Arvind Kumar vs State Of Uttarakhand

Ravindra Maithani, J

The instant appeal is preferred against the judgment and orders dated 27.02.2016 and 01.03.2016, passed in Sessions Trial No.186 of 2014, State vs. Arvind Kumar, passed by the learned Fast Track Court/Additional Sessions Judge/Special Judge POCSO, District Haridwar. By the impugned judgment and order the appellant has been convicted under Section 376 IPC and Section 5(i)(m)/6 of The Protection of Children from Sexual Offences Act, 2012 (for short the "POCSO Act"). The appellant was sentenced to undergo life imprisonment under Section 5(i)(m)/6 of the POCSO Act with a fine of Rs.50,000/- . In default of payment of fine to undergo simple imprisonment for a further period of five months.

Briefly stated, according to the prosecution, PW2 the victim girl, aged 10 years used to take tuition from the appellant. On 26.04.2014 at about 12:00 noon, the appellant called PW2, the victim girl in his house for tuition; when PW2 the victim girl reached the house of the appellant, he disrobed her and did galat kaam with her. PW2 the victim girl returned to her house and revealed it to her mother. Her father was not at home. When he returned, he was informed about it and a report of the incident was lodged on 30.04.2014 at 10:00 a.m. Based on it, case crime no.56 of 2014 under Sections 376 IPC and 3 read with 4 of POCSO Act was registered. Investigation was carried out. On 01.05.2014 statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short "the Code"). The victim girl was medically examined on 30.04.2014 by PW4 Dr. P.R. Pandey. During investigation, the clothes of the victim girl as well as the accused were taken in custody by the investigating officer and sent for Forensic Science examination but, nothing was detected from those clothes. After investigation charge sheet under Section 376 IPC and 5(m)/6 of POCSO Act was submitted in the court. Cognizance was taken. On 09.07.2014 charges under Section 376 IPC and 5(i)(m)/6 of POCSO Act were framed against the appellant, to which he denied and claimed trial.

In order to prove the case, prosecution examined total 7 witnesses, namely, PW1 father of the victim girl, PW2 the victim girl, PW3 mother of the victim girl, PW4 Dr. P.R. Pandey, PW5 Constable Manoj Gairola, PW6 Constable Anubha Rawat and PW7 S.I. Mahendra Singh Rana.

Appellant was examined under section 313 of the Code. According to him, he has been falsely implicated in the case because in the first week of April 2014, the father of the victim girl had molested the sister of the appellant. The appellant and his family members went to the house of the victim girl and complained about it. The father of the victim girl felt insulted and he had threatened to teach them a lesson. In defence DW1 Soran alias Soran Singh has been examined. After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced, as stated herein before. Aggrieved, by it, the instant appeal has been preferred.

Heard learned counsel for the appellant and learned counsel for the State.

Learned counsel for the appellant would argue that FIR is delayed in this matter. It is not explained and it casts doubt in the prosecution case; the statement of PW2, the victim girl, is not reliable; there is a lot of contradictions in the statements of the witnesses, which doubts the prosecution case. It is argued that prosecution failed to prove the charges against the appellant and the appellant ought to have acquitted of the charges but, the learned court below committed an error in convicting the appellant, therefore, the appeal deserves to be allowed.

On the other hand, learned State counsel would submit that the statement of PW2 the victim girl is reliable; her statement is natural; it is not tutored. The statement of PW2, the victim girl is corroborated by the medical evidence. Whatever contradictions have been indicated in the statement of PW2 the victim girl, are natural. After all, the victim girl is a girl of tender age, who after such a ghastly crime, could definitely have been shaken and the contradictions would be treated as natural. It is argued by learned State counsel that the prosecution has been able to prove the charges against the appellant and the learned court below did not commit any error in convicting the appellant.

