Uttarakhand High Court
Deewan Singh @ Kalu vs State Of Uttarakhand on 22 March, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Jail Appeal No. 9 of 2017
Deewan Singh @ Kalu ..... Appellant
Versus
State of Uttarakhand ......Respondent
Mr. Sanjay Bhatt, learned Amicus Curiae.
Mr. Lalit Miglani, A.G.A. for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Instant appeal has been preferred against the judgment and order dated 20.12.2016, passed in Special Session Trial No.14 of 2016, State vs. Deewan Singh @ Kalu, by the court of Special Judge/Session Judge, Tehri Garhwal. By the impugned judgment and order, the appellant has been convicted under Section 377 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short "the POCSO Act") and sentenced as hereunder:-
"(i) Under Section 377 IPC, rigorous imprisonment for ten years & a fine of Rs.5,000/-. In default of payment of fine, rigorous imprisonment for a further period of three months.
(ii) Under Section 6 of the POCSO Act, rigorous imprisonment for ten years & a fine of 2 Rs.5,000/-. In default of payment of fine, rigorous imprisonment for a further period of three months."
2. Prosecution case, as emerged from the evidence, briefly stated, is as hereunder:-
On 23.01.2016, the appellant enticed the victim, a baby boy of three years and took him in his room. The appellant there had anal intercourse against the order of the nature with the victim. The victim cried. PW3 Geeta Devi heard the cries of the victim. She informed about it to the mother of the victim. PW4 the mother of the victim reached at the house of the appellant. She found that in a room, the victim was crying and there was blood on his pyjamas. The victim narrated the incident to his mother. The victim was taken to the hospital. He was referred to the District Hospital, where he was treated upon. When the condition of the victim slightly improved, a report of the incident was lodged on 27.01.2016, by his father. Based on it, a Case Crime No. 01 of 2016, under Section 377 IPC and Section 5 (m) read with Section 6 of the POCSO Act was lodged against the appellant. Investigation was carried out. The Investigating Officer prepared the site plan; took into custody the pyjamas of the victim and forwarded it for 3 forensic examination. After completion of the investigation, charge-sheet was submitted against the appellant under Section 377 IPC and Section 5 (m) read with Section 6 of the POCSO Act.
3. On 11.03.2016, charge under Section 377 IPC and Section 5 (m) read with Section 6 of the Act was framed against the appellant. To which, he denied and claimed trial.
4. In order to prove the case, prosecution examined as many as eight witnesses, namely, PW1- the father of the victim, PW2- the victim himself, PW3 Smt. Geeta Devi, PW4- the mother of the victim, PW5 Dr. Mahesh Khetan, PW6 Dr. Dileep Ji Sahai, PW7 Sachin Kumar Pathak and PW8 Mohd. Akram Ansari, the Investigating Officer.
5. After prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'the Code'). According to the appellant, he has been falsely implicated. He is innocent. He has not committed any offence. He has been wrongly arrested.
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6. By the impugned judgment and order, the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, instant appeal is preferred.
7. Learned Amicus Curiae would argue that there are contradictions in the statements of the witnesses and other infirmities, which doubts the prosecution case. He raised the following points in his arguments: -
(i) The statement of the victim is not reliable, because when examined under Section 164 of the Code on 28.01.2016, the victim was not able to understand Hindi and his statement was recorded with the help of his mother. But, when examined in the court, on 22.07.2016, his statement has been recorded in Hindi. It is argued that the victim was not able to understand Hindi, in the month of January 2016, it becomes doubtful that he may be able to give evidence in Hindi in the month of July in the same year.5
(ii) FIR is delayed. The alleged incident took place on 23.01.2016, but the FIR has been lodged on 26.01.2016.
(iii) The presence of independent witnesses has been accepted by PW1 the father of the victim, but the independent witnesses have not been examined. It leads to draw an adverse inference that had such independent witnesses been examined by the prosecution they would have not supported the prosecution case.
(iv) There are contradictions in the statements of the witnesses with regard to the room, where alleged incident took place, because on the one hand, PW1 the father of the victim tells in the court that the TV was on, when the incident took place.
Whereas, the victim himself has stated that he did not watch Television.
(v) The doctor, who first attended the victim has not been examined.
