Vipin Kumar vs State Of Uttarakhand

Ravindra Maithani, J

Challenge in this appeal is to the judgment dated 21.7. 2015/22.07.2015 passed in Special Sessions Trial No. 77 of 2014, State Vs. Vipin Kumar, under Sections 366 and 376 IPC and Section 6 of Protection of Children for Sexual Offences Act, 2012 (for short "POCSO Act) by the court of learned FTC/Additional Sessions Judge/ Special Judge POCSO, Rudrapur, District Udham Singh Nagar (for short "the case"), whereby the appellant has been convicted under Section 6 of the POCSO Act and under Sections 366 and 376 (2) of IPC and sentenced as hereunder:-

"(i) Under Section 366 IPC rigorous imprisonment for ten years & a fine of Rs.20,000/- In default of payment of fine, to undergo simple imprisonment for a further period of three months.

(ii) Under Section 376 (2) IPC, life imprisonment for the remaining life of the appellant and a fine of Rs.50,000/-. In default of payment of fine to undergo simple imprisonment for a further period of six months."

Briefly stated, according to the prosecution, on 18.05.2014the victim aged nine years was playing near her house. The appellant was playing stunt on the cycle in the vicinity for the last 2-3 days, prior to the date of incident. On that day, at about 6:00-7:00 PM, the appellant under the pretext of offering her some eatables enticed the victim away. When the victim did not return, a search was made in the village, tempo stand, bus stand and finally the victim was located at the railway station in the midnight at 2:30 AM. When questioned, the victim revealed that the appellant took her near the railway bridge and in the bushes, after disrobing the victim, raped her. Thereafter, the appellant left the victim at the railway station and ran away. Report of the incident was lodged on 24.05.2014 at 12.30 at ROP Outpost ITI Police Station Kashipur. According to the FIR, due to shame and social stigma FIR could not be lodged at the earliest. But since, the victim had gone under depression, a report was lodged. Based on it, Case Crime No. 63 of 2014 under Section 376 IPC was lodged on the same day. The victim was medically examined on 24.05.2014 by PW3 Dr. Jugnu Govil. According to the Doctor, sexual contact was present; certain tests were prescribed. The victim had also undergone pathological tests; report received. On 03.06.2014, statement of the victim was recorded under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). The Investigating Officer also took into custody the underwear worn by the victim at the time of incident and prepared the memo of it and sent for forensic examination. Report of Forensic Science Laboratory was received, which confirmed the presence of blood on it. Site plan of the place of occurrence was prepared by the Investigating Officer and after investigation, charge sheet was submitted against the appellant under Section 376 IPC and Section 4 of the POCSO Act. Cognizance was taken.

Initially, on 28.08.2014, charge under Section 376 IPC and Section 3/4 of POCSO Act was framed against the appellant, to which, he denied and claimed trial. On 01.05.2015, the charges were amended and again charge under Section 376 and Section 6 of the POCSO Act was framed, to which, again appellant denied and claimed trial. On 15.07.2015, appellant was additionally charged for the offence under Section 366 IPC, to which, he denied and claimed trial.

Prosecution in order to prove the case, examined as many as five witnesses, namely, PW1 mother of the victim, PW2 the victim, PW3 Dr. Jugnu Govil, PW4 Ramesh Singh Tanwar and PW5 Vinod Kumar.

Appellant was examined under Section 313 of the Code. According to him, he has been falsely implicated; witnesses falsely deposed against him; reason was false implication, according to the appellant is that since father of the victim had taken a loan of Rs.20,000/- from him, which he did not return, therefore, the appellant has been falsely implicated in the case. Evidence has not been adduced by the appellant in his defence.

After hearing the parties, by the impugned judgment and order, the appellant was convicted under Section 366 and 376 (2) IPC and Section 6 of the POCSO Act and sentenced under Section 366 and 376 (2) IPC, as stated hereinbefore. Aggrieved, the instant appeal.

Heard learned counsel for the appellant and learned counsel for the State and perused the record meticulously.

Learned counsel for the appellant raised his argument on the following points:-

FIR is delayed.

The recovery of the girl as alleged is completely doubtful because no information was given to the Police at the time of recovery and the person, who allegedly brought the victim from the railway station back home on that fateful night has not been examined.

The medical and forensic examination does not support the prosecution case.

Scribe of the FIR is not examined.

Learned court below had already made up the mind to convict the appellant and the judgment proceeded on the premise, as if, the appellant was already guilty.

There is great contradiction in the statements of PW1, the mother of the victim and PW2 the victim with regard to the clothes, which the victim had worn at the time of incident as well as the injuries and condition of the victim, therefore, their statements are not reliable.

Learned counsel for the appellant would argue that the prosecution utterly failed to prove the charges. But, learned court below committed an error in convicting and sentencing the appellant, therefore, it is urged that impugned judgment and order may be set aside and appeal allowed.

