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Chhatradhari vs State Of U.P. on 15 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

RESERVED

Court No. – 12

Case :- JAIL APPEAL No. – 1597 of 2017

Appellant :- Chhatradhari

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Pradeep Kumar Mishra AC

Counsel for Respondent :- G.A.

Hon’ble Krishna Pratap Singh,J.

Heard Sri Pradeep Kumar Mishra, learned amicus curiae for the accused-appellant, learned Additional Government Advocate and perused the judgment as well as the record of the trial Court.

In the present judgment, I do not propose to mention the name of the victim girl in view of the provisions of Section 228A I.P.C. and in pursuance of the observations made by the Hon’ble Supreme Court in para-4 in the case of State of Himachal Pradesh vs. Shree Kant Shekari (AIR 2004 SC 4404) the prosecutrix (hereinafter referred to as ‘victim’).

Before I deal with the issues raised before this Court, at the outset some aspects of the case needs to be expressed. On the material placed before me, it is beyond the pale of any doubt or controversy that the victim of the offence, allegedly committed by the appellant, was a child’ within the meaning of the expression defined in Section 2(1)(d) of Protection of Children from Sexual Offences Act, 2012, hereinafter referred to as the “POCSO Act”, she being below the age of 18 years at the relevant point of time. In view of the nature of offences involved, she is entitled to the protection envisaged by law in Section 33(7) of POCSO Act. To put it simply, the Additional Sessions Judge, Court No. 2 Kushinagar at Padrauna was duty bound to ensure that her identity was “not disclosed at any time”. However, this precaution was given a go-by during the proceedings before the learned Additional Sessions Judge throughout the judgement.

The present criminal appeal is directed against the judgment and order dated 15.11.2016 passed by the Additional Sessions Judge, Court No. 2, Kushi Nagar at Padrauna in Session Trial No. 228 of 2013 (State vs. Chhatradhari), under Sections 376 I.P.C. and Section 5(d)/6 Protection of Children From Sexual Offences Act, 2012, Police Station Kotwali Hata, District Kushi Nagar. By the impugned judgment and order, learned trial judge has convicted the accused-appellant under Section 376 I.P.C. and sentenced him to undergo rigorous imprisonment for 10 years along with a fine of Rs. 10,000/- and in default of payment of fine, the appellant was further directed to undergo one year simple imprisonment. Accused-appellant has also been convicted and sentenced to ten years RI and a fine of Rs. 10,000/- under Section 5(d)/6 of POCSO Act and in default of payment of fine, the appellant was further directed to undergo one year simple imprisonment.

In brief, the facts of the case are that on 02.06.2013 Smt. Vidya Devi, wife of Vishnu Gaur, resident of Padri Khas, Post Office Sukrauli, Police Station Kotwali Hata, District Kushi Nagar submitted a written report at 4.10 PM (Exhibit Ka-2) at Police Station Hata, District Kushi Nagar alleging therein that on 02.06.2013 at about 12.00 noon, when her daughter aged about seven years was sleeping in her house, accused-appellant Chhatradhari entered into her house and forcefully tried to commit rape on the daughter of the complainant and inserted his fingers in her vagina. On hearing the shriek of the victim, the neighbourers rushed to the spot and witnessed the incident. On the basis of written report Exhibit Ka-2, police registered a case at Crime No. 324 of 2013, under Section 376 I.P.C. and Section 4/6/8 of POCSO Act. After the case was registered, investigation commenced and the victim was got medically examined on 03.06.2013. Spot inspection was also conducted by the Investigating Officer and site plan Exhibit Ka-9 was sketched. After completing the investigatory formalities on the basis of sufficient evidence charge-sheet Exhibit Ka-11 for the offences punishable under Section 376 I.P.C. and under Sections 4/6/8 of POCSO Act was submitted.

In the case in hand, after culmination of investigation, the charge sheet has been submitted under Section 376 IPC and 4/6/8 of POCSO Act, but the learned Additional Sessions Judge has wrongly mentioned section 5(d)/6 of POCSO Act in the charge, which in my opinion does not amount to failure of justice.

