Baba Santosh Giri vs State Of Uttarakhand

Ravindra Maithani, J

Instant appeal has been preferred against the judgment and order dated 30.05.2015 passed in Sessions Trial No.117 of 2014, State vs. Baba Santosh Giri by the court of Special Judge POCSO/Fast Track Court/ Addition District and Sessions Judge, Haldwani (Nainital). By the impugned judgment and order, the appellant has been convicted under Section 376(2), 377 IPC and Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (for short the "POCSO Act") and convicted as hereunder:-

"(i) Under Section 376 (2) IPC rigorous imprisonment for a period of 15 years and a fine of Rs.10,000/-. In default of payment of fine, the appellant shall undergo further simple imprisonment for a period of three months.

(ii) Under Section 377 IPC rigorous imprisonment for a period of 10 years and a fine of Rs.5,000/-. In default of payment of fine the appellant shall further undergo simple imprisonment for a period of two months.

(iii) Under section 6 of POCSO Act rigorous imprisonment for a period of 10 years and a fine of Rs.5,000/-. In default of payment of fine the appellant shall further undergo simple imprisonment for a period of two months.

All the sentences shall run concurrently.

The appellant is in jail.

Briefly, stated according to the prosecution on 14.09.2014 at about 08:00 in the morning the victim, a girl of 10 years was playing outside her house when the appellant caught hold of her and took her in his room, made her lay on a 'takht' (wooden bed) and raped her. The appellant also threatened her, in case she reveals it to anyone. The appellant earlier also had carnal intercourse against the order of nature with the brother of victim, who was aged 4 years. A report of the incident was lodged on 14.09.2014 at 07:25 p.m. at Police Station Ram Nagar, District Nainital and a case under Section 376, 377 IPC and Section 3 read with Section 4 of the POCSO Act was registered. On the same day at 08:15 p.m., the victim girl and at 08:50 p.m., the victim boy were medically examined. During investigation site plan was prepared and after investigation charge sheet was submitted against the appellant under Section 376, 377 IPC and Section 3 read with Section 4 of POCSO Act. Cognizance taken. On 18.11.2014 charges under Sections 376, 377 IPC and 3 read with Section 4 of the POCSO Act was leveled against the appellant to which, he denied and claimed trial.

In order to prove the case, prosecution examined total 9 witnesses, namely, PW1 Grand father of the victims, PW2 the victim girl, PW3 the victim boy, PW4 Grand mother of the victims, PW5 Dr. Archana Kaushik, PW6 H.C.140 Maheshwari Dhaundiyal, PW7 Dr. Narendra Singh, PW8 Constable 147, Ajeet Singh Khatri and PW9 S.I. Shweta Negi.

Appellant was examined under section 313 of the Code of Criminal Procedure, 1973 (for short the "Code"). According to him, he has been falsely implicated in the case.

Heard learned amicus curiae and learned counsel for the State.

Learned amicus curiae would argue that prosecution has not been able to prove the case beyond reasonable doubt because medical evidence does not support the prosecution case and a friend of the victim girl, to whom the victim girl had confided, has not been examined in the court. In support of her contention, learned amicus curiae relied on the judgment passed by the Hon'ble Supreme Court in the case of Yerumalla Latchaiah vs. State of A.P. (2006) 3 SCC (Cri.) 373. In the case of Yerumalla (supra), the Hon'ble Supreme Court under the facts and circumstances of the case, found that the evidence of the prosecutrix was belied by the medical evidence, because there was no injury on the person of the victim, when she was examined soon after the incident.

On the other hand, learned State counsel would argue that statement of the victim girl and victim boy are quite natural. They inspire confidence and it is no rule of law that the statement of the victim should always get corroboration from any other evidence. It is argued that the evidence of victims in itself is sufficient to convict the appellant and the learned court below has rightly convicted the appellant.

It is argued that even if no injury was found on the person of the victims, their statements cannot be discarded. In support of his contention, learned counsel for the appellant placed reliance on the judgment in the case of State of H.P. vs. Manga Singh 2018 SCC Online SC 2886. In the case of Manga Singh (supra) the Hon'ble Court, inter-alia, held as under:-

"5. A complaint was lodged by the teacher, Pooja Mahajan (PW-1), and an F.I.R was registered against the respondent-accused under Section 376 I.P.C. Dr. Neerja Gupta (PW-6) who medically examined the prosecutrix (PW-4) found that there was no injury found on her private parts. Dr. Neerja Gupta (PW-6) gave her opinion in writing (MLC Ex. PW6/B) in which she has opined that "in case of slightest or small penetration, hymen will not rupture". Dr. Pooja Gupta (PW-7) also examined the prosecutrix (PW-4).

The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.

It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court."

