Allahabad High Court
Gyanendra Singh @ Raja Singh vs State Of U.P. on 2 August, 2019
Bench: Sudhir Agarwal, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 20.05.2019 Delivered on 02.08.2019 Court No. - 34 Case :- JAIL APPEAL No. - 6590 of 2016 Appellant :- Gyanendra Singh @ Raja Singh Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Sameer Jain (A.C.) Counsel for Respondent :- A.G.A., Ratan Singh Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava,J.
(Delivered by Hon'ble Virendra Kumar Srivastava,J.)
1. The present jail appeal under Section 383 Cr.P.C. has been filed by accused-appellant Gyanendra Singh @ Raja Singh (hereinafter referred to as ''appellant') through Superintendent of Jail, Fatehpur against the judgment and order dated 16.9.2016 passed by Additional Session in S.T. No. 06 of 2016 (State vs. Gyanendra Singh @ Raja Singh) arising out of Case Crime No. 236/2015, Police Station (hereinafter referred to as ''P.S.') Chandpur, District Fatehpur, whereby he has been convicted U/s 376 (2) (f), 2 (i) I.P.C. and U/s 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ''POCSO Act, 2012') and has been sentenced to undergo life imprisonment along with a fine of Rs. 25,000/- for offence u/s 376 (2) (f), 2 (i) I.P.C. and also has been sentenced for offence 3 / 4 of POCSO Act, 2012 for life imprisonment and fine of Rs. 25,000/-. In default of payment of above fine, he has to undergo two months of additional imprisonment for each fine.
2. The brief facts of prosecution case are that the accused-appellant Gyanendra Singh @ Raja Singh is father of victim (PW-2) (name of the victim is not being disclosed in this judgment) aged about 9 years. PW-1, Smt. Rajani @ Deepa is real mother of PW-2, victim whereas PW-3, Ram Naresh Singh @ Thakur Deen is grand-father of the victim. On 28.10.2015, at about 14:15 p.m., PW-1, Smt. Rajani lodged First Information Report (hereinafter referred to as ''F.I.R.') (Ex.Ka.1) at P.S. Chandpur, District Fatehpur alleging that she had gone to her parental house about two months ago with her youngest son Krishna, aged about 2 years, leaving her minor daughter, victim aged about 9 years and a son named Vishnu, aged about 4 years at her matrimonial house in the custody of her husband-appellant. On 22.10.2015 at about 8:00 p.m., her daughter victim was sleeping in her house. At that very time her husband Gyanendra Singh @ Raja Singh came to victim, enticed and took her away at the roof of the house where he committed rape with the victim, and detained her on roof by threatening her. In the morning when victim came down from the roof, narrated whole occurrence to her grand-father PW-3 Ram Naresh Singh. It has further been alleged that the whole occurrence was informed by PW-3 Ram Naresh to Informant on phone. After the occurrence, since appellant was absconding, PW-1, informant could not dare to go to her matrimonial house due to terror of the appellant. On 28.10.2015, she, by taking courageous steps, went to P.S. Chandpur, District Fatehpur with her father Ranjeet Singh, PW-3 father-in-law Ram Naresh Singh along with her daughter (victim) and filed a F.I.R. against appellant with prayer for medical examination of the victim. It has further been mentioned in the F.I.R. that a day before, Informant had gone to District Headquarter, Fatehpur where she was directed to approach P.S. Chandpur to lodge F.I.R. Upon such information, Chick F.I.R. (Ex.Ka.4) was prepared and the said information was entered in General Diary (Ex.Ka.5) at 14:15 p.m. and Case Crime No. 236/15, U/s 376 (2) (f), 2 (i) I.P.C. and 3/4 of POCSO Act, 2012 was registered against appellant Gyanendra Singh @ Raja Singh.
3. Investigation was undertaken by PW-7, Rajesh Kumar Singh, Investigation Officer (I.O). Victim was sent for medical examinationn and examined by PW-4, Dr. Manisha Shukla. According to her, no external injury was found on the body of the victim. On internal examination, there was a redness present over the labia minora in the vagina of the victim; Hymen was intact; Victim was then referred for x-ray examination in order to determine her age. She (PW-4) had prepared medical examination report (Ex.Ka.3). Oral, vaginal, vulval and anal swab were taken, slide was prepared and sent for pathological examination for D.N.A. test as well as for examination of spermatozoa.
