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2024 DIGILAW 258 (UTT)

Yaseen v. State of Uttarakhand

2024-04-16

ALOK KUMAR VERMA, RITU BAHRI

body2024
JUDGMENT : Ritu Bahri, C.J. The present Criminal Appeal has been preferred against the judgement and order dated 10.12.2015 / 11.12.2015 passed by Learned FTC / Additional Sessions Judge / Special Judge POCSO, Rudrapur, Udham Singh Nagar in Special Sessions Trial No. 90 of 2015 (New No. 518 of 2015), State vs. Yaseen, whereby accused-appellant Yaseen has been convicted for the offenses punishable under section 376(2) and 366 IPC. In respect of offence punishable under Section 376(2) IPC, the convict was sentenced to undergo rigorous imprisonment for life for the remainder of the natural life along with a fine of Rs.50,000/-, in default of payment of fine, the convict was further directed to undergo six-month simple imprisonment. He has been also convicted under section 366 IPC, and was sentenced to rigorous imprisonment for ten years along with a fine of Rs.20,000/-, in default of payment of which, the convict was further directed to undergo three months simple imprisonment. Both the sentences have been directed to run concurrently. 2. Prosecution story, in brief, is that on 26.03.2015, a written complaint was given by the father of the victim to Police Station, Jaspur, to the effect that on 26.03.2015 at around 04:30 pm, the daughter of the complainant, aged about 16 years, who is mentally retarded, ran out of the house. When the complainant’s wife and brother-in-law Mohd. Saeed, who had come to the complainant’s house, went out to see the daughter of the complainant, they heard the daughter of the complainant screaming. When the complainant’s wife and brother-in-law hit the door of the living room of the neighbour Yaseen, the door opened and they saw that the salwar of the victim had come off and the accused was forcefully raping the victim. The marks of forced rape were visible on the left cheek and hands of the victim. 3. The case was investigated and the accused was charge sheeted under section 376 of the Indian Penal Code, 1860 and section 5 (k)/6 of the Protection of Children from Sexual Offences Act, 2012. 4. The accused was summoned and charges were framed against him on 04.07.2015 under section 376(2) of IPC and section 5 (k)/6 of the POCSO Act, which the accused denied and claimed trial. On 15.07.2015, additional charge under section 366 of IPC was framed against the accused. 5. 4. The accused was summoned and charges were framed against him on 04.07.2015 under section 376(2) of IPC and section 5 (k)/6 of the POCSO Act, which the accused denied and claimed trial. On 15.07.2015, additional charge under section 366 of IPC was framed against the accused. 5. The following witnesses were examined for the purpose of proving the charges on behalf of the prosecution: (i) P.W.1-mother of the victim (ii) P.W.2- father of the victim / complainant (iii) P.W.3- maternal uncle of the victim (iv) P.W.4- Dr. Parul Mehra (v) P.W.5- S.I. Saroj Kamboj 6. The prosecution has produced Tahrir, Exhibit Ka-1; copy of date of birth certificate of the victim, Exhibit Ka-2; Medical report, Exhibit Ka-3; photo copy of MLC register, Exhibit Ka-4; supplementary report, Exhibit Ka-5; site map, Exhibit Ka-6; G.D. Copy, Exhibit Ka-7; charge sheet, Exhibit Ka-8; Forensic Science Laboratory Examination report, Exhibit Ka-9; Chik FIR, Exhibit Ka-10, and; Copy of G.D., Exhibit Ka-11 as documentary evidence. 7. The statement of the accused was recorded under section 313 of the Cr.P.C in which the accused denied the alleged incident and stated that the witnesses had given false testimony. He further stated that “in the case of divorce between the complainant’s son and daughter-in-law, the complainant’s daughter-in-law had acted against the law of Shariyat, and the complainant had asked the accused to lie in his favour during the panchayat. When he refused for the same, these people nursed a grudge against him.” In support of his statement, the accused produced D.W.1 Kausar, D.W.2 Anwar Hussain and D.W.3 Mohd. Taseem in the court and got them examined. 