Allahabad High Court
Ramu vs State Of U.P. on 18 December, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 23.11.2020 Delivered on 18.12.2020 Court No. - 31 Case :- CRIMINAL APPEAL No. - 309 of 2015 Appellant :- Ramu Respondent :- State of U.P. Counsel for Appellant :- Rana Mritiunjay Singh,Desh Deepak Verma,Maneesh Kumar Singh,Neeta Singh Chandel,Piyush Kumar Singh Counsel for Respondent :- Govt. Advocate Hon'ble Virendra Kumar Srivastava,J.
1. The instant appeal, under Section 374(2) of Code of Criminal Procedure, 1973 (in short 'Code'), has been preferred by appellant Ramu (in short 'appellant') against the judgment and order dated 28.02.2015, passed by Special Judge, Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act') /Additional Sessions Judge, Court No.9, Barabanki, in Session Trial No.652 of 2013, (State vs. Ramu), arising out of Case Crime No.181 of 2013, Police Station Ramsanehi Ghat, District Barabanki whereby the appellant has been convicted for offence under Section 376 IPC and Section 4 of POCSO Act and has been sentenced for offence under Section 376 IPC for 14 years rigorous imprisonment and fine of Rs.10,000/- with further direction that in default of payment of fine, the appellant has to further undergo one year additional rigorous imprisonment and again has been sentenced for offence under Section 4 of POCSO Act for same sentence i.e. 14 years rigorous imprisonment and fine of Rs.10,000/- with further direction that in default of payment of fine, the appellant has to further undergo one year additional rigorous imprisonment. All the sentences were directed to run concurrently.
2. The prosecution case, in brief, is that appellant Ramu and Smt.Janak Dulari (P.W.1), mother of victim (P.W.3) were resident of village Surajpurwa Lalpur, Rajpur, Police Station-Ram Sanehighat, District Barabanki. On 25.07.2013, Smt. Janak Dulari (P.W.1) had gone to pull the paddy seedling (beran) by leaving her daughter (victim), aged about eight years and son Sumit, aged about three years at her house. Meanwhile, at about 9:00 a.m., appellant came at her house, enticed her daughter (victim) by alluring to give her cashew biscuit and took her to his mini rice mill (palesar) where he gave biscuit to her and took her into a room of the said rice mill, laid her on earth, undressed her, inserted his finger into the vagina of victim and also raped her. Thereafter, he threatened her not to tell about the incident to anyone, otherwise he would kill her.
3. At noon, when Janak Dulari (P.W.1) came back to her house, she saw the blood stained undergarment (panty) and frock of the victim and when she asked about the incident, the victim (P.W.3) told her the whole story while weeping. Janak Dulari (P.W.1) rushed to the concerned Police Station with victim and lodged a written report (Ex.Ka.1), on the basis whereof Chik F.I.R. (Ex.Ka.5) was prepared and the said information was entered in the General Diary report dated 25.07.2013 at about 09:30 p.m. by lady Constable Sulekha Yadav (P.W.-5). Blood stained undergarment (panty) and frock of the victim were taken into custody and its recovery memo (Ex.Ka.7) was prepared by Const. Sulekha Yadav (P.W.5). Investigation of the case was undertaken by lady police Inspector Bholi Singh Chauhan (P.W.4), who perused the relevant police papers and also perused recovery memo (Ex.Ka.7) of blood stained undergarment (panty) and frock of the victim.
4. The victim was produced before Dr. Reena Verma (P.W.2), for medico-legal examination on 26.7.2013 at 4:30 p.m. In internal examination of victim, it was found that labia minora was lacerated, hymen was torn, marginal bleeding as well as first degree perineal tear were present, vagina was abraded, posterior fourchette was lacerated and the victim was examined by providing general anesthesia. Vaginal smear slide was prepared and sent for examination to trace the presence of spermatozoa and gonococci.
