Allahabad High Court
Rinku @ Prempal vs State Of U.P. on 24 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 45 Case :- CRIMINAL APPEAL No. - 7960 of 2019 Appellant :- Rinku @ Prempal Respondent :- State of U.P. Counsel for Appellant :- Sanjay Srivastava,Prayogendra Pal Singh Counsel for Respondent :- G.A.,Archana Singh Hon'ble Surendra Singh-I,J.
Heard Sri Prayogendra Pal, learned counsel for the appellant, Ms. Ruchi Srivastava, Advocate, holding brief of Ms. Archana Singh, learned counsel for the informant and learned A.G.A. for the State.
2. This criminal appeal has been instituted against the judgement and order dated 30.11.2019 passed by Special Court (POCSO Act)/Additional Sessions Judge, Court No. 3, Bulandshahr in Special Case No. 74 of 2017 (State of U.P. Vs. Rinku @ Prempal) arising out of Case Crime No. 447 of 2016 u/s 363, 366, 376 I.P.C. & Section 4 of POCSO Act, P.S.- Aurangabad, District- Bulandshahr.
3. By the impugned order, the trial court has convicted the appellant-accused Rinku alias Prempal under Sections 354-B, 363, 366 I.P.C. and Section 8 POCSO Act and sentenced the appellant-accused, Rinku @ Prempal u/s 366 I.P.C. to undergo 7 years imprisonment and a fine of Rs.2,000/- with default stipulation. The trial court has also convicted the appellant-accused u/s 8 of POCSO Act and sentenced him to undergo 5 years imprisonment and a fine of Rs.2,000/- with default stipulation. The trial court has acquitted the appellant-accused u/s 376 I.P.C. and Section 4 of POCSO Act. There is no criminal appeal filed by the State or victim against acquittal of appellant-accused u/s 376 I.P.C. and Section 4 of POCSO Act. Thus, the trial court's order acquitting the accused under these sections has become final.
4. The provisions of Section 228-A I.P.C. as well as Section 33 of POCSO Act and in the judgement of the Apex Court in the case of Nipun Saxena & Anr. Vs. Union of India & Anr. passed in Writ Petition (Civil) No. 565 of 2012 prohibit disclosure of name of the victim against whom sexual offence has been committed. Therefore, in the present case, the prosecutrix shall be referred as the victim.
5. The prosecution case in brief is that the informant/father of victim, Kalua S/o Umrao Lodhi, resident of village- Ratanpur, P.S.- Aurangabad, District- Bulandshahr, submitted written report (Ext.Ka.1) on 12.10.2016 at P.S.- Aurangabad, District- Bulandshahr to the effect that on 07.10.2016 at 1 p.m., his daughter/victim aged 14 years suddenly went somewhere from her home. He has made search at all possible places but could not find her. He has full belief that accused, Rinku @ Prempal, S/o Sripal Lodhi, resident of Jagsana Kala, P.S.- Jahangeerabad, District- Bulandshahr, has enticed away her daughter. Accused, Rinku @ Prempal is his brother-in-law (sarhoo). In the absence of informant, accused stayed for 8 days in his house and thereafter, left his house.
6. On the basis of written report (Ext.Ka.1) submitted on 12.10.2016 at 9.40 a.m., Case Crime No. 447 of 2016 u/s 363, 366 I.P.C. was registered in police station concerned against Rinku @ Prempal. The chik first information report is (Ext.Ka.5). The registration of the case crime number was simultaneously entered into the general diary at Sr. No. 16 (Ext.Ka.6).