8. On the other hand, learned counsel for the State would submit that there are specific allegations. The victim has supported the prosecution case. His statement 6 has been corroborated by the statements of other prosecution witnesses and the medical evidence. The prosecution has been able to prove the case beyond reasonable doubt. The court below has rightly convicted and sentenced the appellant. There is no merit in this appeal.
9. PW2 is the victim. He was three years of age, when the incident took place and when he was examined. The Court generally questioned him, to ascertain, as to whether, the victim is in a position to depose or not and thereafter, recoded his deposition. The deposition has been recorded in question-answer form. PW2 the victim has categorically stated that the appellant inserted his penis in his anus, due to which, his anus started bleeding. He has also stated that the incident took place in a room in Boond. (It is admitted during hearing of this appeal that Boond in local dialect means first floor room.) The victim has also, in answer to question 13, stated that on the date of incident, he was going along with his mother, when the appellant called him in his house. He also tells in answer to question no.14 that he revealed the incident to his mother, to his father and to the police. 7
10. According to PW3 Smt. Geeta Devi, on the date of incident, she visited the house of the appellant because she wanted to call the father of the appellant for electric fitting. But, the father of the appellant was not in the house. She heard a child crying in the house of the appellant. She enquired from the appellant as to who is that child? According to this witness, the appellant told her that the victim is crying. This witness further asked the appellant as to why is the victim crying? To it, the appellant replied that he has burned his hand, therefore he is crying. While returning, PW3 Smt. Geeta Devi met the mother of the victim. The mother of the victim enquired about the victim from this witness. Thereafter, it was revealed to the mother of the victim that the victim is in the house of the appellant.
11. PW1 is the father of the victim and PW4 is the mother of the victim. According to these two witnesses, on that date, there were some constructions going on in their house. PW4 the mother of the victim was carrying sand and the victim was following her. It is that time, that the appellant called the victim in his house. When after sometime, PW4 the mother of the victim did not notice the victim around her, she asked whereabouts of the victim 8 from PW1 the father of the victim. The father of the victim told that the victim was following her. Thereafter, according to PW4 the mother of the victim, she was told by PW3 Smt. Geeta Devi that the victim is in the house of the appellant, crying there, as his hand has burned. PW4 the mother of the victim visited the house of the appellant and there she found the victim. The victim then told it to this witness that the appellant inserted his penis in his anus, due to which, he started bleeding. PW4 the mother of the victim came back to her house. PW1 the father of the victim has also stated about it.
12. According to PW1 the father of the victim and PW4 the mother of the victim, thereafter, both of them took the victim to the hospital in Pilkhi. The victim was referred to the higher centre. The victim was admitted in District Hospital Baurari, New Tehri, where he was admitted and kept there for three to four hours. In the night, the victim came back home. Next day, the doctor referred the victim to some hospital. When the victim slightly recovered, according to PW1 the father of the victim, he lodged the report Ex-A1. He also handed over the pyjamas worn by the victim at the time of incident to the Investigating Officer.
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13. PW5 Dr. Mahesh Khetan was working in the District Hospital Baurari on 23.01.2016. According to him, on that date, the victim was referred to the hospital from Primary Health Centre, Pilkhi. The victim was admitted. This witness has proved the record Ex-A3. As also the referral slip of Primary Health Centre, Pilkhi Ex A-4. According to PW5 Dr. Mahesh Khetan, the injuries on the victim were also noted in the medico legal register. He found the following injuries on the victim:
"(i) Multiple abrasion at anal region around anal opening cum with red in colour and swollen and tender, size about 3 cm x 2 cm cum tenderness.
(ii) During examination, the child was crying because he was under pain."
14. According to PW5 Dr. Mahesh Khetan, the injuries were simple in nature and caused by the hard and blunt object. This witness referred the child to general surgeon. He prepared the medical examination report Ex-A5. This witness also informed the police about it.
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15. PW6 Dr. Dileep Ji Sahai conducted medical examination of the victim, after the FIR was lodged on 28.01.2016. According to him, he found the following injuries on the person of the victim: -
"(i) Multiple abrasions at anal region around anal opening size about 2cm x 3cm cum swelling around injury, dark black in colour."
