Karnataka High Court
Shiva Kumar vs State Of Karnataka on 23 September, 2020
Bench: B.Veerappa, K.Natarajan
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO.518 OF 2015
C/W
CRIMINAL APPEAL NO.829 OF 2015
IN CRL.A NO.518 OF 2015
BETWEEN:
SHIVA KUMAR
S/O DASAIAH
AGED ABOUT 39 YEARS
COOLIE
R/AT MELUKAMANAHALLI VILLAGE
GUNDLUPETE TALUK
CHAMARAJANAGARA DISTRICT
PIN-571 313
(NOW DURESS AT CENTRAL
PRISON MYSORE ) ...APPELLANT
(BY SHRI. Y.S. SHIVA PRASAD, ADVOCATE)
AND:
STATE OF KARNATAKA
BY GUNDLUPETE P.S
CHAMARAJANAGARA DISTRICT
REPRESENTED BY SPP
HIGH COURT BUILDINGS
BENGALURU-560 001 ...RESPONDENT
(BY SHRI. VIJAYA KUMAR MAJAGE, ADDL. SPP)
....
-2-
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:25/26.2.2015,
PASSED BY THE DIST. AND SPL JUDGE, CHAMARAJANAGAR, IN
SPL.C.NO.12/2014-CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCES P/U/S 6 OF POCSO ACT 2012 R/W 376(f) OF IPC.
IN CRL.A NO.829 OF 2015
BETWEEN:
THE STATE OF KARNATAKA
THROUGH GUNDLUPET
POLICE STATION-571 111 ...APPELLANT
(BY SHRI. VIJAYA KUMAR MAJAGE, ADDL. SPP)
AND:
SHIVA KUMAR
S/O DASAIAH
AGED ABOUT 39 YEARS
COOLIE
R/AT MELUKAMANAHALLI VILLAGE
GUNDLUPET TALUK-571 111 ...RESPONDENT
(BY SHRI. Y.S. SHIVA PRASAD, ADVOCATE)
....
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 OF
CR.P.C PRAYING TO MODIFY THE JUDGMENT AND ORDER OF
INADEQUATE SENTENCE DATED 25.2.2015 PASSED BY THE
LEARNED DIST. AND SESSIONS JUDGE, CHAMARAJANAGAR IN
SPL. CASE NO.12/2014 AGAINST THE RESPONDENT-ACCUSED OF
THE OFFENCE P/U/S 5(n) PUNISHABLE U/S 6 OF POCSO ACT, 2012
R/W SEC 376(f) OF IPC BY ALLOWING THIS CRL.A AND PASS
APPROPRIATE AND ADEQUATE SENTENCE ON THE RESPONDENT-
ACCUSED FOR THE OFFENCE P/U/S 5(n) PUNISHABLE U/S 6 OF
POCSO ACT, 2012 R/W SEC 376(f) OF IPC BY ENHANCING THE
SENTENCE IMPOSED.
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING, THROUGH VIDEO CONFERENCING THIS DAY,
NATARAJAN. J., MADE THE FOLLOWING:
-3-
JUDGMENT
Criminal Appeal No.518/2015 is filed by the accused against the judgment of conviction and order of sentence passed by the Special Judge, Chamarajanagar (referred as 'Trial Court') in Special Case No.12/2014 whereas Criminal Appeal No.829/2015 is filed by the State seeking for enhancement of sentence ordered against the accused in Special Case No.12/2014. Both the appeals arise out of the same judgment of the Trial Court. Hence, both the appeals are taken up together for consideration.