4. During investigation, PW-7, S.I., Rajesh Kumar Singh recorded statement of witnesses and inspected place of occurrence, prepared site plan Ex.Ka.6, and arrested appellant. The certificate of date of birth from the victim's school was taken. Victim was produced before Judicial Magistrate for recording her statement under Section 164 of Code of Criminal Procedure, 1973 (Code) where her statement (Ex.Ka.2) was recorded to the following effect:-
"The victim (.......) has been presented by the I.O. Rajesh Kumar Singh under the Order of Chief Judicial Magistrate dated 3.11.2015 for recording the statement in relation to C.C. No. 236/15, U/s 376 (2 cha) (2 jha) I.P.C. and Sectio ¾ POCSO Act, P.S. Chandpur, District Fatehpur. The Victim (.........) stated that her father's name Raja @ Gyanendra Singh R/o Chandpur, Fatehpur aged 9 years, occupation student. I in the night of 22.10.2015 around 9:00 pm was sleeping. Just then my father took me up to the roof. Then my father brought mustard oil; then he opened my underwear and then he committed a bad act with me. He inserted his private part into my private part and kept on rubbing. I was crying but he clasped my mouth. My mother was not there at home. There was only me, grand-father, grand-mother and my 4 year old brother was there at home. I got faint around 3:00 a.m. My father continued this bad act with me upto 3:00 a.m. My father kissed also my private part. I gained my conscious at 8:00 a.m. and I felt excruciating pain in my private part. The statement dictated by the witness have been recorded verbatim by me."
5. Thereafter, investigation was taken over by PW-6, S.I. Ranvijay Singh due to the transfer of PW-7, S.I. Rajesh Kumar Singh, who copied medical examination report of victim in case diary. The investigation was further taken over by PW-8, S.I. Shubh Narain due to the transfer of PW-6, S.I. Ranvijay Singh. The undergarment of victim was taken into custody by him and he prepared recovery memo (Ex.Ka.7) perused and verified statement of witnesses available in case diary, concluded investigation and filed charge-sheet (Ex.Ka.8) against appellant U/s 376 (2) (f), 2 (i) I.P.C. and 3/4 of POCSO Act, 2012.
6. Cognizance of the offence was taken by Trial Court. Copies of relevant papers were served on the appellant. After hearing appellant, Trial Court framed charges against appellant as follows:-
eSa _pk tks'kh fo'ks"k U;k;k/kh'k ¼ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e½@vij l= U;k;k/kh'k@QkLV Vsªd dksVZ uEcj&2 Qrsgiqj ,rn~ }kjk vki vfHk;qDr KkusUnz flag mQZ jktk flag ij fuEufyf[kr vkjksi yxkrh gWw& ;g fd fnukWd 22&10&2015 dks le; djhc 08-00 cts ogn LFkku pkWniqj Fkkuk pkWniqj ftyk Qrsgiqj esa vkius okfnuh eqdnek jtuh dh vo;Ld iq=h पीडिता mez 9 o"kZ mlds firk gksrs gq;s ySafxd geyk@cykRdkj fd;kA bl izdkj vkius Hkk0na0la0 dh /kkjk&376 ¼2p½¼2>½ ds rgr n.Muh; vijk/k dkfjr fd;k] tks bl U;k;ky; ds izlaKku esa gSA ;g fd mDr fnukWd le; o LFkku ij vkius okfnuh eqdnek dh vo;Ld iq=h पीडिता mez 9 o"kZ ds lkFk izos'ku ySafxd geyk fd;kA bl izdkj vkius /kkjk 3@4 ySafxd vijk/kksaa ls ckydksa dk laj{k.k vf/kfu;e 2012 ds vUrxZr n.Muh; vijk/k dkfjr fd;k gS] tks bl U;k;ky; ds izlaKku esa gSA vr,r eSa vknsf'kr djrh gwW fd mDr vkjksi dk fopkj.k bl U;k;ky; }kjk fd;k tkosA vfHk;qDr dks vkjksi i<+dj सुनाया x;kA vfHk;qDr us mDr vkjksi ls badkj fd;k ,oa fopkj.k fd;s tkus dh ekWx dhA I Richa Joshi, Special Judge (POCSO) / Additional Sessions Judge Fast Track Court No. 2, Fatehpur hereby charge you the accused Gyanendra Singh @ Raja Singh as follows:-
That you the accused, on 22.10.2015 around 8.00 ''O' clock at the place Chandpur P.S. Chandpur, District Fatehpur raped minor daughter of the complainant of this Case Rajni viz. (victim), aged 9 years even after being her father. This way you committed a cognizable offence U/s 376 (2 cha) (2 jha) I.P.C. which is in the cognizance of this Court.