In the instant case PW1 is the first informant, who is grandfather of the victims. He was informed about the incident by his wife on the date of incident at 06:30 in the evening, when he returned home. He lodged first information report. He is not eye witness. PW8 Constable is a formal witness, who took articles to the Forensic Science Laboratory. He has stated about it only. PW2 is the victim girl. PW3 is the victim boy and PW4 is the grandmother of the victims. They are labourers, who stayed near Railway Station in Jhuggi Jhopri. PW5 is the doctor, who medically examined the victim girl on 14.09.2014 at about 08:15 in the evening. PW7 is the doctor, who examined the victim boy on 14.09.2014 in the evening. PW9 is the Investigating Officer, who arrested the appellant on 14.09.2014 at 09:35 p.m.; prepared the site plan; conducted investigation and submitted the charge sheet.

According to PW9 the Investigating Officer, the date of birth of the girl is 10.03.2006. It means she was about 8 years on the date of incident. In her examination before the court she states her age as 10 years. She was examined in the court on 26.02.2014. According to PW2, the victim girl on the date of incident at 08:00 in the morning, she was going out to play when the appellant caught hold of her and threatened her. The appellant took her in his room and lay her on a "takht"; put off her underwear and also put off his clothes and thereafter inserted his penis in her vagina; she cried and told that she would reveal it to her father. According to this witness, at this the appellant released her and threatened her to beat her in case she reveals it to anyone. This witness revealed it to her friend, who is elder to her and her friend, in turn, disclosed it to her grandmother. Her grandmother asked her about the incident and then she revealed the incident to her grandmother. According to PW2 the victim girl, at this moment her younger brother also told that a few days back the appellant also did "galat kaam" with him. This witness also proved her statement recorded under Section 164 of the Code.

PW3 is the victim boy whose date of birth according to the Investigating Officer is 22.03.2009, who was merely 5 years old on the date of incident. He was examined on 26.02.2015 when he states that he is 5 years old. It may be noted here that before recording the statement of PW2 the victim girl and PW3 the victim boy, the Court satisfied itself about the competence of these witnesses to understand and answer the questions. It is only after having been satisfied, their examination was recorded. According to PW3 the victim boy, the appellant inserted his penis in his anus. This witness was examined in question answer form, when asked as to why he did not reveal it earlier, he replied that the appellant had threatened him. He also proved this statement recorded under Section 164 of the Code.

PW4 is the grandmother of both the victims. According to her, on the date of incident the girl staying in her neighbourhood told her that appellant committed "galat kaam" with the victim girl. This witness enquired from the victim girl. The victim girl revealed it to her that the appellant after catching hold of her, took her in his room, lay her on a "takht" and raped her. According to PW4, the grandmother of the victims, at that time the victim boy also reveled that the appellant had also did "galat kaam" with him. PW5 doctor Archana Kaushik medically examined the victim girl. According to PW5 doctor Archana Kaushik on 14.09.2014 at 08:15 p.m. she medically examined the victim girl. At the time of medical examination, the victim girl had told it to her that while she was playing outside her house, a Baba, who lives in her neighbourhood, called her and her brother in his room and threatened them; took off his clothes and did "galat kaam" with her; the victim cried but nobody came there. In medical examination, according to PW5 doctor Archana Kaushik she did not find any injury, swelling or bleeding etc. She proved the medical examination report and pathology report in which no spermatozoa was found. In medical examination report, this witness has recorded as to what the victim girl had told her at the time of medical examination.

PW7 doctor Narendra Singh medically examined the victim boy on 14.09.2014 at 08:50 p.m. He did not find any contusion, abrasion on anus and everything was normal.

There are three witnesses of the incident. PW2 victim girl, PW3 victim boy and PW4 their grandmother. It is true that PW5 doctor Archana Kaushik and PW7 doctor Narendra Singh did not find any injuries on the genitals or on any part of the body of the victims. The hymen of the victim girl was found intact. No injuries were found on the private part of the victim girl. Can it be said that it belies the statement of the victim girl? Needless to say, each case depends upon its own facts. The existence of the injuries may in some cases support the prosecution case but at the same time non-existence of any injury may not in all probability belie the statement of the victim, whose statement may transpire confidence. After all it is a case of sexual assault upon two young children; a young girl and a young boy. In fact, the boy is of so tender age of about 5 years when the incident occurred. In the non permissible society like ours such allegations are not generally leveled, more particularly with regard to small children.

No doubt, that if against will, without consent and with force sexual assault is done upon a victim of tender age, there might be chances of injury, but in all the cases, it is not necessary. In Modi's jurisprudence it is stated that in case of rape it is not always necessary that there may be injury on the person of the victim. In its 23rd Edition, it is observed in this regard as hereunder:-

"To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda, with or without the emission of semen, or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed." (Page 897)

The victims of such offence do not get sympathy and respect, which they deserve instead they at most of the time viewed with tainted glasses. It is also not uncommon that in this non permissive society, the victims of sexual assault are at times tagged with social stigma, treated with indignity and ostracised.

