Allahabad High Court
Mohd. Akku vs State Of U.P. on 20 October, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 17.08.2022 Delivered on 20.10.2022 Court No. - 15 Case :- CRIMINAL APPEAL No. - 775 of 2017 Appellant :- Mohd. Akku Respondent :- State of U.P. Counsel for Appellant :- Vimal Shukla,Piyush Kumar Singh,Prabhat Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Shree Prakash Singh,J.
1. The instant appeal under Section 374 (2) Code of Criminal Procedure, 1973 (in short ''Cr.P.C.') has been preferred by the appellant Mohd. Akku against the judgement and order dated 02.05.2017 passed by Additional Sessions Judge, Court No.1, Balrampur in Special Criminal Case No. 84 of 2013 arising out of Case Crime No. 126 of 2013, under Section 376 IPC and Section 6 of Protection of Children from Sexual Offence Act, 1912 (in short ''POCSO Act'), Police Station- Panchpedwa, District Balrampur, whereby the accused- appellant has been convicted under Section 376 IPC and Section 6 of POCSO Act and has been sentenced for the offence under Section 376 IPC for 10 years rigorous imprisonment and of fine of Rs.3000/- with further direction that in default of payment of fine, the appellant has further to undergo three months additional rigorous imprisonment and again has been sentenced for the offence under Section 6 of POCSO Act for the same sentence i.e. 10 years rigorous imprisonment and fine of Rs. 3000/- with further direction that any default of payment of fine, the appellant has to further undergo three months additional rigorous imprisonment.
2. The prosecution case, in brief, is that on 30.03.2013 at about 5 P.M. victim aged about six year, daughter of Smt. Shamim Jahan (PW1) along with her elder daughter Sahar Bano (PW4) went to play at her under construction house. The house of the appellant is situated near to the house of Shamim Jahan (PW 1). Sahar Bano (PW 4) elder sister of victim went back to her house and finding the victim alone, appellant took the victim inside his house and undressed her undergarment (panty) and was attempting to rape upon the victim. On the voice raised by the victim, Shamim Jahan (PW1) along with her daughter Sahar Bano (PW 4) sent inside the house of appellant where appellant was attempting for rape laying the victim on earth and seeing the complainant (PW1), the appellant fled away. It was told by the victim to Shamim Jahan (PW1) that after offering toffee to her took the victim inside his room and laying on earth attempting to rape.
3. Complainant Samim Jahan (PW1) preferred a written report (Ex.Ka-1) at the Police Station Panchpedwa, District Balrampur on the basis whereof Chik FIR (Ex. Ka.5) was prepared and the said information was entered in the general diary report dated 30.03.2013 at about 00.45 A.M. (Ex. Ka.4) by constable Kailesh Nath (PW6).
4. The victim was produced before Dr. Subrna Kumar (PW 5) for medico-legal examination on 01.03.2013 at district hospital. In internal examination of the victim, it was found that there was inflamed (redness) on both sides of vagina, hymen was torned and no bleeding was present.
5. On 01.03.2013, the supplementary medico-legal report was prepared and on the basis of medico-legal report as well as pathology report and on the ground of supplementary medico-legal examination, age of victim was determined as 6 years.
6. Investigation of the case was entrusted to Sub-Inspector Narendra Nath Yadav (PW3).
7. The victim was produced by the investigating officer (PW3) before concerned Magistrate, Balrampur and her statement under Section 164 Cr.P.C. was recorded.
8. During the investigation, the appellant was arrested and produced for medical examination and Sub-Inspector Narendra Singh Yadav (PW3) visited the place of occurrence and recorded the statement of witnesses prepared the site plan (Et. Ka.2) and after investigation, submitted charge sheet (Ex.Ka.3) against the appellant under Sections 376/511 IPC and Section 8 of POCSO Act.
9. Learned trial court after hearing the counsel for both sides, on 14.02.2014 framed the charges for offence under Section 376/511 IPC and Section 8 of the POCSO Act against the appellant. Thereafter on the application of the prosecution, learned trial court on 31.08.2016 framed the charges for the offence under Section 376 IPC and on 25.10.2016 framed the charges under Section 6 of POCSO Act against the appellant, who denied the same and claimed trial.