5. On 29.07.2013, the supplementary medico-legal report was prepared on the basis of medico-legal examination report as well as pathological report and on the ground of that examination, the age of victim was determined as eight years but the presence of gonococci and spermatozoa was not found.
6. During investigation, the victim was produced on 05.08.2013, by the Investigating Officer (P.W.4) before Additional Chief Judicial Magistrate, Court No.25, Barabanki, for recording her statement under Section 164 of the Code, where she stated that about 10 days ago, in the morning the appellant came to her house, at that time her mother and elder sister had gone to sow the paddy in field whereas she and her brother was at the house. She further stated that appellant came to her and said that he would give cashew biscuit. She further stated that she did not want to go but the appellant dragged her forcibly at his rice mill (palesar) and gave biscuit. Thereafter, he carried her inside the rice mill in a room and put cloth in her mouth and laid her down. She further stated that he removed her undergarment (panty) and inserted his finger into the vagina (female genital organ) and thereafter also inserted his penis (male genital organ). She further stated that there was profuse bleeding from her vagina and she was weeping. She further stated that the appellant had put on her frock and advised her to take painkiller to get relief. She further stated that the appellant had also wiped blood with the cloth and also washed the blood and threatened her not to tell her mother otherwise, he would beat. She further stated that she had gone to her house weeping and told the whole incident to her mother when she came back. She further stated that she had gone to the hospital where her private parts were stitched. She further stated that her undergarment (panty) as well as frock were also soaked/wet with blood.
7. During investigation, the appellant was arrested on 29.07.2013 and was produced before the Medical Officer at Health Centre, Ramsanehi Ghat, District Barabanki.
8. Inspector Bholi Singh Chauhan (P.W.4), visited the place of occurrence, recorded the statement of witnesses, prepared site plan (Ex.Ka.3) and after investigation, submitted charge sheet (Ex.Ka.4) against the appellant under Sections 376, 506 IPC and Section 4 of POCSO Act, 2012. The concerned Magistrate took the cognizance and after providing the copies of relevant police papers to the appellant, as required under Section 207 of the Code, committed the case to the Court of Sessions, Barabanki as the case was exclusively triable by the Court of Sessions.
9. The learned trial Court, after hearing learned counsel for both the parties, framed charges for the offence under Sections 376, 506 IPC and Section 4 of POCSO Act, 2012, against the appellant, who denied the same and claimed for trial.
10. Prosecution in order to prove its case, examined Janak Dulari (P.W.1), Dr. Reena Verma (P.W.2), Victim (P.W.3), Inspector Bholi Singh Chauhan Investigating Officer (P.W.4), Constable C.P.357 Sulekha Yadav (P.W.5) and also relied on documentary evidences, i.e. written report (Ex.Ka.1), medico-legal examination (Ex.Ka.2), Site plan (Ex.Ka.3), Charge sheet (Ex.Ka.4), Chik F.I.R. (Ex.Ka.5), G.D. Report (Ex.Ka.6), Recovery memo (Ex.Ka.7) and chemical examination report (Ex.Ka.8).
11. After conclusion of prosecution evidence, the statement of appellant was recorded under Section 313 of the Code, who denied the prosecution story as well as evidence adduced by the prosecution, and stated that informant Janak Dulari (P.W.1) is sister-in-law (Bhaujai and Sali) of one Babu Lal with whom he had inimical terms, as Babu Lal was defeated in civil proceedings of land dispute with his father. It is further stated that informant Janak Dulari (P.W.1) used to perform domestic work of said Babulal and in connivance with said Babu Lal, a false case was lodged against him.
12. In support of his defence, to rebut the prosecution story, Chandrika Prasad (D.W.1), and Ramesh Chand (D.W.2) were examined by the appellant as defence witnesses.
13. Upon conclusion of trial, the trial Court vide impugned judgment and order dated 28.02.2015, convicted and sentenced the appellant as above. Aggrieved by the said judgment and order, the appellant has preferred this appeal.