That on the said date, time and place you the accused committed penetrative sexual assault on the minor daughter of the complainant of this case, namely, (victim) aged 9 years. This way you committed a cognizable offence U/s 3 /4 POCSO Act, 2012 which is in the cognizance of this Court.
I hereby direct that your trial for the above charges be heard by this Court.
The accused was read aloud the charges which he denied and claimed to be tried. (English translation by Court)
7. Charges were read over and explained to accused-appellant who pleaded not guilty and claimed to be tried.
8. In support of prosecution case, it examined nine witnesses out of whom PW-1, Smt. Rajani (wife of appellant), PW-2, victim (daughter of appellant) and PW-3, Ram Naresh (father of appellant) are witnesses of fact and rest are formal witnesses. PW-4, Dr. Manisha Shukla has examined victim and prepared Medico Legal Examination Report (Ex.Ka.3); PW-5, Const. Sukhdeo Prasad is a witness who registered the F.I.R. (Ex.Ka.4) and made entry of information in General Diary (Ex.Ka.5); PW-6, S.I. Ranvijay Singh, PW-7, S.I. Rajesh Kumar Singh and PW-8, S.I. Shubh Narain are the Investigating Officers of the case who have investigated the case, prepared site plan (Ex.Ka.6), seizure memo of undergarment of victim (Ex.Ka.7) and filed charge-sheet (Ex.Ka.8) and PW-9, Deepika Singh, Ex-Principal of school where victim was studying at the time of occurrence who has proved her age certificate (Ex.Ka.9).
9. After closure of prosecution evidence, appellant was examined under Section 313 of Code wherein he denied prosecution version and stated that he is innocent and has been falsely implicated. Admitting date of birth of deceased as 20.10.2006, he has further stated that earlier he had lodged F.I.R. against his wife and his father, hence she had lodged a false report against him. He has further stated that at the time of occurrence, victim was residing with his sisters (didi) and charge-sheet has wrongly been submitted upon a false investigation conducted by I.O. against him.
10. The appellant was offered to lead evidence in his defence but he refused to produce the same.
11. On hearing learned counsels for both the parties, Trial Judge found appellant guilty of the charges framed against him and accordingly convicted and sentenced as above. Aggrieved by the impugned judgment and order, appellant has preferred this appeal.
12. We have heard Sri Sameer Jain, learned Amicus Curiae for appellant and Sri Ratan Singh, learned A.G.A. for State.
13. Learned Amicus Curiae has submitted that the appellant is innocent and has been falsely implicated. In this case F.I.R. has been lodged after six days from the occurrence without any justification; medical examination was conducted after seven days of the occurrence; medical evidence is contradictory to ocular evidence as neither any injury was found on the body of the victim nor any proof of rape has been found in medical examination; statement of victim is contradictory to the statement of PW-3 (appellant's father); He has been falsely roped in this case as there was disputes between him and his father along with his wife; and impugned judgment and order is against the provision of law, hence is liable to be set aside.
