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2023 DIGILAW 664 (UTT)

Mohammad Aajam Khan v. State of Uttarakhand

2023-12-06

MANOJ KUMAR TIWARI, PANKAJ PUROHIT

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JUDGMENT : PANKAJ PUROHIT, J. 1. This appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) is directed against judgment and order dated 22/23.05.2015, passed by learned Special Judge (POCSO)/FTC/Additional Sessions Judge, Haldwani in Sessions Trial No. 99 of 2014, State vs. Mohammad Aajam Khan, whereby the said court at the hands of trial has held the appellant guilty for the offence punishable under Section 376 (2) of IPC and also under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “Act of 2012”) but with the aid of Section 42 of the Act of 2012 has sentenced him only under Section 376 (2) IPC to undergo 12 years rigorous imprisonment with a fine of Rs. 10,000/- and in default of making payment of fine the appellant was further directed to undergo two months additional simple imprisonment. 2. Facts of the case in order to resolve the controversy are that a first information report of the occurrence was given by the mother of the victim at Police Station Mallital on 06.07.2014 at 02:30 P.M. with the averments that her daughter aged about six years is a student of Class 1. The occurrence is of 04.07.2014. On that day at about 03:30 P.M. when her daughter returned from school, she informed the informant that a person having a hump on his back held her daughter into his lap, took her into his room, removed her underwear and was trying to insert his private part into the private part of the victim. When the victim felt pain she told the appellant that she would narrate about this incident to her mother on which the appellant left her and closed the door. 3. With these averments chik F.I.R. was lodged and the investigation accordingly commenced. The Investigating Officer on completion of investigation submitted a charge-sheet against the appellant under Section 376 IPC as well as under Section 3/4 of the Act of 2012 in the court on which cognizance was taken by the court on 16.09.2014. According to the procedure prescribed under Section 207 Cr.P.C. the appellant was provided with copies of the prosecution evidence. Thereafter, a charge was framed against the appellant under Section 376 (2) IPC as well as 6 of the Act of 2012. According to the procedure prescribed under Section 207 Cr.P.C. the appellant was provided with copies of the prosecution evidence. Thereafter, a charge was framed against the appellant under Section 376 (2) IPC as well as 6 of the Act of 2012. The appellant denied the charges and claimed to be tried. The prosecution in order to bring home the charges against the appellant produced as many as nine witnesses’ viz. PW-1/L. Const. 765 C.P. Nanda Negi, PW-2/Dr. Madhu Mathur, PW-3/Victim, PW-4/Victim’s mother, PW-5/Dr. Rajesh Kumar Verma, PW-6/Dr. Vinod Kumar Gadkoti, PW-7/S.I. Rajendra Kumar, PW-8/Dr. B.N. Pathak and PW-9/S.I. Revti Pant and certain other documentary evidence were also produced in evidence. 4. Thereafter the statement of the appellant was recorded under Section 313 of Cr.P.C. The appellant in his statement while denying prosecution story stated that he did not commit any such offence and deposed that the victim was deposing falsely against him. Even after giving an opportunity, the appellant did not produce any witness in his defence and on 13.05.2015, by moving an application he refused to give any such evidence into his defence. 5. After hearing learned counsel for the parties and on examination of entire documentary and oral evidence available on record trial court proceeded to convict and sentence the appellant as mentioned in Para-1 of this judgment. 6. In this matter PW-1/L. Const. 765 C.P. Nanda Negi is a Police witness, who has proved about registration of the case and making entry into the General Diary. 7. PW-2/Dr. Madhu Mathur is the Medical Officer who on the relevant date was posted in B.D. Pandey Hospital (Female), Nainital. She has proved about conducting the medical examination of the victim and has proved preparing a medical report in her own hand-writing, which is Ex.Ka-3 on record. She also referred the victim for the purpose of X-ray. On the basis of supplementary report of the victim she has proved supplementary medical report on record whereon Ex.Ka-5 was marked. 8. PW-3/Victim of the case. Since she was a child witness, the court put her to a test in order to assess her competency to depose. On being satisfied with the answer given by the victim the court proceeded to record the evidence of the victim in question answer form. According to her, on the date of incident while she was going home from school, the appellant met her on the way. On being satisfied with the answer given by the victim the court proceeded to record the evidence of the victim in question answer form. According to her, on the date of incident while she was going home from school, the appellant met her on the way. He called her near and made her sit on his lap and took her inside the room, removed her underwear and was trying to insert his private part into the private part of the victim. When the victim felt pain she told the appellant that she would narrate about this incident to her mother on which the appellant left her and closed the door. She has also proved recording of her statement under Section 164 Cr.P.C. whereon Ex.Ka-6 was marked. 9. PW-4/Victim’s mother. This witness has also given evidence as stated by her in the F.I.R. She has duly corroborated the evidence given by the victim that is her daughter. 10. PW-5/Dr. Rajesh Kumar Verma is the person who conducted X-ray of the deceased and proved the report Ex.Ka-9. 11. PW-6/Dr. Vinod Kumar Gadkoti is the senior Radiologist, who has proved about giving the age certificate of the victim, which is Ex.Ka-12, on the basis of the medical report as well as on seeing the victim. 12. PW-7/S.I. Rajendra Kumar is the Police personnel, who has proved about arresting the appellant. 13. PW-8/Dr. B.N. Pathak is the Medical Officer, Municipality Nainital, who has proved the birth of victim on 08.11.2008 at 04:00 A.M. in B.D. Pandey, Hospital, Nainital. He has also produced the register meant for this purpose in the court proving the date of birth of the victim. 