In this case PW2 is the victim girl. According to her, at the time of incident, she had passed class 5th examination. She was preparing for class 6th and taking tuition from the appellant. On 26.04.2014 at 12:00 in the noon, the appellant called her for tuition. At that time appellant was all alone in his house. He took her in the study room; disrobed her; put off his clothes also; laid this witness on the bed and inserted his penis into her vagina. This witness tried to cry but according to her the appellant had gagged her mouth. After some time, the appellant released her; she came back her home. When her mother returned from work, she revealed it to her. PW2 the victim girl further stated that her statement was recorded before the Magistrate. She proved it and also stated that the appellant earlier also 4-5 times did galat kaam with her and threatened her. Therefore, she could not reveal it to anyone, earlier.

PW1 is father of the victim girl. According to him, on 26.04.2014 he was not in his house and on 29.04.2014 when he returned, his wife revealed about the incident to him and then he lodged the report. This witness has also stated that the victim girl was medically examined and her clothes were taken into custody by the police. This witness proves those clothes in the court.

PW3 is the mother of the victim girl. She has corroborated the statement of PW2 the victim girl. In addition to it, what she states is that, when on 26.04.2014, the victim girl narrated to her the incident but due to fear of shame she did not lodge the report and informed it to her husband when he retuned.

PW4 Dr. P.R. Pandey medically examined the victim girl on 30.04.2014. According to him, the breast of the victim was not well developed; auxiliary and pubic hair not present; swelling in the area of 3x3 c.m. with bluish and brownish in colour around the vulva; tenderness present; hymen absent; vagina admits one finger. According to PW4 he took vaginal smear slides also for pathological examination but spermatozoa were not found in those slides.

PW5 is the Head Constable Manoj Gairola, who proved chik F.I.R., G.D. etc. PW6 is Constable Anubha Rawat, who accompanied the victim girl for medical and is also the witness of taking clothes of the victim girl by the investigating officer. PW7 S.I. Mahendra Singh Rana is the investigating officer, who proves the site plan and stated about the action, which he took during investigation. According to PW7 the date of birth of the victim girl was 01.07.2003. He proved the charge sheet submitted by him.

It is the statement of PW2 the victim girl, which has to be evaluated. This is a case of alleged sexual assault on a girl of tender age. A victim of sexual assault is neither accomplice nor is she an injured witness. It is more weighty than an injured witness. Her statement has to be given more credential, provided it transpires confidence. In such cases corroboration of the statement is not at all necessary. Even without corroboration of medical evidence, if in such a case, the statement of the victim girl may transpire confidence it, in itself, may be a basis for conviction.

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat, AIR 1983 SC 753, the Hon'ble Court, inter-alia, held as hereunder:-

"9. 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 of suspicion? To do so is to justify the charge of male chauvinism in a male dominated society ...........................................................................

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In the case of Dinesh @ Buddha Vs. State of Rajasthan (2006) 3 SCC 771, Hon'ble Supreme Court observed as hereunder:-

"9. The physical scar may heal up, but the mental scar will always remain. When a women is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.

In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. 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. She would be conscious of the danger of being ostracized by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. 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 sexual offence is entitled to great weight, notwithstanding the absence of corroboration. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case."

But it is also true that the statement of the victim cannot be considered as a gospel truth. It has to undergo the scrutiny.

The appellant has also been charged under Section 5 read with 6 of the POCSO Act. Section 29 of the Act provides for presumption of guilt. It reads as hereunder:-

"29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting 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."

This presumption itself also does not obligate the court that the statement of the victim girl should be accepted as a gospel truth without examining its veracity, its truthfulness and its credibility. In view of the settled position, the examination of the victim girl and other witnesses would be examined.

There are more glaring things in the case. According to FIR, the incident occurred on 26.04.2014 at 12:00 in the noon in the house of the appellant and PW2 the victim girl had also stated about it in her statement. In addition to it what she states in the court is that at the time when she was being raped, she tried to cry but her mouth was gagged by the appellant. She has also stated that the appellant had earlier also 4-5 times did galat kaam with her. The earlier incidents have not been recorded in the FIR. PW1 her father and PW3 her mother have not stated that the appellant did galat kaam earlier also with the victim girl. So the statement of PW2 the victim girl, that the appellant did galat kaam 4-5 times earlier with her, is not supported by the statements of her father or mother. As stated, corroboration is not necessary but, since according to PW1 father of the victim and PW3 mother of the victim, the victim had narrated about the incident to them, non-corroboration of the statement of the victim girl about the earlier incidents creates little doubt about this part of the statement of the victim girl.

