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2023 DIGILAW 528 (UTT)

Rahul Pal v. State of Uttarakhand

2023-09-12

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

body2023
JUDGMENT : Pankaj Purohit, J. This is an appeal preferred by the appellant from jail challenging his conviction and sentence, as recorded by learned FTC/Special Judge, POCSO/Additional Sessions Judge, Dehradun in Special Sessions Trial No. 41 of 2017, State Vs. Rahul Pal, whereby, the said Court has convicted the appellant under Sections 376 IPC as well as under Section 5(m)/6 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”), but, has sentenced the appellant only under Section 6 of the POCSO Act, for a period to undergo 12 years rigorous imprisonment with a fine of Rs. 20,000/- and in case of default in payment of fine, the accused was directed to undergo one year’s additional rigorous imprisonment. 2. Facts of the case, in brief are that:- PW1 – father of the victim lodged a report Ex. Ka-1 with Police Station Doiwala, District Dehradun with the averments that on 31.03.2017, at about 05:30 p.m., he sent his daughter aged about 8 years to bring some rissole (samosa) from a nearby shop, who came after 10-15 minutes and was very frightened and trembling with shock. When he inquired the reason from his daughter, she informed him and his wife that the shopkeeper made her sit in a chair, removed her trouser and underwear, sat over her and touched her private parts and urinated upon her. When the informant saw the trouser and underwear of his daughter, semen were found therein. Thereafter, the informant went to the said shop and his wife also came there meanwhile, and then, the appellant tried to ran away, who was caught and thereafter the informant came to lodge the report. Thereafter, the matter was investigated. 3. PW-7 S.I. Meena Arya and PW-8 S.I. Simran conducted investigation of the case, recorded the statement of the witnesses, arrested the accused, prepared the arrest memo as well as information memo, investigated the place of occurrence and prepared the site plan and on completion of investigation, submitted a charge sheet, which is Ex. Ka-10 against the accused in the Court. 4. On 29.07.2017, learned Special Judge, POCSO, Dehradun framed the charges against the appellant under Section 376 IPC and Section 5(m)/6 of the POCSO Act. The accused denied the charges and claimed to be tried. 5. Ka-10 against the accused in the Court. 4. On 29.07.2017, learned Special Judge, POCSO, Dehradun framed the charges against the appellant under Section 376 IPC and Section 5(m)/6 of the POCSO Act. The accused denied the charges and claimed to be tried. 5. The prosecution in order to prove its case produced as many as eight witnesses, namely, PW1 Vinod Prasad Tiwari, PW2 Victim, PW3 Shiv Ram, PW4 Smt. Shama, PW5 Smt. Shobha, PW6 Mamta Negi, PW7 S.I. Meena Arya and PW8 S.I. Simran. 6. Thereafter, the statement of accused was recorded under Section 313 of the Cr.P.C., in which, he stated that he has been falsely implicated. In his defence, he produced 3 witnesses, namely, DW1 Manish Pal and DW2 Samay Singh. 7. On completion of trial, the Trial Court proceeded to convict and sentence the accused, as mentioned in paragraph no. 1 of this judgment. Feeling aggrieved, the present appeal has been preferred. 8. PW1 Vinod Prasad Tiwari is the father of the victim. He stated that the victim was his daughter, whose, date of birth was 09.01.2010. The occurrence was of 31.03.2017 at about 05:30 p.m. He had sent his daughter in Durga Sweet Shop to get rissole. The victim came after 10-15 minutes. She was extremely scared and was trembling. When he and his wife inquired the victim, she told that the shopkeeper made her sit on a chair, removed her trouser and underwear, touched her private parts and urinated upon her. Then, PW1 Vinod Prasad Tiwari noticed marks of semen on her cloths. Thereafter, PW1 Vinod Prasad Tiwari went to Durga Sweet Shop, where the person, who gave rissole to her daughter, was there, who was trembling. Meanwhile his wife and daughter also reached on the spot, where the victim identified that he was the same person, who committed misdeed with her. The accused tried to run away from the spot, but, he was caught and thereafter, he was brought at the Police Station, where the FIR was lodged by this witness, which is Ex.Ka-1. 