14. Heard Ms. Neeta Singh Chandel, learned counsel for the appellant and Shri G.D. Bhatt, learned AGA for the State.
15. Learned counsel for the appellant submitted that appellant is innocent and has been falsely implicated due to enmity. Learned counsel further submitted that father of victim Sohan Lal had died and the victim's mother Janak Dulari (P.W.1) had illicit relations with Babulal and there was a land dispute between said Babulal and Ghanshyam, father of appellant. Learned counsel further submitted that the said offence was committed by son of Babulal and due to the said enmity, in connivance with Babulal, Janak Dulari (P.W.1) has falsely implicated the appellant in this case. Learned counsel also submitted that no sexual intercourse happened between the victim and the appellant, thus, offence of rape has not been committed. Learned counsel further submitted that medico-legal report is not in consonance with ocular evidence of the prosecution. Learned counsel further submitted that the learned trial Court, without application of proper judicial mind as well as without considering the evidence available on record, convicted the appellant; and the said judgment and order is against the provision of law, which is liable to be set aside. Learned counsel further submitted that the appellant is languishing in jail since 2013; he has no criminal history and he was 25 years old at the time of offence therefore, if the offence is made out, linent view may be adopted by the Court.
16. Per contra, Learned AGA vehemently opposed the submission advanced by learned counsel for the appellant and submitted that at the time of occurrence, victim was aged about eight years. Her statement recorded by the Magistrate under Section 164 of the Code as well as her statement taken before the trial Court and the statement of medico-legal expert Dr. Reena Verma (P.W.2) fully corroborated the prosecution story. Learned AGA further submitted that there is no delay either in lodging of F.I.R. or in medico-legal examination. Learned AGA further submitted that in view of injury present on the private parts of body of the victim and the ocular evidence adduced by the prosecution, offence of rape is made out. There is no illegality in the impugned judgment and order passed by the Court below and the appeal is liable to be dismissed.
17. I have considered the submissions of learned counsel for the parties and perused the record.
18. Janak Dulari (P.W.1) mother of victim, while supporting the prosecution story, has stated that at the time of occurrence, she had gone to pull the paddy seedling (besar) with her elder daughter Manju, leaving the victim (P.W.3) and her son Sumit, in her house. She further stated that appellant Ramu allured her daughter (victim) to give cashew biscuit and took her to his mini rice mill (palesar). She further stated that when she returned to her house, her daughter (victim) (P.W.3) told her that Ramu had committed rape with her. She further stated that she had seen blood stain on her daughter's frock and undergarment (panty). Thereafter, she, with her daughter-victim, rushed to Police Station Kotwali and got the report (Ex.Ka.1) written by a person and gave the same to the concerned Police Station by putting her thumb impression. She further stated that statement of her daughter was recorded and she was medically examined.
19. Victim (P.W.3), aged about eight years at the time of occurrence, has stated that she was at her house and her mother Janak Dulari (P.W.1) had gone towards the field with her sister Manju to pull the paddy seedling. She further stated that at the time of occurrence, she with her younger brother was playing. She further stated that at that time, appellant Ramu took her to his mini rice mill (palesar) by alluring her to give cashew biscuit. She further stated that appellant had undressed her, inserted his finger and then his penis (male genital organ) into her vagina and forcibly put cloth in her mouth. She further stated that after the said occurrence, the appellant washed and clean her under handpump (bumba) and thereafter he dropped her at her home. She further stated that when her mother came back to her house, she narrated the whole occurrence to her, whereafter she went to Police Station Ramsanehi ghat with her mother, where report was lodged. Thereafter, she was carried to Women Hospital, Barabanki with police and her mother Janaki Devi (P.W.1) where she was medically examined and police had also recorded her statement. She further stated that she made two thumb impressions at Police Station and also two thumb impressions at Women Hospital, Barabanki.
20. Both Janak Dulari (P.W.1) and victim (P.W.3) were cross examined at length. But in cross examination, they again narrated the same occurrence and nothing has come out in their cross examination to create any doubt in the prosecution story.