2. The rank of the parties before the Trial Court is retained for brevity.
3. The case of the prosecution is that P.W.1, the victim filed a complaint before the Gundlupet Police Station as per Ex.P1 alleging that the accused is her father. Her mother Srija died about four years prior to the filing of complaint. After the death of victim's mother, her father/accused contracted a second marriage with one Susheela. The victim stayed with -4- the accused and her step mother in Ooty where the accused was working in a footwear shop. Just prior to the incident, the accused and the victim came back to their native place at Melukamanahalli village. She has further alleged that the accused quarreled with his second wife, who is victim's step mother and hence, her step mother went to her parents' house. After that the victim alone was residing with her father in Ooty. At that time, her father, the accused committed rape on her and also threatened to kill her brother and sister, if she disclosed it to anybody. Thereafter the accused brought the victim back to Melukamanahalli village, Gundlupet Taluk and stayed in his mother's house. There also the accused compelled her to fulfill his sexual lust. That on 26.10.2013 at about 11.00 p.m., when the victim was sleeping in her grand mother Smt.Kengamma's house, the accused forcibly had intercourse with her. When she raised an alarm, her grand mother Smt.Kengamma enquired her and she revealed that the accused sexually assaulted her. Smt.Kengamma discussed about the said issue with one Chikkathayamma and -5- Rani, who are members of Women's Organization and they advised the victim to lodge a complaint. Accordingly, the victim lodged a complaint on 29.10.2013 at about 14.30 hours, which came to be registered as Crime No.336/2013 for the offence punishable under Section 376 of IPC. Thereafter, the victim was taken to Gundlupet Government Hospital and was subjected to medical examination. On the same day, the victim was produced before the Judicial Magistrate for recording her statement under Section 164 of Cr.P.C. The accused also was subjected to medical examination and was taken to judicial custody. After completion of investigation, the Investigating Officer filed charge sheet before the Special Court against the accused for offences punishable under Section 376 of IPC and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). The Trial Court after taking cognizance, framed charges for offence under Section 3(a) punishable under Section 4 of POCSO Act read with Section 376 of IPC and later framed altered charges for offences under Section 3(a) and 5(n) -6- punishable under Section 6 of POCSO Act read with Section 376(2)(f) of IPC. The accused denied the charges and claimed to be tried.
4. The prosecution, in order to prove its case, examined eight witnesses as per P.W.1 to P.W.8 and got marked ten documents as per Ex.P1 to Ex.P10. After closure of prosecution case, the statement of the accused under Section 313 of Cr.P.C. has been recorded. Accused denied all the incriminating evidence adduced against him and submitted that he has not entered the witness box however, he has examined one Smt.Julia as D.W.1 and got marked Ex.D1.
5. After hearing the arguments, the learned Trial Judge by the judgment dated 25.02.2015, having found the accused guilty of the offence under Section 5(n) of POCSO Act, convicted the accused and sentenced him to undergo rigorous imprisonment for a period of ten years and also to pay a sum of Rs.30,000/-, in default to undergo rigorous imprisonment for a further period of two and half years. Hence, the accused -7- has filed criminal appeal No.518/2015 challenging the judgment of conviction and order of sentence passed against him whereas the State has filed criminal appeal No.829/2015 seeking for enhancement of the sentence passed by the Trial Court.
6. We have heard the arguments of Shri. Y.S.Shivaprasad, learned counsel appearing for the accused and Shri.Vijaya Kumar Majage, learned Additional SPP for the State.
7. Upon hearing the arguments, the points that arise for our consideration are as under:
i) Whether the appellant has made out a case for interfering with the judgment of conviction and order of sentence passed by the Trial Court convicting him for the offences under Section 376(2)(f) of IPC read with Section 6 of POCSO Act?
