Dinesh Baitha vs State Of Sikkim

Arup Kumar Goswami, CJ

This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.â€) is preferred against the Judgment dated

19.12.2018 and the Order on Sentence dated 20.12.2018 passed by the learned Special Judge, Protection of Children from Sexual Offences (POCSO)

Act, 2012, East Sikkim at Gangtok, in Sessions Trial (POCSO) Case No. 05 of 2017. By the impugned Judgment, the appellant was convicted under

Section 5 (m) punishable under Section 6 of the POCSO Act, 2012 and under Section 342 of the Indian Penal Code (for short “IPC""). However,

he was acquitted of the charge under Section 377 IPC. Resultantly, the appellant was sentenced to undergo rigorous imprisonment for a period of ten

years and fine of Rs.5,000/- (Rupees five thousand) under Section 5 (m) punishable under Section 6 of the POCSO Act, 2012, in default, to undergo

simple imprisonment for six months, and also to undergo imprisonment for a period of one year and fine of Rs.1,000/- (Rupees one thousand) under

Section 342 of the IPC and in default, to undergo simple imprisonment for one month. Both the sentences were directed to run concurrently and the

period of imprisonment already undergone by the appellant during investigation and trial was set off. A compensation of Rs.1,00,000/- (Rupees one

lakh) was also awarded to the victim under the Sikkim Compensation to Victims or his Dependents Scheme, 2011.

Prosecution case, in brief, is that on 08.12.2016 at around 1650 hours, victim (hereinafter also referred to as “Xâ€) accompanied by his father

and mother had appeared at Rangpo Police Station and based on the oral complaint of “Xâ€, which was reduced into writing, FIR No. 70(12)16

dated 08.12.2016 under Sections 341, 377 IPC read with Section 4 of the POCSO Act, 2012 was registered against the appellant. It was alleged that

on 08.12.2016 when “X†was on his way home after playing with his friend Deepan, he had met the appellant who took him to one building.

Though he had wanted to come back, as the appellant promised him to give Rs.10/-, he stayed back and then he was pressurized to remove his half-

pant and the appellant had inserted his finger in his anus. After that he ran away from the place of occurrence and reaching his house he narrated the

incident to his mother, who, thereafter, along with “Xâ€, went in search of the appellant, who was found sitting in a room and thereafter, they had

gone to the Police Station along with the appellant.

During investigation, the Investigating Officer (PW 10) had forwarded “X†to Rangpo PHC for medical examination, where he was examined

by PW 5. The appellant was also sent for medical examination to Rangpo PHC and he was also examined by PW 5. On 08.12.2016 itself the

appellant was arrested. Statement of “X†was also recorded under Section 164 Cr. P.C. by the Chief Judicial Magistrate, East Sikkim at Gangtok

(PW 4). The victim was also medically examined by the Doctor in STNM Hospital, Gangtok (PW 8). On completion of investigation, finding, prima

facie, sufficient materials for proceeding against the appellant, charge-sheet under Section 377 IPC read with Section 5 (m)/6 of the POCSO Act,

2012 as well as Section 342 IPC was submitted and accordingly S.T. (POCSO) Case No. 05 of 2017 was registered in the Court of Special Judge,

POCSO Act, 2012, East Sikkim at Gangtok.

Upon hearing learned counsel for the parties and on perusal of the materials on record, charges under Section 5 (m)/6 of the POCSO Act, 2012,

Sections 377 IPC and 342 IPC were framed. Charges being read over and explained to the appellant in Hindi, the appellant pleaded not guilty and

claimed to be tried.

During trial, prosecution examined ten witnesses while the appellant adduced no evidence. The appellant was examined under Section 313 Cr. P.C.

wherein the plea taken was of denial.

As noted earlier, the victim was examined as PW 1. The father and mother of the victim were examined as PW 2 and PW 6, respectively. PW 3 is

the Principal of the school in which “X†(PW 1) was studying. PW 4 is the Magistrate who recorded the statement of “X†under Section 164

Cr. P.C.. PW 5 is the Doctor of Rangpo PHC who had made preliminary examination of both the appellant and the victim. PW 7 is the Doctor of

STNM Hospital. PW 8 is the Station House Officer, who had registered the case. PW 9 is the Sub-Inspector of Police, who, at the relevant time, was

at Rangpo Police Station and had recorded the statement made by “X†under Section 154 Cr. P.C. in his own handwriting (Exhibit 2). PW 10 is

the Investigating Officer.