7. The case was investigated by P.W.3 S.I. Yashveer Singh, who was handed over the investigation on 12.10.2016. The victim was recovered on 12.10.2016 and her statement u/s 161 Cr.P.C. was recorded. On the basis of the statement of the victim, Section 376 I.P.C. and Section 4 of POCSO Act was added to the case crime number. The statement u/s 164 Cr.P.C. of the victim was recorded by the Judicial Magistrate concerned on 14.10.2016. The victim has stated in her statement u/s 164 Cr.P.C. (Ext.Ka.2) that on 07.10.2016, her maternal uncle (mausha), appellant-accused, Rinku @ Prempal took her from her home on a 4 wheeler on the pretext that her mother is standing nearby and she has phoned and asked him to bring her. Accused took her to the Bulandshahr Bus Station and from there to Ghaziabad Bus Station and then again from there to Railway Station, Ghaziabad and from there to Railway Station, Haridwar where they reached at 6 p.m. and from there, he took her to a rented room where he committed rape on her for 2-3 times. On her request, after 4 days, he took her to Railway Station, Ghaziabad and from there to Jahangirabad where he left her there. A woman constable held the hands of the victim. Seeing her, the appellant-accused fled from the spot. From there, she was brought to the police station concerned.
8. On 14.10.2016, the medical examination of the victim was done by P.W.4 Dr. Sudha Sharma in District Hospital, Bulandshahr. She prepared her medical examination report (Ext.Ka.7). The victim's age was determined by a Medical Board constituted by the C.M.O., Bulandshahr on the basis of x-ray report of fusion of elbow, knee and wrist bones. Her medico-legal age certificate (Ext.Ka.8) was issued by C.M.O., Bulandshahr on 17.10.2016. According to this certificate, her medico-legal age was 15-16 years.
9. The Investigating Officer visited the place of occurrence and prepared site plan (Ext.Ka.3) and arrested the appellant-accused on 19.10.2016. He then recorded the statements of the witnesses and after conclusion of investigation, submitted charge-sheet (Ext.Ka.4) u/s 363, 366, 376 I.P.C. and Section 4 of POCSO Act, 2012 against accused, Rinku @ Prempal.
10. On 27.06.2017, the trial court framed charge u/s 363, 366, 376 I.P.C. and Section 4 of POCSO Act, 2012. The accused denied the charge and claimed trial.
11. To prove the charge against the accused, the prosecution examined witnesses of fact, namely, informant P.W.1 Kalua, P.W.2 victim and formal witnesses, namely, Investigating Officer P.W.3 S.I. Yashveer Singh, Medical Officer P.W.4 Dr. Sudha Sharma and Principal of the school (Divine Science Vidyapeeth, Ghaziabad) of the victim P.W.5 Suman Lata.
12. P.W.1 Kalua proved the written report (Ext.Ka.1) and gave evidence about the occurrence. P.W.2 victim proved her statement recorded u/s 164 Cr.P.C. (Ext.Ka.2) and deposed about the occurrence. The Investigating Officer P.W.3 Yashveer Singh proved the site plan (Ext.Ka.3), charge-sheet (Ext.Ka.4), chik F.I.R. (Ext.Ka.5) and G.D. entry of the institution of the case crime number (Ext.Ka.6). P.W.3 Yashveer Singh also deposed regarding the investigation done by him. The Medical Officer P.W.4 Dr. Sudha Sharma proved the medical examination report prepared by her as (Ext.Ka.7). She also proved the age certificate of the victim issued by C.M.O. (Ext.Ka.8). She deposed about the medical examination of the victim done by her. The Principal of Divine Science Vidyapeeth, Ghaziabad P.W.5 Suman Lata proved the original attendance register (from April 2014 to March 2015) relating to the victim as (Ext.Ka.9). She stated that in that register, the date of birth of the victim was mentioned as 14.11.2002. The victim's father's name, Kalua and mother's name, Yashoda was mentioned at Sr. No. 10. She filed its certified copy as (Ext.Ka.9). P.W.5 also stated that Scholars Register has not yet been prepared in her school. She also admitted that no documents have been attached in proof of the date of birth of the victim. She stated that the attendance register is not signed by any authority. Her school is not recognized by the government.