There is one more significant departure in the case. PW2 the victim girl was further cross-examined on 19.01.2016 long after her examination was concluded but, this statement was with regard to her statement given under Section 164 of the Code. In her statement given under Section 164 of the Code, the victim girl narrated a different story; what she states, is as hereunder:-

"The school closed at 12:00 noon and tuition at 04:30. On 26.04.2014 the appellant Arvind Kumar came in the house at about 04:00 in the morning. Arvind Kumar gives tuition to me. Arvind Kumar sometimes used to call me after school at 12:00 noon at his residence. On 26.04.2014 when I was lying in the courtyard on a bed, I saw that Arvind is standing near my cot. Seeing him, I covered my face with a blanket. When I again saw, he had gone. Then I ran and went to my father. Whenever he called me after school time in his house, he would ask me to disrobe and did galat kaam with me and also threatened that don't reveal it to anyone. I am still in class 6th and he is doing all these with me since I was in class 4th."

Now, a bare perusal of the statement of the victim girl, recorded under Section 164 of the Code reveals that she has not stated about the incident of 12:00 noon on 26.04.2014. She had not stated in her statement under Section 164 of the Code that she was raped by the appellant in his house on 26.04.2014. What she stated was that on that day in the morning at about 04:00, the appellant was standing near her cot; she covered her face, and when she again saw, the appellant had gone and she informed it to her father. In her cross-examination, recorded on 19.01.2016, she admitted to have given this statement. She has, in fact, repeated it and then she says that on that day, she returned from the school at 12:00 noon; in the evening they went to the police station and she narrated the incident to Daroga Ji. She also states that on 26.04.2014, her clothes were taken by the police. She was confronted with her statement given during investigation that why she did not tell it to police that the appellant had committed rape with her 4-5 times earlier also. She admitted that she did not tell it to the investigating officer. She also admitted that she did not tell it to the investigating officer that "laying me on the cot, he raped me, I felt pain. I tried to cry but he gagged my mouth". Now the statement of the victim girl, recorded under Section 164 of the Code is definitely in great contradiction to what she stated in her examination-in-chief in the court. Statement of PW2, the victim girl is self contradictory what she states in her examination-in-chief and what she states in her cross-examination. She admits her statement given under Section 164 of the Code. It creates a lot of doubt. It makes this Court to believe that the statement of PW2, the victim girl is not reliable. Her statement is wavering; the contradictions are on material points.

In her statement under section 164 of the Code, the victim had not stated that on 26.04.2014, she was raped. According to her earlier statement, on that day, the appellant had come to her house at 4:00 in the morning and left without doing anything and she had narrated it to her father. PW1 the father of the victim and PW3 the mother of the victim have not supported or stated about it. If on 26.04.2014, the victim girl had informed about the appellant visiting her house in the morning, to her father, why report was not lodged immediately? Delay has not been sufficiently explained in the instant case and this delay in lodging FIR is creating a lot of doubt in the statement of PW2 the victim girl and it also doubts the prosecution case.

In view of the forgoing discussion, this Court is of the view that prosecution has not been able to prove the charges against the appellant and the learned court below committed an error in convicting and sentencing the appellant. Therefore, the impugned order deserves to be set aside and the appeal allowed.

The appeal is allowed. The impugned judgment and orders dated 27.02.2016 and 01.03.2016 are set aside.

The appellant is acquitted of the charges under Section 376 IPC and Section 5 (i)(m)/6 of the POCSO Act.

Appellant is in jail. He be released forthwith, if not wanted in any other case.

Let the copy of the judgment along with lower court record be sent to the court below for compliance.