10. The prosecution in order to prove its case, examined PW 1, Smt. Samim Jahan (complaint), PW 2 Ramjan Ali, PW 3 Narendra Singh Yadav, Sub-Inspector, PW 4 Kumari Sahar Bano, PW 5 Dr. Suvarna Kumar, PW 6 Kailesh Nath and PW 7 prosecutrix as child witness, under the order dated 01.02.2017 passed by the trial Court.
11. After conclusion of the prosecution evidence, the statement of appellant was recorded under Section 313 Cr.P.C. who denies the prosecution story as well as the evidence adduced by the prosecution and stated that the victim is tutored witness and has given false deposition before the trial court at the behest of the parents. It was further stated by the appellant that initially the case was registered with allegations of rape was levelled against him with ulterior motive of false implication. It was further stated by the appellant that previously the case was registered with the allegation of attempt to rape but at the time of framing of charge, it was altered with the motive of false implication.
12. In support of his defence to rebut the prosecution story, Smt. Kausar (DW1) wife of appellant was examined as defence witness.
13. After appreciating the entire evidence and material on record and upon conclusion, trial court passed the impugned judgement and order dated 02.05.2017 convicted and sentenced the appellant as mentioned above. Aggrieved by the aforesaid judgement and order, the appellant has preferred the present appeal.
14. Per contra, Sri Aniruddh Kumar Singh, learned AGA vehemently opposed the contention aforesaid and submits that from statement of PW 1, PW 2 and PW7 it was comprehensively proved before the trial court that the appellant committed rape upon victim. It was further submitted that the statement of PW 5 Dr. Suverna Kumar is fully corroborated with the prosecution story. He further submits that on the basis of ocular testimony adduced by the prosecution as well as the medical evidence guilt of the appellant is established. He further submits that the victim was minor at the time of commission of offence, and therefore, the offence under Section 6 of the POCSO Act, is established against the appellant and, therefore, there is no illegality and infirmity in the impugned judgement and order passed by the trial court and appeal is liable to be dismissed.
15. Having heard the learned counsel for the parties and perused the record.
16. After the aforesaid arguments, the things, which emerge, are discussed as under.
17. PW 1 is Smt. Samim Jahan, first informant of the case and mother of the victim, in her deposition before the trial court, has deposed that her daughter (victim) was aged about six years at the time of incident. It was further deposed that her daughter victim went to play along with her elder sister Sahar Bano in their under construction house. It was further deposed that elder sister of victim Sahar Bano returned to her house and victim was still playing over there and appellant, who resides adjacent to the house of the informant, called the victim to his house and committed rape upon her. It was further deposed by PW 1 that due to alarm raised by victim, she reached at the spot and saw the appellant committing rape upon her daughter and appellant fled away. It was also deposed that there was bleeding of the victim and on being asked, the victim told that the appellant offered her toffee and thereafter committed rape upon her.
18. Shamim Jahan (PW 1) in her deposition before the trial court has stated that she has preferred a written application before the police station and proved the same which was marked as Ex.Ka.5 that it was emphasisly deposed by the witness that she is eye witness of the incident and has saw the appellant committing rape upon the victim.
19. PW 2, Ramjan Ali (father of the victim) has deposed before the learned trail court that he has not seen the appellant committing rape upon his daughter as he left her house 8.00 a.m. in the morning with his Rickshaw and when he came back in evening, he was informed regarding incident and what was informed to him has been stated before the court concerned.
20. PW 3 Narendra Singh Yadav, Investigating Officer has deposed before the trial court that investigation of the case was entrusted to him and on the basis of statement of informant/victim and other witnesses, charge sheet under Sections 376/511 IPC and Section 8 of POCSO Act was filed by him against the appellant. He prepared the site plan (Ex.Ka.2), recorded the statement of the witnesses, produced the victim for her statement before the concerned Magistrate under Section 164 Cr.P.C. and filed charge sheet (Ex. Ka.3) under Sections 376/511 IPC and 8 of POCSO Act.
21. PW 4 Sahar Bano was examined before the trial court in her deposition, she stated that she along with her mother saw that the appellant Md. Akku was in objectionable position with victim on cot (khatiya) and her mother took the victim along with her. It was further deposed that appellant attempted to commit rape upon victim.