21. In addition to above, according to prosecution, the said incident took place on 25.07.2013 at about 9 a.m. and the FIR was lodged on same day at 21:30 p.m. Police Inspector Ms. Bholi Singh Chauhan (P.W.4), Investigating Officer, has stated that she was posted on 25.07.2013 as Inspector, Police Station Ramsanehi Ghat, District Barabanki and investigated the case. She further stated that during investigation, she had copied the recovery memo of the blood stained undergarment (panty) and frock of the victim in case diary, recorded the statement of victim as well as other witnesses, inspected the place of occurrence, prepared site plan (Ex.Ka.3) and also made attempt to arrest the appellant but he could not be arrested as he was absconding. She further stated that appellant was arrested by her on 29.07.2013, who was sent for medico-legal examination. She further stated that during investigation, victim was also produced before the Magistrate where her statement under Section 164 of Code was recorded and after conclusion of investigation, she filed charge sheet (Ex.Ka.4).
22. Lady Constable CP-357 Sulekha Yadav (P.W.5) stated that on 25.07.2013, on the basis of written report (Ex.Ka.1), she had prepared Chik F.I.R. No.102 of 2013 (Ex.Ka.5), pertaining to Crime No.181 of 2013, under Sections 376, 506 IPC and Section 6 POCSO Act against the appellant and entered the said information in the General Diary (Ex.Ka.6) at about 21:30 p.m. on 25.07.2013. She further stated that on that day, she had also taken into her custody the blood stained undergarment and frock of the victim, prepared the recovery memo (Ex.Ka.7) in the presence of mother of victim (P.W.1) and sent the said clothes worn by victim for chemical examination to Forensic Science Laboratory, Lucknow.
23. As per Chik FIR (Ex.Ka.5), place of occurrence is 08 kms away from the concerned Police Station. According to prosecution story, occurrence was happened at about 9:00 a.m. and Janak Dulari (P.W.1), mother of victim got the information of the occurrence from her daughter victim (P.W.3) at noon when she returned from her field. Thus, in view of the facts and circumstances of the case, as the offence is pertaining to rape with a child, aged about eight years, and information was lodged by an illiterate lady Janak Dulari (P.W.1) (mother of victim), there is no delay in lodging the FIR.
24. So far as submission of learned counsel, regarding contradiction between medical and ocular evidence as no sexual intercourse had taken place is concerned, in this case, the victim (P.W.3) was produced before Dr. Reena Verma (P.W.2) on 26.07.2013, where she was medically examined. According to Dr. Reena Verma (P.W.2), labia minora was lacerated and hymen of victim was torn and marginal bleeding was present. The victim, aged about 08 years, has also specifically stated that at the time of occurrence, the appellant had inserted his finger into her vagina, thereafter inserted his penis and again put his finger into her private parts and also forcibly put cloth in her mouth. She further stated that appellant had washed her under handpump (bumba). In cross examination, she stated that appellant had only inserted his finger into her vagina and did nothing else.
25. At this stage, it is relevant to discuss the definition of rape as provided under Section 375 I.P.C.
375- Rape--A man is said to commit "rape" if he :
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person ; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person ; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--
(First) -- Against her will.
(Secondly) --Without her consent.
(Thirdly) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) --With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) -- With or without her consent, when she is under sixteen years of age.
(Seventhly.-- When she is unable to communicate consent."
26. Thus, in view of the aforesaid definition of rape, it is clear that offence of rape includes not only sexual assault by penetration of penis to any extent but also includes inserting to any extent of any object or part of the body, not being the penis into the vagina of the victim.
27. In Vahid Khan vs. State of M.P. (2010) 2 SCC 9, Court reiterating the consistent view, held that even a slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial.
28. The victim (P.W.3), the sole star witness, in this case was aged about only eight years at the time of occurrence. She, in her statement recorded under Section 164 of the Code, has categorically stated that appellant had inserted his finger and also entered his penis (male genital organ) into her vagina (female genital organ). She has also stated about the profused bleeding and pain occurred to her due to rape, committed with her by appellant.