On the other hand, learned State counsel would urge that the statement of the victim is reliable. FIR, though, is delayed but the delay has been explained because due to shame and social stigma, the FIR was not lodged in time; the contradictions, which have been referred to is not on material particulars. There are minor contradictions, which are natural. Learned State counsel would also urge that the learned court below has rightly convicted and sentenced the appellant, therefore, no interference is warranted in the case and appeal deserves to be dismissed.

PW1 is the first informant, who is mother of the victim. PW2 is the victim.

PW3 Dr. Jugnu Govil, who medically examined the victim on 24.05.2004. According to her, the victim was frightened and disturbed; tenderness present. On insertion of finger, the victim was feeling pain. According to this witness, she found sexual contact but did not find penetration. This witness proved her report and also proved the report of the pathologist and supplementary reports. Spermatozoa was not found on the slides.

PW4 Ramesh Singh Tanwar is the Investigating Officer, who prepared the site plan and took into custody the under-wears worn by the victim at the time of incident; arrested the appellant; took samples for DNA examination and birth certificate of the victim. PW4 Ramesh Singh Tanwar has also proved the chick FIR, entry in General Diary and Forensic Science Laboratory report and the charge sheet, which was finally submitted by him.

PW5 Vinod Kumar is the Principle of the school, where the victim was studying. This witness was examined on 13.07.2015.

According to him, on that day, the victim was studying in Class Vth in his school i.e. in Government Primary School Himmatpur, Kashipur. When the victim took admission, her date of birth was recorded as 11.03.2004. This witness has proved the school scholars register as well as certificate given by him with regard to the date of birth of the victim.

FIR in the instant case, is definitely delayed. The incident, according to the FIR, occurred on 18.05.2014 some times in the evening, after 6:00 PM. FIR was lodged on 24.05.2014. The reasons for the delay in lodging the FIR is stated as shame and social stigma in the society.

PW1 is mother of the victim. According to her, on 18.05.2014, appellant, who was showing cycle stunts in the vicinity, since 2-3 days prior to the date of incident, enticed the victim away, under the pretext of offering her some eatables. The victim was aged about 8 years. At that time, studying in class IVth. When the victim did not return and the search was made by this witness alongwith her sister-in-law, they searched for her in the bus stand, tempo stand but they could not found her. Finally, in the railway station Kashipur, they saw the victim in an unconscious state at about 2:30 AM in the midnight. The victim revealed that the appellant took her near railway bridge and under the bushes, after disrobing her did "galat kaam" with her and then left her at the railway station. According to PW1, mother of the victim, due to family reputation and shame as well as fear, she could not tell it to anyone, at that time. Her husband was not at home. She telephoned him. Her husband came back after five days and then on 24.05.2014, a report was got lodged. This witness proved the first information report, which was written by Balkar Singh, the village Pradhan. The witness also states that the underwear of the victim was also taken into custody by the Police and recovery memo was prepared.

PW2 is the victim aged nine years, when she deposed. She could not tell the exact date and time. But, she states that on the date of incident, at dusk, the appellant asked her to accompany him, which she denied. Thereafter, the appellant offered her Pepsi and then this witness accompanied the appellant. The appellant took her near the railway line, disrobed her Salwar suit and inserted his penis into her vagina. She felt pain and cried. Thereafter, appellant took her at Kashipur railway station. He purchased a ticket and told the witness that he is going to Delhi and left. In the night, at railway station, the mother and aunts of this witness arrived. This witness disclosed them of the incident. They brought her back home. This witness has also proved her statement recorded under Section 164 of the Code.

The question of delay in lodging the FIR is to be seen. In the cases of rape, delay in itself is not vital to the prosecution. Merely FIR is delayed, entire prosecution story or the statement of the victim cannot be discarded or washed off. Indian society still accepts that whenever such crimes are committed, the victim and her family takes a lot of time to decide, as to whether, to approach the police or not. After all, instead of having sympathy to the victim, the society levels stigma to the victim of such crime.

In the case of Satyapal Vs. State of Haryana, in (2009) 6SCC635, Hon'ble Supreme Court, inter alia, held that the Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging an FIR in the case of this nature is normal phenomenon.

In the case of State of Himachal Pradesh Vs. Sanjay Kumar @ Sunny, (2017) 2SCC 51, the Hon'ble Supreme Court, inter alia, held as hereunder:-

"Likewise, delay of three days in lodging the FIR by PW1, after eliciting the information from her daughter PW2, is inconsequential in the facts of this case. It is not to be forgotten that the person accused by the prosecutrix was none else than her uncle. It is not easy to lodge a complaint of this nature exposing the prosecutrix to the risk of social stigma which unfortunately still prevails in out society.................."

