Sandeep vs State Of Uttarakhand on 26 April, 2022

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Uttarakhand High Court

Sandeep vs State Of Uttarakhand on 26 April, 2022

Instant appeal is preferred against the judgment and order dated 06.04.2016, passed in Special Sessions Trial no. 21 of 2014, State Vs. Sundeep by the Court of District and Sessions Judge, Pauri Garhwal. By the impugned judgment and order, the appellant has been convicted under Sections 363, 376, 506 IPC and Section 5(l)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the Act") and sentenced as hereunder:-

(i) Under Section 363 IPC, rigorous imprisonment for a period of three years with a fine of Rs.3000/-. In default of payment of fine, to undergo simple 2 imprisonment for a further period of three months.

(ii) Under Section 376 IPC, rigorous imprisonment for a period of ten years with a fine of Rs.5,000/- In default of payment of fine, to undergo simple imprisonment for a further period of six months.

(iii) Under Section 506 IPC, rigorous imprisonment for a period of one year with a fine of Rs. 1000/- In default of payment of fine, to undergo simple imprisonment for a further period of one month.

(iv) Under Section 5(l)/6 of the Act, rigorous imprisonment for a period of ten years with a fine of Rs.5,000/- In default of payment of fine, to undergo simple imprisonment for a further period of six months.

2. Prosecution case, briefly stated is as follows:-

The victim girl of 17 years of age left her house at 10:30 in the morning on 14.06.2014. A search was made, but she could not be traced. The father of the victim, who is PW2 lodged an FIR on the same day at 1:25 PM at Police Station Kotdwar. Based on which, 3 Case Crime No. 101 of 2014, under Section 363 IPC was lodged against unknown person. On 30.09.2014, when the victim was spotted with the appellant at the Railway Station, Kotdwar, she was taken by her father PW2 with him. The appellant managed to run away. The statement of the victim was recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short, "the Code"). She was medically examined on 01.10.2014 at the Government Combined Hospital, Kotdwar. The Investigating Officer ("IO") prepared the site plan and after investigation, submitted charge sheet against the appellant, under Section 366 and 376, 506 IPC and Section 5/6 of the Act.

On 24.11.2014, charge under Sections 363, 376, 506 IPC and Section 5 (l)/6 of the Act were framed, to which, the accused pleaded not guilty and claimed trial.

3. In order to prove the case, the prosecution examined as many as five witnesses, namely, PW1. the victim, PW2 father of the victim, PW3 Dr. Sangeeta Negi, PW4 Sub Inspector, Manoj Kumar and PW5 Uma Dabral.

4. The appellant was examined under Section 313 of the Code. According to him, he is innocent and he has been falsely implicated and the witnesses have falsely deposed against him.

5. By the impugned judgment and order, the appellant has been convicted and sentenced as stated hereinbefore. Aggrieved by it, the appellant has preferred the instant appeal.

6. Heard learned counsel for the parties and perused the record.

7. Learned counsel for the appellant would submit that the prosecution has failed to prove the case against the appellant. The appellant ought to have been acquitted of the charge. But, the court below committed an error in convicting and sentencing the appellant. Learned counsel for the appellant would submit the following points in his submission:-

(i) There are contradictions in the statement of the victim. In her statement recorded under Section 164 of the Code, she has stated that she was persuaded by the appellant to accompany him , while she was returning from the shop. Whereas, in the court, she has stated that she was taken forcibly from her house by the appellant.

(ii) In her statement under Section 164 of the Code, the victim has stated that the appellant 5 took her in his maternal aunt's house and locked her. It is argued that if the victim was in the house of the aunt of the appellant, there is no question of locking her inside the room.

(iii) The victim stayed with the appellant for about four months. She on her own accompanied the appellant on his motorcycle; she did not raise any alarm; she crossed many police check-

posts and forest check-posts, but she did not complain to anyone; it amply speaks that, in fact, the victim on her own had left her house; the appellant did not entice her.

(iv) The victim was not minor on the date of the incident. PW2, father of the victim has not stated the date of birth of the victim. He has simply stated that she was 17 years of age on the date of the incident.

(v) The victim was working in a factory where she has shown her age as 18 years.

(vi) The extract of the family register has not been produced before the Court.

(vii) The Doctor, who examined the victim has stated that the physical appearance of the victim was suggestive of her age as 18 years. 6

8. On the other hand, learned State counsel would submit that the victim was a minor. The prosecution has been able to prove its case. The victim has stated about the incident and her statements are supported by other evidence. The impugned order is in accordance with law.