13. On 03.04.2019, the trial court recorded the statement of the appellant-accused, Rinku @ Prempal u/s 313 Cr.P.C. The appellant-accused denied the statement of P.W.1 Kalua and P.W.2 victim to the effect that on 07.10.2016 in the absence of victim's father, Kalua, he stayed in her house for 5-6 days and on 07.10.2016, enticed away his daughter/victim aged 14 years who was recovered by the police on 12.10.2016 and the case was registered on the basis of written report submitted by the informant in the police station concerned. He also denied that after enticing away the victim, he carried her to Haridwar and from there in a room. He did obscene gestures with her and committed rape on her for 2-3 times during the period of 4 days. He has also denied that after this period, he carried the victim to Ghaziabad and when he was waiting for bus at the Jahangeerabad Bus Station, on query being made by the woman police constable, he left the victim there and ran away. He denied the statement made by the victim against him u/s 164 Cr.P.C. He stated that the Investigating Officer had done wrong investigation. He stated that the prosecution papers, namely, site plan (Ext.Ka.3), chik F.I.R. (Ext.Ka.5), G.D. of the institution of the criminal case (Ext.Ka.6), medical report of the victim (Ext.Ka.7) and her age certificate (Ext.Ka.8), are wrong and have been falsely prepared. The appellant-accused stated that the victim's father is his real brother-in-law (sarhoo). He had borrowed Rs.60,000/- from him. When the appellant-accused asked him for its repayment, he quarrelled with him, refused to make repayment thereof and filed false case against him.
14. It has been argued by learned counsel for the appellant that the first information report has been lodged after a gap of 5 days and no explanation has been given for it. It has also been submitted that there is no eye witness of the incident of appellant-accused carrying the victim with him. The victim was not recovered from the possession of the appellant-accused. The charge of rape is not corroborated by the medical examination report of the victim. He has also submitted that victim's father had borrowed Rs.60,000/- from the appellant-accused. When the appellant-accused asked him to pay back his money, he refused to do so and filed false case against him. He further submitted that the prosecution has failed to prove the charge against the appellant-accused and he should be acquitted of the charge framed against him and the trial court without proper appreciation of oral and documentary evidence has wrongly convicted him vide impugned order.
15. Learned A.G.A. has argued that the prosecution has proved the charge against the appellant-accused with the aid of oral evidence of witnesses of fact corroborated by duly proved documentary evidence produced by the prosecution.
16. Under Section 363 I.P.C., punishment for kidnapping a person from India or from lawful guardianship is provided. Kidnapping from lawful guardianship has been defined u/s 361 I.P.C. which is as follows :-
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.
17. Under Section 366 I.P.C., the punishment for kidnapping, abducting or inducing a woman to compel her marriage etc., has been provided. The ingredients of Section 366 I.P.C. are as follows :-
1. kidnapping or abducting of any woman;
2. such kidnapping or abducting must be -
(i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or;
(ii) in order that she maybe forced or seduced to illicit intercourse;
(iii) by means of criminal intimidation or otherwise by inducing any woman to go to any place with intent that she maybe, or knowing that she will be forced or seduced to illicit intercourse; it is immaterial whether the woman kidnapped is a married woman or not.
18. The Apex Court has held in Gabbu Vs. State of Maharashtra, AIR 2006 SC 246 that unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 I.P.C., 1860, the Court cannot hold the accused guilty and punish him u/s 366 I.P.C., 1860. If the criminal was 18 years old or over, she could only be abducted and not kidnapped but if she was not 18 years, she could be kidnapped as well as abducted if the taking was by force or enticing was by deceitful means.
19. To constitute an offence under Section 366 I.P.C., it is necessary for the prosecution to prove that the accused induced the complainant-woman or compelled by force to go from any place that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction.
20. In order to establish an offence under Section 366 I.P.C., it must first be established that the offence of kidnapping under Section 361 or abduction under Section 362 I.P.C., has been proved. It must then be shown that such kidnapping was with the contumacious intent referred to under Section 366 I.P.C.
21. Hon'ble Apex Court in Kavita Chandrakant Lakhani vs. State of Maharashtra and another, Criminal Appeal No. 459 of 2016, order dated 24 April, 2018, has held as under:
"...In order to constitute the offence of ''abduction' a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this Section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse."
(emphasis by Court)
22. Section 354-B I.P.C. is included in the offence of "Sexual Assault" as defined under Section 7 POCSO Act and made punishable under Section 8 of the Act. Section 354-B I.P.C. reads as under:
354-B. Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment or either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.