ii) Whether the State has made out a case for enhancing the sentence passed by the Trial Court from ten (10) years to life imprisonment for the alleged offence committed by the accused?-8-
8. The learned counsel for the accused has vehemently contended that the judgment of conviction and order of sentence passed by the learned Trial Judge is not sustainable in law as the evidence of P.W.1, the victim is not consistent to believe her version about the commission of offence since as per the evidence, she has stated that the accused committed rape on her while residing in Ooty, hence she went to the house of her uncle, but she has not disclosed about the commission of rape. Later, she came back and stayed with the accused in Ooty. Thereafter, when he took her to Melukamanahalli village, she has not disclosed to her grand mother about the offence committed on her. Even otherwise, the statement made before the Magistrate under Section 164 of Cr.P.C. does not reveal any offence of rape committed by the accused at Ooty and her complaint does not corroborate with the statement made before the Magistrate under Section 164 of Cr.P.C. Further, the evidence of P.W.1 does not corroborate with the Medical evidence. As per the evidence of P.W.6, the Doctor, who examined the victim, no -9- seminal stain on the cloth was recovered from the victim for the purpose of sending it to the forensic science lab. Further, spermatozoa also was not collected from the victim in order to confirm the commission of rape. The learned counsel also brought to the notice of this Court that as per medical jurisprudence, the spermatozoa is to remain in the vagina up to 17 days. But the Doctor has not collected any such smear or spermatozoa from the victim. Apart from that, the place of offence is also not properly proved by the prosecution. The victim has stated in the complaint that the offence was committed in the room and in the deposition, it is stated that the offence was committed in the hall. There is inconsistency in her evidence which is not believable. The entire episode has been pre-concerted for falsely implicating the accused at the behest of P.W.3, one Rani, who is the author of the case. Therefore, without corroborating evidence of P.W.1, the evidence of P.W.1 cannot be acceptable in order to prove the guilt of the accused. Therefore, the prosecution case is not acceptable.
- 10 -
9. The learned counsel further contended that on perusal of the evidence of P.W.6 Doctor and Ex.P9 the Medical record, it shows that the victim is said to have been examined on 30.10.2013, but the evidence of the Doctor shows that on 29.10.2013 itself the victim was brought to the Hospital and she has not co-operated for medical examination. Hence, she was sent back. Therefore, on 30.10.2013 once again she has examined the victim. Even otherwise, as per the evidence of the Doctor, the rupture of hymen may be due to some other reason and there are no injuries on the body of the victim. Therefore, the medical evidence also does not support the case of P.W.1. Hence, the accused is entitled for 'benefit of doubt and acquittal'. Hence prays for allowing appeal.
10. Per contra, learned Additional SPP has justified the judgment and findings of the Trial Court. Further, he has countered that the evidence of prosecutrix, P.W.1 is consistent in respect of the commission of offence. P.W.1 is none other than the daughter of the accused, who stayed along with the
- 11 -
accused in Ooty and she was not able to disclose the fact of rape to any person as he had threatened to kill her sister and brother. Therefore, she kept quiet. Even after coming to the native place at Melukamanahalli village, the accused was continuously harassing the victim and after the fact was brought to the notice of P.W.2, the complaint came to be lodged. P.W.2 is the foster mother of accused and grand mother of victim. The accused sexually assaulted the victim, who is his own daughter. Further, it is also contended that the victim was aged about 13 to 14 years at the time of the incident. The age of the victim has been proved by examining P.W.5, the Head master, who issued the Certificate regarding the Date of Birth of the victim, which clearly shows that her date of birth is 01.01.2001. The incident took place on 26.10.2013 when she was only 13 years of age. The evidence of the Doctor also corroborates in respect of the commission of rape where the witness clearly stated that the sperm cannot be secured once the victim has washed her private parts or has taken bath. Therefore, smear or
- 12 -
spermatozoa was not collected by the Doctor. That itself cannot be a ground to reject the evidence of P.W.6, in order to disprove the prosecution case. The learned Additional SPP further contended that the evidence of P.W.1., the victim; P.W.2, victim's grand mother; evidence of P.W.6, Doctor; and evidence of P.W.8, Investigating Officer, goes to show that the prosecution is successful in proving the guilt of the accused for the offence punishable under Section 6 of the POCSO Act read with Section 376(2)(f) of IPC. He further contended that the punishment for offence under Section 376(2)(f) of IPC is imprisonment for a term of minimum ten years which may extend to imprisonment for life and under Section 6 of POCSO Act, the imprisonment is for a period of minimum ten years, which may extend to imprisonment for life. The accused has committed the rape on his own minor daughter. Hence, the accused deserves to be punished with greater sentence. Therefore, he sought to allow the appeal filed by the State and to enhance the sentence to life and dismiss the appeal filed by the accused.
