Sikkim High Court
Pukman Kami vs State Of Sikkim on 26 November, 2019
Author: Bhaskar Raj Pradhan
Bench: Chief Justice, Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
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DIVISION BENCH: THE HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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Crl. A. No. 34 of 2017
P. K. xxxx (name withheld),
Resident of Sxxxx (name withheld),
West Sikkim.
Presently at Central Prison,
Rongyek,
East Sikkim.
..... Appellant
versus
State of Sikkim
..... Respondent
Appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
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Appearance:
Mr. K.T. Tamang, Advocate (Legal Aid Counsel) for the Appellant.
Mr. Thupden Youngda, Additional Public Prosecutor for the
Respondent.
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Date of hearing : 20.11.2019
Date of judgment : 26.11.2019
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The year was 2016. The appellant is a resident of a village in West Sikkim. He made sickle, etc., for a living. The appellant‟s wife is dead. He lived in a small hut along with his four minor children. He borrowed money from the villagers to provide for himself and his children. He often came home drunk Crl. A. No. 34 of 2017 2 P.K. xxxx (name withheld) vs. State of Sikkim and physically abused his children. This is the setting for the commission of the heinous acts of sexual crimes perpetrated by the appellant upon his two minor school going daughters in the same hut which they considered „home‟. This act of absolute depravity stands proved by the appellant‟s conviction and sentence by the learned Special Judge, (POCSO) South Sikkim at Namchi (for short „the learned Special Judge‟) vide judgment and order on sentence dated 31.08.2017 in Sessions Trial (POCSO) Case No. 07 of 2016. Resultantly, the appellant is lodged in the Central Prison while the two minor victims and one of their minor brother „M‟ (name withheld) in "Mxxx" (hereinafter referred to as „the short stay home‟). Where lives now PW-14, the other minor brother, barely twelve years of age, cannot be gathered from the records of this case.
2. The formal accusation against the appellant, the biological father of the two minor victims, originated after the First Information Report (for short „FIR‟) (Exhibit-1) dated 11.02.2016 filed by PW-1, Secretary of the short stay home. In the FIR, it was stated that the appellant had surrendered three children before the Child Welfare Committee (for short „CWC‟) on 13.01.2016 as he could not afford the expenses of food, education, clothes and other logistic matters for the children due to his poor economic condition. It was stated that among the children surrendered were - the younger victim (PW-11), a ten Crl. A. No. 34 of 2017 3 P.K. xxxx (name withheld) vs. State of Sikkim year old female child studying in class III, the elder victim (PW-6), a fourteen year old female child also studying in Class-III and Master „S‟ (name withheld), an eight year old male child studying in Class-I. It was stated that the CWC had given shelter order for the children at the short stay home vide order dated 13.01.2016. The FIR alleged that during the counselling the minor victims revealed that both were "sexually assaulted" by their biological father, i.e., the appellant, a widower, several times since 15.08.2015.
3. PW-1 deposed that sometime during January 2016, the appellant surrendered three children before the CWC owing to his poor economic condition and his inability to take care of them. The CWC contacted him for lodging the children in the short stay home and accordingly, they were admitted there. On 09.02.2016, the In-Charge (PW-12) of the short stay home informed PW-1 that the two minor victims had revealed to her about repeated sexual assault on them by the appellant. Accordingly, on 10.02.2016, PW-1 went to the short stay home and verified from the minor victims about the matter. They told him that they used to be repeatedly subjected to sexual assault/abuse by the appellant while they were staying together. PW-1, thereafter, lodged the FIR.
Crl. A. No. 34 of 2017 4
P.K. xxxx (name withheld) vs. State of Sikkim
4. According to PW-12, on 13.01.2016, one volunteer of the short stay home brought three minor children including the two minor victims and handed them over to her with a shelter order of the CWC on which basis she kept the children. PW-12 deposed that they were shabbily dressed and appeared to be traumatic. During the counselling, she came to learn that the two minor victims were sexually abused by their father sometime in the month of August 2015. PW-12 informed this fact to PW-1 who filed the FIR. Immediately thereafter, the police came to the short stay home and took the minor victims for medical examination.
5. The Chairperson of the Child Welfare Committee (PW-
15) deposed that Sub-Inspector Sithoshna Sharma (PW-18) submitted an application requesting her to record the statements of the minor victims. She identified the application (Exhibit-25) and her signature thereon. According to PW-15, she recorded the minor victim‟s statement who stated that they were sexually assaulted by the appellant. PW-15 deposed that elder victim (PW-
6) had told her that she had reported this matter to her school teacher who counselled the appellant but despite the same the appellant committed similar acts upon her. In her cross- examination, PW-15 admitted that she did not have any authority or power to record the statements of the minor victims. Crl. A. No. 34 of 2017 5
P.K. xxxx (name withheld) vs. State of Sikkim Sithoshna Sharma (PW-18) confirmed the recording of the statements of the victims by PW-15.