23. "Sexual assault" has been defined in Section 7 of Protection of Children from Sexual Offences Act, 2012, which is as follows :-
7. Whoever, with sexual intent touches, the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
24. Punishment for sexual assault has been provided in Section 8 of Protection of Children from Sexual Offences Act, 2012, which is as follows :-
8. Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
25. In this criminal appeal it has to be considered whether prosecution has been successful in proving the charge under Sections 363, 366, 354-B I.P.C. and Section 8 POCSO Act under which the accused-appellant Rinku alias Prem Pal has been convicted and sentenced by the Trial Court.
Whether the appellant-accused Rinku alias Prem Pal on 07.10.2016 at 1 pm kidnapped or enticed the minor daughter aged 14 years of informant Kaluwa from his lawful guardianship without the consent of such guardian.
Whether the appellant accused kidnapped the minor daughter of informant with intention that she may be forced or seduced to illicit intercourse .
Whether on the alleged date, time and place the appellant-accused assaulted or used criminal force against the informant's minor daughter/victim or abet such an act with intention of disrobing or compelling her to be naked.
26. First of all we have to see whether the victim was less than 18 year of age at the time of occurrence. The alleged offence took place on 07.10.2016. On that date the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Juvenile Justice (Care and Protection of Children) Model Rules 2016 had come into force. The provision for determining the age of victim under the Protection of Children from Sexual Offences is given under Section 94 of the Juvenile Justice (Care and Protection of Children) Act 2015. The provision of Section 94(2) of the Juvenile Justice Act is given as under:
94. Presumption and determination of age.- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
27. To prove the age of the victim, the prosecution has examined PW-5 Suman Lata the Principal of Divine Science Public School, Awantika Chiranjeev Vihar, Ghaziabad in which school the victim was studying from Class 3. PW-5 Suman Lata has produced photocopy of the particulars mentioned in the attendance register of class 3 relating to admission of victim as class 3 student. PW-5 Suman Lata has deposed in her evidence that the details regarding the age of the victim is mentioned at Serial No. 10 of the register where her date of birth is mentioned as 14.11.2002. PW-5 Suman Lata certified the photocopy of the relevant page of the register with the original and produced it as Exhibit Ka-9. PW-5 Suman Lata has admitted that in the register at Serial No. 10 the name of the victim and her father's name Kaluwa and mother's name Yashoda is mentioned. Her date of birth given is 14.11.2002. She admitted that only in the attendance register in the school the date of birth and other particulars of the student is mentioned. There is no SR register in the school. She had admitted that her school is not recognized by the Government. PW-5 Suman Lata deposed that the attendance register is not signed by any officer of education department. She admitted that she had not inscribed the date of birth and other particulars of the victim in the register nor she can recognize the name and handwriting of the person who had made the entry in the aforesaid register. Under aforesaid circumstances, the date of birth of the victim mentioned in the attendance register of the school which is not duly maintained cannot be accepted for legal purposes.
28. Further, the prosecution has produced the age certificate dated 17.10.2016 of the victim issued by the Chief Medical Officer, Bulandshahar (Exhibit Ka-8). This age certificate is based on ossification test of the victim. The age certificate of the Chief Medical Officer has been proved by Dr. Sudha Sharma (PW-4). In this age certificate of the victim her age is mentioned as 15-16 years. Thus, age given in the certificate issued by the CMO, Bulandshahar is a valid document and the age given in it can be accepted. According to the aforesaid age certificate (Exhibit Ka-8) at the time of her age determination by ossification test i.e. 17.10.2016 her age is about 15-16 years. Therefore, she was minor at the time of commission of the offence.
29. Now, it has to be seen whether the victim was kidnapped or enticed away from lawful keeping of her guardian. It has also to be seen whether kidnapping was done by the accused-appellant with the intention to marry her against her will or with the intention or knowledge that she will be subjected to illicit intercourse. Informant and father of the victim PW-1 Kaluwa has proved the written report (Exhibit Ka-1) which he had filed in Police Station Aurangabad on 12.10.2016.