9. PW2 is the victim. She, being a child witness, was subjected to competency test by the Court and on being satisfied with the victim, who was fully competence to depose, the Court proceeded to record her evidence. The victim testified that on 31.03.2017 at about 05:30 p.m., her father had sent her to bring rissole from the shop. 9. PW2 is the victim. She, being a child witness, was subjected to competency test by the Court and on being satisfied with the victim, who was fully competence to depose, the Court proceeded to record her evidence. The victim testified that on 31.03.2017 at about 05:30 p.m., her father had sent her to bring rissole from the shop. On seeing the accused person in the Court, the victim identified that he was the person, who was in the shop on the said date. She has further stated that the accused took her and made her sit on the table, where, he removed her pant and underwear and urinated upon her and then she came back. In the house, she informed her mother that the person who gave her rissole have urinated upon her. 10. PW3 - Shiv Sharma is the person, who wrote the FIR at the instance of PW1 Vinod Prasad Tiwari. This witness also identified the signature on the arrest memo of accused as well the memo of recovery of clothes of the victim. 11. PW4 – Smt. Shama is the mother of the victim. This witness has fully corroborated the evidence led by PW1 Vinod Prasad Tiwari, her husband and PW2 – her daughter regarding the misdeed committed by the accused with the victim. 12. She has also stated that the victim has duly identified the accused in the Court. The date of birth of the victim is 09.01.2010. 13. PW5 – Smt. Shobha Sharma is a member of Galaxy International School, Dehradun. This witness has proved that the victim studied in her school till class I. The victim was given transfer certificate on 01.04.2017, whereon Ex. Ka-4 was marked. She also brought the transfer certificate register in the Court, whereon Ex. Ka-5 was marked. At the time of admission of victim, birth certificate of the girl was also filed, true copy whereof is Ex. Ka-6 on the record. 14. PW-6 Dr. Mamta Negi has deposed that on 31.03.2017, at 09:30 a.m., the victim was brought before her, for the purpose of medical examination. According to her, no opinion could be given about the rape. She has proved the report Ex. Ka-7. She has also proved the biological report Ex. Ka-8. She has also stated that the vaginal smear report was found to be negative. 15. According to her, no opinion could be given about the rape. She has proved the report Ex. Ka-7. She has also proved the biological report Ex. Ka-8. She has also stated that the vaginal smear report was found to be negative. 15. PW-7 S.I. Meena Arya is the Investigating Officer of the case. She has referred the date of birth of the victim as 09.01.2010 on the basis of certificate Ex. Ka-9 given by the Principal of the concerned school. She has proved the submission of charge sheet against the accused on 27.05.2017, whereon, Ex. Ka-10 was marked. 16. PW-8 S.I. Simran is also the Investigating Officer of the case. She has also proved the modalities for the purpose of conducting the investigation. 17. Thereafter, the statement of accused was recorded under Section 313 Cr.P.C. He stated the prosecution story to be false and that he has been falsely implicated in the case. He also stated that the witnesses have deposed falsely against him. 18. In his defence, he produced three witnesses, namely, DW-1 Manish Pal and DW-2 Samay Singh and himself also as DW-3. 19. We have heard learned counsel for the parties and carefully perused the oral and documentary evidence led by the witnesses during the course of trial with the help of learned counsel for the parties. 20. Learned Amicus Curiae appearing on behalf of the appellant has emphatically argued that it is a case of false implication of accused. The evidence led by the prosecution witnesses is false against him. 21. The learned Amicus Curiae referred the contents of the FIR together with the evidence of the victim- PW2 recorded during trial and the evidence of PW1-informant, father of the victim and argued that the evidence is not trustworthy for the reason that there are contradictions in the prosecution evidence. He further submitted that the appellant was falsely implicated for the reason that he used to talk with aunt of the victim and he was told by her uncle not to talk with his wife. The uncle of the victim also insisted the owner of the shop where the appellant worked to sack the appellant from the work for the appellant’s relation with his wife. 22. The uncle of the victim also insisted the owner of the shop where the appellant worked to sack the appellant from the work for the appellant’s relation with his wife. 22. The learned Amicus Curiae in order to substantiate the defence version took us to the evidence of the DW1 – Manish Pal, DW2- Samay Singh and DW3- Rahul Pal, the appellant, to make out a case of false implication of the appellant with the alleged crime. Finally it is submitted by the learned Amicus Curiae that the conviction and sentence cannot sustain for the reason that even if the entire evidence of the prosecution is admitted to be true, the offence against the appellant cannot travel beyond the ambit of “Sexual Assault” as defined under section 7 of the POCSO Act. He strenuously submitted that there was no material on record to convict the appellant for an offence of “Aggravated Penetrative Sexual Assault” and accordingly the sentence of 12 years with fine of RS. 20,000/- as inflicted by the learned trial court is erroneous and liable to be set-aside. 23. Per contra, the learned Deputy Advocate General Mr. J.S. Virk appearing for the State supported the impugned judgment and conviction and sentence awarded by the learned trial court against the appellant. It is submitted by him that the victim has consistently supported the case of the prosecution and similar is the evidence of all other prosecution witnesses. The learned State counsel further submitted that the victim was a minor and her age on the date of occurrence was proved by PW5- Smt. Shobha Sharma by Exhibit -4 and Exhibit -5. According to these documents the date of birth of the victim is 09.01.2010 and accordingly on the date of incident the victim was 07 years and approximately 02 months old. It is also submitted by the learned State counsel that there is FSL report against the appellant as the DNA obtained from the Ext. 6 ( underwear of the victim) was found and matched with the DNA obtained from Ext. 1 ( blood sample of the accused). DNA obtained from the Ext.-7 ( pajama of the victim) was matched with and the Ext.- 1 and Ext. -2 ( blood sample of the accused and blood sample of the victim). 6 ( underwear of the victim) was found and matched with the DNA obtained from Ext. 1 ( blood sample of the accused). DNA obtained from the Ext.-7 ( pajama of the victim) was matched with and the Ext.- 1 and Ext. -2 ( blood sample of the accused and blood sample of the victim). Thus according to the learned State counsel the presence of semen of the accused on the pajama and underwear further corroborated the prosecution case against the appellant which matched with the DNA of blood sample of the accused. 24. To the submissions made by the learned Amicus Curiae that even the case of the prosecution is admitted, the offence against the appellant would fall within the ambit of section 7 “Sexual Assault”, a feeble attempt was made by the learned State counsel to bring the case to the “Penetrative Sexual Assault” but the submissions made by the learned State counsel were not that much convincing. 25. We have given a thoughtful consideration to the rival contentions of the parties and perused the record carefully. In order to consider the case of the prosecution the evidence collected by the prosecution on record is required to be given a keen look and appreciation. The victim informed his father-PW1 and mother –PW4 that the appellant made victim to sit on a chair, he pushed down the pajama and underwear of the victim and sat over the victim and touched her private parts and urinated upon her. It is the evidence of PW-1 and PW-4 that when they saw the pajama and underwear of their daughter, they found semen on it. After that PW-1 and PW-4 alongwith victim-PW2 went to the shop where the appellant was working; victim identifying the appellant told her parents that he was the person who committed foul play with her. So far as this part of the evidence is concern, it remained intact throughout the trial and the same was repeated by the victim and her parents when examined before the learned trial court. The defence could not succeed to elicit anything contrary to it by cross-examination of the prosecution witnesses. The presence and proof of the semen of the appellant on the material Ext.-1 and material Ext. -2 further proved the commission of offence by the appellant. The defence could not succeed to elicit anything contrary to it by cross-examination of the prosecution witnesses. The presence and proof of the semen of the appellant on the material Ext.-1 and material Ext. -2 further proved the commission of offence by the appellant. But now it has to be seen by this Court on the appreciation of the evidence available on record as what offence appellant, in fact, has committed. 