9. PW1 is the victim. According to her, in the year 2014, she was studying in Class VIIIth. Her date of birth is 01.08.1997. It is her date of birth recorded in the school register. According to her, on 14.06.2014, she was all alone in her house, when the appellant came to her house and threatened her to accompany him. Under the fear, she accompanied the appellant. From Kotdwar, they went to Haridwar and thereafter, Ambala and Patiala. PW1 the victim has stated that the appellant misbehaved with her, beaten her up and raped her in the night. Subsequently, the appellant took her to Brahampur to his house near Nazibabad. From there, he took the victim to Kotdwar, where they were spotted. Police took them for medical examination and for recording the statement. This witness has proved her statement recorded under Section 164 of the Code.

10. PW2 is father of the victim. According to this witness, on 14.06.2014, the victim disappeared from the 7 house in the morning. She was searched, but could not be traced. Thereafter, he lodged the FIR. According to this witness, on 30.09.2014, upon an information having been received, they recovered the victim from the Railway Station Kotdwar. At that time, she was with appellant. But, the appellant could manage to escape. The victim was given in his custody thereafter. He has stated that the victim was studying in school and she was 17 years of age.

11. PW3 Sangeeta Negi is the Doctor, who examined the victim on 01.10.2014. She had noticed a bruise 5cm x 5cm on the upper arm of the victim and another bruise 2cm x 2cm on the knee joint; hymen was torn.

12. PW4 Manoj Kumar is the IO, he has submitted the charge sheet. This witness has also proved the other police documents.

13. PW5 Uma Dabral is the Principal of the school where the victim studied. She has proved the scholar register, in which her date of birth is recorded as 01.08,1997. She has also proved the original result of the victim which also bears the date of birth of the victim. This witness appeared with the original record. 8

14. The appellant has been convicted and sentenced under Section 363 IPC also and Section 5(l)/6 of the Act. Section 363 IPC provides for punishment for kidnapping. Kidnapping is defined under Section 361 IPC. It is as hereunder:-

"361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception.-this section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose."

15. In order to attract the provisions of the Act and Section 363 IPC, first and foremost, the age of the victim has to be determined and established. According to the FIR, the victim was 17 years of age when she left her house. The victim was medically examined on 01.10.2014 by PW3 Dr. Sangeeta Negi. According to her, at the time of examination, the victim had told her age 17 years. In para 12 of her statement, PW3 Dr. Sangeeta Negi has stated 9 that in view of the physical features of the victim, her age would have been more than 18 years then. The victim was examined under Section 164 of the Code on 13.10.2014. Then she revealed her age 17 years.

16. As a witness, PW1 the victim has stated that in the year 2014, she was studying in Class VIIIth. Her date of birth is 01.08.1997, as recorded in the school records. In fact, she has also stated about Ex. A10, an evaluation sheet, which has been proved by PW5 Uma Dabral, the Principal of the school.

17. PW2 father of the victim has also stated that the age of the victim, at the time of incident, was 17 years. Both PW1 the victim and PW2 her father has stated that the victim had worked in a factory, where she was getting Rs.6,000/- monthly salary. Based on this fact that the victim had worked in a factory, it is argued that her age must have been more than 18 years, when she worked in the factory. This Court is afraid to take such an assumption. There is no material to suggest that any record was filed by the victim as proof of her age before seeking employment in the factory. Had such record been placed, the genuineness would have been examined by the Court.

18. PW5 Uma Dabral is the Principal of the school, where the victim had taken admission in standard 1st in the year 2002. This witness had come along with all the official original record of the school. She has proved the evaluation sheet Ex. A10 which records her date of birth as 01.08.1997. According to PW5 Uma Dabral, the date of birth of the victim is 01.08.1997, in the school records.

19. Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the method to determine the age of the juvenile. The same principle may be made applicable to determine the age of the victim.

20. In the case of Rishipal Singh Solanki Vs. State of Uttar Pradesh and others, Manu/SC/1081/2021 the Hon'ble Supreme Court discussed the law on this point and culled out the principles with regard to the determination of age as hereunder:-

"29. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

(i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.

(ii) An application claiming juvenility could be made either before the Court or the JJ Board.