30. PW-1 Kaluwa has stated in his evidence that his brother-in-law (Sarhu) Rinku came to his house in his absence on 07.10.2016. He stayed there for 5-6 days. He kidnapped and enticed away his minor daughter from his house and at that time his married son, his daughter-in-law and his daughter were residing in his house. He searched for his daughter in his relations but the victim was not found anywhere. Then he submitted written report (Exhibit Ka-1) on 12.10.2016 at Police Station Aurangabad and got a criminal case registered against his brother-in-law for kidnapping his minor daughter from the keeping of her lawful guardian. His daughter was recovered on the same day of registration of FIR. She informed him that appellant-accused Rinku alias Prem Pal had enticed and kidnapped her and repeatedly committed rape with her for several days. The age of his daughter was 14-15 years at the time when she was kidnapped. PW-1 Kaluwa stated that as time was taken in searching his daughter in all possible places and due to his concern for the reputation of the family there was some delay in lodging the FIR. PW-1 stated in his cross examination that as the accused-appellant Rinku alias Prem Pal was brother-in-law therefore, he used to frequently visit his home. He stated that on the date and time when his daughter was kidnapped he was residing in Ghaziabad where he used to ply a tempo. Rinku alias Prem Pal did not kidnap her in his presence. PW-1 Kaluwa denied that as he had borrowed Rs. 60,000/- from the appellant-accused Rinku alias Prem Pal and he did not want to make payment of that amount he lodged a false FIR against him.
31. The victim PW-2 has stated in her evidence that the incident took place on 07.10.2016. She has stated that accused-appellant, resident of Ruksana who was her Mausa came to her house on 07.10.2016 at about 11 o'clock. He enticed and kidnapped her by his car. He reached Shyana and from there he took her by bus to Garh. She was taken by train from Garh to Haridwar. In Haridwar he took room on rent. He brought the victim in the room at 7 o'clock in the evening and after having the dinner the appellant-accused started making obscene gesture with her. When she forbid him from doing so he slapped her. She became frightened. The victim requested him to leave her. The accused-appellant disrobed her and committed rape on her. The appellant-accused raped her on the next day and night for 2 to 3 more times. He kept her in the room for 4 days and continuously committed rape on her. The accused threatened to kill her and her family members. After that period, the accused took her to Ghaziabad from where he wanted to carry her to his home at Jugsana. He was waiting with the victim at Jahagirabad Chauraha crossing bus station. A female police constable asked the victim her name. Rinku left her and ran away. The female police constable took her to Police Station Aurangabad. She told the police about the incident. From the police station she was sent for medical examination and for recording of her statement under Section 164 Cr.P.C. by the Magistrate. The witnesses stated that she told the Magistrate about the incident which happened with her. PW-2 victim proves her statement under Section 164 Cr.P.C. which is Exhibit Ka-2.
32. PW-2 victim stated in her cross examination that she informed about the occurrence to her father on her recovery. Her mother and accused Rinku's wife are real sisters. The accused used to visit her house alone and not with his wife. When the accused Rinku had came to her house at that time she, her sister and her Bhabhi were in the house. The victim stated that she has two brothers and two sisters. She is youngest among all of them. She stated that earlier she used to live in Ghaziabad with her parents but after the marriage of her brother she came to stay in her village. PW-2 stated in her cross examination that the accused-appellant enticed away from her house at 11 am. The accused had told her that her mother is feeling ill. She has ringed to the accused to bring the victim to her mother.
33. PW-2 further stated in her cross examination that while she was being carried by the accused from her house to Haridwar she was threatened by the accused hence she did not inform anyone that accused has kidnapped her from her lawful guardian. She has stated that from the date of her being kidnapped by the accused till her recovery by Police, on the way she had not informed anyone about the kidnapping and rape by accused as she was threatened by the accused that if she would complain she and her family members will be killed. PW-2 victim had admitted that there was no injury on her person. She has denied that her father had borrowed Rs. 60,000/- from the accused and when the accused asked for return of the money he lodged the first information report.