29. Before the trial Court she has again categorically stated that at the time of occurrence, the appellant had taken her away to rice mill (palesar) and had inserted his finger and also his penis into her vagina. She further stated that the appellant had washed her at handpump (bumba). In cross examination, she has admitted that appellant had only inserted his finger and nothing else. Thus, it is crystal clear that victim had categorically stated that appellant had inserted his finger into her vagina. In medical examination, conducted by Dr. Reena Verma (P.W.2), it was established that at the time of examination there was profuse bleeding from vagina of the victim, labia minora and hymen were torn, including her perineum, torn to first degree.
30. Therefore, in view of statement of Dr. Reena Verma (P.W.2), and statement of victim (P.W.3), it is crystal clear that offence of rape was committed by the appellant with the victim. Further, it is also clear that act committed by the appellant with victim (P.W.3) is covered under the meaning and definition of rape as provided under Section 375 IPC. In the result, there is no contradiction between medical and ocular evidence produced by the prosecution.
31. So far as next submission raised by learned counsel for appellant that the appellant is innocent and has been falsely implicated only due to enmity with one Babulal, resident of his village, is concerned, Janak Dulari (P.W.1) in her cross examination, has stated that she was earlier married to one Shiv Baksh, resident of Pahalwanpurwa and out of that wedlock, daughter Manju was born, but due to some disputes arose between them, she married with another person, resident of village Benipurwa and out of that wedlock, victim (P.W.3) was born. He further stated that again she got married with one Sohan and out of this wedlock, a son, named Sumit took birth. Further stating that all her three children are residing with her, she further stated that her third husband had died in motor accident and after his death, she is living as a widow. She also stated that Babulal used to help her and she also used to do domestic work in house of many people including Babulal. She further stated that she had sold her 04 biswa land for Rs.10.5 lac and purchased another 02 bigha land for Rs.8 lacs with the help of Babulal. She further stated that at the time of occurrence, she was residing in a hut, situated adjacent to house of Babulal. She further stated that Babulal had two sons, one was married and the other was unmarried. She specifically denied the suggestion, put to her by the defence counsel before the trial Court, that victim, at the time of occurrence, was in the house of Babulal where son of Babulal had tried to commit such bad act. Victim (P.W.3) has also denied suggestion, put to her during trial by defence counsel, that Sanjay, son of Babulal had inserted finger in her vagina.
32. Chandrika Prasad (D.W.1), examined by appellant in his defence, has stated that Janak Dulari (P.W.3) used to reside with one Babulal and he has no information whether appellant had committed rape with victim (P.W.3). According to him, there was civil dispute of abadi land between Babulal and appellant's father which was decreed in favour of father of appellant and main gate of house of Babulal was closed due to said decree. He further stated that according to rumour, prevailing in the village, Babulal's son had committed rape with victim but in connivance with Babulal, due to aforesaid enmity, the appellant was falsely implicated.
33. Ramesh Chandra (D.W.2) has stated that on the day of occurrence he was present at the rice mill (palesar) of appellant from 7 a.m. to 10 a.m. where his paddy grain was being grinded and on that day at about 9 a.m. Ramu had not committed rape with victim. Stating further that on that day his paddy grains was grinded till 11:00 a.m. -12:00 p.m., he further stated that his uncle's cycle repairing shop was situated in front of appellant's rice mill (palesar) where his uncle Sahdev was present from morning till night. He further stated that the house of Janak Dulari (informant) is situated adjacent to the house of Babulal, after the death of her husband, she used to reside at the house of Babulal and did his domestic work. He further stated that Babulal had two sons namely Raju and Sanjay, Raju was married whereas another son Sanjay @ Ramu, aged about 17-18 years, was unmarried. He further stated that as per rumour prevailing in the village said Ramu had committed rape with victim and due to enmity of civil dispute with Babulal, the appellant was falsely implicated.