- 13 -
11. We have carefully considered the rival contentions and perused the records.
12. P.W.1, victim has given evidence in support of her complaint made before the police as per Ex.P1. P.W.1 has narrated the incident in detail in respect of the relationship between herself and the accused, the marriage of the accused along with her mother Srija and having three children out of the wedlock and later the death of her mother by consuming poison. Thereafter, accused contracted second marriage with one Susheela and also had one child and due to misunderstanding between the accused and Susheela, she left the house at Ooty. The victim stayed with the accused in the house and at that time accused committed rape on her twice and he also threatened her not to disclose the same to anybody otherwise, he will kill her brother and sister. Therefore, she kept quiet. Later they came back to Melukamanahlli village and stayed in her grand mother's house. There also accused committed rape on her, which came to the knowledge of her grandmother P.W.2,
- 14 -
Kengamma and they lodged a complaint before the Gundlupet Police Station. Ex.P1 is her complaint and Ex.P1(a) is her signature. Further she has deposed that she was taken to the Hospital and subjected to medical examination and later she was taken to her grandmother's house and she has shown the spot where the accused committed rape on her. The spot mahazar was conducted and the Police prepared panchanama as per Ex.P3. She was also taken by the police along with panchas, to Ooty where she stayed along with the accused and she showed the place of sexual assault. There also, spot mahazar was conducted and the Police prepared panchanama as per Ex.P4. She was produced before the Magistrate and her statement was recorded as per Ex.P2. A lengthy cross-examination was conducted by the accused but nothing has been elicited to disbelieve her evidence except in the cross-examination of P.W.1, victim has stated that the accused used to go at night for work and was returning to house only in the morning. However, on the previous day of lodging the complaint, he was on leave.
- 15 -
13. P.W.2 Kengamma who is the grand mother of the victim and foster mother of the accused also narrated about the marriage of the accused with the mother of the victim and also the second marriage with Susheela. She has said that about an year back after dinner, while they were sleeping in the house, she found the accused had slept with the victim and she also warned the accused. In spite of the same, accused is stated to have quarreled with the victim. Thereafter, she quarreled with the accused and brought the same to the notice of second wife of the accused over phone and she told that they can do whatever they want. Therefore, she went to the police station and lodged the complaint. During the course of cross-examination, it is stated that the accused slept in the verandah of the house and nothing is elicited in order to disprove her evidence.
14. P.W.3, Rani, who is said to be a social worker in the Women's Organization has stated that she came to know about the incident through P.W.2 and that she is also one of
- 16 -
the panch witnesses to the panchanamas as per Ex.P3 and Ex.P4. She has supported prosecution's case.
15. P.W.4 Dr.Sridhar has stated that he has examined the accused as per the requisition issued by the Investigating Officer and has given Reports expressing his opinion, as per Ex.P6 and Ex.P7.
16. P.W.5 who is the Head Master of the School where the victim was studying, has certified the Date of Birth of the victim. As per his evidence, the Date of Birth of victim is 01.01.2001. Ex.P8 is the document issued by P.W.5. Nothing is elicited in order to discard the evidence of P.W.5. The Date of Birth is also not disputed by the accused in the cross- examination of P.W.1, P.W.2 and P.W.5, and even in the 313 statement of accused.
17. P.W.6, Dr. P.Lalitha has examined the victim on 30.10.2013 at about 1.30 p.m. at the request of the police. According to her opinion, the age of the victim was 14 years and she had attained puberty. Her hymen was ruptured which
- 17 -
accepts two fingers. The victim was subjected to sexual intercourse. During her cross-examination, except denying the suggestion with regard to ejaculation and stating that she has not collected the specimen spermatozoa, nothing is elicited to disprove the evidence that the victim was subjected to sexual inter course.
