Allahabad High Court
Sonu Kanoujia vs State Of U.P. on 27 May, 2022
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 49 Case :- JAIL APPEAL No. - 75 of 2021 Appellant :- Sonu Kanoujia Respondent :- State of U.P. Counsel for Appellant :- From Jail,Beena Mishra Counsel for Respondent :- A.G.A. Hon'ble Siddhartha Varma,J.
Hon'ble Umesh Chandra Sharma,J.
(Per: Umesh Chandra Sharma,J.) We have heard Ms. Beena Mishra, the Amicus Curiae for the appellant and Sri Nagendra Kumar Srivastava the learned AGA for the State.
This jail appeal arises out of a judgment and order dated 21.12.2020 passed by the Special Judge POCSO Act/Additional District & Sessions Judge, Ghaziabad in Sessions Trial No.121 of 2015 (State of UP vs. Sonu Kanaujiya), arising out of Crime No.119 of 2015, Police Station Indirapuram, District Ghaziabad, convicting the appellant under Section 376 of IPC and Section 5 (f), (m)/6 of POCSO Act, 2012 and sentencing him to undergo imprisonment for life under Section 5 (f) (m)/6 of the POCSO Act, 2012, with a fine of Rs.1,00,000/- and, in default thereof, he was to undergo one year's additional simple sentence.
As per prosecution case, on 31.1.2015, FIR (Ex.Ka.1) was lodged by Satya Narayan Sharma, grandfather of the prosecutrix, alleging in it that the prosecutrix was studying in Paradise Play School, 120 Sector-1, Vaishali and on 31.1.2015, she informed him that she was feeling pain in her private part because of the fact that on 29.1.2015, accused appellant had inserted his finger in her private as a result of which, she had bled. The prosecutrix was immediately taken to Doctor, who had informed him that some foul play had been played with her private part. On the basis of this report, FIR under Sections 376 of IPC and Sections 3 & 4 of the POCSO Act, was registered against the accused appellant.
While framing charge, the trial Judge had framed charges against the appellant under Section 376 of IPC and Section 5 (f)&(m) & Section 6 of POCSO Act. Section 376 of IPC and Section 5(f)&(m) & 6 of the POCSO Act are being reproduced here as under:-
376. Punishment for rape:- (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever,-
(a) being a police officer, commits rape -
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a women in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman;or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman;
shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Section 5 (f) & (m) & Section 6 of POCSO Act:-
5. (f):- whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution.
5. (m):- whoever commits penetrative sexual assault on a child below twelve years;
6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.
So as to hold the accused appellant guilty, prosecution had examined six witnesses. No defence witness had been examined by the accused appellant. Statement of the accused appellant was recorded under Section 313 Cr.P.C. in which, he had pleaded his innocence and had stated that there was false implication.
By the impugned judgment, the trial Judge had convicted the accused appellant under Section 376 of IPC and Section 5 (f) & (m) & 6 of POCSO Act and sentenced him, as mentioned in paragraph no.1 of this judgment. Hence, this appeal.
Learned counsel for the appellant submits:
(i) that the prosecutrix (PW-3) being a child witness, was not trustworthy and her statement does not inspire confidence;
(ii) that the accused appellant had been falsely implicated at the instance of her father, who looks after the News work;
(iii) that the medical report of the prosecutrix did not fully support the prosecution case;
(iv) that the accused appellant was alleged to have inserted his finger in the private part of the prosecutrix and his act is not that serious where he should have been punished with the excessive punishment which had been given by the Trial Court;
(v) that the accused appellant is a young man, aged about 24 years and, if even assuming that out of anxiety, he committed the offence, he deserved sympathetic treatment and the sentence awarded to him being excessive be reduced; and
(vi) that there is two days' delay in lodging the FIR and the said delay had not been explained by the prosecution.
On the other hand, supporting the impugned judgment, it has been argued by learned State Counsel that the conviction of the appellant was in accordance with law and there was no infirmity in the same. He submits that inserting of finger by a man in the private part of a girl amounts to commission of offence and it is not necessary that a private part of a man had to be inserted in the private part of a girl to constitute the offence. He further submits that the accused appellant is a mature person, aged about 24 years, and for the act which he had committed, he did not deserve any sympathy.