Mr. Ajay Rathi, learned Legal Aid Counsel appearing for the appellant has submitted that the conviction of the appellant, on the basis of sole

testimony of PW 1, is not sustainable in law in absence of any corroboration from other witnesses. There are material contradictions in the evidence

of PW 1, PW 2 and PW 6 in so far as age of PW 1 is concerned as also with regard to class in which the victim was studying at the relevant point of

time, he submits. It is submitted by him that the version of the victim is belied by the medical evidence of PW 7. The wearing apparel of the victim

was also not seized and sent for forensic examination and the learned trial Court failed to consider these aspects of the matter while convicting the

appellant. Learned counsel strenuously argued that though there were a number of persons in the building where the alleged incident had taken place,

non-examination of even one of them on behalf of the prosecution has seriously dented the prosecution case. It is also contended by him that there is a

failure on the part of the prosecution to establish that the victim was below 12 years of age in absence of certificate of age of the victim and reliance

could not have been placed on the evidence of PW 3, who had merely produced an extract of the register containing dates of age of the students,

wherein the age of the PW 1 was recorded on the basis of information given by the father. According to PW 2, his statement was not recorded by the

police and yet he was examined as a witness and his statement is also available in the case diary, which indicates that the investigation was not

conducted in a fair manner. It is submitted by Mr. Rathi that the appellant was denied an opportunity of adducing evidence of his witnesses, as after

closure of the prosecution witnesses and recording of statement under Section 313 Cr. P.C., arguments were heard without fixing any date for

defence evidence and therefore, great prejudice has been caused to the appellant. He contends that such denial of opportunity has vitiated the trial and

therefore, the impugned judgment is liable to be set aside and quashed on that ground alone.

Learned counsel in support of his submissions relied on the following cases, (i) Yerumalla Latchaiah vs. State of A.P., reported in (2006) 9 SCC

713, (ii) State of Rajasthan vs. Babu Meena, reported in (2013) 4 SCC 206, (iii) State of Karnataka vs. F. Nataraj, reported in 2014 (16) SCC 752, and

(iv) State vs. Saravanan and another, reported in (2008) 17 SCC 587.

Ms. Pollin Rai, learned Assistant Public Prosecutor has placed reliance on Section 29 of the POCSO Act to contend that where a person is

prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of the POCSO 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. She

submits that the argument of Mr. Rathi that no opportunity to adduce defence evidence was granted to the appellant is factually not correct as, on a

specific query during the course of examination under Section 313 Cr. P.C., the appellant had declined to adduce any evidence on his behalf. In the

instant case, except taking the plea of denial, no evidence was adduced by the appellant to rebut the presumption. That apart, evidence of PW 1 has

not been impeached in any manner and evidence of PW 1 is also corroborated by the evidence of PW 6, to whom PW 1 had disclosed about the

incident immediately after the occurrence. She also refers to the evidence of PW 5 to contend that evidence of PW 1 is also corroborated by medical

evidence. Though PW 7, who examined PW 1 on 09.12.2016, had opined that no injuries were observed, the same will not in any manner negate the

prosecution case, as it was possibly due to application of Pilorute cream prescribed by PW 5 in the injured area, no injury was noticed by him.

We have considered the submissions of learned counsel appearing for the parties and have perused the materials on record.

Section 3 (b) of POCSO Act, 2012 lays down that a person is said to commit penetrative sexual assault if he inserts, to any extent, any object or a

part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person. Section

5 (m) of POCSO Act, 2012 provides that whoever commits penetrative sexual assault on a child below twelve years is said to commit aggravated

penetrative sexual assault and Section 6 of the POCSO Act provides that whoever commits aggravated penetrative sexual assault, 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 and shall also be liable to

fine.

The evidence of PW 1 was recorded after the learned Trial Court, on the basis of answers given to questions put to him, found that he was

competent to testify despite his tender age. In his evidence, he stood by the version given by him which was recorded in the form of FIR. The

evidence is also consistent with the statement given by him under Section 164 Cr.P.C. In his evidence, PW 1 narrated the manner in which he came

to accompany the appellant and how the offence was committed in detail and such evidence of PW 1 was not shaken in any manner. The suggestion

put to PW 1 that someone else was present with PW 1 when the appellant had called and given a banana reinforces the version of PW 1 that the

appellant was with PW 1. PW 1 stated that as he felt pain, he narrated the incident to his mother (PW 6).

PW 6, thus, was immediately reported to about the incident and she has corroborated the version of PW 1 in her evidence. She had gone with PW

1 to find out the appellant, who was identified by PW 1. Though not very clear from her evidence at what point of time the father of PW 1 had joined

them, it appears from the evidence that PW 2 was also present when the appellant was taken to the Rangpo Police Station with PW 1.

PW 2 was at home when PW 1 reported the incident to PW 6 and after PW 6 and PW 1 had gone in search of the appellant, he had also followed

them and found the appellant in a building under construction. He clarified in his cross-examination that the appellant was intercepted in a small hut

near the building under construction.