8. P.W.1 mother of the victim in her cross examination had stated that on 26.03.2015, at 4:30 p.m. the victim suddenly went out of the house alone and did not return for a long time. When she along with her elder brother went out to search for her, and reached near the house of the accused, they heard the sound of screaming and crying of the victim. When they went inside the house and pushed the door of the living room, the door opened and they saw that the salwar of the victim had been taken off and the accused was forcefully raping the victim. The victim was trying to save herself due to which there were injury marks on her left cheek and hands. When they went inside the house and pushed the door of the living room, the door opened and they saw that the salwar of the victim had been taken off and the accused was forcefully raping the victim. The victim was trying to save herself due to which there were injury marks on her left cheek and hands. After seeing them, the accused tried to hide, and fled away. 9. P.W.2 father of the victim, in his examination-in-chief, stated that on the day of the incident his wife called him home and told him that the victim was not at home, so she herself along with her brother went out to search for the victim, then at accused’s house they heard the screaming voice of the victim, upon hearing which she along with her brother pushed open the door of the accused’s house and there they saw that the victim’s clothes were off, the victim was lying on the ground and the accused was raping her. When P.W.2 came home, his wife told him everything and he himself saw marks on the cheek and hands of his daughter. Then he lodged a complaint at Police Station Jaspur. 10. P.W.3 Mohd. Saeed, maternal uncle of the victim, in his examination in chief, stated that the victim was his niece and that he was living in the house of his sister and brother-in-law for about 6-7 months before the incident. On 26.03.2015, he was sitting at home with his sister. On the said day, at around 4.30 p.m., the victim suddenly went out of the house and when she did not return, he along with his sister went out to search for the victim. When they came out of the house and as soon as reached near Yaseen's house, they heard the screams of the victim. Hearing the scream, his sister and P.W.3 went inside accused’s house and reached the door of the living room. When his sister opened the door, P.W.3 saw that the accused had taken off the victim's salwar and was forcibly raping her and had also applied force on the victim's left cheek and hands. There were scratch marks on the hands and cheek. The victim was trying to escape, his sister slapped the accused twice, and the accused ran away from there. There were scratch marks on the hands and cheek. The victim was trying to escape, his sister slapped the accused twice, and the accused ran away from there. Then they dressed the victim and brought her home and his sister informed her husband about this incident over phone. 11. P.W.4 Dr. Parul Mehra, who conducted the medical examination of the victim, stated in her statement that the hymen of the victim was old torn, the victim was mentally disturbed. The victim had scratch marks on the left cheek. On internal examination no injury mark was visible on the vagina and thighs. The presence of sperm was not found in the pathology report. This witness further stated that it is not possible to give any definite opinion regarding the rape of the victim. The absence of injury marks on the internal part is the mental derangement of the victim and old rupture of her hymen. 12. The Trial Court concluded that the victim was a mentally retarded minor girl of 16 years of age at the time of alleged incident and the crime of rape was committed on her by the accused Yaseen. It is also proved by the prosecution through the statements given by the witnesses, and the evidences given by the defence itself, that on the day of the incident the victim was present in the house of the accused and the accused committed rape upon her by locking the victim in the room of his house. He deliberately called the victim to his house with the intention of raping her and then locked the room and raped her, which clearly shows that the intention of the accused was to lure the victim and took her with him to commit rape / sexual assault on her. 13. Also, as per the DNA report, the blood of the accused was matched with the sample taken from the salwar of the victim, the swab taken from the accused and the underwear of the accused. The DNA report confirms the prosecution story that the accused had raped the victim and that is why the semen of the accused was found on the salwar of the victim. Therefore, this main evidence presented by the prosecution before the court completely confirms the alleged incident. 14. The DNA report confirms the prosecution story that the accused had raped the victim and that is why the semen of the accused was found on the salwar of the victim. Therefore, this main evidence presented by the prosecution before the court completely confirms the alleged incident. 14. The Trial Court after observing the entire evidence presented by the prosecution and assessing the witnesses concluded that the accused committed the alleged crime against the victim by luring away her to his house. Thus, the alleged offences committed by the accused under Section 366 and 376(2) IPC have been proved beyond reasonable doubt by the prosecution. 