34. From the evidence of PW-2 victim, it transpires that the accused took away the victim from her house on the false pretext that her mother is ill and she had asked the accused to bring the victim to her. PW-1 Kaluwa has also corroborated the evidence of PW-2 that the victim had informed him about her kidnapping by the accused appellant. Nothing has been found in the cross examination of PW-1 and PW-2 by defence that may raise doubt about the reliability and veracity of their statements. Therefore, it is proved that the accused kidnapped the victim from her lawful guardian.
35. The victim PW-2 has stated in her evidence that after kidnapping from her home when the appellant-accused had kept her in a rented room in Haridwar there at night he started making obscene gestures with her and he slapped her several times and disrobed her. From the evidence of PW-2 the victim it is clear that the appellant-accused not only disrobed her but also slapped her several times. Thereafter he used criminal force on the victim with the intention of disrobing her and made her naked. The offence of using criminal force to disrobe a woman has been defined under Section 354-B I.P.C.
36. PW-2 victim has also corroborated her evidence in her statement under Section 164 CrPC that the appellant-accused used criminal force against her at night in the rented room in Haridwar with an intention to disrobe her.
37. For the applicability of POCSO Act following two conditions are necessary:
(i). At the time of incident the victim is minor
(ii) Sexual assault has been committed against the victim
38. Since Both these conditions are present in this case, the offence under Section 354-B I.P.C. is also covered under the sexual offence defined under Section 7 POCSO Act has been made punishable under Section 8 POCSO Act.
39. When a person is being prosecuted for offences under Sections 3,5,7 and 9 then according to provision of Section 29 POCSO Act it shall be presumed that the accused has committed or attempted to commit the offence unless the contrary is proved. Section 29 POCSO Act is as follows:
29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.
40. Apart from the aforesaid presumption required culpable mental state for any of the offences mentioned in Section 29 shall be presumed against the accused who is being prosecuted for aforesaid offences. This is provided under Section 30 of the POCSO Act which is as follows:
30. Presumption of culpable mental state. - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
41. From the above discussion of the evidence of PW-2 victim it is evident that the offence defined under Section 7 POCSO Act is proved against the accused-appellant. The accused-appellant has not put any suggestion to PW-2 in her cross examination or made any statement under Section 313 Cr.P.C. in rebuttal of aforesaid evidence regarding sexual assault.
42. From the evidence of the victim PW-2 which corroborated by her statement under Section 164 Cr.P.C. recorded after her recovery and that of other prosecution witnesses, it is proved that the victim was minor when the appellant-accused took her from the lawful guardianship. No suggestion has been on behalf of the accused-appellant in the cross examination of PW-1 Kaluwa or PW-2 victim or and in his statement under Section 313 Cr.P.C. that at the time of the occurrence the appellant-accused was not with the victim and he was at some other place. The accused-appellant has only stated in his statement under Section 313 Cr.P.C. that the informant had borrowed Rs. 60,000/- from him and when he asked him to return it, he lodged a false case against him. DW-1 and DW-2 produced on behalf of the accused-appellant have not supported this statement of appellant-accused made under Section 313 CrPC. Neither of these witnesses have stated that informant had borrowed Rs. 60,000/- from the appellant-accused and when that amount was demanded by him a false FIR was registered against him. The evidence of PW-1 Kaluwa and PW-2 the victim is true, cogent and reliable. Nothing emerges in the cross examination of PW-1, PW-2 or the prosecution witnesses which may rebut or make the prosecution case doubtful that the appellant-accused kidnapped the victim with the intention/knowledge that she will be seduced or subjected to illicit intercourse.
43. It has been argued on behalf of the appellant-accused that the FIR has been lodged after a gap of five days which raises doubt about the veracity of the occurrence.