(iia) When the issue of juvenility arises before a Court, it would be Under Sub-section (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is 11 brought before a Committee or JJ Board, Section 94 of the JJ Act, 2015 applies.

(iib) If an application is filed before the Court claiming juvenility, the provision of Sub-section (2) of Section 94 of the JJ Act, 2015 would have to be applied or read along with Sub-section (2) of Section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

(iic) When an application claiming juvenility is made Under Section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated Under Section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015).

(iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or Sub-

section (2) of Section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

(iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

(v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per Sub-section (2) of Section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

(vii) This Court has observed that a hyper- technical approach should not be adopted when evidence is adduced on behalf of the Accused in support of the plea that he was a juvenile.

(viii) If two views are possible on the same evidence, the court should lean in favour of holding the Accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

(x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., Section 35 and other provisions.

(xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

21. In the case of Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714, the Hon'ble Supreme Court observed as hereunder:-

"28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose 13 instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case."

22. In the case of Alamelu and another Vs. State, (2011) 2 SCC 385, the Hon'ble Supreme Court, inter alia, observed that "the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined." The Hon'ble Supreme Court observed as hereunder:-

"40. Undoubtedly, the transfer certificate, Ext. P- 16 indicates that the girl's date of birth was 15-6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident i.e. 31- 7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."

23. In the school record of the victim, her date of birth is recorded as 01.08.1997. PW5 Uma Dabral has also stated that the guardian of the victim had written her date 14 of birth on his own. The victim as PW1 stated her date of birth as 01.08.1997. It is true that no family register has been filed and the ossification test has not been done. But, it is not required in this case. The school record confirms the date of birth of the victim as 01.08.1997. The victim herself has stated about her date of birth and her father has also stated about her age. Therefore, prosecution has been able to prove that the date of birth of the victim is 01.08.1997. The witness left her house on 14.06.2014. It means, she was just 16 years, 10 months and 13 days old on 14.06.2014, when she left the house. She was a child under the Act. She was a girl child below 18 years.

24. Another question which falls for consideration is, as to whether, the appellant kidnapped her? PW1, the victim has proved her statement given under Section 164 of the Code, which is Ex. A1. According to her statement, recorded under Section 164 of the Code on the date of incident, she had gone to market and while returning, the appellant persuaded her to accompany him, on the assurance that he would marry her and keep her happy. Thereafter, she, on a motorcycle went to Ambala with the appellant.

25. In her statement before the Court, the victim as PW1 has stated that on the date of incident, she was all alone in her house when the appellant came and threatened her that he would kill her father.Under that threat, he asked the victim to follow him or else he would kill her also. According to PW1, the victim, under the threat, she went along with the appellant. They went to Haridwar, Ambala and thereafter, Patiala. During night, the appellant would rape her.

26. In her statement, at Para 14, PW1 the victim has stated that she had gone with the appellant on his motorcycle to Ambala. In para 16 of her statement, PW1 the victim would tell that she did not complain to the Police or to anyone at any place. There were forest check- posts on the way. According to the victim, the appellant took her Patiala, where she was asked to work in a house. There the appellant introduced her as his wife, but she did not complain to anyone there also. The victim stayed with the appellant for more than three months, but she did not complain to anyone. She had immense opportunities to raise the objections, to cry, but the victim did not do any of such acts.

27. In the case of Anversinh alias Kiransinh Fatesinh Zala Vs. State of Gujrat, (2021) 3 SCC 12, the Hon'ble Supreme Court had observed "however, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home.............."

28. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court had found that the victim had willingly accompanied the accused. In that background, it was observed "she willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking 17 for herself and acting on her own than perhaps an unlettered girl hailing from a rural area."

29. In the case of Anversinh (supra), the Hon'ble Supreme Court distinguished the law as laid down in the S. Varadarajan (supra), and in paragraphs 18 and 19 observed as hereunder:-

"18. The ratio of S. Varadarajan [S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] , although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan [S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on the part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

19. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix 18 was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully."

30. In view of the settled legal position, mere recovery of a child from some other person ipso facto does not to prove the offence under Section 363 IPC. The prosecution has to prove that the accused either took or enticed the minor out of keeping of the lawful guardian.

"Taking" or "enticing" are important. The level of understanding of the victim has also to be seen. As to whether, the accused did make any enticement? These and some more factors were, in fact, examined by the Hon'ble Supreme Court, in the case of S. Varadarajan (supra), while laying down the principles.