18. P.W.7, M. Nagaraja Shetty, Assistant Sub- Inspector of Police, Gundlupet Police Station has stated that on receiving the complaint as per Ex.P1, he has registered the FIR in Crime No.336/2013 and has issued FIR to the Court as per Ex.P10. Further it is stated that he has handed over the further investigation to P.W.8, Chennesha.
19. P.W.8, Chennesha, the Police Inspector has stated that on taking up the further investigation from P.W.7 on 29.10.2013, he has sent the victim to Medical examination and also produced the victim before the Magistrate for recording her statement and thereafter, he has conducted the panchanama as per Ex.P3 at the house of the accused and
- 18 -
also took the victim to Ooty and conducted panchanama as per Ex.P4 and on recording the statement of the witnesses present at that time, he obtained the medical record of the victim and also school record. After investigation he has filed charge sheet.
20. Upon consideration of the evidence of the prosecution witnesses, which would reveal the relationship between the accused and the victim is of father and daughter, is not in dispute. It is also not in dispute that the accused was married to Smt.Srija, the mother of the victim and they had three children. She also stayed in Ooty. Subsequent to the death of the mother of the victim, the accused contracted second marriage with Smt.Susheela and have one male child. Subsequent to the death of her mother, the victim also stayed with the accused at Ooty, is not in dispute. The further case of the prosecution is that the second wife Smt.Susheela quarreled with the accused and went to her native place. At that time, the accused stayed in Ooty in rented house. The accused taking the advantage of the loneliness of the victim,
- 19 -
has sexually assaulted her by having intercourse twice. Subsequently, she went to her paternal uncle Rajendra's house, who is the brother of the accused. The accused quarreled with Rajendra and took her back to his home. Even thereafter, he had intercourse three times during the night and he has threatened her to kill her brother and sister, if she discloses to any person. Therefore, she kept quiet. Thereafter, the accused vacated the house and came back to his native place at Melukamanahalli village at Gundlupet Taluk. The accused has not disputed the shifting of the house to Melukamanahalli which is revealed as per the evidence of P.W.1 and P.W.2. The evidence of prosecutrix P.W.1 shows that taking advantage of the loneliness of the victim at Ooty, the accused committed the rape. However, the fact remains that they have shifted the house from Ooty. When they stayed in Ooty there was no complaint. The complaint was lodged before the Gundlupet Police Station after they started residing in Melukamanahalli village, Gundlupet Taluk. However, the evidence of P.W.1 that the accused was having intercourse
- 20 -
with the victim which corroborates with the evidence of P.W.2 who is victim's grandmother. She has categorically stated that the accused after coming back from Ooty, was having intercourse with the victim in spite of her warning. One day, she saw the accused having intercourse with the victim and she had raised alarm. Then, she brought the same to the notice of Susheela and then she went to police station with help Rani P.W.3 and lodged the complaint. As already stated above, nothing is elicited by the Counsel for the accused to disbelieve the evidence of P.W.1, the daughter of the accused and P.W.2, the foster mother of the accused.