44. It has been argued on behalf of the learned A.G.A. For the Stae that in the matter of kidnapping and rape of a woman due to the reputation of family is at stake therefore family members hesitate to promptly lodge the FIR. Therefore, delay of five days does not make the case doubtful
45. From the perusal of averment made in written report (Exhibit Ka-1) it is clearly mentioned that after kidnapping of the victim on 07.10.2016 the informant made search for her at all possible places but she could not be found. When he was convinced that she was enticed and kidnapped by his brother-in-law then he lodged an FIR. The alleged delay in lodging the FIR has been sufficiently explained in the written report.
46. In the case of Deepak vs. State of Haryana, (2015) 4 SCC 762 the Hon'ble Apex Court has held as under:
15. The Courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by victim or by any member of her family.
47. In the case of State of Himanchal Pradesh vs. Sanjay Kumar alias Sunny, (2017) 2 SCC 51 the Hon'ble Supreme Court has held as under:
It is not to be forgotten that the person accused by the prosecutrix was none else than her Uncle. It is not easy to lodge a complaint of this nature exposing the prosecutrix to the risk of social stigma which unfortunately still prevails in our society. A decision to lodge FIR becomes more difficult and hard when accused happens to be a family member. In fact, incestuous abuse is still regarded as a taboo to be discussed in public. This reticence hurts the victims or other family members who struggle to report. After all, in such a situation, not only the honour of the family is at stake, it may antagonize other relations as well, as in the first blush, such other members of family would not take charge of this nature very kindly."
48. Learned counsel for the appellant-accused has stated that even if in the academic records of the victim shows her minor. If in the medical report based on ossification test she is shown as major the medical report will prevail over her certificate issued by the educational institution and she will be considered as major. He has placed reliance on the judgment of the Apex Court in Civil Appeal No.4532 of 2018, Suhani and another vs. State of U.P. and others. From perusal of the aforesaid judgment it is clear that it is not applicable in the present case as in that case before the Apex Court the age of the victim in her school record was 13 years and 8 months whereas in the medical report prepared after radiological examination her age was fixed between 19-24 years. But in the present case the medical report based on radiological examination her age is determined as 15-16 years. Therefore, the victim is evidently a minor. Hence offence under Section 363 I.P.C. can be committed against her.
49. From the discussion of the above evidence it is proved that the appellant accused kidnapped the minor girl/victim out of keeping of her lawful guardian by deceitful means and made obscene gestures, slapped her and used criminal force to disrobe the victim. Thus the prosecution has proved beyond reasonable doubt the charge under Section 363, 366 and 354-B I.P.C. against the accused-appellant. Thus the Trial Court has rightly convicted him of charge under these sections. Offence under Section 354-B I.P.C. is included in the offence defined under Section 7 POCSO Act and it is made punishable under Section 8 POCSO Act as "sexual assault". Section 42 POCSO Act reads as under:
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, 376AD, 376B, 376C, 376D, 376DA, 376DB], [376E, section 509 of the Indian Penal Code (45 of 1860) or section 67B of the 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."
50. Considering the provisions of Section 42 POCSO Act, since 354-B I.P.C. has greater sentence of seven years viz-a-viz punishment of five years which provided under Section 8 POCSO Act thus accused-appellant is liable to be punished under Section 354-B I.P.C. for seven years imprisonment with fine of Rs. 2000/- with default stipulation. The Trial Court has convicted the appellant-accused under Section 354-B I.P.C. but wrongly sentenced him under Section 8 POCSO Act. Thus, the sentence under Section 354-B I.P.C. is modified to seven years imprisonment with fine as imposed by the Trial Court. Both the substantive sentences shall run concurrently. Period of detention undergone by the accused to be set off against the sentence of imprisonment under Section 428 Cr.P.C.
51. With aforesaid modification of sentence under Section 354-B I.P.C. the conviction and sentence of Trial Court under Sections 363, 366 and 354-B I.P.C. against the accused-appellant is confirmed. Thus, the criminal appeal has no force and is liable to be dismissed.
52. The appeal is, accordingly, dismissed with the aforesaid modification of sentence awarded under Section 354-B I.P.C.
53. Let a copy of the judgment along with the record of the Trial Court be sent to the Court concerned for compliance.
Order Date :- 24.04.2023 KS/Brijesh Maurya