31. PW1 the victim was about 16 years of age on the date of incident (16 years 10 months & 13 days old). The appellant was not new person to her. PW1 the victim in her statement at para 8 has stated that the appellant was staying in her house for nine months prior to the incident. His wife was also staying there. On the date of incident, the wife of the appellant was not there. It is not the case of the prosecution that the appellant forcibly took the victim 19 with him. PW1 the victim has stated that under the threat of killing her and her family, she accompanied the appellant, when she was at her house. But, as stated, in her examination under Section 164 of the Code, she has stated that she was in the market, when she was persuaded by the appellant to accompany him. There are material contradictions in these two versions.

32. The prosecution, in fact, has not been able to prove that the victim was induced by the appellant. PW1, victim has not stated about enticement. Under threat, according to her, she was compelled to go with the appellant. But, she had immense opportunities to raise the alarm. She joined the appellant on a motorcycle. The statement of PW1 the victim does not prove the prosecution case under Section 363 IPC. In fact, it suggests that the victim left her house on her own. The appellant facilitated in her desire. Therefore, this Court is of the view that the prosecution has failed to prove the charge under Section 363 IPC.

33. The appellant has also been convicted under Section 376 IPC and Section 5(l)/6 of the Act. 20

34. PW1 the victim has stated that the appellant raped her. She has stated it in her examination under Section 164 of the Code also.

35. PW3 Dr. Sangeeta Negi has examined the victim and proved her medical examination report Ex. A5. Her hymen was torn. There is no reason to disbelieve the statement of PW1 the victim that the appellant established physical relations with her. The victim was a child of below 18 years of age. The act was consensual, but the consent of the victim has no significance. Therefore, this Court is of the view that the prosecution has been able to prove the charge under Section 376 IPC and Section 5(l) read with 6 of the Act.

36. The court below had convicted and sentenced the appellant under Section 376 IPC as well as Section 5(l)/6 of the Act.

37. Section 42 of the Act provides for punishment in such cases. It is as hereunder:-

"42. Alternate punishment.- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, section 509 of the Indian Penal Code (45 of 1860) or section 67B of the 21 Information Technology Act, 2000 (21 of 2000), 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."

38. In view of the above section 42 of the Act, in the cases of conviction under Section 376 IPC and Section 5(l) read with Section 6 of the Act, the convict may be punished under the Act or under the Indian Penal Code, as provided for punishment which is greater in degree.

39. The punishment under Section 376 IPC is different under sub Section (1) and under sub Section (2). The court below did not prescribe as to under what provision this punishment has been done. Simply, the appellant has been convicted under Section 376 IPC. Under Section 376 (1) IPC, the punishment is not less than 7 years, but which may extend the imprisonment for life and with fine.

40. Under Section 376 sub Section (2) IPC, the punishment prescribed is rigorous imprisonment for a term which shall not be less than ten years but which may extent to imprisonment for life, which shall mean 22 imprisonment for remainder of that persons natural life and shall also liable to fine.

41. Instant is a case of repeated rape on the same woman, which falls under Section 376 sub Section (2) (n) IPC.

42. Section 6 of the Act prescribes punishment for aggravated penetrative sexual assault. The punishment of this Section at the relevant time was for a term which shall not be less than 10 years but, which may extent to imprisonment for life and shall also be liable for fine.

43. Comparing the punishment provided under Sections 376(2) IPC and Section 6 of the Act, it is abundantly clear that the punishment under Section 376(2) IPC is greater in degree. Therefore, while maintaining the conviction of the appellant under Section 376(2) IPC and Section 5(l) read with Section 6 of the Act, the appellant may be sentenced under Section 376(2) IPC.

Conclusion

(i) The appellant is acquitted of the charge under Section 363 IPC.

(ii) The conviction of the appellant under Sections 376 (2), 506 IPC and Section 5(l)/6 of the Act is upheld.

(iii) The appellant is convicted under Section 376 (2) IPC with rigorous imprisonment for a period of 10 years and a fine of Rs.5,000/-. In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of six months.

(iv) The sentence imposed on appellant under Section 506 IPC is upheld.

44. The impugned judgment and order is modified to the extent as indicated above.

45. The appeal is disposed of accordingly.

46. Let a copy of the judgment along with lower Court record be sent to the Court below for compliance.

(Ravindra Maithani, J.) 26.04.2022 Jitendra

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