26. Before adverting to the evidence and material available on record to reach to the above conclusion as to what offence is proved against the appellant a look on the provision of section of 375 IPC and section 3 and 7 of the POCSO Act is required and, therefore, these sections are quoted herein below:- “[375. Rape.- A man is said to commit “rape” if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under eighteen years of age. Seventhly.- When she is unable to communicate consent. Explanation 1.- For the purposes of this section,“ vagina” shall also include labia majora. Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Explanation 1.- A medical procedure or intervention shall not constitute rape. Explanation 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.] “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. 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. Although the statements of the victim recorded under section 164 Cr.P.C. was not exhibited during trial but the version of the victim on material particulars in those statements are quoted herein as under:- ^^eSa leksls dh nqdku ij xbZ rks nqdku ij leksls okys HkbZ;k gh Fks clA eSaus muls dgk fd pkj leksls ns nksA fQj mUgksus eq>s Vscy ij fcBk;k vkSj esjk itkek uhps fd;kA fQj mUgksus viuh iSaUV [kksyh vkSj fQj esjs iSjksa dh Åij cSBdj esjh VkW;ysV okyh txg ij VkW;ysV dhA esjk itkek xhyk gks x;k FkkA** When examined as PW-2 before the learned trial court she stated as under:- ^^fnukad 31-03-2017 dks lkW; 5-30 cts esjs ikik us eq>s leksls ysus ds fy, leksls okys dh nqdku easa Hkstk Fkk nqdku ij leksls okys vady FksA xokg us gkftj vnkyr vfHk;qDr jkgqy iky dks ns[kdj dgk fd ;gh vady ml fnu leksls dh nqdku ij FksA ml vady us leksls vyx j[k fn;s o eq>s vyx dejs esa ys x;sA ml vady us eq>s Vscy ij fcBk;k vkSj esjk iSaUV o v.Mj fo;j mrkjk vkSj esjs Åij cSBdj lqlq dj fn;kA fQj eSa leksls ysdj ?kj vk xbZA** 28. The victim was examined by the lady doctor- PW6 Mamta Negi and prepared Ext. Ka-7 and Ext. Ka-8. PW6 – Dr. Mamta Negi recorded in medical report that “no injury noted all over body, no redness, no discharge noted anywhere in private parts” and through supplementary report the final opinion was given “on the basis of medical examination and pathology report, no definite opinion can be given for sexual intercourse and slides are negative for spermatozoa”. PW-6 further recorded “hymen is intact, no bleeding or any tenderness noted”. On the appreciation of the aforesaid evidence coupled with the medical report the theory of penetration is totally ruled out. When there is no penetration to any extent whatsoever, the offence against the appellant could only reach within the ambit of “Sexual Assault” as defined under section 7 of the POCSO Act. On the appreciation of the aforesaid evidence coupled with the medical report the theory of penetration is totally ruled out. When there is no penetration to any extent whatsoever, the offence against the appellant could only reach within the ambit of “Sexual Assault” as defined under section 7 of the POCSO Act. Since the victim was a child less than 12 years of age, the offence would come within the ambit of “Aggravated Sexual Assault” as defined under section 9(m) of the POCSO Act, which is punishable under section 10 of the POCSO Act. The defence raised by the appellant of false implication on the basis of his relation with aunt of the victim cannot be believed simply for the reason that in order to settle the score of victim’s uncle, PW-1 and PW-2 parents of the victim would not risk the future of their child involving her in such a heinous case. The learned trial court has rightly disbelieved the theory of the defence. Secondly no such suggestions were given to PW-1, PW-2 and PW-4 by the appellant. 29. From the above discussion this much is proved by the prosecution beyond all reasonable doubt that the appellant committed “Aggravated Sexual Assault” upon the victim as defined under section 7 of the POCSO Act and he deserves to be convicted there for. 30. The upshot of the aforesaid discussion is that the impugned judgment and order by which the appellant was convicted and sentenced is hereby set-aside. The appeal is partly allowed. But the appellant is convicted under section 9 (m) / 10 of the POCSO Act and is convicted for a sentence of seven years rigorous imprisonment and a fine of Rs. 25,000/- with default stipulation of six months further simple imprisonment. The amount of fine recovered shall be paid to the victim as compensation. 31. The criminal appeal is partly allowed, the conviction and sentence are modified accordingly and the appellant is in jail. He shall serve the sentence awarded by this Court. 32. Let the lower court records of the case be sent back for necessary action.