14. Per-contra, learned A.G.A. vehemently opposed the submission made by learned Amicus Curiae and submitted that this is a case of rape committed on victim by his own father and in support of offence, the evidence has been produced by victim (daughter), wife and father of appellant; delay in lodging F.I.R. and getting medical examination of victim conducted, is justified; there is no contradiction between medical and ocular evidence as even after seven days, a symptom of rape has been found in medical examination; statements of witnesses are corroborated by each other; offence against accused has been proved beyond all reasonable doubt; the judgment and order passed by lower Court is liable to be affirmed and appeal be dismissed.
15. We have considered rival submission of the learned counsel for the parties and have gone through the entire record.
16. PW-1, Rajani, mother of victim and wife of appellant, is not an eye witness. On the fateful date of occurrence, she was at her parental home. She has stated that before two months of the occurrence she had gone to her parental house with her two kids, Krishna and Vishnu, by leaving her daughter (victim) aged about 9 years with her husband as she was studying in class 4th at Chandpur. She has further stated on 22.10.2015 when victim was sleeping in her house at about 8:00 p.m., appellant (father of victim) came and enticed her away on roof of the house. He shut her mouth, committed rape with her and by threatening, detained her whole night. On next morning when victim came down from roof, she narrated the occurrence to her grandfather. She has further stated that her father-in-law, Ram Naresh (PW-3), informed her regarding the incident and also told that appellant had fled away. She further stated that due to fear she had no courage to return her matrimonial house. After 5-6 days, by taking courageous steps, she went with her father Ranjit Singh, father-in-law Ram Naresh (PW-3) and her brothers at Police Station Chandpur, District Fatehpur and submitted F.I.R. (Ex.Ka.1) which was written on her dictation by one Rakesh Singh.
17. PW-2 (Victim) aged about 9 years was examined by Trial Court after ascertaining, whether she was able to give rational answers to the questions put to her during examination. She has stated that on 22.10.2015 at about 8:00 p.m., she was sleeping with her grand mother on a cot. At that time, her mother Rajani (PW-1) had gone to her grand father-in-law (nana) . Only her grandmother (PW-3), grandfather, her younger brother Harsh and Vishnu were at home. At the time of occurrence, her father (appellant) came and taken her away and her brother on the roof of the house. She has further stated that her father made her brother sleep and thereafter came down in the house and returned with a bowl containing mustard oil. He slapped her 2-4 times and applied mustard oil in her vagina, placed his penis on her vagina and penetrated into it. As she tried to raise alarm to her grandmother, he threatened to throw her into well, and shut her mouth whereby she became unconcious. She has further stated that she had narrated whole story to her grandmother in the next morning and also told to her mother (PW-1) when she met her. She has further stated that she was medically examined and her statement was also recorded by Police as well as by a Judge in the Court. During examination, her statement under Section 164 of Code (Ex.Ka.2) was narrated to her whereupon she affirmed it and stated that the statement was given by her to Judge.
18. PW-3 Ram Naresh Singh, grandfather of victim (PW-2) as well as father of appellant, has stated that on 22.10.2015, victim was sleeping on a cot near to him at about 8:00 p.m. His son, appellant Gyanendra Singh, enticed away her on the roof of the house. The victim had stated to him, in the next morning, that her father had sexually assaulted her by shutting her mouth and detained her on the roof by threatening. He has further stated that he had narrated the occurrence on phone to her daughter-in-law (PW-1) who was at that time at her parental house and after 2 or 3 days he had gone to the parental house of her daughter-in-law. On 27.10.2015, he had gone to Fatehpur to file an application. On 28.10.2015, her daughter in law had returned at her house and thereafter she lodged F.I.R.
19. PW-4 Dr. Manisha Shukla, has stated that on 29.10.2015, she was posted at District Women Hospital, Fatehpur. On that day, she had examined victim at 10:50 a.m. She aged about 9 years, had been brought by a lady Const. Ramendri. She (PW-4) prepared a medico legal examination report (Ex.Ka.3). She has further stated that upon query, made by her, victim had stated that she was sexually assaulted and beaten by her own father. According to her, victim had also stated that after the occurrence she had changed her clothes and also gone to natural call. At the time of examination, victim's pulse rate was 76 and blood pressure was 110/80. There was no external injury on the body of victim, whereas, on internal examination, redness was present on labia minora. According to her, for the age determination of victim, x-rays of corpal bone, right wrist joint, right elbow joint and right knee joint were advised; slides of vaginal smear, oral swab, vaginal swab, vulval swab, anal swab were prepared and for DNA examination and examination for spermatozoa. According to her, force was used on victim and possibility of sexual assault cannot be ruled out. In cross-examination, she has specifically stated that the injury present on the labia minora of victim could not be caused by falling of the victim.