6. On the strength of the FIR, Case No. 04/2016 dated 11.02.2016 under section 376 of the Indian Penal Code, 1860 (for short „IPC‟) read with section 4/8 of the Protection of Children from Sexual Offences Act, 2012 (for short „POCSO Act‟) was registered against the appellant and taken up for investigation. The investigation resulted in the prosecution alleging the commission of the said offences by the appellant on the two minor victims in the final report.
7. On 25.06.2016, the learned Special Judge framed charges under sections 5(l), 5(n) of the POCSO Act, sections 376(2)(n), 376(2)(f), 376(2)(i) of the IPC against the appellant for commission of the offences on the elder victim (PW-6). Charges were also framed under sections 5(l), 5(n), 5(m) of the POCSO Act, sections 376(2)(n), 376(2)(f) and 376(2)(i) of the IPC for commission of the offences on the younger victim (PW-11).
8. The appellant pleaded innocence and claimed trial. During the trial, 18 witnesses including the two investigating officers were examined by the prosecution. The appellant was thereafter examined under section 313 of the Code of Criminal Procedure, 1973 (for short „the Cr.P.C.‟) in which he pleaded that Crl. A. No. 34 of 2017 6 P.K. xxxx (name withheld) vs. State of Sikkim he was falsely implicated in the case by the teachers of the school. He alleged that the teachers of the school were asking for his children and as he refused to give them he was falsely implicated.
9. The impugned judgment was rendered on 31.08.2017 convicting the appellant for commission of offence under sections 5(l)/5(n) and 9(l)/9(m)/9(n) of the POCSO Act. He was also convicted under sections 376(2)(n)/376(2)(f)/376(2)(i)/354/354 of the IPC. On the same day by the impugned order on sentence, the appellant was convicted in the following manner:-
(i) Rigorous imprisonment of 10 years under section 5(l) punishable under section 6 of the POCSO Act.
(ii) Rigorous imprisonment of 12 years under section 5(n) punishable under section 6 of the POCSO Act.
(iii) Rigorous imprisonment of 5 years under section 9(l) punishable under section 10 of the POCSO Act.
(iv) Rigorous imprisonment of 6 years under section 9(m) punishable under section 10 of the POCSO Act.
(v) Rigorous imprisonment of 6 years under section 9(n) punishable under section 10 of the POCSO Act.
(vi) Rigorous imprisonment of 12 years under section 376(2)(i) of the IPC punishable under section 376(2) of the IPC.
(vii) Simple imprisonment of 3 years under section 354 of the IPC.Crl. A. No. 34 of 2017 7
P.K. xxxx (name withheld) vs. State of Sikkim
(viii) Simple imprisonment of 3 years under section 354 of the IPC.
(ix) Although the appellant was convicted under section 376(2)(n)/376(2)(f) of the IPC in view of section 42 of the POCSO Act, separate sentence was not imposed upon him.
(x) The sentences were directed to run concurrently and the period of imprisonment already undergone by the appellant was set off against the period of imprisonment imposed.
10. The solitary ground urged by Mr. K.T. Tamang, learned legal Aid Counsel for the appellant, is that the medical evidence completely belies the oral testimony of the two minor victims.
11. The elder victim (PW-6) was examined on 19.08.2016. She deposed that she was 14 years old and studying in the fourth standard. She identified the appellant as her father and deposed that she had one younger sister and two younger brothers. According to her, all of them stayed in a small hut. Their mother had expired. The appellant used to come home drunk and started sexually assaulting her and her younger sister since August 2015. According to her, the appellant used to come home drunk and put his hands all over her and her younger sister‟s body including her private parts. On many occasions, he put his penis into her vagina. Later, both the minor victims Crl. A. No. 34 of 2017 8 P.K. xxxx (name withheld) vs. State of Sikkim started sleeping outside the hut. She deposed that when the appellant brought them to Namchi, they narrated about the incident to some uncle and aunty. She identified her statement recorded under section 164 Cr.P.C. (Exhibit-8) and her initials therein. During her cross-examination, she admitted that after the demise of her mother the appellant used to look after her and her siblings. The appellant was the only earning member of the family. He used to take loan from the villagers to meet their expenses and in fact, it was the appellant who brought them before the CWC. She admitted that she had not made any complaints regarding the incidents of sexual assault.