We have heard learned counsel for the parties and perused the record.
First of all, it would be appropriate to make it clear that in the cases of POCSO Act, the burden of proof lies on the accused and there is no presumption of innocence of the accused.
Section 29 of the POCSO Act:- Presumption as to certain offences: -When a person is prosecuted for committing an offence of sexual assault under Section 3, 5, 7 and 9 of this Act, against a minor, the special court trying the case shall presume the accused to be guilty.
There shall be presumption of guilt on the part of the accused if he is prosecuted for committing, abetting or attempting offences under Section 3, 5, 7 & 9 of the Act.
Section 30 of the POCSO Act:- 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.
Explanation.-In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.
The Supreme Court held (in State of Maharashtra vs. Mayer Hans George AIR 1965 SC 722) that the legislature can legislate an offence without an ingredient of mens rea and the requirement of actual knowledge/mens rea that the act is in contravention of law can be done away with in respect of an offence.
However, the presumption, under Section 30 of the Act, as to the existence of motive, intention, knowledge etc., can be rebutted by an accused. It may be noticed that under Section 30 (2) of the Act a fact must be proved, like in all criminal prosecutions, beyond reasonable doubt.
This Court is deciding the appeal keeping in mind the aspects of Sections 29 & 30 of the POCSO Act that firstly primary burden of proof had to be discharged by the prosecution.
Prosecutrix (PW-3), in her Court statement, has stated that at the relevant time she was studying in Renainsa Public School, Sector-1, Vaishali and on the date of incident, she was subjected to bad work. She has clarified as to what is the meaning of 'bad work'/habit'. She has further stated that in the Court, one is supposed to narrate truth. After recording satisfaction about the mental knowledge and strength of the prosecutrix, her statement was recorded by the learned Trial Judge. She has stated that the accused appellant was working in the same School, where she was studying; he took her on the rooftop of the School; removed her underwear and inserted his finger in her private part as a result of which, she felt pain and the blood started oozing out from her private part. After reaching home, she narrated the entire incident to her mother and her mother and aunt took her to the Doctor and then, she had gone to Police Station. She has further clarified as to the manner in which the entire incident had occurred. In the Court, she had identified the accused appellant by saying that he was the same person, who took her to the rooftop of the School, had removed her underwear and had committed the bad work with her. When she was confronted with her statement under Section 164 of Cr.P.C., she had made the same statement before the Court.
In the cross examination, she was confronted by the defence regarding her mental status and she answered all the questions in a proper manner. No question had been put to the prosecutrix regarding commission of offence with her and she was subjected to cross-examination by putting various unnecessary questions. No proper evidence had been adduced by the defence. Prosecutrix has reiterated that on the pretext of offering Chocolate to her, she was taken to the rooftop of the School and she was alone there. She had further reiterated that she had gone to the Doctor for her medical examination.
In our view, the prosecutrix, P.W. - 3 shall be treated to be an injured witness. In several cases (some of them mentioned below), the hon'ble Supreme Court has observed that "deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his/her evidence on the basis of major contradictions and discrepancies." (State of Haryana vs. Krishan reported in AIR 2017 SC 3125, Mukesh vs. State for NCT of Delhi & Others reported in AIR 2017 SC 2161(three judges Bench), Bhagwan Jagannath Markad vs. State of Maharashtra reported in 2016 (10) SCC 537, Veer Singh vs. State of U.P. reported in 2014 (2) SCC 455, Shyam Babu vs. State of U.P. reported in AIR 2012 SC 3311, Mano Dutt & another vs. State of U.P. reported in 2012 (77) ACC 209 (SC), Mohammad Mian vs. State of U.P. reported in 2011 (72) ACC 441 (SC), Abdul Sayeed vs. State of M.P. reported in 2010 (10) SCC 259, Balraje vs. State of Maharashtra reported in 2010 (6) SCC 673 and Jarnail Singh vs. State of Punjab reported in 2009 (6) Supreme 526.) In this case, the evidence of the injured prosecutrix, P.W. - 3, also finds support from the medical report and evidence of P.W.-4, Dr. Deepa Tyagi. Regarding the objection about the child witness not being mature enough to be testify the following citations and provisions are important and they are relied on:-
A. Testimony of child witness not to be rejected unless found unreliable & tutored: (Sec. 118, Evidence Act): The testimony of a child witness cannot be rejected unless found unreliable & tutored (Gul Singh vs. State of M.P., reported in 2015 (88) ACC 358 (SC).