20. PW-5 Const. Sukhdeo Prasad was posted on 28.10.2015 at P.S. Chandpur, District Fatehpur, who has stated that he had prepared Chick F.I.R. (Ex.Ka.4) on the basis of written information given by Informant Rajani @ Deepa (PW-1) and registered case crime no. 236/2015, U/s 376 (2) (f), 2 (i) I.P.C. and U/s 3/4 of POCSO Act against appellant Gyanendra Singh @ Raja Singh. He has further stated that the said information was also entered in General Diary Report (Ex.Ka.5) on that very day at 14:15 p.m.
21. PW-7, Rajesh Kumar Singh, I.O. of the case has stated that on 28.10.2015, he was posted as Station House Officer, P.S. Chandpur, District Fatehpur; a case crime no. 236/2015, registered during his posting, was investigated by him. He had recorded the statement of victim (PW-2), Rajani (PW-1), Ram Naresh (PW-3), Smt. Champa Devi and police officials. He has further stated that he had inspected the place of occurrence and prepared site plan (Ex.Ka.6). He has further stated that he has taken the certificate of date of birth of victim from her school where she had studied; he had produced the victim before the Court for getting her statement recorded under Section 164 Cr.P.C; appellant was arrested during investigation, and his statement was also recorded by him.
22. PW-6, Ranvijay Singh, is second I.O. after the transfer of PW-7, S.I. Rajesh Kumar. He had only perused the copied of the medical examination report of victim.
23. PW-8, Shubh Narain, is third I.O. who had taken over the investigation after transfer of PW-6 S.I. Ranvijay Singh, has stated that he had perused the statement under Section 164 Cr.P.C. given by the victim before the Court and copied it in case diary. During investigation, he had verified the statement of witnesses and also recorded statement of PW-4, Dr. Manisha and upon conclusion of investigation, submitted a charge-sheet (Ex.Ka.8) against appellant u/s 376 (2) (f), 2 (i) I.P.C. and U/s 3/4 of POCSO Act, 2012. This witness has also proved recovery memo (Ex.Ka.7) of victim's panty, prepared by him.
24. PW-9, Dipika Singh, Ex-Principal of Sadna Public School, Chandpur has stated that on 25.7.2014, she was posted as a principal of the school. In Scholar Admission Register (Nk= izos'k iaftdk), the age of victim has been shown as 20.10.2006. She has further stated that victim was admitted in class III on 25.7.2014. This witness has filed (Ex.Ka.9) certified photocopy of relevant portion of the register wherein details of victim has been mentioned.
25. So far as the submission of learned Amicus Curiae that there is delay of seven days in lodging the F.I.R., hence, prosecution case is not reliable is concerned, in this case, father of the victim is accused for committing offence of rape with his own daughter and F.I.R. has been lodged by mother of the victim who is wife of the appellant. In F.I.R., it has been specifically mentioned that she (PW-1) was not at the place of occurrence at the time of incident; she had gone to her parental house and incident was informed to her by her father in law (PW-3), Ram Naresh. PW-1 in her examination in chief has specifically stated that her father in law told her that after causing occurrence, appellant had fled away to unknown place. Upon such information, she could not dare to go to her matrimonial house, but after 5-6 days, she dared to go to police station on 28.10.2015 with her father Ranjeet Singh, her father-in-law Ram Naresh (PW-3) along with her brother and lodged the F.I.R. This witness has been cross-examined by the defence counsel. In her cross-examination, she has specifically stated that she was informed by her father-in-law regarding the incident occurred on 22nd (month not known) and she came to her matrimonial house at 9th-10th O'clock on 28th day of the month.