14. PW-9/S.I. Revti Pant is the Investigating Officer of the case. She has proved about conducting of the investigation of the case and submission of charge-sheet against the appellant on completion of the same. 15. Thereafter the statement of the appellant was recorded under Section 313 of Cr.P.C. in which he clearly denied the evidence read against him. According to him, he has been falsely implicated. 16. We have heard learned counsel for the parties at length and carefully perused the entire evidence available on record with their help. 17. 15. Thereafter the statement of the appellant was recorded under Section 313 of Cr.P.C. in which he clearly denied the evidence read against him. According to him, he has been falsely implicated. 16. We have heard learned counsel for the parties at length and carefully perused the entire evidence available on record with their help. 17. Learned counsel for the appellant strenuously argued that in this matter the trial court has fell into error in recording the conviction of appellant under Section 376 (2) of IPC as well as under Section 6 of the Act of 2012. According to him, as per the evidence produced on record the offence alleged against him, can at the most, travel to the extent of “Sexual Assault” as defined under Section 6 of the Act of 2012. Thus, according to him, the judgment and order under challenge needs to be interfered with. 18. On the other hand, learned counsel appearing for the State has fully supported the judgment of conviction and sentence passed by the trial court. According to him, the charges levelled against the appellant are sufficient to rope him in the crime on the basis of the available evidence against him and no interference is called for. 19. Since the learned counsel for the appellant argued that the conviction and sentence deserves to be modified instead of a clean acquittal, it is imperative upon this Court to venture into the argument advanced by the learned counsel for the appellant. 20. In order to appreciate the argument advanced by learned counsel for the appellant, a keen look into the relevant provisions of the law is required and accordingly Section 375 IPC and Sections 3 and 7 of the Act of 201 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. (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. (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. (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. (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. 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. 21. 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. 21. Similar Sections 3 and 7 of the Act of 2012 are also relevant here which are quoted herein-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. (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. (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. (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.” 22. In order to appreciate the submissions made by learned counsel for the appellant that the offence against the appellant can only travel upto to the limit of sexual assault and would not fall within the penetrative sexual assault as defined under the POCSO Act as well as under the definition of rape under Section 375 IPC, deeper scrutiny of the evidence on record is required. 23. 23. The statement of the victim was recorded by the learned Judicial Magistrate, Nainital, under Section 164 Cr.P.C. on 08.07.2014 and on material particulars she stated: ^^rks ,d vkneh us jkLrs esa eq>s idM+ fy;k fQj oks eq>s mBkdj lh/ks vius /kj ys x;kA fQj mlus esjs diM+s [kksys] fQj mlus vius diM+s [kksysA mlus viuh VkW;ysV okyh txg dks esjh VkW;ysV djus okyh txg ls yxk;kA eSaus dgk fd eSa viuh eEeh dks crkÅaxhA mlus cksyk fd ^^D;ks** fQj eSa jksus yx xbZ rks mlus eq>s NksM+ fn;kA** 24. In her examination in trial court, she deposed as hereunder: ^^blus igys esjk dPNk [kksyk] fQj viuh isUV [kksyh] fQj blus viuh VkW;ysV djus okys Hkkx dks esjh VkW;ysV ds Hkkx ij yxk;k] ftlls eq>s nnZ gqvkA bl ij eSaus vkte ls dgk fd eSa viuh eEeh ls f'kdk;r d:axh] ftl ij vkte us eq>s ugha NksMk vkSj tc eSa jksus yxh rc vkte us eq>s NksM+ fn;kA fQj mlds ckn eSa vius ?kj igqaph vkSj mijksDr ckrsa viuh eEeh dks crkbZA** 25. If we appreciate the evidence available on record in light of the definition of penetrative sexual assault, sexual assault and rape, we find force in the submissions of the learned counsel for the appellant that the offence committed by the appellant-accused can only reach to the offence of sexual assault. From the statement or evidence brought on record it cannot be said that there was any allegation of penetration into vagina, mouth, urethra or anus of the victim. We have also examined the medical examination report Ex.Ka-3 which also belies the theory of penetration. Her vagina and cervix was found to be normal and there was no tear/bleeding etc. Even on the basis of supplementary medical report (Ex.Ka-5) the Medical Officer opined that no definite opinion can be given regarding rape. In this view, argument advanced on behalf of the appellant-accused find favour with this Court and we are of the considered opinion that the appellant-accused was wrongly convicted under Section 376 (2) IPC and Section 6 of the Act of 2012. 26. From the above discussion, we are of the opinion that the judgment impugned deserves to be interfered with. As a result, conviction and sentence of the appellant under Section 376 (2) of IPC and Section 6 of the Act of 2012 is hereby quashed. 26. From the above discussion, we are of the opinion that the judgment impugned deserves to be interfered with. As a result, conviction and sentence of the appellant under Section 376 (2) of IPC and Section 6 of the Act of 2012 is hereby quashed. Rather the appellant deserves to be convicted under Section 9 (m)/10 of the Act of 2012 for the reason that the victim is a child below 12 years of age, for an offence of aggravated sexual assault. 27. The appellant-accused is accordingly convicted under Section 9 (m) and 10 of the Act of 2012 and is sentenced to seven years rigorous imprisonment and a fine of Rs. 30,000/- out of which Rs. 25,000/- shall be paid to the victim and in default of payment of fine, the appellant shall undergo and additional six months simple imprisonment. 28. The criminal appeal is partly allowed. The conviction and sentence modified accordingly. The appellant-accused is in jail. He shall serve the sentence as modified by this Court. On completion of same and if it has already been undergone he shall be set free if not wanted in connection with any other crime, provided he deposits the fine imposed by this Court. 29. Let the lower court.