B. Oath to child witness: Proviso to Section 4(1) of the Oaths Act, 1969 reads as under ----- "provided that, where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of the opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth."
C. Omission to administer oath (Sec. 7 of the Oaths Act, 1969): reads as under: - "No omissions to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth."
D. Child witness when not understanding the meaning of oath: It has been laid down by the Supreme Court that there is no legal bar against relying on the testimony of a child witness to whom oath could not be administered due to her incapacity to understand the meaning of oath. (see: Paras Ram vs. State of H.P., 2001 (1) JIC 282 (SC).
E. Corroboration of testimony of child witness not required if credible: Conviction on the basis of testimony of a child witness is permissible if evidence of such child witness is credible, truthful and corroborated. Corroboration is not must. It is under rule of prudence. (See: 2013 CrLJ 2658 (SC).
In this case, the testimony of the P.W.-3, the prosecutrix, is supported and corroborated with the evidence of P.W. - 1 Satya Narain Sharma, the grandfather, the P.W. - 2 Smt. Arti Sharma the mother, the P.W. - 4, Dr. Deepa Tyagi and formal witnesses P.W. -5 & P.W.6 and the Medical Report.
Thus, it is concluded that the evidence of the prosecutrix is wholly reliable, trustworthy and admissible in evidence which alone proves the guilt of the accused beyond reasonable doubt.
From the above evidence, it is also proved that the accused put finger into the vagina of the prosecutrix and not his penis. However, only fingering into the private part of a girl or woman unnecessarily with evil motive is sufficient to prove the charge under Section 376 (3) IPC and Sections 5 (f)&(m) and 6 of the POCSO Act.
It was observed by the Supreme Court in Suryanarayan vs. State of Karnataka (2001) 9 SCC 129 that : (the witness) who at the time of occurrence was about four years of age, is the only solitary eye-witness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eye-witness.
The evidence of the child witness cannot be rejected per se, but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. "if she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."
Dr. Deepa Tyagi (PW-4) has medically examined the prosecutrix, vide Ex.Ka.3 (Medico Legal Examination Report) and Ex.Ka.5 (Supplementary Medico Legal Report). She states that she noticed injuries on the outer private part of the prosecutrix.
In the cross examination, this witness has reiterated her statement that she noticed injuries on the private part of the prosecutrix. Though she has stated that she had not medically examined the internal portion of the private part of the prosecutrix, but no further question has been put to this witness. Even question to the effect that the prosecutrix might have sustained such injuries because of some other activities had not been put to this witness.
Satya Narayan Sharma (PW-1) is the grandfather of the prosecutrix who lodged the FIR. While supporting the prosecution case, he has stated that the prosecutrix made a complaint to her mother about the pain felt by her in her private part and she also narrated to her mother that it was the accused appellant, who had inserted his finger in her private part. While supporting the FIR, he has categorically stated that on 31.1.2015, he had lodged the report.
Smt. Arti Sharma (PW-2) is the mother of the prosecutrix. While supporting the prosecution case, she had stated that after returning home from School, the prosecutrix had informed her about the act/offence committed by the accused appellant and she had noticed blood on the underwear of the prosecutrix. She has described the manner in which the entire incident was narrated to her by the prosecutrix.
In the cross-examination, this witness remained firm and nothing could be elicited from her.
Vijay Kumar and Vimal Kumar (PW-5 and PW-6) are the Investigating Officers and have duly supported the prosecution case.
In the statement under Section 313 of Cr.P.C., all the relevant questions were put to the accused, which have been answered by him.