16. According to the doctor, injuries were simple in nature, caused by the hard and blunt object and the duration was about a week.
17. PW7 Mr. Sachin Kumar Pathak was the Magistrate, who recorded the examination of the victim, during investigation, under Section 164 of the Code. According to him, the victim was not able to understand Hindi. He was comfortable with Garhwali language, therefore, this witness took assistance of his mother. He asked the question to his mother to translate in Garhwali language to the victim and then the victim replied. This witness has categorically stated as to what he asked and what was told by the victim.
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18. PW8 Mohd. Akram Ansari is the Investigating Officer. He conducted investigation, prepared site plan, articles were taken into custody, forwarded to forensic examination and finally submitted charge sheet under Section 377 IPC and Section 5(m) read with Section 6 of the POCSO Act against the appellant.
19. It is the basic principle of the criminal law that the prosecution has to prove its case beyond reasonable doubt. In case of doubt, the accused is always entitled to get benefit of it. The general principle of criminal law is presumption of innocence, until proven guilty. But, in the instant case, the appellant has also been charged under Section 6 of the POCSO Act. The POCSO Act makes specific provision with regard to sexual assault on a child. It deviates from the presumption of innocence. The Act makes provision for presumption of guilt. Section 29 of the Act makes provision in this regard, it is as hereunder:-
"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." 12
20. In the cases of presumption of guilt also, the prosecution has to prove its case beyond reasonable doubt. But, in such cases, the accused may secure his acquittal only if he could create doubt in the prosecution case by the standard of preponderance of probability.
21. In the case of Noor Aga vs. State of Punjab & Another, (2008) 16 SCC 417, the Hon'ble Supreme Court interpreted the principle of appreciation of evidence in cases of presumption of guilt under Section 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Hon'ble Court observed as hereunder.
"58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the 13 accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established."
22. It is a case, in which, the victim is a three years' old child. It is not a case that the child after the incident had returned to his house and narrated the incident to anyone in the family. But, according to the prosecution, the child was found at the place of occurrence. He was bleeding from his anus. The appellant was present there. It is then, according to the prosecution, the appellant narrated the incident to his mother i.e. PW4.
23. It is true that the FIR in the instant case is not prompt. It was lodged on 27.01.2016. Delayed FIR in all cases does not make the prosecution case doubtful. It depends on the facts and circumstances of each case. In the cases of sexual assault, it is well accepted phenomena in the society that generally people refrain to lodge FIR for 14 various reasons, one of which is societal aspect. But, instant is not such a case.
24. In the instant case, PW4 the mother of the victim was asked in her cross-examination as to whether, they had disclosed the name of the appellant to the police, when the victim was taken at a District Hospital, Baurari. In its answer, in paragraph-22 of her examination, PW4 the mother of the victim had stated that on 23.01.2016 itself, they had disclosed the name of the appellant to the police when they had taken the victim to the Hospital. According to this witness, the police had asked them to lodge the report, but they had told it to the police that they will first get the child treated. It is just natural answer. FIR itself records that the father of the victim was busy in the treatment of the victim, therefore, report is delayed.
25. In his cross-examination PW1 the father of the victim has narrated the whole sequence. In paragraph-23 PW1 the father of the victim has told that in the hospital he had told the doctor about the incident; he was advised by the doctors to report, but he replied that he would first get the child treated. He also tells in the same paragraph 15 that he did not lodge the report, because his three children were back in the home. The most natural and convincing reply had been given by PW4 the mother of the victim about delay in FIR. In paragraph-10 of her statement, she tells that from the date of incident, the victim did not pass stool. When he passed the stool, the report was lodged. This is much convincing reply. The explanation for delayed FIR is more than reasonable. The delay in lodging FIR does not doubt the prosecution case.
26. It is true that the statement under Section 164 of the Code of the victim was recorded with the help of his mother. PW7 Sachin Kumar Pathak is the Magistrate. He has stated about it. The question as asked in the Garhwali language has been recorded as such. The reply as given is recorded. He has reiterated the questions put by him to the victim and the answers. He proved the statement of the victim recorded under Section 164 of the Code.
