1. By the impugned judgment and order dated 30.03.2017/04.04.2017 passed by the learned Special Judge, POCSO Act, Muzaffarpur in Meenapur P.S. Case No. 320 of 2014, Trial No. 26 of 2015, the appellant has been convicted and sentenced as under:
|
Conviction |
Sentence |
||
|
under Section |
Imprisonment |
Fine (Rs.) |
In default of fine |
|
6 of the POCSO Act |
For Life |
20,000/- |
SI for one year |
|
342 of the IPC |
SI for six months |
-- |
-- |
|
450 of the IPC |
RI for five years |
-- |
-- |
2. The date of occurrence as per the prosecution’s case is 26.07.2014. During the pendency of this appeal an application came to be filed giving rise to I.A. No. 1 of 2019 for sending the records of the case to the Juvenile Justice Board (JJB in short) in order to ascertain the juvenility of the appellant as on the date of occurrence, on the ground that the family of the appellant got hold of matriculation certificate issued by the Bihar School Examination Board (BSEB in short) during the pendency of this appeal, wherein the date of birth of the appellant has been entered as 28.08.1998. A Marksheet dated 05.06.2014 and an Admit Card issued by the BSEB for Annual Secondary Examination, 2014 have been brought on record along with I.A. No. 1 of 2019, wherein the appellant's date of birth has been entered as 28.08.1998.
3. In view of the plea of juvenility taken in the application, this Court, by an order dated 17.02.2020, had referred the issue of ascertainment of age of the appellant as on the date of occurrence to the JJB, Muzaffarpur. The JJB, in turn, had communicated its order dated 09.10.2020 through letter No. 394 dated 13.10.2020 determining the age of the appellant to be 15 years ten months and 28 days as on the date of occurrence i.e. 26.07.2014.
4. The said determination of age made by the JJB was apparently based on the registration certificate, photostat copy of the Admit Card and the original copy of the transfer certificate. Based on these documents and the entry made in the admission register maintained at Ram Krishna Uchcha Vidyalaya, Meenapur, Muzaffarpur, the JJB has concluded that the date of birth of the appellant is 28.08.1998. It further appears from the said order that the prosecution did not oppose before the JJB the said entries made in the educational certificates/ school register.
5. In order to cross-check the correctness of the finding recorded by the JJB as regards the appellant’s age as on the date of occurrence, this Court by an order dated 18.10.2022 had directed the Registry to seek a report from the BSEB by sending the photostat copies of the Marksheet and Admit Card as to whether the said Marksheet and the Admit Card were issued by the BSEB in the name of the appellant Ankit Kumar, son of Munindra Singh with his mother’s name Bindu Devi.
6. In response to the said order, the Vigilance Officer, BSEB has sent a report to this Court certifying the date of birth of the appellant as recorded in the Marksheet to be 28.08.1998, upon verification from the records maintained by the BSEB.
7. In view of the report of the BSEB as noted above and the order passed by the JJB dated 09.10.2020, the appellant is declared to be a juvenile within the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act, 2000’ in short), he being below 18 years of age as on the date of occurrence .
8. I.A. No. 1 of 2019 is accordingly disposed of.
9. It would be apt to notice, at this juncture, that since the date of occurrence is 26.07.2014, the provisions under the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act, 2015’ in short) shall have no application in view of Section 25 thereof which reads as under :-
“25. Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.”
10. In view of the clear provision under Section 25 of the JJ Act, 2015 the case of the appellant needs to be decided based on the provisions under the JJ Act, 2000. Sub-section (1) of Section 6 of the JJ Act, 2000 mandates that notwithstanding anything contained in any other law for the time being in force, the JJB shall have the power to deal exclusively with all proceedings under the said Act relating to juvenile in conflict with law. Sub-section (2) of Section 6 contemplates that the powers conferred on the JJB by or under the Act are also to be exercised by the High Court and the Court of Sessions when the proceeding comes before them in appeal, revision or otherwise.
11. In view of the provision under Section 25 of the JJ Act, 2015 and Section 6(2) of the JJ Act, 2000, we have deemed it proper to decide the present appeal treating the appellant to be a juvenile, exercising power conferred under sub-section (2) of Section 6 of the JJ Act, 2000.
12. Section 15 of the JJ Act, 2000 envisions that in the event the JJB is satisfied on enquiry that a juvenile has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the JJB can do following things :-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home for a period of three years:
13. The statutory prescriptions under Sections 15 and 16 of the JJ Act, 2000 being relevant for determination as to what orders can be passed by this Court, they are being reproduced hereinbelow :-
“15. Order that may be passed regarding juvenile .
(1) Where a Board is satisfied on inquiry that a juvenile has committed an offence, then, notwithstanding anything to the contrary contained in any other law for the time being in force, the Board may, if it so thinks fit,
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home for a period of three years:
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.
(2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.
(3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:
Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.
(4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer.