In the case of Vishnu alias Undrya vs. State of Maharashtra, (2006)1 Supreme Court Cases 283, the Hon'ble Supreme Court, inter-alia, held as under:-

"25.......................................................................................................................................................

In the traditional non- permissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only would she be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracised and out cast from the society she belongs to and also from her family circle ......................................................................................................................................................"

In the case of B.C. Deva alias Dyava vs. State of Karnataka, (2007) 12 Supreme Court Cases 122, the Hon'ble Supreme Court, inter-alia, held as under:-

"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 interference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist 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."

In fact, it is also settled legal position that penetration of any extent may amount the offence of rape. In the case at hand, the appellant is the neighbour of the victims' family. The victims have no reason to falsely implicate him. The statements of PW2, the victim girl and PW3 the victim boy immensely inspire confidence. They have been cross-examined, but nothing has been elicited, which may create even an iota of doubt in their testimonies. In fact, what PW2 the victim girl has stated may be looked again to appreciate the evidence. According to PW2, the appellant caught hold of her on the date of incident and took her inside his house, where he made her lay on the "takht". Site plan is prepared by the Investigating officer. This is on record, which is exhibited and in it a "takht" has been shown with letters PQRS. So this part of the testimony of the PW2 gets, in fact, corroboration from the statement of PW9 S.I. Shweta Negi, who prepared site plan, in which the "takht" has been shown. The victim girl had no occasion otherwise to visit and see the "takht" in the house of the appellant, who stayed in her neighbourhood. In fact, soon after the incident on 15.09.2014 statements of both the victims were recorded under Section 164 of the Code, which need not to be reproduced but suffice is it to say that in their statements both the victims have categorically stated as to what the appellant did with them. There is nothing in their former statements, which may create any doubt in their testimony. They have not been confronted on any material particulars, in respect of their former statements.

PW2 the victim girl states that when appellant made her lay in the "takht" in his house he put his penis into her vagina but, according to this witness, at that time she cried and told that she would reveal it to his father and then appellant released her. It might be possible that the appellant could not complete the sexual intercourse. The victim girl cried and she was released. A small amount of penetration also amounts to sexual intercourse. Therefore, under the facts and circumstances of this case non-existence of any injury on the person of the victim girl does not create any doubt in her testimony. The statement of PW2 the victim is transpiring confidence and this Court is of the view that, in fact, her statement alone, without any corroboration is sufficient to convict the appellant. However, as stated the statement of PW2 the victim girl gets corroboration from the site plan, which has been prepared by PW9 S.I. Shweta Negi, in which a "takht" has been shown in the house of the appellant marked with letters PQRS.

If statement of PW3 the victim boy is examined, it also transpires confidence and it is quite natural. The carnal intercourse against the order of nature was not done with him on 14.09.2014, but some day prior to that and he has very candidly said that he could not reveal it to his family earlier because the appellant had threatened him. This child could not muster the courage to reveal as to what the appellant did with him; only when his elder sister, PW2 the victim girl, narrated the story of the incident, which the appellant did with her, he also revealed as to what the appellant did to him. If injuries were not found on the person of PW3 the victim boy, it also does not cast any doubt in his statement. It might be possible that the act could not be completed. But, again partial penetration amounts to offence and then it was done some days prior to the date, when the matter was reported and when PW3 the victim boy was medically examined.

This Court is of the view that merely because injuries were not found on the person of the victim, it does not cast any doubt on the veracity of the statements of PW2, the victim girl and PW3, the victim boy. The statements of PW2 the victim girl and PW3 the victim boy transpire confidence and they are sufficient to base the conviction.

Argument has been advanced that the friend of the victim girl has not been examined, with whom she had confided soon after the incident. It is true that according to PW4 the grandmother of the victim girl, a friend of the victim girl had told it to her, on the date of incident that the appellant did "galat kaam" with PW2, the victim girl, and it is, thereafter, the PW4 the grandmother asked the victim girl and the victim girl narrated the incident. But, merely because the friend of the victim girl has not been examined, it does not cast any doubt on the statement of PW2 and PW4 the grandmother. Statements of PW2 the victim girl, PW3 the victim boy and PW4 their grandmother, are corroborating each other and transpire confidence.

In view of the forgoing discussion, this Court is of the view that the prosecution has been able to prove the charges against the appellant and the learned court below rightly convicted and sentenced the appellant. No interference is warranted in the impugned judgment and order and the appeal deserves to be dismissed.

The appeal is dismissed.

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