34. Appellant, in his statement recorded under Section 313 of the Code, has stated that the informant Janak Dulari (P.W.1) was sister-in-law (Bhaujai and Sali) of Babulal who was inimical to him due to defeat in civil dispute and as the informant (P.W.1) used to do his (Babulal) domestic work, in connivance with Babulal, she had falsely implicated the appellant.
35. Offence of rape in all over the world is treated as heinous offence against humanity and hateful offence. This offence exploits the future life of victim and also defame the character and status of accused. Generally such type of offence is committed in sequestered and secluded place, in well and pre-planned manner, so that none can witness the occurrence. It is a case of brutal sexual assault committed by appellant. Thus, evidence of defence witnesses that they did not see the offence committed by the appellant and there was rumour in the village that appellant had not committed rape with victim, cannot be accepted because it cannot be expected from the appellant to provide an opportunity to defence witnesses to watch the offence, committed by appellant.
36. Informant Janak Dulari (P.W.1), in her cross examination, has denied the suggestion put to her that she had relations with said Babulal. She had also denied the suggestion put to her by defence counsel that the alleged rape was committed by son of Babulal and due to inimical terms of appellant with Babulal, she had falsely implicated the appellant. Victim (P.W.3) had stated that although her house is situated adjacent to the house of Babulal but Sanjay, son of Babulal has not inserted his finger into her vagina. She again stated that appellant had inserted his finger into her vagina.
37. In addition to above, the appellant had stated that there was enmity of civil dispute with Babulal which was decreed in favour of appellant but the appellant had not filed any document in this regard nor filed the said decree which was passed in his father's favour against Babulal. Thus, submission of learned counsel for appellant that there was enmity between Babulal and appellant, due to land dispute, Janak Dulari (P.W.1) in connivance with Babulal falsely implicated the appellant, has no force.
38. It is also pertinent to note at this juncture that the victim was aged about only eight years at the time occurrence and grievous injuries were caused to her due to brutal rape committed by the appellant. The prosecution case is fully supported and corroborated by the ocular evidence of victim (P.W.3), her mother Janak Dulari (P.W.1) and also Dr. Reena Verma (P.W.2). It is well settled principle of law in such type of heinous offence, the relative of the victim or specially her mother would not falsely implicate an innocent person by exonerating the real culprit and if such plea is taken by the accused appellant, it has to be proved by him as to why he is being falsely implicated. It is very pertinent to quote at this very stage the law laid down in Masalti and others vs. State of U. P., AIR 1965 SC 202, wherein Court said as under :
"...............But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.........."
39. Similarly, in Mohabbat vs. State of M.P., (2009) 13 SCC 630, Court held as under :
"...........Relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
40. Victim (P.W.3) and her mother Janak Dulari (P.W.1), both belonging to rural area, are illiterate. They were cross-examined before the trial Court for the first time by skilled counsel of appellant. In such situation, it is inevitable to appear some contradiction in their statement which creates their statement more reliable. Victim, although categorically, has stated that appellant had inserted his finger and his penis into her vagina but in cross examination, she stated that the appellant had inserted his finger and nothing else. On the account of such contradiction, prosecution case cannot be said to be unreliable or doubtful because such contradiction is minor and natural. It is settled principle of law that in offence of rape the statement of victim, supported by medico legal reports, is sufficient for conviction of accused and no further corroboration is required.
41. In State of Himachal Pradesh vs. Sanjay (2017) 2 SCC 51 where offence of rape was committed by the uncle of the victim aged about 9 years, Supreme Court, relying the testimony of victim and her mother, where FIR was lodged after three days and there was some disputes between the parties, reversing the judgment of acquittal, passed by the High Court and allowing the appeal, has held as under :-
"29. Likewise, delay of three days in lodging the FIR by PW-1, after eliciting the information from her daughter PW-2, is inconsequential in the facts of this case. 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 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 pubic. 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. We also find that the so-called dispute between the parties was so trivial in nature that it would not have prompted PW-1 to lodge a false complaint, putting her minor daughter of impressionable age to risks of serious kinds, as pointed out above.
