Research › Search › Judgment

Uttarakhand High Court · body

2024 DIGILAW 487 (UTT)

A v. State of Uttarakhand

2024-07-16

RAVINDRA MAITHANI

body2024
JUDGMENT : (Ravindra Maithani, J.) : Instant revision has been preferred against the followings:- (i) Judgment and order dated 11.09.2023, passed by the Juvenile Justice Board, Dehradun (“JJB”) in Inquiry No. 99 of 2020, State Vs. A (a Child in Conflict with Law; hereinafter referred to, as “the 0\”) (“the case”). By it, the CIL has been convicted under Section 377, 323 IPC and Section 3/4 of the Protection of Children From Sexual Offences Act, 2012 (“the POCSO Act”) and the following order has been passed. (i) Under Section 377 IPC:- The CIL has been sent to special home for three years and a years and a years and a (ii) Under Section 323 IPC:- the CIL has been sent to special home for one year and a fine of Rs.1000/- has been imposed on his guardian; and (iii) Under Section 3 read with 4 of the POCSO Act:- the CIL has been sent to special home for three years and a fine of Rs.10000/- has been imposed on his guardian. The period of staying in special home has been ordered to run concurrently. The JJB has further directed for providing reformative services to the CIL with other directions; and (ii) Judgment and order dated 15.01.2024, passed in Criminal Appeal No. 284 of 2023, A Vs. State of Uttarakhand, passed by the court of Special Judge, POCSO/Additional District Judge, Dehradun (“the appeal”). By it, the appeal has been dismissed. 2. Heard learned counsel for the parties and perused the records. 3. The case is based on an FIR lodged by the father of the victim. According to it, on 10.08.2020, the victim, a young boy of eight years had gone for grazing the goats. At about 3:00 p.m. there the CIL did sexual intercourse with the victim against the order of nature. When the victim returned, he while crying revealed the incident to his family. Based on the FIR, Case Crime No. 317 of 2020, was lodged at Police Station Vikas Nagar, District Dehradun. The victim was medically examined on 11.08.2020 at 1:30 p.m. at Sub District Hospital, Vikas Nagar. On internal examination, the Doctor observed that “there is injury, blood stain, mucous and semen”. The slides prepared during medical examination were sent for DNA examination. The victim was medically examined on 11.08.2020 at 1:30 p.m. at Sub District Hospital, Vikas Nagar. On internal examination, the Doctor observed that “there is injury, blood stain, mucous and semen”. The slides prepared during medical examination were sent for DNA examination. But, in the forensic examination, semen or blood could not be detected on the slides/swab of the victim, nails of the victim and hair of the victim. After investigation, challani report was submitted before the JJB against the CIL for the offences punishable under Sections 377, 323 IPC and Section 3/4 of the POCSO Act. 4. The CIL was read over the accusations. He denied the allegations and stated that he has been falsely implicated. He offered for inquiry. In the inquiry, on behalf of the prosecution, seven witnesses have been examined, namely, PW1 the father of the victim, PW2 the mother of the victim, PW3 the victim himself, PW4, the brother of the victim, PW5 Dr. K.C. Sharma, PW6 cousin of the victim and PW7 Sub Inspector, Himani Chaudhary, the Investigating Officer. 5. The CIL was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to him, the witnesses have falsely stated against him. In his defence, the CIL examined DW1 Mohd. Haroon and DW2 Noordeen. 6. After hearing the parties, by the impugned order, the JJB, convicted and passed the aforementioned order in the case, which, as stated, has been confirmed in appeal. 7. Learned counsel for the CIL has raised following points in his submissions:- (i) The Forensic Science Laboratory (“FSL”) report is negative, but the impugned judgment passed by the JJB does not record the reasons as to why FSL report has not been accepted and why it has been observed that it does not doubt the prosecution case. (ii) The medical report records that it was a case of attempted anal sex. (iii) The punishment is severe. 8. On the other hand, learned State counsel would submit that the witnesses of fact have proved the case. The victim himself has stated that as to what happened to him. His statement is reliable. It is argued that PW5 Dr. K.C. Sharma examined the victim on 11.08.2020 and he did find injuries on the anus, where he could detect blood and semen also. It is argued that it proves the prosecution case. The victim himself has stated that as to what happened to him. His statement is reliable. It is argued that PW5 Dr. K.C. Sharma examined the victim on 11.08.2020 and he did find injuries on the anus, where he could detect blood and semen also. It is argued that it proves the prosecution case. Learned counsel would submit that merely because FSL report is in negative, it does not doubt the prosecution case. 9. It is a revision. The scope is quite restricted to extent of examining the correctness, legality and propriety of impugned judgment and order. In the revision, evidence may not be appreciated, unless admissible evidence is ignored or irrelevant material is considered or the finding is perverse i.e. against the weight of evidence. 