In this case, I find that the learned Additional Sessions Judge has inadvertently referred to Section 5(d)/6 of POCSO Act instead of section 5(m)/6 of the POCSO Act, which actually had come to play for the offence. What, however, important is that the appellant was charged in unequivocal terms.

According to the Section 5(m)/6 whoever commits penetrative sexual assault on a child below twelve years shall be punished with rigorous imprisonment for a term which shall not less than 10 years rigorous imprisonment but which may extend to imprisonment for life and shall also be liable to be fine.

In this context, it is useful to quote Sections 215 and 464 of the Code of Criminal Procedure:

215. Effect of errors-: no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

464. Effect of omission to frame, or absence of , or error in charge-: (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, it may–

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

The object of the aforesaid provisions is to prevent failure of justice where there has been only technical breach of rules not going to the root of the case as such. The two sections read together lay down that whatever the irregularity in the framing of a charge, it is not fatal unless there is prejudice caused to the accused.

A five Judges Bench of Hon’ble Supreme Court in Willie (William) Slaney vs State Of Madhya Pradesh, AIR 1956 page 116 has held that unless irregularity or omission has misled or caused prejudice to the accused in his defence and has occasioned a failure of justice, it will not vitiate the trial.

So, I am of the view that mere mentioning section 5(d)/6 of POCSO Act in place of Section 5(m)/6 does not amount to failure of justice.

Now, coming to the case at hand, in order to prove its case, the prosecution has examined victim PW-1, informant Smt. Vidya Devi PW-2, Kumari Ranjna PW-3, Dr. Seema Rai PW-4, Constable Amla Ram PW5 and Investigating Officer Sub-Inspector police Dhruv Narain Singh PW-6.

In his statement under Section 313 Cr.P.C. the accused-appellant has again denied the entire prosecution story as also the circumstances appearing in evidence against him. Accused-appellant has also stated that he has been falsely implicated in the case by informant due to enmity. Accused-appellant has not examined any witness in defence.

The learned trial Judge after hearing the learned counsel for the parties has convicted and sentenced the accused-appellant as indicated in the para-3 of the above judgment. Aggrieved, accused-appellant has come up in appeal.

Sri Pradeep Kumar Mishra, learned amicus curiae has submitted that the accused-appellant is innocent and has been falsely implicated in this case due to enmity. It was further submitted that the learned Judge has not appreciated the evidence in correct perspective and impugned findings are based on surmises and conjectures. It was also submitted that the prosecution story is not corroborated with the medical evidence. The trial Court has been illegally swayed away by the arguments advanced on behalf of the prosecution. Lastly, it was submitted that the conviction and sentences awarded to the accused-appellant are wholly illegal and thus the appeal is liable to be allowed.

Learned Additional Government Advocate supported the finding recorded by the Trial Court and has submitted that the entire prosecution story is well proved through testimony of victim PW-1, her mother informant Smt. Vidya Devi PW-2 and elder sister Kumari Ranjna PW-3. It has further submitted that the accused-appellant was known to the victim and informant from before as he was resident of the same village. It was next submitted that the victim was about 7 years of age and there is no contradictions in the prosecution evidence. It was also submitted that the circumstances as also the link evidence which are sufficient to prove the guilt of the accused-appellant for the charges levelled against him. Lastly, it was submitted that trial Court has committed no error in recording the findings of guilt against accused-appellant for the offences punishable under Section 376 I.P.C. and under Section 5(d)/6 POCSO Act and appropriate sentence has been awarded to the accused-appellant.

Before I proceed to analyze the evidence on record in order to appreciate the submissions advanced by the parties, it would be just and proper to narrate in brief the statements given by the prosecution witnesses in examination-in-chief.