12. The younger victim (PW-11) deposed on 24.10.2016. She stated that she was ten years old and studying in third standard in her school. She also identified the appellant as her father. According to her, she had one elder sister [elder victim (PW-6)] and two minor brothers, i.e., PW-14 and another. Her mother had expired long ago. Before they were brought to the short stay home, they were staying with their father. The younger victim (PW-11) deposed that the appellant used to sexually abuse her and her elder sister in the night whenever he used to come drunk. According to her, the appellant sexually assaulted her five times. According to her, her younger brother (PW-14) often saw the appellant sexually abusing them and therefore, reported the incident to their school teacher after which the appellant stopped Crl. A. No. 34 of 2017 9 P.K. xxxx (name withheld) vs. State of Sikkim sexually abusing them. The incidents occurred during the time of 15th August 2015. She also identified her statement recorded under section 164 Cr.P.C. (Exhibit-13) as well as her signatures therein. During cross examination, she admitted that after the death of their mother, the appellant used to look after and maintain them. It was the appellant who had brought them to the short stay home. She admitted that she had not told anyone about the incident immediately after it happened. She also admitted that the appellant used to sexually assault them only when he used to come home drunk. She admitted that the appellant had taken loan from the villagers to maintain them as his income from his profession of making sickle, etc., was not sufficient.
13. The defence did not cross-examine the minor victims on their statement recorded under section 164 Cr.P.C. although both the minor victims deposed that it was recorded. In her statement, the elder victim (PW-6) stated to the learned Magistrate that the appellant started assaulting her and the younger victim (PW-11) around 15.08.2015. According to this statement, the appellant would open his trousers and first have sex „chara garthyo‟ with her younger sister and thereafter with her. She had told him that the police would get him but he would slap her. The appellant sexually assaulted them at least five times during the night. The appellant would do so only when he Crl. A. No. 34 of 2017 10 P.K. xxxx (name withheld) vs. State of Sikkim was drunk. He would not give them their meals and not buy rice regularly. They got so scared that when the appellant would go out to drink they would cook their dinner early, eat, take their blankets, stay out of the house in the night and sleep outside hiding behind the squash plant. As the place was haunted they would get scared. The assault ended when they were brought to the short stay home.
14. The younger victim (PW-11) informed the Magistrate that she was studying in Class IV. Her mother had died last year. According to her statement recorded under section 164 Cr.P.C. on 04.03.2016, the appellant started sexually assaulting her and her sister around 15.08.2015. She stated that the appellant assaulted them many times. When her brother (PW-14) came to know of it and told the appellant that he would tell the police the appellant stopped the assault. Thereafter, they were brought to the short stay home.
15. PW-14 deposed that he was twelve years old. He identified the appellant as his father. According to him, they were four siblings and the minor victims were his sisters, one elder and the other younger. He confirmed that the appellant used to come home drunk sometimes and beat them with his stick. Their mother had passed away when he was small and after her death they were residing with the appellant. According to him, one Crl. A. No. 34 of 2017 11 P.K. xxxx (name withheld) vs. State of Sikkim night when they were sleeping he heard his elder sister telling the appellant to go away from the bed but he did not see anything else. PW-14 was declared hostile. He was cross- examined by the learned Special Public Prosecutor. He denied all the suggestions put to him. During his cross-examination by the defence, he admitted that the appellant used to beat them only when he was drunk otherwise he used to love them.
16. Both the minor victims confirmed that they were medically examined. Doctor Rajiv Gurung (PW-5) was the Medical Officer who examined the minor victims on 11.02.2016. He did not find any visible injury on their person and referred them for gynaecological consultation. The Gynaecologist (PW-13) at the STNM Hospital examined the minor victims on 23.02.2016. According to him, both the minor victims told him that they were sexually assaulted by the appellant on five occasions since 15.08.2015 and the last sexual assault was on 09.01.2016. On their examination, no injuries were seen around the vulva, vagina and anal region. Their hymens were intact. The vulva, vaginal swab and wash samples were obtained and sent to pathological laboratory for evidence of spermatozoa. The vulva and vaginal swab reports dated 23.02.2016 (Exhibit-11 and Exhibit-12) did not show any evidence of motile or non-motile spermatozoa. The Gynaecologist (PW-13), therefore, opined that Crl. A. No. 34 of 2017 12 P.K. xxxx (name withheld) vs. State of Sikkim the clinical findings and laboratories reports were not suggestive of recent forceful vulval, vaginal or anal penetration.