10. PW1, the father of the victim has stated that on the date of incident, when the CIL returned, he while crying, revealed the incident to him. Thereafter, he visited the house of the CIL, where the family members did maar-peet with him. This witness proved the FIR Ex. A1. PW2 is the mother of the victim. She has also corroborated the statement of the PW1 in her examination. 11. PW3 is the victim himself. According to him, on the date of incident, at 3:00 p.m., near the bank of river Jamuna, he had taken goats for grazing, where the CIL did sexual intercourse with him against the order of nature. According to him, as soon as, the CIL inserted his penis in his anus, he felt a lot of pain, therefore, he cried. In the meanwhile, PW6 cousin of the victim reached at the spot. Thereafter, he came back crying. In his earlier statement given during investigation, the victim had not stated that witnesses Sehzad and PW6 cousin of the victim were there. This is what he revealed in his cross examination. The victim has also stated that he had gone to hospital, where his examination was done. 12. PW4 is elder brother of the victim. He has not seen the incident. According to him, when the victim returned home, he revealed the incident to them. 13. PW5 is Dr. K.C. Sharma. He examined the victim on 11.08.2020, on the complain of anal sex. According to him, when the anus was examined, he found semen and blood stain on it. He also examined the anus through proctoscopy test and found blood stain, semen. 13. PW5 is Dr. K.C. Sharma. He examined the victim on 11.08.2020, on the complain of anal sex. According to him, when the anus was examined, he found semen and blood stain on it. He also examined the anus through proctoscopy test and found blood stain, semen. He proved his injury report Ex. P2. 14. PW6 the cousin of the victim has stated that soon after the incident, when he was told that the victim is crying, he reached at the place of incident. At that time, the victim has revealed that the CIL did unnatural sex with him. 15. PW7 is Sub Inspector, Himani Chaudhary, Investigating Officer. She has stated about the steps, she has taken during investigation and proved the documents. 16. DW1 Mohd. Haroon and DW2 Noordeen have stated that they were also present near the vicinity of alleged place of incident, but they did not hear anything about such incident. DW1 Mohd. Haroon has stated that, in fact, there is a dispute between the families of the CIL and the victim with regard to a parking. According to DW2 Noordeen, when police reached, he came to know about the incident. 17. When PW5 Dr. K.C. Sharma examined the victim on 11.08.2020, in the history column, he has stated that the “attempted anal sex” and on proctoscopic examination, according to the report, “there is injury, blood stain, mucous and semen”, whereas, as stated, semen and blood could not be detected in the slides or swabs or nails and hair of the victim. 18. The question is whether the FSL report would belie the entire prosecution case? The law on this aspect has been settled by the Hon’ble Supreme Court in the case of Veerendra Vs. State of Madhya Pradesh, (2022) 8 SCC 668 . 19. In the case of Veerendra (supra), the Hon’ble Supreme Court discussed the law, as laid down in the case of Krishan Kumar Malik Vs. State of Haryana, (2011) 7 SCC 130 and Sunil Vs. State of M.P., (2017) 4 SCC 393 . 20. State of Madhya Pradesh, (2022) 8 SCC 668 . 19. In the case of Veerendra (supra), the Hon’ble Supreme Court discussed the law, as laid down in the case of Krishan Kumar Malik Vs. State of Haryana, (2011) 7 SCC 130 and Sunil Vs. State of M.P., (2017) 4 SCC 393 . 20. In the case of Krishan Kumar Malik (supra), the Hon’ble Supreme Court, inter alia, held that “now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused”. 21. In the case of Sunil (supra), the Hon’ble Supreme Court observed that “ a positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favoring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered.” 22. In the case of Veerendra (supra), the Hon’ble Supreme Court, after discussing the law, observed as hereunder:- “53. In view of the nature of the provision under Section 53-A CrPC and the decisions referred to, we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are enough and cogent to prove the case of the prosecution. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the court has still a duty to consider whether the materials and evidence available on record before it, are enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances form a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour. 56. In the light of the above referred decisions, the contentions of the appellant founded on the factum of non-holding of DNA profiling and the provision under Section 53-A, is only to be repelled. As held in Sunil case [Sunil v. State of M.P., (2017) 4 SCC 393 : (2017) 2 SCC (Cri) 372] , a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial court and then by the High Court, in the instant case.” 23. In view of the settled law, that even if, the DNA test is in negative, the court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the accused. 24. It is true that in cross examination, in para 2, the victim has stated that he had told it to the Police that Sehzad was at the place of incident. Sehzad has not been examined. It is argued on behalf of the CIL that non-examination of Sehzad doubts the prosecution case. Merely because a witness has not been examined, it does not doubt the prosecution case. What is to be seen is the credibility and reliability of the witnesses examined by the prosecution. 25. It is also argued on behalf of the CIL that the medical report records attempted anal sex. Merely because a witness has not been examined, it does not doubt the prosecution case. What is to be seen is the credibility and reliability of the witnesses examined by the prosecution. 25. It is also argued on behalf of the CIL that the medical report records attempted anal sex. It is true that in the first page of the medical examination report, the doctor records account of incident as “attempted anal sex”. In this column, the actual words spoken by the victim has not been recorded. In order to constitute, carnal intercourse against the order of nature or penetrative sexual assault, penetration to any extent makes out an offence. The victim has been categorical that after removing his trousers, the CIL inserted his penis into his anus due to which he felt severe pain and cried when his cousin reached there. This is what PW6 the cousin of the victim has stated. The statement of the victim coupled with the medical examination report proves beyond reasonable doubt that on the date of incident, the CIL committed carnal intercourse against the order of nature with the victim. The prosecution has been able to prove its case beyond reasonable doubt for the offences punishable under Sections 377 IPC and 3/4 of the POCSO Act. 26. Insofar as, the offence under Section 323 is concerned, the allegation that has been leveled on the point is that at the time of incident, the CIL also did maar-peet with the victim. But, in his examination, the victim has not stated that the CIL in any manner, did maar-peet with him or caused him injury. Therefore, this Court is of the view that the prosecution has not able to prove its case under Section 323 IPC. 27. It is argued that the order that has been passed against the CIL is severe. The Juvenile Justice (Care and Protection) Act, 2015 (“J.J.Act”) is child centric. The general principles to be followed in the administration of the J.J.Act, is given under Section 3 of the Act. One of the principles, i.e. Principle No. (iv) is principle of best interest, which reads that “All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.” 28. One of the principles, i.e. Principle No. (iv) is principle of best interest, which reads that “All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.” 28. The JJB has considered social investigation report before passing the order against the CIL. The social investigation report reveals that the CIL is Class 2nd drop out. He never has interest in studies. 29. The CIL is 17 years of age, who is a drop out and has less interest in the studies. Considering the best interest of the child, this Court is of the view that the order that has been passed against the CIL does not warrant any interference, except his order of conviction under Section 323 IPC. 30. The conviction of the CIL for the offences punishable under Section 377 IPC and Section 3/4 of the POCSO Act, is confirmed. Accordingly, the order that has been passed for the offence punishable under Section 377 IPC and 3/4 of the POCSO Act is also upheld. 31. The conviction and the order that has been passed against the CIL under Section 323 IPC is set aside. 32. Impugned judgments and orders are modified to the extent, as indicated above. 33. The revision is partly allowed accordingly.