From the evidence of PW 1, PW 2 and PW 6, it appears that PW 2 was working as a driver of a utility pick-up vehicle while the appellant was a

labourer by occupation, who used to reside a little distance away from the residence of PW 2. It is evident that the identity of the appellant is not in

doubt as he was identified as the person who had committed the offence when PW 6 had taken PW 1 in search of the offender, though in the 164

Cr.P.C. statement, PW 1 had referred to the appellant as “Madehesi Vaiyyaâ€. It appears from the statement under Section 164 Cr.P.C., PW 1

came to know the name of the appellant subsequently from the police.

Though Mr. Rathi had submitted that it is not understood how the statement of PW 2 found its place in the case diary, as he himself had stated

that police had not recorded his statement, we are of the considered opinion that statement of PW 2 has to be considered in the context in which such

statement had been made and if it is considered in that perspective it will appear that the statement was made in connection with recording of

statement of PW 1 by police at Rangpo Police Station. It is not the case of the prosecution that statement of PW 2 was also recorded at the police

station. Therefore, the contention urged that investigation was conducted in a partisan manner without any merit.

PW 3, the Principal of the school where PW 1 was studying, had stated that the date of birth of PW 1 is 11.04.2007 and had issued the certificate

dated 19.01.2017 (Exhibit 4) on that basis. She had deposed that in 2016, PW 1 was studying in UKG and his name is recorded at Sl. No. 7 of the

statement with regard to the students studying in UKG containing, amongst others, dates of birth. It appears from the cross-examination of PW 3 that

the school admission register was not exhibited and it also appears that the date of birth was recorded as per statement made by the parents at the

time of admission and not on the basis of any birth certificate produced. Mr. Rathi sought to contend that the admission register having not been

produced, no credence can be placed on the date of birth of PW 1 as deposed by PW 3, and as no ossification test was conducted, the prosecution

has failed to prove that PW 1 was a minor or aged about less than 12 years at the time of occurrence. A close look at the evidence of PW 1, PW 2

and PW 6 including the cross-examination of the said witnesses would go to show that PW 1 was less than 12 years had not even been contested.

While PW 1 in the FIR had stated his age as 7 years and the age was also recorded as 6-7 years while recording the statement under Section 164

Cr.P.C., PW 1 had stated his age to be 9 years at the time of recording of evidence. It is seen from the evidence of PW 2 and PW 6 that both the

parents had stated that their son was 9 years old at the relevant point of time. The parents are the near relations having special knowledge and are the

best persons to depose about the date of birth of a person. If entry regarding date of birth in the school register is made on the information given by

the parents or someone having special knowledge of the fact, the same would have probative value. The date of birth mentioned in the school register

will, however, have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. Even if evidence of PW 3 is

taken out of consideration with regard to the age of PW 1, the school admission register having not been produced, it is of crucial importance to note

that the age of PW 1, as deposed by PW 2 and PW 6, had remained un-impeached and therefore, there is not a shadow of doubt that PW 1 was

below the age of 12 years at the time of incident. In the aforesaid view of the matter though the contention is sought to be advanced that of age of

PW 1 was not established, such argument does not commend for acceptance.

PW 9 had recorded the statement of PW 1 (Exhibit 2) at Rangpo Police Station in presence of PW 8. PW 8, who was the Station House Officer

of Rangpo Police Station, had deposed that he had directed Rajeev Mukhia (PW 9) to record the statement of PW 1. He had also deposed that the

victim and his parents had affixed their signature in Exhibit 2 after the same was read over to them. His version was corroborated by PW 9 stating

that he had recorded the statement (Exhibit 2) of PW 1. PW 10, who was the Investigating Officer, had categorically stated that the appellant was

brought to the Rangpo Police Station by the victim party and that he had forwarded the appellant for his medical examination to Rangpo PHC under a

requisition proved as Exhibit 13. There is no cross-examination of PW 10 in that respect.

PW 5, who had examined PW 1 at the earliest point of time as well as the appellant, had deposed that there was slight bleeding and a small tear

over upper margin of anal orifice and he proved the medical report (Exhibit 12) in respect of PW 1 as well as medical report (Exhibit 14) in respect of

appellant. In his evidence, PW 5 had stated that there was smell of alcohol in the breath of the appellant. He stated that he had prescribed Pilorute

cream to be applied to the injured area. The evidence of PW 5 as well as Exhibit 12 corroborates the evidence of PW 1, who in his statement under

Section 164 Cr.P.C., had also stated that he felt burning sensation when he attended to the call of nature.