27. It is settled law that a statement of a witness recorded under Section 164 of the Code is not substantive evidence. It does not pass the scrutiny of cross- examination. It can, at the most be used for the purposes 16 of corroboration and contradiction as held in the case of R. Shaji vs. State of Kerala (2013)14 SCC266.
28. Learned Amicus Curiae would not indicate anything in the statement of PW7 Sachin Kumar Pathak, which may, in any manner, doubt the statement of the victim recorded under Section 164 of the Code. What is argued is that if in the month of January 2016, the victim was not able to understand Hindi, when his examination under Section 164 of the Code was recorded, how is it possible that in the month of July 2016, he would understand Hindi and answer the questions in Court. This argument has less merit for acceptance. The reason is quite simple. PW2 the victim was examined in the court on 22.07.2016. His examination is in questions- answers form. His cross-examination has also been recorded. The cross-examination has been done by the appellant. It amply makes clear that PW2 the victim was able to understand Hindi and he replied the questions put to him in the court.
29. The Court would further like to scrutinize the statement of PW2 the victim at this stage. The statement of PW2 victim is inspiring much confidence. His 17 statement is just natural. He did not hide anything. He has stated that the appellant called him in his house, inserted his penis in his anus, due to which, he started bleeding. In answer to one of the questions recorded in paragraph -19 (in his cross-examination) PW2 the victim has told that he did not go to the house of the appellant on his own, instead he was called by the appellant. He also tells that he was not lifted by the appellant. As stated, PW2 the victim has been correct in the sequence also as to how did it happen. In answer to question 14, he would tell that first he informed the incident to his mother, then to his father, then to police and then to another police. This is how PW4 the mother of the victim has stated.
30. It is argued that whether Television was on or not, there is discrepancy in the statement of the witnesses. It is true that PW1 the father of the victim in paragraph-4 of the statement has stated that when the mother of the victim reached at the place of occurrence, the Television was on and the victim was seated on the bed. But, the fact remains that PW1 the father of the victim did not visit the place of occurrence. PW4 the mother of the victim in paragraph-5 of her statement did 18 not tell that the Television was on. She has simply said that in the TV room, the victim was seated on the bed and was crying. PW2 the victim was also asked about Television. In paragraph-20 of his examination, he has stated that the Television was not on. He did not watch cartoon, therefore, there is no contradiction on this aspect.
31. Another attempt has been made by the learned Amicus Curiae to elucidate the contradictions by referring to the statement of PW1 the father of the victim, when he said that the victim was following his mother. But, there is no contradiction on this aspect as well. It is the case of the prosecution that with regard to some construction, which was being raised in the house of the informant, the mother of the victim was bringing sand from the roadside. The victim was following her. This is what is written in the FIR. This is what was told by PW2 the victim and PW4 the mother of the victim.
32. It is true that according to PW1 the father of the victim, he has also revealed the incident to the labourers, who were working on his construction site and it is also true that none of them has been examined in the 19 court. But, it may not lead to any adverse inference. The evidence of a relative witness is not a weak kind of evidence. It is always the truthfulness, credibility and reliability of the witness, which matters. The number of witnesses is also insignificant. In fact, in such cases, the sole testimony of a victim, if found reliable, may lead to conviction. Therefore, this Court is of the view that non- examination of the workers also does not create any doubt in the prosecution case.
33. In the instant case, the statement of PW2 the victim is reliable, credible and trustworthy. His statement has been corroborated by the statements of PW1 his father, PW3 Smt. Geeta Devi and PW4 his mother. PW5 Dr. Mahesh Khetan examined the victim on the date of incident. He found abrasion in the anus around the opening, which was red in colour and tender ć swollen. It was 3cm x 2cm in size. FIR was lodged on 27.01.2016. Thereafter, the victim was further examined by PW6 Dr. Dileep Ji Sahai. He also proved the medical injury report and found abrasions on the anus of the victim, which were multiple and swollen. The medical evidence corroborates the oral evidence.
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34. Having considered, this Court is of the view that the prosecution has been able to prove beyond reasonable doubt the charge levelled against the appellant. The court below did not commit any error in convicting and sentencing the appellant. Accordingly, there is no merit in this appeal and it deserves to be dismissed.
35. The appeal is dismissed.
(Ravindra Maithani, J.) 22.03.2022 Nahid