In the case of Ashok Surajlal Ulke Vs. State of Maharashtra, (2011) 15 SCC 174 also Hon'ble Supreme Court, inter alia, held as hereunder:

"...............There can be no doubt that an allegation of rape, and that too of a young child, 15 years of age, is a matter of shame of the entire family and in many such cases the parents or even the prosecutrix are reluctant to go to the police to lodge a report and it is only when a situation particularly unpleasant arises for the prosecutrix that an FIR is lodged..............."

Arguments have been advanced that neither the scribe of the FIR, Balkar Singh, nor the husband of the first informant has been examined by the prosecution. It is true that these two persons were, in fact, according to the prosecution, had some role to play in the lodging of the FIR etc. and it is also the fact that they have not been examined.

But, that also does not cast doubt in the prosecution story.

PW1 mother of the victim is categorical, as to why, she did not lodge FIR immediately after the incident. In the FIR she has stated that the due to shame, FIR could not be lodged immediately. But, when the victim girl went on depression, FIR was lodged. Similar statement has been given in the court by PW1, mother of the victim. One additional factor for delayed FIR, according to PW1, mother of the victim is that on the date of incident her husband was not at home, who returned after five day. These are very genuine and sufficient explanation in the cases like instant one. Where allegation is about the raping the young girl of eight years. Moreover, the statement in the FIR, that victim went to depression also finds support from the statement of PW3 Dr. Jugnu Govil. In her medical report Ex. A3, this witness categorically recorded that the child is frightened and disturbed. Therefore, this Court is of the view that merely because FIR is delayed, it does not cast any doubt in the statement of the victim or her mother or the prosecution story.

A question is, as to whether, the statement of the victim is reliable? She was minor girl.

PW5 Vinod Kumar is Principle of the school, where the victim girl was studying. He has proved the scholars Register as well as the certificate given by him during investigation i.e. Ex. A13 and Ex. A14 respectively. According to PW5 Vinod Kumar, the date of birth in the school register of the victim is 11.03.2004.

On 03.06.2014, the victim was examined under Section 164 of the Code and on 07.10.2014, she was examined in the court. Her age is recorded nine years. She was a minor girl. There is no suggestion even on behalf of the appellant that the victim was not a minor, whose date of birth of 11.03.2004 as stated by PW5 Vinod Kumar. The date of incident is 18.05.2014. On the date of incident, the victim had just completed 10 years. Therefore, this Court is of the view that prosecution has been able to prove the date of birth of the victim as 11.03.2004 and she was minor a girl aged about 10 years, on the date of incident.

In her statement given under Section 164 of the Code, the victim is categorically consistent. She states that she knew the appellant because he used to visit her house also. On the date of incident, according to the victim, appellant under the pretext of offering her Pepsi, took her alongwith him. Lift her on the way, gagged her mouth with a cloth and disrobed her. In her statement under Section 164 of the Code, the victim further states that after that firstly the appellant inserted his finger into her vagina and then inserted his penis in her vagina. She felt extreme pain and cried but no one came there. Appellant hit her also on her face and then he took her alongwith him to railway station and left her there. Statement of the victim recorded under Section 164 of the Code and her statement in the Court are consistent. It is supported by the medical evidence also. PW3 Dr. Jugnu Govil has categorically stated that in the vagina of the victim, there was tenderness. Penetration was not complete but, sexual contact was there. It means, the appellant tried to make penetration but could not do so. Spermatozoa was also not been found. It was also obvious because there was no penetration.

Reference has been made by learned counsel for the appellant with regard to the recovery. PW1 mother of the victim has stated that the police took underwear of the victim into custody, which she had not washed. According to her, she had also washed the frock, which she could not tell to the police as to where she had kept. This statement is confronted with the recovery memo, in which, she had stated the Salwar, Kurta, which the deceased had worn at the time of incident was kept by PW1 mother of the victim outside her house. They were taken away by dogs. But, underwear was given to the police, it had holes and blood stain. This contradiction is not material. It is insignificant. What was taken into custody by the police is underwear worn by victim on the date of incident. All the witnesses have stated about it. At the time of recovery, there was blood stain, so was noted in the recovery memo. Forensic Science Laboratory report confirms the blood on this underwear.

For the purpose of DNA, ample amplification could not be done, therefore, Forensic Science Laboratory could not give any definite opinion regarding the match. It does not weakens the prosecution case. In material particulars, the statement of PW1 mother of the victim and PW2 the victim are not contradictory or inconsistent.

One more issue has been raised with regard to the condition of the victim. According to PW2, the victim, she was crying, when her mother reached at the railway station; she was taken back and next day, she went to school etc. Whereas, according to PW1 mother of the victim, the victim was unconscious, when they found her and when she regained senses, she revealed about it. Argument has been advanced that statements are contradictory and one more statement of the mother of the victim PW1 has been referred to when she said that victim was admitted in hospital for ten days and it is argued that there is no record showing that the victim was admitted in the hospital.