22. PW 5 Dr. Suverna Kumar, who is Medical Officer examined the victim has deposed that in the internal examination of the victim, it was found that on both sides of the private part of the victim inflammation was present and it can be caused as a result of rape. The witness has proved the medico-legal report which is marked as Ex.4.
23. PW 6 Kailash Nath Constable Muharrir has deposed that on 31.03.2013 posted at Police Station Panchpedwa and first information report was lodged at 00.45 a.m. on written application of the informant Samim Jahan and registered as Case Crime No. 126 of 2013, under Sections 576/511 IPC and Section 8 of POCSO Act, Police Station Panchpedwa, District Balrampur.
24. The victim has been examined as child witness as PW 7 before the trial court. The victim has deposed that the appellant has committed rape upon her, of which report was lodged by her mother. It was deposed that she went to the police station and she has informed to the police that when she was playing, appellant came there and gave a toffee to her and then asked her to bring water in a jug. It was further deposed that when she came with water, the appellant took her to his home and put her on cot and committed rape upon her. It was further deposed that her mother came and upon which the appellant fled from spot. It was further deposed by the witness that there was bleeding from private part and she was in pain. She further deposed that she was medically examined and incident is of before four years. Appellant took her to his home on pretext of offering toffee where she was put on the cot, thereafter appellant removed her cloth and committed rape upon her. It was further deposed that on alarm being raised, her mother came there and then the appellant left her and fled away. It was further deposed that there was bleeding from her private part.
25. After the statement of appellant under Section 313 Cr.P.C., DW 1 Smt. Kaushar wife of the appellant was examined as DW 1. The witness in her examination deposed that she has four daughters and three sons. Her elder daughter is 19 years old and youngest daughter is 8 years. She has purchased the same land out of village over which the appellant has constructed his house. Upon the aforesaid land, Ramjan and Shamim Jahan were trying to forcibly take possession over house but due to purchase of land by the appellant, they could not succeed and due to aforesaid, they were inimical to the appellant. It was further deposed that the appellant is earning his livelihood in Mumbai and has returned to the village upon death of his mother-in-law. It was further deposed that Ramjan and Shamim Jahan have exalted pressure upon the appellant for taking possession of house of appellant and forcibly implicated the appellant in the instant case. It was further deposed that on several times, there was demand of money from her in order to settle the case and on 06.01.2016 Ramjan demanded Rs.4 Lakh for release of her husband which was recorded by her and clip of recording was filed before the trial court which was marked as Ex. Kh-1.
26. In so far as argument of the counsel for the applicant is to the effect that the prosecution story is highly improbable and it will be fruitful to examine the deposition of PW 1, PW 4 and PW 7 before the trial court. PW 1 is complainant and eye witness of the incident, who in her deposition has clearly stated that the victim along with her elder sister were playing in under construction house and house of the appellant is near to the under construction house. It was deposed by PW 1 that upon loud alarm of the victim, when she reached at the place of incident, she saw the appellant committing rape upon the victim. The victim was put in intensive cross examination. PW 4 Sahar Bano, who is elder sister of victim has also supported the prosecution story. The PW 4 in her statement has deposed that when she arrived at the place of incident along with her mother, she saw that the appellant was in objectionable position with the victim upon the cot.
27. Victim was examined as PW 7 before the trial court and in her examination-in-chief has in most clear terms stated that the appellant offered him toffee and asked her to bring water in a Jug and then she came along with water, the appellant called her inside the house where she was laid on cot and clothes were removed and rape was committed upon her by the appellant. Narration of the incident by the witness clearly goes to establish that the appellant offered toffee to the victim and asked her to bring water from jug and when the victim came with the water in jug, she was called by the appellant in house where the appellant removed cloth of the victim and committed rape upon her.
28. Statement of the victim is absolutely intact, consistent and does not show any chance of blemish. There is no inconsistence or anything adverse in her statement to show any doubt upon the prosecution story.
29. Thus, from perusal of the statement of PW 1, PW 4 and PW 7, the presence of the appellant is comprehensively proved that the victim was inside his house and commission of rape by the appellant on the victim is also established, therefore, the argument of the learned counsel for the appellant has no legs to stand and is rejected.