As the victim PW-1 was about 6 years of age at the time incident, the trial Judge has put the following questions before her in order to examine whether victim was capable of giving answer after understanding the questions. After satisfying himself, the Court has allowed to examine the victim. The statement of the victim PW-1 is as under:-

Q. Which persons live in your house?

A. Nana (her mother’s father), Baba (her father’s father), Bhaiya (her elder brother), Bhabhi (her elder brother’s wife), Amma (her mother), Papa (her father) and her chhoti Ranjna Didi, Anjali and her younger brother Aman live in her house.

Q. What is the name of your school?

A. Primary school Maluhi, Padari Tola, region Sukarauli, Police Station Hata, District Kushi Nagar.

Q. What is the name of your teacher?

A. Kanchan.

Q. How is the weather of outside?

A. It is day time. No raining outside. It is a sunny day.

Q. Where have you come from?

A. Padarauna.

Victim PW-1 has deposed that the occurrence took place with her in day light. She was sleeping under the thatched (hut) on chowki (made of wooden planks). She has further deposed that after removing her underwear Chhatradhari had inserted his finger into her vagina. (peshab wali jagah). When she screamed, Ranjna Didi, PW-3 came running there. Chhatradhari fled away from the spot. She also deposed that Chhatradhari is a resident of her village. She recognized him. She felt pain when he inserted his finger. She further deposed that she narrated this incident to her mother Smt. Vidya Devi PW-2. The lady police took her to a government hospital where her medical examination was conducted. The thumb impression and photo on the report of C.M.O. with respect to her age was recognized by her. She also deposed that she took off the underwear which she had been wearing at the time of occurrence and gave it to her mother Smt. Vidya Devi PW-2. The lady police had recorded her statement. Later on, the lady police took her to Kutchery where her statement was recorded before the Judge in a closed room. On the permission of Court the statement under Section 164 Cr.P.C. kept in sealed envelope was opened. The statement under Section 164 Cr.P.C. was shown to the victim and read over to her. Victim verified the statement made under Section 164 Cr.P.C. and identified her thumb impression made thereon, which is marked as Exhibit Ka-1.

Smt. Vidya Devi PW-2 is the mother of the victim PW-1. She deposed that the incident took place three years back in the forenoon. Her daughter (victim) was sleeping in thatched (hut) and at that time she was outside. Accused-appellant Chhatradhari after removing the victim’s underwear inserted his finger into her private parts. On hearing the screaming of the victim, her elder daughter came running there. She also rushed to the place of occurrence. Accused-appellant fled away from the place of occurrence to his house. Blood was oozing out from the vagina of the victim. She got a written report of this incident and lodged at police station. She further deposed that the scriber of the written report, Exhibit Ka-2, read over its contents to her and thereafter she put her thump impression on it, which she proved it as Exhibit Ka-2. She further deposed that the lady police took her daughter (victim) to a government hospital where medical examination of the victim was conducted. Investigating Officer has also interrogated her and inspected the place of occurrence in her presence.

Km. Ranjna PW-3 is elder sister of victim PW-1. She deposed that incident took place on 02.06.2013 at about 12.00 noon. Her sister victim PW-1 was sleeping under a thatched (hut) on a chowki. Accused-appellant after removing the underwear of the victim inserted his fingers into the vagina of the victim. When victim screamed, then she went there running. She scolded accused-appellant and tried to catch him, but he escaped and ran away. She also deposed that she had given statement to the Investigating Officer.

Dr. Seema Rai PW-4 has deposed that on 03.06.2013 she was posted as Senior Woman Medical Officer. On that day, she had medically examined the victim PW-1. On medical examination, she had found that her height was 103 Cm., weight 16 ½ Kg., teeth 12/11. There was no injury on her body. External genitalia was swollen and abrasions were present, Redness was also present around vulva. Breast and secondary sexual characters were not developed, hair absent and hymen present. She further deposed that on 10.06.2013 she had prepared supplementary report Exhibit Ka-6. Age of the victim was about six years. She has also proved medical reports Exhibit Ka-4 and Ka-5.