15. After hearing counsel for the parties and going through the material brought on record, the evidence given by the defence has to be examination first. 16. D.W.1 Kausar is the daughter of the accused-appellant, D.W.2 Anwar Hussain is the neighbour, and D.W.3 Mohd. Taseem is the son of the accused-appellant. As per their consistent version family of the accused had an ongoing rivalry with the complainant’s family, and complainant wanted accused-appellant Yaseen to give false evidence in a divorce case for which Yaseen has refused in a Panchayat proceedings with respect to the divorce as per Muslim law. D.W.1 and D.W.3, both daughter and son of the accused-appellant respectively, have stated that they were present at home along with their sisters Shama & Kamarjahan and sister-in-law Shahista, when the victim (daughter of the complainant) came to their house and started touching the things lying there, including silver anklet. On this one of the sisters of D.W.1 and D.W.3 assaulted the victim. On account of this, the victim’s family was nursing a grudge against the accused-appellant’s family. As per the version given by all the above three defence witnesses, the panchayat took place more than one year before this incident and other people of the village were also present in the panchayat, but none of the other independent witnesses have been examined. The lower court had rightly came to a conclusion that why after a gap of one year of the incident of not giving evidence in favour of the complainant during a panchayati proceedings relating to divorce proceedings as per Muslim law, the complainant would proceed to lodge a false complaint with respect to his victim daughter. Moreover, the victim being mentally retarded could not tell her family about the crime committed against her. Moreover, the victim being mentally retarded could not tell her family about the crime committed against her. In such a situation, no explanation has been given by the defence as to how victim’s family came to know that the family members of the accused had assaulted the victim due to which they felt offended to lodge a false report. Further, as per the evidence given by D.W.2 Anwar Hussain, neighbour of the accused-appellant, he had seen the victim wandering around casually throughout the day, and on the day of incident, victim had gone to accused-appellant’s house and was picking up the belongings. At that time one of the daughters of the accused-appellant scolded the victim, and shooed her away. Once, D.W.2 Anwar Hussain had admitted in his examination-in-chief that the victim was seen wandering in the house of accused-appellant and one of his daughters had scolded the victim, the version that one year back the accused had refused to give his testimony in the divorce proceedings of complainant’s son and daughter-in-law being conducted as per Muslim law, and on this ground a false complaint was made becomes highly doubtful, and this finding recorded by the lower court requires no interference. 17. Apart from this D.W.1 and D.W.3, daughter and son of the accused-appellant, have also stated that there were number of villagers during Panchayat, but name of not even one person from the village has been given in the deposition and, hence their version becomes highly doubtful and the lower court has rightly discarded their version and held that it was the victim who was present in the house of the accused-appellant on the day of the incident when she was wandering there, and made an attempt to pick up a silver anklet, and was scolded by one of the daughters of the accused-appellant, and she was mentally retarded. This version is found to be correct. 18. Another fact is that the DNA report clearly showed that the crime of rape and aggravated sexual assault had been committed by the accused-appellant on the victim. The medical evidence further supported the case of the prosecution that the defence had presented a false story in the court with the help of their own family members and close relatives to save the accused-appellant. 19. The medical evidence further supported the case of the prosecution that the defence had presented a false story in the court with the help of their own family members and close relatives to save the accused-appellant. 19. With respect to THE AGE OF THE VICTIM, as per the evidence adduced by P.W.1, father of the victim, who had presented the original copy of the victim’s birth certificate (paper no. 3ka/30), on which the date of birth of the victim was mentioned as 01.01.1999 and, hence, on the date of incident, i.e., 26.03.2015, her age was 16 years and 03 months. 