30. The submissions advanced by learned counsel for the appellant to the effect that the prosecution has failed to establish its case beyond reasonable doubt is concerned, the statement of the PW 1 informant as well as PW 4 elder sister of the victim as well as statement of victim herself as PW 7 clearly establish and makes abundantly clear that the appellant committed rape upon the victim in his home.
31. There is no inconsistency or contradiction in the statement of the witnesses which can be fatal for the prosecution. All the witnesses relied by the prosecution have given trustworthy testimony before the trial court which inspires confidence and are worth of acceptance.
32. It has been argued by learned counsel for the appellant that there are major contradiction in the statement of PW 1, PW 4 and PW 7 and their statements are inconsistence. It would be relevant to discuss the testimony of PW 1, PW 4 and PW 7, the ocular testimony deposed by the witness goes to show that there are hardly any contradiction in the statement of the witness. All the witness examined by the trail court are inconsistence in their testimony against the appellant and have in unequivocal terms deposed before the trial court that the appellant committed rape upon the victim and PW 1 and PW 4 of the eye witness to the incident.
33. There seems to be no force in the argument of learned counsel for the appellant as aforesaid that there are major contradiction in the statement of the witness are inconsistence to the version of the first information report.
34. It has been argued by learned counsel for the appellant that appellant has been falsely implicated due to dispute of property. This argument of counsel for the appellant is based upon the testimony of DW 1 wife of appellant whose testimony has already been discussed hereinabove.
35. The appellant in support of his contention false implication arising out of property dispute has not placed any reliable documentary evidence regarding property to establish the reason of his false implication. In absence of any such evidence, it cannot be said that he has been falsely implicated in the present case due to property dispute.
36. It is pertinent to mention that PW 7 who herself is victim in her deposition before the trial court, stated that the appellant inside his house committed rape upon her and the same is corroborated with the medco-legal examination of the victim as well as by the statement of PW 5 Dr. Suvarna Kumar. Thus, contention of the appellant regarding the false implication of the appellant due to the property dispute does not inspire any confidence and cannot be accepted.
37. In the light of the aforesaid discussion, the finding recorded by the trial court are well reasoned based on proper appriciation of evidence adduced by the prosecution as well as defence. Trial Court has elaborately discussed the prosecution evidence in the light of the submissions advanced by prosecution as well as defence, the impugned judgement and order passed by the trial court is well reasoned and no interference is required.
38. Accordingly, the judgement and order dated 02.05.2017 passed by Additional Sessions Judge, Court No.1, Balrampur in Special Criminal Case No. 84 of 2013 is hereby affirmed.
39. Now question for appreciation left before this Court is that as to whether sentence awarded to the appellant by the trial court should run ''concurrently' or ''consecutively'.
40. Learned counsel for the appellant submits that the appellant has been convicted and sentenced for rigorous imprisonment for 10 years under Section 376 IPC with fine stipulation of Rs.3000/- and further rigorous imprisonment for 10 years under Section 6 of the POCSO Act with fine stipulation.
41. Submission laid by counsel for the appellant that the trial court has committed an error by not holding that both the sentence awarded to the appellant shall run concurrently and in absence of such finding the appellant is constrained to serve both the sentence awarded by the trial court under Section 376 IPC and Section 6 of POCSO Act.
42. Section 42 and 42A of POCSO Act is very clear on the aforesaid point. Section 42 and 42A of the POCSO Act is reproduced hereinbelow;
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 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 only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
42A. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."
43. In order to settle the controversy, the legal proposition propounded by Hon'ble Apex Court as well as this Court to be discussed.
44. The Hob'ble Apex Court in the case of Nagaraja Rao vs Central Bureau of Investigation reported in (2015) 4 SCC 302 has held as under;
"16. The following observations made by this Court in paras 9 and 10 are apposite (Mohd. Akhtar Hussain case (1998) 4 SCC 183: 1988SCC (Cri) 921: AIR 1988 SC 2143, SCC P. 187, para 9-10 "9. The section relates to administration of criminal justice and provides procedure for sentencing. The sentencing court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive ?
10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
17. Likewise, a question arose before the three-judge Bench in State of Maharashtra vs. Najakat Alia Mubarak Ali, (2001) 6 SCC 311, as to whether the accused convicted in two cases one after another was entitled to claim set off the period of detention during investigation, inquiry or trial from the sentence imposed on conviction in both the cases. While interpreting Section 428 of the Code, the majority of the judges answered the question in affirmative. While answering the question, Justice Thomas, J. speaking for majority of the Judges, made the following observations, which are pertinent. (SCC p.320, para 17 "17. In the above context, it is apposite to point out that very often it happens, when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well."