The statement of PW2 victim and her mother PW1 are not inconsistent on the fact that the victim was recovered from the railway platform. There may be some exaggeration in the statement of PW1 mother of the victim, which are quite obvious and natural. It does not make her statement doubtful. Whatever contradiction and inconsistencies have been referred to are natural. The do not doubt the statements of PW1, mother of the victim or PW2, the victim.

Statement of PW2 victim is quite natural and consistent. It is most reliable. It lends credibility. It find support with the statement of the PW3 Dr. Jugnu Govil. Medical evidence supports it. It also finds corroboration from the statement of PW1 mother of the victim. In fact, statement of PW2 victim is of such a nature, which in itself, without any corroboration is sufficient to convict the appellant. In the instant case, it has great corroboration as well.

In view of the foregoing discussion, this Court is of the view that the prosecution has been able to prove the charges under Section 366, 376 (2) of IPC and Section 6 of the POCSO Act, against the appellant and learned court below has not committed any error in convicting the appellant.

In the instant case, adequacy of the sentence also falls for consideration. The appellant has also been sentenced to undergo imprisonment for the remainder of his normal life and fine. This sentence has been imposed upon him under Section 376 (2) IPC.

Under Section 376 (2) IPC, imprisonment may be not less than ten years, it may extend for imprisonment for life, which shall mean imprisonment for remainder of that person's natural life, and shall also be liable to fine. The maximum sentence provided under Section 376 (2) IPC has been imposed upon the appellant. Why maximum sentence has been imposed, it has not been discussed, as such. After conviction, sentencing is one such exercise, which requires a lot of consideration. Adequacy of the sentence is also one of the great essence of the criminal justice dispensation system.

In the case of Sangeet and another Vs. State of Haryana, (2013) 2SCC 452, Hon'ble Supreme Court, inter alia, held that on the one hand, the aggravating circumstances relate to the crime. On the other hand, the mitigating circumstances relate to the criminal and in the sentencing process, both the crime as well as the criminal are equally important.

In the instant case, the appellant is a young man. On 15.07.2015, when he was examined under Section 313 of the Code, his age is recorded as 23 years. The offence has been committed against a girl of tender age. The appellant earns his livelihood by stunt on bicycle. He is really poor. Even he could not engage a lawyer of his choice to defend his case in the trial and on 28.08.2014, he moved an application to that effect that he may be provided legal assistance because he is poor. The trial court appointed an Amicus Curiae to assist the court in the matter.

The aggravated circumstances are that it is the rape of a girl of tender age and removing of her from the guardianship of her parents for that purpose. The act itself is heinous and brutal and may shake conscience of any sensitive man. It also casts deep impression on the girl. May it remain there for years together or whole of her life, depending upon how she was treated thereafter, socially as well as psychologically. Fact remains that, she has very ably deposed before the court.

What the appellant did while committing the crime may also be taken note of. In her statement, the victim states that first the appellant inserted his fingers into her vagina and thereafter his penis. PW3 Dr. Jugnu Govil states that there was no injuries found and there was no penetration, though there was sexual contact. The victim also states in the court that she felt pain, it means some how, the appellant did not made full penetration upon that girl of tender age. Thereafter, the appellant did not left the victim at the place where he committed the crime, instead, he took her to the railway station; they walked for a while together. He gave her a Pepsi to drink.

The appellant is a young and very poor man; that while committing the offence, he did not go to the fullest extent of brutality. He did not penetrate his penis fully; he did not leave the victim in a state of shock, as such; he took the victim alongwith him, walked with her for a while; made her to sit on a bench at the railway station; gave her a Pepsi to drink and then left her. This court is of the view that the appellant does not deserve the maximum punishment provided under Section 376 (2) IPC, instead larger interest of justice would be served, if the appellant is sentenced for rigorous imprisonment of eleven years under Section 376 (2) IPC and five years rigorous imprisonment under Section 366 IPC. Fine shall remain the same.

In view of the foregoing discussion, the appeal is partly allowed. The conviction of the appellant under Section 376 (2), 366 IPC and Section 6 POCSO Act is confirmed. The appellant is sentenced as hereunder:

i) Under Section 366 IPC, rigorous imprisonment for five years and a fine of Rs. 20,000/- In default of payment of fine, to undergo simple imprisonment for a further period of three months.

ii) Under Section 376 (2) IPC, rigorous imprisonment for eleven years and a fine of Rs. 5000/-. In default of payment of fine to undergo simple imprisonment for a further period of six months.

Judgment and order dated 21.07.2015/22.07.2015 passed by the trial court is modified to the above extent.

Registry is directed to forthwith inform the jail authorities about this order.