of fine shall be paid to the victim. 28. Accordingly, the criminal jail appeal is partly allowed. The conviction and sentence are modified to the extent as stated above. The appellant is in jail. 30,000/- and in default of payment of fine, the appellant shall undergo three months further simple imprisonment. Rs. 25,000/- out of the amount of fine shall be paid to the victim. 28. Accordingly, the criminal jail appeal is partly allowed. The conviction and sentence are modified to the extent as stated above. The appellant is in jail. He shall serve the sentence as modified by this Court. 29. Registry to send a copy of this judgment along with the LCR to the court concerned for information and compliance.