Constable Amla Ram PW-5 has proved chik report as Exhibit Ka-8 and carbon copy of the GD as Exhibit Ka-7.

Investigating Officer Dhruv Narain Singh PW-6 has deposed that investigation of this case was entrusted to him on 02.06.2013. During investigation, he recorded the statement of the witnesses and accused and also inspected the place of occurrence and prepared a site plan Exhibit Ka-9. After completing the investigatory formalities on the basis of sufficient evidence charge-sheet Exhibit Ka-11 for the offences punishable under Section 376 I.P.C. and under Section 4/6/8 of POCSO Act was submitted.

Learned amicus curiae Sri Pradeep Kumar Mishra, Advocate has submitted that the accused-appellant has not committed any offence and he has been implicated in this case due to enmity.

To appreciate his submission, I have perused the evidence of Dr. Seema Rai PW-4 who stated that on 03.06.2013 she had examined PW-1 (victim). On medical examination victim’s external genitalia was swollen and abrasions were present. Redness was also present around vulva. Breast and secondary character of the victim were not developed. Hair absent and hymen present. Victim was about six years old. Dr. Seema Rai PW-4 had refused the suggestion of the defence that victim herself can insert her fingers into her private parts. Injuries found on the private parts of the victim indubitably support the version of the prosecution. The findings of the medical expert clearly established that accused-appellant had inserted his fingers into the private parts of the victim. There is nothing on record to show that the accused-appellant has been falsely implicated in this case due to enmity. Victim PW-1, her mother Smt. Vidya Devi PW-2 and her elder sister Km. Ranjna PW-3 have fully supported the prosecution version which is wholly supported and corroborated with medical evidence also. These prosecution witnesses have undergone a lengthy cross-examination but nothing in their cross-examination could be elicited, which makes their statements unreliable. This case is based on the testimonies of the aforesaid prosecution witnesses. The principle for the appreciation of the testimony of the victim of rape has been enunciated by the Hon’ble Apex Court from time to time.

In the case of State of Punjab vs. Gurmit Singh, AIR 1996 SC 1393 Hon’ble Apex Court has observed as under:-

“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.”

In the case of Bodhisattwa Gautam Vs Miss Subhra Chakraborty, AIR 1996 SC 922, dealing with sociological and philosophical aspect of the matter, the Hon’ble Apex Court has observed as under:-

“Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are Mother, Daughter, Sister and Wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.

Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.”

In view of the above discussions, I find that the statements of the victim PW-1, Smt. Vidya Devi, PW-2 and Km. Ranjna PW-3 not only corroborate each other and also are consistent with first information report and also with the medical evidence including documentary evidence on record. The trial Court has correctly appreciated the evidence and has not erred in convicting and sentencing the accused-appellant for the offences punishable under Section 376 I.P.C. and under Section 5(d)/6 POCSO Act.

Section 375 Rape.- (as it stood after The Criminal Law Amendment Act, 2013 of the Indian Penal Code 1860) states as under:-

“A man is said 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 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.

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.

Exception 1.- A medical procedure or intervention shall not constitute rape. Exception 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.”

According to Section 3 of the POCSO Act.- 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 persons; 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 persons.

4. Punishment for penetrative sexual assault.-Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

5. Aggravated penetrative sexual assault.- (a) Whoever, being a police officer, commits penetrative sexual assault on a child-

(i) within the limits of the police station or premises at which he is appointed; or

(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known as, or identified as, a police officer; or

(b) Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child-

(i) within the limits of the area to which the person is deployed;or

(ii) in any areas under the command of the forces or armed forces; or

(iii) in the course of his duties or otherwise; or

(iv) where the said person is known or identified as a member of the security or armed forces; or

(c) whoever being a public servant commits penetrative sexual assault on a child; or

(d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or

(e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or

(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or

(g) whoever commits gang penetrative sexual assault on a child.