The incident had taken place when PW 1 was studying in UKG. By the time trial had commenced, PW 1 was a student of Class I. The evidence

of PW 6 that PW 1 was in Class I has to be seen in that light and therefore, there is no contradiction in that regard. It is not the projected case of the

prosecution that any of the occupants of the half-constructed building had seen PW 1 and the appellant together or that they had been informed about

any incident. Therefore, there is no merit in the contention of Mr. Rathi that non-examination of any of the occupants of the building has raised doubts

about the prosecution case. Having regard to the overwhelming evidence on record pointing to the guilt of the appellant, we are also of the opinion that

it cannot be held that because of the Investigating Officer not seizing the wearing apparel of the PW 1 and sending the same for forensic examination

the entire prosecution case has to be thrown over-bored, as canvassed by Mr. Rathi.

In Yerumalla Latchaiah (supra), the age of the victim was only 8 years and no injury was found on any part of the victim including on private part.

The medical report specifically stated that there was no sign of rape at all and it was on the background of the above factual matrix the evidence of

the prosecutrix having been belied by the medical evidence, the conviction was set aside. The learned Legal Aid Counsel has sought to rely on the

aforesaid judgment in the context of the evidence of PW 7, to contend that the evidence of PW 1 is belied by the medical evidence of PW 7. It is to

be remembered that PW 7 had examined PW 1 on the next day of the occurrence. PW 5 had already examined PW 1 on the previous day when he

found slight bleeding and small tear over the upper margin of anal orifice. He also prescribed a medicinal cream to be applied on the injured area.

Some time had elapsed by the time PW 7 had examined PW 1 and in the meantime treatment had also commenced. Therefore, in the present factual

matrix, on the basis of the evidence of PW 7, prosecution case cannot be jettisoned.

Reliance placed by Mr. Rathi in Babu Meena (supra), is misplaced. In Babu Meena (supra) Honâ€ble Supreme Court found the evidence of

prosecutrix to be wholly unreliable. In that circumstance it was observed that it would be unsafe to base the conviction on the sole testimony of the

prosecutrix, although conviction can be founded on the basis of sole reliable testimony of a witness without corroboration.

In F. Nataraj (supra), the accused was a teacher in the school where prosecutrix was studying and she had fallen in love with him. On the threat

held out by the prosecutrix that if the accused would not give consent to marry her, she would commit suicide, the accused had agreed to marry her

and the relationship had continued for about three months. She started pressurizing the accused to marry her when the parents were about to get her

married to somebody else and prompted by the threats as held out earlier, both of them had fled away. The father of the prosecutrix had filed a

missing complaint as well as a complaint later on stating that the accused might have kidnapped his daughter. The accused was held to be entitled to

benefit of doubt by the Honâ€ble the Supreme Court as the gaps in the evidence of the prosecutrix and the medical officer made it highly improbable

that sexual intercourse had taken place. It was held that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical

evidence, is not of such quality which can be relied upon.

In Saravanan (supra), the Honâ€ble Supreme Court, observed that while appreciating the evidence of a witness, minor discrepancies on trivial

matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.

While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of

truth. Having said that, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly, keeping in view the deficiencies,

drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence

given by the witness and whether the earlier evaluation of the evidence is shaken so as to render it unworthy of belief.

Section 29 of the POCSO Act, 2012 reads as under: -

“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.â€​

A perusal of the aforesaid provision goes to show that in respect of Sections 3, 5, 7 and 9 of the POCSO Act, 2012, there is a presumption with

regard to committing or abetting or attempting to commit such offence unless the contrary is proved. In the instant case, defence adduced no

evidence. The suggestion given to PW 1 that the appellant was falsely implicated because the parents were having inimical relation with the appellant

or the suggestion given to PW 2 and PW 6 that they had falsely implicated the appellant do not dislodge the statutory presumption. The submission of

Mr. Rathi that the appellant was not given the opportunity to lead his evidence by examination of witnesses as no date was fixed for such purpose and

that after closure of evidence of prosecution witnesses, the court proceeded to hear the arguments, does not merit acceptance, in as much as, as

rightly submitted by Ms. Pollin Rai, no occasion for fixing a date for defence evidence had arisen in view of the statement made by the appellant

during the course of his examination under Section 313 Cr.P.C. that he would adduce no evidence.

In view of the above discussions, we are of the opinion that the learned trial court committed no illegality in convicting the appellant under Sections

5 (m) punishable under Section 6 of the POCSO Act, 2012. However, we are of the considered opinion that conviction under Section 342 IPC cannot

be sustained as evidence on record does not disclose ingredients of wrongful confinement and therefore, the conviction of the appellant under Section

342 IPC is set aside.

In the result, the appeal is partly allowed by upholding the conviction and sentence under Section 5 (m) punishable under Section 6 of the POCSO

Act, 2012, while setting aside the conviction and sentence under Section 342 IPC.

Registry will send back the lower court records.