17. We notice that the minor victims, both female, have been medically examined by male doctors. This is in violation of section 27(2) of the POCSO Act. The State must ensure adequate women doctors are available to examine children of the female gender.
18. The learned Special Judge had concluded that the elder victim (PW-6) was below fifteen years of age and the younger victim (PW-11) was below twelve years of age at the time of commission of offence. The appellant has not questioned the findings of the learned Special Judge on this aspect in the present appeal. The minority and age of the minor victims have been established by their own evidence as well as the evidence of the headmaster (PW-3) of their school who proved their transfer certificates (Exhibit-3 and Exhibit-4).
19. The learned Special Judge has concluded that the evidence led by the prosecution does not prove that the appellant had committed penetrative sexual assault or raped the younger victim (PW-11) and thus, could not be convicted under sections 5(l)/5(n)/5(m) of the POCSO Act and under sections 376(2)(n)/376(2)(f)/376(2)(i) of the IPC. The learned Special Crl. A. No. 34 of 2017 13 P.K. xxxx (name withheld) vs. State of Sikkim Judge, however, held that the act of the appellant would fall under section 9(l), 9(m) and 9(n) punishable under section 10 of the POCSO Act as well as under section 354 of the IPC.
20. The learned Special Judge also held that the evidence of the prosecution proved beyond reasonable doubt that the appellant had committed aggravated penetrative sexual assault upon the elder victim (PW-6) as defined under section 5(l)/5(n) punishable under section 6 of the POCSO Act and under section 376(2)(n)/376(2)(f)/376(2)(i) of the IPC.
21. Both the minor victims deposed about the incident that transpired around August 2015. The FIR got to be registered only on 11.02.2016. The minor victims were medically examined on 23.02.2016. The younger victim (PW-11) deposed about being sexually abused or sexually assaulted. She did not depose about how she was sexually abused or sexually assaulted. It is quite evident that the words "sexual abuse" and "sexually assaulted"
were words used by the learned Special Judge while recording the evidence of the younger victim (PW-11) after hearing her testimony. It would have been better if the learned Special Judge had written the English translation of exactly what the younger victim (PW-11) had deposed. The elder victim (PW-6) was, however, categorical in deposing that the appellant had put his penis into her vagina. The learned Legal Aid Counsel emphasised Crl. A. No. 34 of 2017 14 P.K. xxxx (name withheld) vs. State of Sikkim on this deposition and submitted that the medical evidence completely destroys the oral testimony of the elder victim (PW-6).
Per contra, the learned Additional Public Prosecutor drew the attention of this Court to two judgments of the Supreme Court.
22. In Re: B.C. Deva alias Dyava vs. State of Karnataka1, the Hon‟ble Supreme Court held that;
"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
23. In Re: Aman Kumar and Another vs. State of Haryana2, the Hon‟ble Supreme Court while examining a case of rape held that;
"7. ..... To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under section 376 IPC."1
(2007) 12 SCC 122 2 (2004) 4 SCC 379 Crl. A. No. 34 of 2017 15 P.K. xxxx (name withheld) vs. State of Sikkim
24. The medical evidence does not give any indication of penetrative sexual assault on either of the victims. However, we must remain conscious of the fact that the medical examinations of the victims were conducted at least seven months after the first sexual assault and at least after a month of the last such assault going by the evidence of the Gynaecologist (PW-13). In such circumstances, no physical evidence would be traceable on the body of the minor victims unless the hymen had been ruptured.
25. The younger victim (PW-6) deposed that the appellant had put his penis on her vagina on several occasions. She did not give any further gory details of the heinous act. Both section 3(b) of the POCSO Act and section 375(a) of the IPC provide that penetration to any extent into the vagina amounts to penetrative sexual assault under the POCSO Act and rape under the IPC. It is settled in medical jurisprudence that every penetration of the penis into the vagina may not necessarily lead to rupture of the hymen. Although, even a slight penetration may satisfy the ingredient of the offence charged, it may not necessarily lead to rupture of the hymen. The accusation made by the minor victims, first before PW-12 then to PW-1 and thereafter, to the learned Magistrate (PW-8) and finally before the learned Special Judge, has been substantially consistent. The appellant‟s defence that he had been falsely implicated (which is not only devoid of Crl. A. No. 34 of 2017 16 P.K. xxxx (name withheld) vs. State of Sikkim any evidence but completely unbelievable) by the teacher of the minor victims does not answer why the two minor victims would make up such a spine chilling story against their own biological father. We have no hesitations in believing the testimonies of the minor victims.