(h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or

(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

(j) whoever commits penetrative sexual assault on a child, which-

(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or

(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;

(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or

(k) whoever, taking advantage of a child’s mental or physical disability, commits penetrative sexual assault on the child; or

(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or

(m) whoever commits penetrative sexual assault on a child below twelve years; or

(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or

(o) whoever being, in the ownership, or management, or staff, or any institution providing services to the child, commits penetrative sexual assault on the child; or

(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or

(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or

(r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or

(s) whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence; or

(t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or

(u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault.

6. Punishment for aggravated penetrative sexual assault.- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

In the present case the learned trial Court has convicted and sentenced the accused-appellant under Section 376 I.P.C. and under Section 5(d)/6 POCSO Act and minimum sentence has been awarded to him. According to the statement of Dr. Seema Rai PW-4 and medical examination report Exhibit Ka-4, external genitalia of the victim was swollen and abrasions were present. Redness was also present around her vulva. Victim had told to the doctor that the accused-appellant had put his one finger in her vulva. Victim has also deposed that on the date of incident accused-appellant has inserted his finger into her private parts. It is not disputed that at the time of incident victim was only six years of age. Her testimony is fully supported and corroborated with the statement of her mother Smt. Vidya Devi PW-2 and her elder sister Km. Ranjna PW-3 as well as medical report. Injuries were also found on private parts of the victim. In the absence of any material discrepancies or inconsistencies and infirmities, the aforesaid prosecution witnesses cannot be disbelieved. We find that the statement of the victim PW-1, informant Smt. Vidya Devi PW-2 and Km. Ranjna PW-3 not only corroborate one another but also consistent with the first information report as also the documentary evidence including medical evidence available on record. The evidence on record is sufficient to affirm the guilt of the accused-appellant on the charges framed against him. Hence, the accused-appellant is not entitled to the benefit of doubt as pleaded by him. After considering the entirety of the case, I do not find any cogent reason to interfere with the findings of the fact recorded by the trial Court.

However, as rightly pointed out by the learned amicus curiae for the appellant-accused, in the wake of conviction of the appellant for the offence punishable under Section 5(d)/6 of the POCSO Act and consequent sentence, the learned trial court ought not to have sentenced the appellant again for the offence punishable under Section 376 of the IPC. He argued that sentence imposed upon the appellant-accused for the offence punishable under Section 376 of the IPC is not warranted.

It needs to be noted that Section 42 of the POCSO Act provides that where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian penal Code as provides for punishment which is greater in degree.

In the case in hand, the appellant was convicted under section 376 IPC and sentenced to ten years RI and a fine of Rs. 10,000/ and in default of payment of fine, the appellant was further directed to undergo one years simple imprisonment. He was also convicted under section 5(d)/6 of POCSO Act and sentenced to ten years RI and a fine of Rs. 10,000/- and in default of payment of fine, the appellant was further directed to undergo one years simple imprisonment. The appellant-accused, in the light of provisions of Section 42 of the POCSO Act, cannot be awarded separate sentence for the offence punishable under Section 376 of the IPC.

In the result, the conviction of the appellant under Section 5(d)/6 of the POCSO Act for ten years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine one year simple imprisonment, is maintained. However, in the wake of his conviction and sentence for the offence punishable under the POCSO Act, his conviction and sentence under section 376 IPC is set aside. The impugned judgment and order stands modified to the above extent. The appeal is partly allowed. While deciding the period of sentence the authorities will take into consideration the remission of sentence which the accused-appellant is entitled to in law. Accused-appellant is in jail and he would serve remainder of his sentence.

Let two certified copies of the judgment be transmitted to the Court concerned for record. Learned trial Court would send one copy of judgment to the Superintendent of Jail concerned for conveying the result of the appeal to the accused-appellant and also to apprise him of his legal remedy against this judgment. Compliance report be positively submitted to this Court within eight weeks.

Sri Pradeep Kumar Mishra, Advocate would be paid Rs. 6,000/- as honorarium for his services rendered as Amicus-Curiae pursuant to order of the Court dated 07.03.2017.

Order Date :- 15.12.2017

A.K.Verma

 

 

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