26. PW-3, Ram Naresh Singh, who is father of the appellant has also stated that he had informed his daughter-in-law (PW-1) regarding the occurrence who was at that time at her parental house. He has further stated that after 2-3 days of the occurrence, he had gone to parental house of her daughter-in-law PW-1, village Pathreda, District Banda with victim (PW-2) and on 28.10.2015, she came back. This witness has stated that on 27.10.2015, he had also gone to Fatehpur to lodge F.I.R. and thereafter her daughter-in-law had the F.I.R. at Police Station. This witness has also been cross-examined by the defence counsel. In his cross-examination, he has specifically stated that he was present with her daughter-in-law at the time of filing F.I.R. He has denied the suggestion put by the defence counsel to him that the appellant has been falsely implicated.
27. It is settled principle of law that there is no fixed time to lodge F.I.R. Some times F.I.R. is lodged very promptly and sometimes some delay may be caused in lodging the same. Only on the ground that prompt F.I.R. has been lodged, prosecution story cannot be presumed as true and similarly on the ground that the delay has been caused in lodging F.I.R., prosecution case cannot be thrown out. If the delay caused in lodging F.I.R. is natural and justifiable, in the facts and circumstances of the case, it cannot affect the veracity of prosecution case. It depends upon the facts and circumstances of each case. In this case, appellant has been charged for committing rape with her own daughter aged about 9 years and Informant is neither outsider nor inimical to appellant. She is wife of the appellant. Normally where the accused is the family member of the victim and also the guardian of the victim and Informant, the family members firstly tried to avoid to disclose offence in society and also avoid to lodge F.I.R in order to protect future life and carrier of victim, which may be affected by social stigma. In this case, it has been specifically alleged that from the date of occurrence, appellant was absconding and Informant could not dare to lodge F.I.R. against her husband. We know very well that our society is male dominated, and male member of family usually is head of the family. PW-1 Rajani in her cross-examination has stated that appellant was the only son of her father-in-law. It might be that the family members of Informant firstly decided not to lodge F.I.R. because they knew very well that if a criminal case is lodged, they might loose the company of appellant but afterwards they decided to go for justice and lodge F.I.R. In such a situation, it appears that in peculiar facts and circumstances, the said delay was caused in lodging F.I.R.
28. At this very juncture observations made by Supreme Court in Karnel Singh vs. State of M.P. 1995 (5) SCC 518, on the point of delay in lodging F.I.R. in case of sexual assault, are very relevant and read as under:-
"..............The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false.........."
29. Similarly in State of Punjab vs. Gurmeet Singh and others 1996 (2) SCC 384, Court held as under:-
".............The courts cannot over-look the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged..........."
30. Thus in view of peculiar facts and circumstances of this case and also the law laid down by Apex Court, we are of the view that delay caused in lodging F.I.R. is reasonable and justified. There is no substance in the submission made by learned Amicus Curiae.
31. So far as the submission of learned counsel regarding medical evidence, that no external injury was found; a delay has been caused in medical examination; the ocular evidence is not supported by the medical evidence, hymen was found intact and no injury was found on the vagina of the victim, and the redness has been found in medical examination in labia minora may be due to the infection, hence no symptom of rape was found is concerned, we find that offence of rape has been committed by the appellant who is father of victim aged about 9 years. Offence of rape has been defined in Section 375 I.P.C, as follows:-
Section 375 - 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 party 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 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, 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 eighteen years of age.
Seventhly - When she is unable to communicate consent.
32. Thus the aforesaid definition shows that the penetration of penis by a man to any extent into vagina, mouth, urethra or anus of a women or making her to do so with him or any other person amounts to rape, if it has been committed against her will or without her consent.
33. 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.