26. The younger victim (PW-11) had deposed that she was sexually assaulted at least five times. Sexual assault has been defined in section 7 of the POCSO Act. Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. The deposition of the younger victim (PW-11) adequately corroborated by her own statement recorded under section 164 Cr.P.C. leads us to conclude that the appellant had in fact sexually assaulted her on several occassions. Whoever commits sexual assault on the child more than once or repeatedly is said to have committed aggravated sexual assault. The evidence of the younger victim (PW-11) satisfies the ingredients of section 9(l) of the POCSO Act. Section 9(m) of the POCSO Act provides whoever commits sexual assault on a child below 12 years is said to commit aggravated sexual assault. The appellant‟s conviction under section 9(m) of the POCSO Act cannot thus be faulted. As it has been proved beyond reasonable Crl. A. No. 34 of 2017 17 P.K. xxxx (name withheld) vs. State of Sikkim doubt that the appellant was the biological father of the younger victim (PW-11), section 9(n) of the POCSO Act is also attracted as sexual assault had been committed on her by her own father, i.e., the appellant.
27. The deposition of the elder victim (PW-6) is cogent. She deposed that the appellant had on many occasions put his penis into her vagina. Whoever commits penetrative sexual assault on a child more than once or repeatedly is said to have committed aggravated penetrative sexual assault as defined under section 5(l) of the POCSO Act. Whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child commits penetrative sexual assault on such a child is said to have committed aggravated penetrative sexual assault as defined under section 5(n) of the POCSO Act. Whoever 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 is made punishable under section 376(2)(f) of the IPC. Whoever commits rape repeatedly on the same woman is made punishable under section 376(2)(n) of the IPC. Section 6(10) of the IPC defines „woman‟ as a female human being of any age. The prosecution has been able to satisfy the ingredients of the offences alleged to have been committed on the elder victim (PW- Crl. A. No. 34 of 2017 18
P.K. xxxx (name withheld) vs. State of Sikkim
6) beyond reasonable doubt. The learned Special Judge has correctly not sentenced the appellant under section 376(2)(n) and 376(2)(f) of the IPC in view of section 42 of the POCSO Act.
28. The sentence of the appellant under section 354 IPC in the given circumstances was not necessary in view of section 71 of the IPC and, therefore, is set aside. We are of the considered view that the rest of the impugned judgment of conviction and order on sentence need no interference and are accordingly upheld.
29. The appeal is partly allowed. The appellant is presently serving his sentence at the Central Prison, Rongyek. He shall continue there and serve out the rest of his sentence.
30. Although, the learned Special Judge has convicted the appellant for commission of heinous offence of aggravated penetrative sexual assault and rape of his own daughter, i.e., elder victim (PW-6) and for sexual assault upon his other daughter, i.e., younger victim (PW-11), he has not granted any compensation to the minor victims. In the circumstances, considering that the minor victims were sexually violated by their own biological father at the tender age of fourteen and twelve; the trauma the victims must have and continues to undergo; that they are completely deprived of parental care as their mother has Crl. A. No. 34 of 2017 19 P.K. xxxx (name withheld) vs. State of Sikkim expired and the appellant would be serving the sentence imposed, we are of the considered view that the Sikkim State Legal Services Authority (for short „SSLSA‟) should grant the elder victim (PW-6) and the younger victim (PW-11) compensation of an amount of Rs.3,00,000/- (Rupees three lakhs) and Rs.50,000/- (Rupees fifty thousand) respectively, as per the Sikkim Compensation to Victims or his Dependents Scheme, 2011 as amended. The said amounts shall be deposited in fixed deposit in the name of the minor victims, separately, payable on their attaining majority. If the minor victims do not have any bank account, the SSLSA shall render assistance to the minor victims to do so. For the said purpose, the SSLSA is further directed to identify the guardian of the minor victims and if no guardian has been appointed to take all such steps to assist the minor victims for the appointment of their guardian.
31. The sordid saga questions the moral fabric of our society and must necessarily alarm each of us to examine its festering underbelly to take corrective measures forthwith. However, as the story unfolded, we see a glint of hope in the alertness of the citizenry and the social workers of our society who have been able to unearth the offences which may have been left buried in the deep mental wounds of the minor victims. Crl. A. No. 34 of 2017 20
P.K. xxxx (name withheld) vs. State of Sikkim
32. We direct the Registry to transmit a copy of this judgment to the Court of the learned Special Judge, (POCSO) South Sikkim at Namchi and another to the learned Member Secretary, SSLSA for compliance.
33. Records of the learned trial Court be returned forthwith.
( Bhaskar Raj Pradhan ) ( Arup Kumar Goswami )
Judge Chief Justice
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