21. The evidence of P.W.1 and P.W.2 also corroborates with the evidence of P.W.6 Doctor, who examined the victim and according to her evidence and as per the Medical Report at Ex.P9, the victim has attained puberty and her age was 14 years and the hymen was absent and according to the opinion of the Doctor, the victim was subjected to intercourse. Though the learned counsel for the accused tried to elucidate with this witness that specimen spermatozoa was not collected and it
- 21 -
would remain up to 48 to 72 hours of ejaculation, this witness categorically stated that if the victim had not washed or bathed, the sperm would stay for 24 hours, but if she had washed, the sperm would not stay. The learned counsel relied upon 21st Edition of Medical Jurisprudence by Modi wherein it is mentioned that the presence of Spermatozoa in the vagina after inter course has been reported by Pollack (1943) from 30 minutes to 17 days, by Morrison (1972) up to 9 days in vagina and 12 days in the cervix. However, in this regard, we rely upon the judgment of the Hon'ble Apex Court in the case of Prithi Chand Vs. State of Himachal Pradesh reported in AIR 1989 SC 702, wherein the Apex Court has held at para 10 as under:
"10. Lastly it was argued by reference to A.W.Khan v. State, AIR 1962 Cal 641, Gorakh Daji Ghadge v. State of Maharashtra 1980 Cri LJ 1380 (Bom) and Padam Bahadur Darjee v. State of Sikkim, 1981 Cri LJ 1317 (Sikkim) that since the girl was of tender age the possibility of her wrongly involving the appellant cannot be ruled out and this possibility is strengthened by prior enmity, absence of spermatozoa and infirm medical opinion. We have already examined the argument of enmity as well as the so-called infirmity in medical evidence. Mere absence of
- 22 -
spermatozoa cannot cast a doubt on the correctness of the prosecution case. We have carefully gone through these decisions and we think they turn on the facts of each case."
22. The Hon'ble Apex Court has held that mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case. In the said judgment, the Hon'ble Apex Court has also held at para 9 of the judgment that it is not possible to believe that the prosecutrix and her parents would not allow real culprit to escape and falsely involve an innocent person for the commission of the crime. Hence, the argument addressed by the learned counsel for the accused that the presence of spermatozoa is necessary to prove the offence of rape cannot be acceptable. The evidence of P.W.5 clearly shows that P.W.1 was born on 01.01.2001 and as on the date of alleged incident on 26.10.2013, she was minor below the age of 16 years. Though P.W.3, who is said to be a social worker in a Women's Organization advised to lodge a complaint when P.W.1 and P.W.2 approached her, that itself cannot be considered that
- 23 -
she was having inimical terms with the accused. A suggestion was made in the cross-examination that the accused went to purchase site and P.W.3 was coming in the way of purchasing the site and because she had vengeance, she got a false complaint filed through the daughter of the accused against the father of the victim. Therefore, the suggestion made by the accused to the victim cannot be acceptable. In the statement made under Section 313 of Cr.P.C, the accused has not denied the age of the victim that she was minor and his statement is as usual denying of evidence as false. However, he has examined D.W.1, one Hostel Warden. According to her evidence, when the victim was staying in hostel, she was in depressed condition because of the death of her mother and her grandmother and one Rani took her from the Hostel during summer vacation and they did not send her back to the hostel. Therefore, her evidence cannot be taken in order to disprove the case of prosecution.
23. It is well settled principle that no Indian woman would come before the Court and depose falsely against the
- 24 -
person who has committed rape on her. In this case, that too own daughter of the accused has filed a complaint against the accused that he has committed the offence of rape on her. Absolutely, there is no evidence in order to show that the victim had occasion to falsely implicate her own father that too in the rape case.
24. As regards the contention of the learned counsel for the accused that the evidence of the other witnesses do not corroborate with the evidence of P.W.1 and there is inconsistency with her evidence, we would rely upon the judgment of the Apex Court in the case of State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC 381 wherein the Hon'ble Apex Court has held that the conviction can be founded on testimony of prosecutrix alone; that evidence of prosecutrix is more reliable than that of an injured witness and that minor contradictions or insignificant discrepancies in her statement is immaterial.
- 25 -
25. In another judgment in case of Vijay alias Chinee Vs. State of Madhya Pradesh reported in (2010)8 SCC 191, the Hon'ble Apex Court has held at para 9 as under:
9. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under SCC p.559, para 16) "16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her.