The appellant's counsel has also argued that there is a delay of two days in lodging the first information report, therefore, he submits it could be said that the alleged occurrence and FIR were the result of some conspiracy and were not correct and they were a result of some afterthought.
In this case, there is an allegation of sexual assault upon a girl child. In the event of a sexual offence with a woman or a girl child of a family, before lodging a first information report the family thinks twice before taking any action. So the delay in lodging the first information report was very normal.
Considering these circumstances, the Hon'ble Supreme Court in the cases of State of U.P. vs. Manoj Kumar Pandey reported in AIR 2009 SC 711 (three judge Bench) and Santosh Moolya vs. State of Karnataka reported in 2010 (5) SCC 445 held that the normal rule that prosecution has to always explain the delay does not apply to rape cases.
Thus, the argument of the appellant-accused regarding two days' delay in lodging the FIR is hereby rejected.
Close scrutiny of the evidence makes it clear that on 29.1.2015, prosecutrix was subjected to rape by the accused appellant and the prosecutrix immediately reported the entire incident to her mother.
We find no substance in the argument of the defence that the statement of the prosecutrix does not inspire confidence of the Court. Prosecutrix is a small girl; at the time of incident, she was four and half years old and even at the time of recording evidence, she was just about seven years old, but she has answered all the questions in a proper manner. She appears to be a fully trustworthy witness and there is no reason for this Court to disbelieve her statements. Furthermore, there is no contrary evidence available on record to suggest that the accused appellant has been falsely implicated. In this regard, the argument advanced by the accused side is found baseless. No such evidence has been brought on record by the defence. Even in the cross-examination of the prosecutrix, she was not subjected to answer any such question which may be of any help to the defence. In the examination-in-chief, she has reiterated as to the manner in which she was subjected to wrong act by the appellant and no such cross question has been put to her in the cross-examination. Statement of the prosecutrix duly finds support from the statement of the Doctor (PW-4) who had noticed injuries on her private part. Here also, no such question was put to the Doctor about the statement of the prosecutrix or the medical examination of the prosecutrix. Even assuming that the internal examination of the prosecutrix has not been done by the Doctor, it hardly makes any difference once the Doctor herself found injuries on her private part. The other relevant witnesses, i.e. PW-1 (lodger of FIR) and PW-2 (mother of the prosecutrix) have also duly supported the prosecution case.
Taking cumulative effect of the evidence, we are of the view that the trial Court was fully justified in convicting the accused appellant.
The next question, which arises for consideration of this Court, is as what should be the appropriate sentence to be awarded to the accused appellant.
The Court is convinced that the appellant was a young man with no criminal antecedents and he can always be given a chance for reformation.
It is true that in this case the matter pertains to Section 376 IPC and Sections 5(f)&(m) and 6 of the POCSO Act but the accused has no previous criminal history except this case and he has not caused any other injury to the prosecurtrix. The case is that the accused inserted his finger into the genitals of the prosecutrix which according to the amended Section 375(b) IPC (amended by Act 13 of 2013) is now considered in the category of rape. Therefore, the crime committed by the accused-appellant is punishable under Section 376 (2) (d & f) of the I.P.C. for which there is a punishment of rigorous imprisonment for a term not less than 10 years but which may extend the imprisonment for life and a fine is also provided.
Since the offence was committed in a school where the accused-appellant was a Class IV employee, therefore, the amended Section of 376 (C) (c) of the IPC (amended in 2013) is also applicable. For which there is a punishment of rigorous imprisonment which shall not be less than five years but which may extend to 10 years and a fine also has been provided.
Since the case of the accused -appellant is covered by Section 376 (2) where, the minimum imprisonment of 10 years has been provided, therefore, the Court is of the opinion that considering the conditions that the accused-appellant is the sole bread earner of his family and he is a young man, having no previous criminal antecedents, there is possibility of reform and therefore, it would be appropriate that punishment be reduced and a minimum punishment be awarded to the accused-appellant.
The accused-appellant has also been tried under the POCSO Act. It is proved from the above discussions that the accused has committed an offence under Section 5 (f & m) of the POCSO Act and for which under Section 6 of the POCSO Act (prior to the amendment of 2019) there was a punishment for imprisonment not less than 10 years which may extend to life imprisonment also and a fine.