34. In this case, victim was aged about 9 years. Her medical examination was conducted on 29.10.2015 whereas the offence was committed on 22.10.2015. PW-4, Dr. Manisha Shukla has clearly stated that victim has stated to her that her father carried her on the roof top and committed sexual assault by force. Redness was found on the labia minora of victim's vagina. In cross-examination, she has specifically stated that the injuries found on the labia minora in victim's vagina could not be caused by fall of the victim. It is notable point at this stage that though this witness has stated that hymen of victim was intact and there was no swelling on the vagina of victim but we cannot overlook the fact that the medical examination was conducted after seven days and according to victim, appellant had applied mustard oil (lubricant) before committing rape with her. The victim had also specifically stated that due to pain, she had become unconscious. It might be possible that after seven days, swelling, tenderness of the injury of vagina might have subsidised and minimised. Neither complete penetration nor complete intercourse is required for offence of rape as provided in Section 375 I.P.C. Penetration to any extent is sufficient. Presence of redness even after 7 days on the labia minora in the vagina of the victim clearly shows that sexual assault was committed with victim.
35. At the time of occurrence, PW-1, Rajani, mohter of victim was not with her. She had gone to her parental house and when she came, she dared to lodge F.I.R. against appellant. Looking into the gravity of offence as there was no female adult in the house of victim at the time of occurrence, who might carry the victim to hospital for medical examination, after lodging F.I.R., victim was carried by Police for medical examination, hence, delay, in getting medical examination conducted, is justified.
36. In Bharwada Bhogin Bhai Hirji Bhai vs. State of Gujarat AIR 1983 SC 753, Court while dealing with the uncorroborated testimony of victim of sexual assault, has held as under:-
"In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. 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 ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social mileu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as:
(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengence on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarassing position, on account of personal or political vendatta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy. (7) She may do so to win sympathy of others. (8) She may do so upon being repulsed.
By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World. Obseisance to which has perhaps become a habit presumably on account of the colonial hangover. We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities-factors does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities-factor' is found to be out of tune."
37. Statement of PW-1 Rajani, PW-2 Victim and PW-3 Ram Naresh clearly show that the offence of sexual assault was committed on 22.10.2015 at about 8:00 p.m. by appellant. Statement of PW-4 Dr. Manisha Shukla and medical examination report (Ex.Ka.3) also shows that symptom of sexual assault was present on the private part of victim at the time of her medical examination. It is settled principle of law that in rape cases, only the statement of victim, if trustworthy, is sufficient to prove prosecution case. No further corroboration is required in such matter. In this case, medical evidence fully corroborate ocular version of prosecution. The submission raised by defence counsel regarding deficiency of medical evidence has no force.
38. So far as submission of learned Amicus Curiae that the statements of witnesses are self-contradictory is concerned, we have perused the statements of PW-1 Rajani Devi, PW-2 victim and PW-3 Ram Naresh and find that there is no material contradiction. Though there are some minor variations in the statement of PW-2 victim and PW-3 Ram Naresh as PW-2 victim has stated that at the time of occurrence, she was sleeping at cot with her grandmother outside her house, whereas, PW-3 has stated that her grand-daughter / victim was sleeping on a cot beside him but statements of these witnesses cannot be treated as contradictory because PW-3 has no where stated that the victim was not sleeping at the time of occurrence with her grand-mother.
39. It is settled principle of law that minor variations or contradictions in the statements of witnesses are inevitable and natural because every person states and narrates facts in his own way. Method or manner of expression of any fact of two persons cannot be exactly same. Thus, we are of the view that there is no contradiction between the statements of witnesses and the submission advanced by learned Amicus Curiae, in this regard, has no force.
40. It is also pertinent to mention that the victim was produced by I.O. during investigation before Judicial Magistrate on 3.11.2015, where her statement was recorded under Section 164 Cr.P.C. She has narrated in her statement before the Magistrate (statement under Section 164 Cr.P.C. has been transcribed in para no. 4 of this judgment) whole occurrence. The victim has in her examination in chief has also stated that she had been produced before Court where her statement was recorded. She was not cross-examined by the defence on this point before Trial Court, thus, the statement under Section 164 of the Code further corroborates prosecution story.