30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims.
31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance (See Bhupinder Sharma v. State of Himachal Pradesh). Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove."
(Emphasis supplied)
42. Coming to the facts of this case again, admittedly, Janak Dulari (P.W.1) was residing with her children including the victim, she has no source of income, as she was earning her livelihood by doing domestic work as well as labour work. She was aware of the fact that she was deposing for such type of gruesome and serious offence wherein she might loose her social respect in the Society particularly in the village where she was residing. She was also aware of the consequence of exposing the offence of rape, committed with her daughter (P.W.3), because due to such offence the whole life of victim might spoiled by society, particularly in rural areas. Generally, in rural areas, due to illiteracy and unawareness, no one, particularly a woman, can be expected to lodge false criminal case for offence of rape committed with her daughter. In this backdrop, if it is alleged by accused-appellant that he has falsely been implicated, onus shifts upon him to prove such fact. Section 29 of the POCSO Act, 2012 is also relevant at this stage which is as under:-
"Where a person is prosecuted for committing or abetting or attenuating 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."
(emphasis supplied)
43. As discussed above, the appellant has not placed any reliable and documentary evidence before the trial Court as to why he was falsely implicated. Contrary to it, the prosecution has produced reliable and trustworthy evidence against the appellant. The witnesses produced by the prosecution were put to lengthy cross examination by the defence by the trial Court but nothing can be extracted by way of cross examination so as to create any doubt in their testimony.
44. There is no delay in lodging the FIR as well as in medico-legal examination. According to the statement and examination of all the witnesses, each and every fact and circumstances of the case proved by the prosecution leads to one conclusion that a hateful offence of rape has been committed by the appellant with the victim (P.W.3), aged about only eight years. There is nothing on record to show that prosecution witness including victim had any animosity with the appellant so as to implicate him falsely by leaving aside the real culprit. The trial Court had elaborately discussed the prosecution evidence in the light of the arguments advanced by learned counsel for both the parties. The judgment and order passed is a well reasoned, well discussed and requires no interference and liable to be affirmed.
45. Now the question arises, whether sentence awarded to the appellant by trial Court is just and proper or not ?
46. It is settled principle of sentencing and penology that undue sympathy in awarding sentence with accused is not required. The object of sentencing in criminal law should be to protect society and also to deter criminals by awarding appropriate sentence. In this regard, Court in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996, has said as under:-
"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".
47. Now coming to this case, offence of rape has been committed by the appellant with victim aged about 8 years. He has been convicted for offence under Section 376 IPC and Section 4 POCSO Act, 2012 and has been sentenced for 14 years imprisonment with fine of Rs.10,000/- for offence under Section 376 IPC and also has been sentenced for same punishment for offence under Section 4 of POCSO Act.
48. Section 376 (2) (i) IPC (as it was on the date of offence i.e. on 25.07.2013) provides the following punishment for rape with victim under 16 years of age.
"Section 376:- Punishment for rape.-
1. ..........
2. Whoever,--
.........................
i. commits rape on a woman when she is under sixteen years of age; or .........
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 4 of POCSO Act:-
"Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."
49. Thus a person who commits penetrative sexual assault punishable under Section 4 of POCSO Act, 2012 shall be punished with imprisonment of either description for a term which shall not be less than 7 years but it may extend to imprisonment for life and shall also be liable to fine, whereas, a person who has been found guilty for offence under Section 376 (2) I.P.C. is liable to be punished with rigorous imprisonment for a term which shall not be less than 10 years but it may extend to imprisonment for life which shall mean imprisonment for the remainder of that persons natural life and shall also be liable to the fine.
50. Thus it appears that a single/same act of sexual offence/rape has been declared as offence under Section 375 read with Section 376 I.P.C. and under also Section 4 of POCSO Act, if victim is aged about below 16 years.