Therefore, considering the aforementioned circumstances relating to the accused-appellant, this Court is of the opinion that a minimum punishment with rigorous imprisonment for a term not less than 10 years and a fine of Rs. 5,000/- would meet the ends of justice.
Though, the Supreme Court in its recent judgement in Ravindra v. State of Madhya Pradesh (AIR 2015 SC 1369) has ruled that accused in a rape case may be awarded lesser sentence than the minimum ten years where adequate and special reasons exist by invoking the proviso to Section 376(2)(g) of the IPC for awarding lessor sentence, we think it would be appropriate to punish the appellant with the minimum punishment.
In the case of Baldev Singh vs. State of Punjab reported in AIR 2013 SC (Supp) 28, the Supreme Court had reduced the sentence on a similar ground.
We are of the opinion that no sentence lesser than that prescribed in the IPC and POCSO Act should be awarded to the accused-appellant. The trial court had punished the accused-appellant under Section 376 IPC and the Section 5 (f & m)/ 6 of the POCSO Act. But because of the provisions of Section 42 of the POCSO Act that the highest punishment be awarded had punished the accused -appellant only under Section 5 (f & m)/6 of the POCSO Act.
If we peruse the Section 376 IPC and Sections 5/6 POCSO Act, we find that punishments for the offences committed under the provisions in the year 2015 were similar.
In Section 6 of the POCSO Act (amended by the Act No. 25 of 2019 "w.e.f. 16.8.2019") the minimum punishment of rigorous imprisonment "not less than 20 years" was added. Earlier it was 10 years only.
Similarly, Section 376 IPC was amended in 2018 and prior to this amendment when the offence was committed in the year 2015 there was amended Section of 376 IPC available which was amended in the year 2013 in which only punishment with rigorous imprisonment for a term not less than 10 years and a fine was provided.
On the question of punishment, we, because of the reasons which have been stated in this judgement, propose to award the minimum punishment to the appellant..
We are of the opinion that under Section 376 IPC, punishment with rigorous imprisonment for a term not less than 10 years and a fine of Rs. 5,000/- and under Section 6 of the POCSO Act, a punishment with rigorous imprisonment for a term of 10 years and a fine of Rs. 5,000/- would be sufficient to meet the ends of justice. In the case of non-payment of fine, under Section 376 IPC, the appellant would undergo an additional one year of rigorous imprisonment and in the case of non-payment of fine under Section 6 of the POCSO Act, the appellant would further undergo one year of additional rigorous imprisonment.
Therefore, on the basis of the aforesaid discussion, we are of the view that conviction under Section 376 IPC and Section 6 of the POCSO Act is liable to be maintained and the appeal is dismissed. However, the punishment awarded by the lower court stands modified.
O R D E R The appeal in respect of conviction under Section 376 IPC and Section 6 of the POCSO Act is dismissed and the conviction awarded by the Trial Court is affirmed. However, the Appeal in respect of punishment stands party allowed as under:-
Under Section 376 IPC, the accused-appellant shall undergo punishment for a period of 10 years rigorous imprisonment with a fine of Rs. 5,000/-. In case of default of payment of fine, the accused-appellant shall undergo one year additional rigorous imprisonment.
Under Section 6 of the POCSO Act, the accused-appellant shall undergo punishment for a period of 10 years rigorous imprisonment with a fine of Rs. 5,000/-. In case of default of payment of fine, the accused-appellant shall undergo one year of additional rigorous imprisonment.
The punishment awarded under Section 376 IPC and Section 6 of the POCSO Act shall run concurrently. The period of incarceration of the accused - appellant in the aforesaid case crime number shall be adjusted as per law. The fine imposed upon the accused shall be given to the prosecutrix as compensation.
For the hard work which has been put in by the learned Amicus Curiae Ms. Beena Mishra, we quantify her fee as Rs. 35,000/- which shall be payable to her by the Legal Services Authority forthwith.
Order Date :- 27.5.2022 PK (Umesh Chandra Sharma,J.)........(Siddhartha Varma,J.)