If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which
- 26 -
requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
26. In view of the principle laid down by the Hon'ble Apex Court in the above said case and looking to the evidence of prosecution witnesses, the evidence of P.W.1 is consistent and there is no discrepancy or unshakable evidence in respect of commission of rape committed by the accused. Merely some discrepancy in respect of accused going to the work on night duty and staying on leave on the previous date of complaint, that itself will not lead to disproving the evidence or testimony which was given on oath. Apart from that, evidence
- 27 -
of P.W.2, the grandmother of victim also corroborates with the evidence of P.W.6, Doctor and also the evidence of Investigating Officer in respect of investigation done by the police and filing the charge sheet. On perusal of the overall evidence, we are satisfied that the evidence led by the prosecution clearly establish that the accused by taking advantage of loneliness of the minor daughter, sexually assaulted her on the alleged date i.e., 26.10.2013. There is nothing to disbelieve her evidence in respect of the threat made by the accused not to disclose to any person and the complaint came to be lodged with the intervention of P.W.2 when she came to know about the offence committed by the accused on the date of the incident. Therefore, the prosecution was successful in proving the guilt of the accused for the offence punishable under Section 6 of POCSO Act and 376(2)(f) of IPC. The offence committed on the victim is by blood relative who is father. Therefore, the accused has committed offence under Section 376(2)(f) of IPC and Section 6 of POCSO Act.
- 28 -
27. In view of our findings above, the appellant/accused failed to show the finding of the Trial Court convicting and sentencing him to undergo to imprisonment for ten (10) years for the offence punishable under Section 376(2)(f) of IPC read with Section 6 of POCSO Act. Hence, point No.1 is answered in the negative against the accused/appellant.
28. The next point to be considered by this Court is with regard to the appeal filed by the State in respect of enhancing the sentence from 10 years to life imprisonment. The learned Additional SPP has vehemently contended that this case cannot be compared with any other rape case, since the accused/father of the victim has committed rape on his own minor daughter and lesser sentence would impact on the Society and it would give wrong message to the Society. Therefore, he should be punished by maximum imprisonment of life under Section 376(2)(f) and Section 6 of POCSO Act. He also brought to our notice that Section 42 of POCSO Act provides for alternate punishment which is greater in degree.
- 29 -
29. On the other hand, the learned counsel for the accused has contended that the accused is in custody from the date of his arrest from 29.10.2013 and he has already undergone imprisonment for nearly 7 years. The same shall be given set-off and he shall be ordered to be released and further contended that a Court can give special reasons and it can reduce the sentence from minimum sentence to lesser sentence.
30. On perusal of the provision of Section 6 of the POCSO Act, which provides for imprisonment for a term which shall not be less than ten years and which may extend to imprisonment for life and also liable to fine for the alleged offence which was committed by the accused on 26.10.2013, is under the old Act. The legislation has amended the said provision and under the new Act, the present punishment is for 30 years and may be extended to life imprisonment. It is also mentioned that the life imprisonment means the remainder of the life of the person. When such being the case, the question of reducing the sentence from minimum
- 30 -
sentence to lesser sentence cannot be acceptable. Even a perusal of Section 376(2)(f) of IPC shows that it prescribes the punishment which otherwise shall not be less than ten years which may extend to imprisonment for life. Both the provisions of POCSO Act and IPC clearly state that the punishment shall not be less than ten years and which may extend to imprisonment for life. Therefore, considering Section 42 of POCSO Act, the Court shall not reduce the sentence from ten years at any cost.
31. However, considering the sentence imposed by the Trial Court and the facts and circumstances of the case that the accused who is in judicial custody is having three children out of his first marriage and another son after contracting second marriage with Susheela and is having aged mother, by looking into the evidence of P.Ws. 1, 2 & 5, and Investigating Officer, we are of the opinion that the sentence imposed by the Trial Court is not required to be enhanced to life or to reduce. Instead confirming the minimum punishment of ten years imposed by Trial Court will meet the ends of justice.
- 31 -
Hence, we answer point No.2 in the negative against the State.
32. Accordingly, the appeal filed by the accused/appellant against the judgment of conviction and order of sentence and the appeal filed by the appellant/State for enhancement of the sentence are hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE SPS