41. As we have stated that victim was aged about only 9 years at the time of occurrence, PW-1 Rajani, PW-2 victim and PW-3 Ram Naresh are very close relatives i.e. wife , daughter and father of victim, Appellant is the only son of PW-3 Ram Naresh; They (witnesses) very well knew the fact that they are deposing for such type of serious offence, wherein, they may loose their social respect in society as well as also loose company of the appellant. They were also aware about the consequences of making charge against appellant for such offence that whole life of the victim may be spoiled by society particularly in rural areas. No one can be expected to lodge false criminal case for offence of rape against her own husband by leaving aside the real culprit. In this backdrop, 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 added)
42. In this case, although appellant has taken plea in his statement under Section 313 of the Code that he had lodged F.I.R. against his father Ram Naresh PW-3 and his wife Rajani PW-1 and also had stated that at the time of occurrence, the victim was at his sisters house, but he has not produced any evidence in his defence to support his version. Thus the aforesaid presumption gets further strengthened and support prosecution case.
43. PW-1, Rajani, PW-2 Victim and PW-3 Ram Naresh Singh are neither enemy nor stranger to appellant. PW-2 is innocent child. Every teen daughter treats her father as a best guard, well wisher and faithful person in her life, in the world. Appellant has not only committed rape to her but also damaged and destroyed faithful and pious relation between daughter and father. The witnesses produced by prosecution were put to lengthy cross-examination by learned defence counsel before Trial Court, but nothing could be extracted by way of cross-examination so as to create any doubts in their testimony. Delay caused in lodging F.I.R. and medical examination is natural and justified. According to the statement and examination of all the witnesses, each and every fact of circumstances of the case proved by prosecution leads to one conclusion that such a hateful offence of rape has been committed by the appellant. There is nothing on record to show that prosecution witness had any animus with the appellant so as to implicate him falsely by leaving aside the real culprit. Trial Court had elaborately discussed prosecution evidence in the light of arguments advanced by learned counsel of prosecution as well as defence. In our view, impugned judgment and order requires no interference and is liable to be affirmed.
44. Now the question arises, whether sentence awarded to the appellant by trial Court is just and proper or not?
45. 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".
46. In this case, the offence of rape has been committed by appellant who is father of victim aged about 9 years. He has been convicted by Trial Court in an offence under Section 376 (2) (f), 2 (i) I.P.C. and has been sentenced to under go life imprisonment along with fine of Rs. 25,000/- and has also been committed for an offence under Section 3 / 4 of POCSO Act and has been further sentenced for the same sentence. Both the sentences have been directed to run concurrently.
47. Section 376(2) (f), 2 (i) I.P.C. (as it was at the time of occurrence), deals with offence of rape committed with victim by a relative, guardian or teacher, or a person in a position of trust or authority towards a women or an offence committed with victim who is aged under 16 years of age. Similarly, the offence punishable under Section 3 /4 POCSO Act, 2012 is an offence of penetrative sexual assault committed by any person with victim aged under 18 years.
48. Section 376 (2) (f), 2 (i) of I.P.C. and Section 4 of POCSO Act, 2012 which provides the punishment for sexual assault / rape are as under:-
Section 376:-
1. ..........
2. Whoever,--
f. being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or 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 sentence, 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.
Section42(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 (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.
55. In the light of above discussion, judgment and order dated 16.9.2016; passed by Additional Session Judge / Fast Track Court No. 2 Special Act (POCSO), Fatehpur in S.T. No. 6 of 2016 (State vs. Gyanendra Singh @ Raja Singh) so far as it relates to conviction of appellant is maintained and affirmed but the sentenced is modified. His conviction and sentence under section 376 (2) (f) (i) I.P.C. is maintained. He has to undergo for life imprisonment for remaining natural life as provided in this Section and to pay fine of Rs. 25,000/-. No separate sentence is required for the offence under Section 3/ 4 of POCSO Act, 2012.
56. In the light of above discussion, the appeal is partly allowed to that extent, as said above.
57. Sri Sameer Jain, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Sameer Jain, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of a copy of this judgment.
58. Let a copy of this judgment along with lower court record be sent to the concerned Trial Court, Fatehpur for necessary information and compliance.
59. A compliance report be sent to this Court within two months. Copy of his judgment be also supplied to the accused through Superintendent of Jail, concerned.
Order Date :- 02.08.2019 Saurabh