20. The trial court has also examined the issue whether the victim was mentally retarded. The parents of the victim gave a clear statement before the court that the victim was mentally retarded since birth, and she could not understand anything and neither does she react after listening to anyone’s words. The victim appeared before the court below, and the court had observed that the victim appeared to be mentally retarded. The court below recorded statement of the victim citing her retardation. 21. As per P.W.4 Dr. Parul Mehra, and the Investigator, the victim was completely mentally retarded child. Even the defence witnesses have stated that victim used to roam around casually throughout the day and touch and pick up any item and she was not aware of these facts, neither understands nor was capable of handling herself. Hence, the finding given by the lower court that the victim was mentally retarded requires no interference. 22. The forensic examination report (Ext. Hence, the finding given by the lower court that the victim was mentally retarded requires no interference. 22. The forensic examination report (Ext. A-9) of Forensic Science Laboratory Uttarakhand, shows the following result of examination for detection of semen and blood : Semen was detected on Exhibit –2 (a stained violet coloured ‘Salwar’ of victim with green coloured patch on upper side and lower side) and Exhibit-8 (a stained yellow, green, maroon and blue coloured home made underwear of accused) Furthermore, it has come in the DNA report that the DNA test performed on the exhibits provides is sufficient to conclude as follows : (1) the DNA obtained in the autosomal DNA profiles from the Exhibits-2, 7 and 8 (salwar of victim, swab from glans area of accused and underwear of accused) is matching with the DNA obtained in a autosomal DNA profile from Exhibit -9 (Blood sample of accused) (2) The DNA obtained in the autosomal DNA profiles from exhibits – 4 5 and 6 (rectal swab of victim, nail clipping of victim and nail scrapping of victim) is from a single female human source which is matching with each other. (3) DNA could not be obtained from the Exhibit -3 (vaginal swab of victim) 23. Hence, the offence under Section 375 IPC and Section 5/6 of POCSO Act, rape / aggravated penetrative sexual assault, was made out and the prosecution has proved beyond reasonable doubt that the alleged crime of sexual assault was committed by the accused-appellant on the victim, who was mentally retarded minor child of 16 years and, hence, the criminal mischief committed by the accused would be an offence of rape under Section 376(2) of IPC / aggravated penetrative sexual assault punishable under Section 5(K) of the POCSO Act. The accused-appellant had seduced the victim and took advantage of the child being mentally retarded and established physical relations with her. Accused-appellant being an adult man, married and having children, despite knowing that the victim was a minor mentally retarded girl, without permission of her parents had lured the victim inside his house and locked the room of his house, and committed the brutal act of rape upon her. Hence, the act committed by the accused-appellant falls within the ambit of misdeed under Section 366 IPC. 24. Hence, the act committed by the accused-appellant falls within the ambit of misdeed under Section 366 IPC. 24. With respect to identification of the accused-appellant, he was caught red handed by P.W.1 mother of the victim and P.W.3 maternal uncle of the victim, and this fact was confirmed by the forensic examination report as well as the DNA report. 25. In the present case, no examination was done about the masculinity of the accused-appellant, but this fact has come on record that he was 65 years old married person having children at the time of incident. The accused-appellant in his defence did not make any request before the lower court regarding examination of his masculinity, nor did any suggestion was taken from the Investigating Officer in this regard. Apart from that, the commission of alleged crime has completely been established by the DNA report of the accused-appellant. As such, no benefit on this point could be granted to the accused-appellant at this stage. Hence, the DNA report confirms the alleged crime committed by the accused-appellant. 26. Accused-appellant has been convicted, as he wanted to fulfill his lust, and in this backdrop, he had lured the victim to his room and closed the door, and fulfilled his sexual desire with the victim. The trial court had examined the entire evidence presented by the prosecution and after assessing the witnesses in the right perspective has convicted the accused-appellant for the offences punishable under Section 376(2) and 366 of IPC as per provisions of Section 42 of POSCO Act, and sentenced him accordingly. Since the conviction is based on the correct appreciation of evidence, no ground is made out to interfere in the judgment and order passed by the court below. 