18. The aforesaid principle of law was relied upon by this Court in Chatar Singh vs. State of M.P., (2006) 12 SCC 37 and State of Punjab vs. Madan Lal, (2009) 5 SCC 238, and lastly recently in Manoj vs. State of Haryana, (2014) 2 SCC 153, wherein this Court taking recourse to Section 31 of the Code directed in somewhat similar facts that the sentences awarded to the accused to run "concurrently" in place of "consecutively".
45. Thus, in view of law propounded by the Hon'ble Apex Court in the case of Nagaraja Rao (Supra) the sentence awarded to the appellant shall run ''concurrently' and not ''consecutively'.
46. This Court in its judgement and order dated 18.12.2020 passed in Criminal Appeal No. 309 of 2015 passed in Criminal Appeal No. 309 of 2015 (Ramu vs State of U.P. and others) has dealt with the present situation in para 51, 52 and 54 which are quoted hereinunder;
51. It is settled principle of law that no person can be punished twice for one offence. Normally a criminal court, by virtue of Section 71 I.P.C., in such cases, where any criminal act is punishable in two or more Statute or in different provision of same statutes, convicts and sentence in such provision of such statutes where lesser punishment has been provided. Parliament was aware to this situation. Looking into the gravity of nature of offence of rape offences, particularly, rape with victim below age of 18 years, Section 42 and 42 A of POCSO Act, 2012 were incorporated to deal with such peculiar situation, which read as under:-
52. Thus it is clear that if offence of sexual assault is punishable in relevant provision of POCSO Act and also in relevant provision of I.P.C., like 376 I.P.C., Trial Court is bound to punish the accused either in the relevant provision of POCSO Act, or under I.P.C. which is greater in degree.
54. In view of the provision contained in Section 42 of POCSO Act, Trial Judge ought to have punished appellant only in Section 376 I.P.C., not in Section 4 of POCSO Act, 2012. In addition to it, he ought not to have punished appellant both in Sections 376 I.P.C. and in Section 4 of POCSO Act, 2012.
47. This Court in Jail Appeal No. 6590 of 2016 (Gyanendra Singh @ Raja Singh vs State of U.P. ) has held in para 52 and 54 which is quoted herein under;
52. Thus it is clear that if offence of sexual assault is punishable in relevant provision of POCSO Act and also in relevant provision of I.P.C., like 376 I.P.C., Trial Court is bound to punish the accused either in the relevant provision of POCSO Act, or under I.P.C. which is greater in degree.
54. In view of the provision contained in Section 42 of POCSO Act, Trial Judge ought to have punished appellant only in Section 376 (2) (f) (i) I.P.C., not in Section 4 of POCSO Act, 2012. In addition to it, he ought not to have punished appellant both in Sections 376 (2) I.P.C. and in Section 3 /4 of POCSO Act, 2012.
48. Thus, in the light of the abovesaid settled proposition of law and discussions, the judgement and order dated 02.05.2017 passed by Additional Session Judge, Court No.1, Balrampur in Special S.T. No. 84 of 2013 arising out of Case Crime No. 126 of 2013, under Section 376 IPC and Section 6 of Protection of Children from Sexual Offence Act, 1912 (in short ''POCSO Act'), Police Station- Panchpedwa, District Balrampur so far as relates to conviction of appellant is maintained and affirmed but sentence is liable to be modified.
49. In view of above, conviction of appellant under Section 6 of POCSO Act is maintained. The appellant shall serve the sentence of 10 years rigorous imprisonment and fine of Rs.3000/- and in event of default of fine, he shall further serve rigorous imprisonment for three months. No separate sentence is required for the offence under Section 376 of IPC. In case the appellant has served the sentence of imprisonment of 10 years as awarded by the learned trial court, he shall set at liberty forthwith, if not wanted in connection with any other case.
50. In the light of the observations, the appeal is partly allowed to the extent as above.
51. Let the copy of this judgement and lower court record be sent to the trial court for necessary information and compliance.
Order Date :- 20.10.2022 A.Kr*