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:-
"Section: 42: Alternative 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, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860), 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.
Section 42 (A): 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."
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.
53. Supreme Court while dealing with Section 42 and Section 42A and relevant provisions of POCSO Act, 2012 in Independent Thought vs. Union of Indian and Others (2017) 10 SCC 800, paras 79 and 80 has held :-
"79. Another aspect of the matter is that the POSCO was enacted by Parliament in the year 2012 and it came into force on 14th November, 2012. Certain amendments were made by Criminal Law Amendment Act of 2013, whereby Section 42 and Section 42A, which have been enumerated above, were added. It would be pertinent to note that these amendments in POCSO were brought by the same Amendment Act by which Section 375, Section 376 and other sections of IPC relating to crimes against women were amended. The definition of rape was enlarged and the punishment under Section 375 IPC was made much more severe. Section 42 of POCSO, as mentioned above, makes it clear that where an offence is punishable, both under POCSO and also under IPC, then the offender, if found guilty of such offence, is liable to be punished under that Act, which provides for more severe punishment. This is against the traditional concept of criminal jurisprudence that if two punishments are provided, then the benefit of the lower punishment should be given to the offender. The legislature knowingly introduced Section 42 of POCSO to protect the interests of the child. As the objects and reasons of the POCSO show, this Act was enacted as a special provision for protection of children, with a view to ensure that children of tender age are not abused during their childhood and youth. These children were to be protected from exploitation and given facilities to develop in a healthy manner. When a girl is married at the age of 15 years, it is not only her human right of choice, which is violated. She is also deprived of having an education; she is deprived of leading a youthful life. Early marriage and consummation of child marriage affects the health of the girl child. All these ill effects of early marriage have been recognised by the Government of India in its own documents, referred to hereinabove.
80. Section 42A of POCSO has two parts. The first part of the Section provides that the Act is in addition to and not in derogation of any other law. Therefore, the provisions of POCSO are in addition to and not above any other law. However, the second part of Section 42A provides that in case of any inconsistency between the provisions of POCSO and any other law, then it is the provisions of POCSO, which will have an overriding effect to the extent of inconsistency. POCSO defines a child to be a person below the age of 18 years. Penetrative sexual assault and aggravated penetrative sexual assault have been defined in Section 3 and Section 5 of POCSO. Provisions of Section 3 and 5 are by and large similar to Section 375 and Section 376 of IPC. Section 3 of the POCSO is identical to the opening portion of Section 375 of IPC whereas Section 5 of POCSO is similar to Section 376(2) of the IPC. Exception 2 to Section 375 of IPC, which makes sexual intercourse or acts of consensual sex of a man with his own "wife" not being under 15 years of age, not an offence, is not found in any provision of POCSO. Therefore, this is a major inconsistency between POCSO and IPC. As provided in Section 42A, in case of such an inconsistency, POCSO will prevail. Moreover, POCSO is a special Act, dealing with the children whereas IPC is the general criminal law. Therefore, POCSO will prevail over IPC and Exception 2 in so far as it relates to children, is inconsistent with POCSO."
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.
55. In the light of the above discussion, judgment and order dated 28.02.2015 passed by the trial Court, in Session Trial No.652 of 2013 (State vs. Ramu) so far as it relates to conviction of appellant, is maintained and affirmed but the sentence is modified. His sentence under Section 376 IPC is maintained. The appellant Ramu has to undergo 14 years rigorous imprisonment, with fine of Rs.10,000/- and in default of payment of fine, he has to undergo additional one year imprisonment. No separate sentence is required for offence under Section 4 of POCSO Act, 2012.
56. In view of the above discussion, the appeal is partly allowed to the aforesaid extent.
57. Let a copy of this judgment along with lower Court record be sent to the concerned trial Court, Barabanki for necessary information and compliance.
58. A compliance report be sent to this Court within two months.
Order Date :- 18.12.2020 P.s.