27. It is pertinent to mention here that while convicting the accused-appellant for offence under Section 376(2) IPC, he was sentenced with imprisonment for life which would mean a remainder of natural life which was not in the domain of the trial court, and this could have been exercised only by the High Court or by the Supreme Court. 28. Reference can be made of a Constitution Bench judgment of the Supreme Court rendered in Union of India Vs. 28. Reference can be made of a Constitution Bench judgment of the Supreme Court rendered in Union of India Vs. V. Sriharan, (2016) 7 SCC 1 , wherein it has been held that power of imposing a fixed term of imprisonment, or for the remainder of natural term of life of convict, while imposing a sentence of life imprisonment, is available to High Court and Supreme Court, and not the trial court. The ratio laid down in V. Sriharan’s case (supra) was followed by the Supreme Court recently in the case of Gauri Shankar Vs State of Punjab, (2021) 3 SC 380. Relevant paras of V. Sriharan case (supra) are extracted as under : “105. We, therefore, reiterate that that power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offense can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of convict’s life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court. 106. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (2) Vs. State of Karnataka, (2008) 13 SCC 767 , that a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission is well founded and we answer the said question in the affirmative. We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet Vs. State of Haryana, (2013) 2 SCC 452 that the deprival of remission power of the appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same.” 29. State of Haryana, (2013) 2 SCC 452 that the deprival of remission power of the appropriate Government by awarding sentences of 20 or 25 years or without any remission as not permissible is not in consonance with the law and we specifically overrule the same.” 29. At this stage, learned counsel for the accused-appellant argued that some leniency be shown in the case of convict, and the sentence awarded to him should be reduced keeping in view that in the present case, at the time of commission of crime he was 65 years old, suffering from Asthma, and did not have any criminal background. In view of the above, this Court is of the opinion that it will be in the interest of justice that the sentence of imprisonment for life for the remainder of the natural life awarded to convict Yaseen be reduced to imprisonment for a period of ten years so far as it relates to offence punishable under Section 376(2) IPC. 30. In such view of the matter, the conviction recorded by the trial court in S.T. No. 90 of 2015, under Section 366 and 376(2) IPC, against convict Yaseen is affirmed, but his sentence is modified so far as it relates to the offence punishable under Section 376(2) IPC to the extent that convict Yaseen shall now undergo imprisonment for ten years without remission instead of the sentence of imprisonment of life for the remainder of the natural life as awarded by the trial court on said count. 31. The other terms of sentences awarded to the convict including fine amount and default stipulations also stand confirmed. All the substantive sentences awarded to the convict Yaseen shall run concurrently. 32. The Criminal Appeal filed by the accused-appellant Yaseen against the conviction and sentences awarded by the trial court in S.T. No. 90 of 2015 in respect of offences punishable under Section 366 and 376(2) IPC stands dismissed. 33. The Criminal Appeal filed by accused-appellant Yaseen in respect of above said offences, having been dismissed, his sentence so far as it relates to offence punishable under Section 376(2) IPC is modified as directed in para 30 above. 34. The accused-appellant is on bail. His bail is cancelled. He is directed to surrender before the court concerned. 33. The Criminal Appeal filed by accused-appellant Yaseen in respect of above said offences, having been dismissed, his sentence so far as it relates to offence punishable under Section 376(2) IPC is modified as directed in para 30 above. 34. The accused-appellant is on bail. His bail is cancelled. He is directed to surrender before the court concerned. A copy of this judgment be sent to the court concerned to make the accused-appellant serve out the sentence as modified by this court. 35. Lower court record be also sent back.