16. Order that may not be passed against juvenile .
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death [or imprisonment for any term which may extend to imprisonment for life], or committed to prison in default of payment of fine or in default of furnishing security:
Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.
(2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit:”
14. From the lower court records, it appears that a plea of juvenility was taken by the appellant before the court below. By an order dated 27.01.2015 the appellant was sent to the remand home. During the determination of the appellant's juvenility before the learned trial court a plea was taken on behalf of the Special Public Prosecutor that the school in which the appellant was first admitted by his parents, his date of birth was entered as 27.05.1995 and accordingly on the date of occurrence the appellant was more than 19 years of age.
15. A request was made on behalf of the appellant for conducting medical examination for ascertainment of the appellant’s age by a Medical Board. The Medical Board found the appellant’s age to be 19 to 20 years as on the date of medical examination i.e. 19.05.2015. Taking into account the report of the Medical Board, the learned Special Judge (POCSO) declared the appellant an adult and proceeded thereafter accordingly. Since the date when the appellant was sent to remand home and subsequently to jail after declaring him an adult, he is in custody since 27.01.2015.
16. Though the appellant was tried as an adult, we have held him to be a juvenile in the light of the aforesaid finding recorded by the JJB and the fact that even during the medical examination the appellant's age was determined to be between 19 to 20 years.
17. After having held the appellant to be a juvenile as on the date of occurrence and taken note of the statutory provisions under the JJ Act, 2000, we now proceed to address the merits of the case.
18. The father of a minor, the victim, is the informant, who, on the date of occurrence, had gone to the banks of river Ganges for fetching holy water, Gangajal and offer it in a temple, leaving his three minor daughters and a minor son behind in the house on 25.07.2014. The informant and his wife returned on 29.07.2014 after performing Jalabhishek. On return, he was told by the victim that on 26.07.2014 in the evening when his brother had gone out of the house for grazing cow and her another sister had gone for studies outside, the appellant had entered into their house. At that point of time, the victim and her another sister, who was blind, were there in the house. The appellant is said to have asked the victim to fetch him water. At that point of time, the victim and his blind sister were cooking food. On being asked by the appellant to fetch him water, she (the victim) went to bring water for him. After having had the water the appellant made her sit in his lap whereafter he started kissing her here and there. When she objected to it, he pressed her mouth and started putting off her pants. When she protested further, the appellant started attempting to do dirty things with her. When she raised an outcry, the appellant after having pushed her sister (the blind girl), fled away.
19. It is noticed, at this juncture itself, that the FIR was registered on 30.07.2014, the next day when the victim had explained to the informant about the occurrence. It can be easily seen from the written report of the informant, which is the basis for registration of FIR, that there was no specific allegation of penetrative sexual assault, though there was allegation of making such attempts against the appellant. Nearly two months thereafter on 23.09.2014, the statement of the victim was recorded under Section 164 of the CrPC (Exhibit-2). In her said statement she narrated a different story to the effect that the appellant had put a knife in the neck of the victim and had inserted his penis into her vagina. He committed rape, according to her, for 10-15 minutes. When the appellant removed his hand from the mouth of the victim she had called her sister. When her sister enquired as to what was happening, the appellant pushed her sister aside and left the place, cautioning them that he would kill her father and mother should they told about the occurrence to them.
20. Apparently thus, whereas there was no accusation of penetrative sexual assault in the First Information Report, in her statement recorded under Section 164 of the CrPC, the victim, for the first time, made improvement in the case of the prosecution by alleging two additional facts. Firstly, that the appellant had put a knife on her neck and secondly that he had committed penetrative sexual assault.
21. The police upon completion of investigation submitted charge-sheet on 26.02.2015 against the appellant for the offence punishable under Sections 448, 376/511 of the IPC and Sections 7, 8, 10 and 12 of the Protection of Children from Sexual Offences Act (‘POCSO Act’ in short). However, the cognizance was taken of the offences punishable under Section 6 of the POCSO Act and Sections 376(2) and 342 of the IPC. Subsequently, on 07.07.2015, the charges were framed for commission of the offences punishable under Section 6 of the POCSO Act and Section 376(2), 342 and 450 of the IPC. The appellant pleaded guilty and claimed to be tried.
22. The prosecution, in support of the charge, examined six witnesses i.e. mother of the victim (PW-1), younger sister of the victim (PW-2). The victim herself (PW-3), elder sister of the victim (PW-4), father of the victim and the informant (PW-5) and the Investigating Officer (PW-6). The signature of the victim’s mother on the FIR was proved as Exhibit-1, whereas the written application was proved as Exhibit-3 at the trial. Signature of the victim on the statement recorded under Section 164 of the CrPC was exhibited as Exhibit-2, the formal FIR as Exhibit-4 and the registration memo on the FIR as Exhibit-5.
23. We need to notice here the evidence of Investigating Officer first. It is manifest from his evidence that he had made a request for medical examination of the victim which was declined by the parents of the victim. In his cross-examination he deposed that the mother of the victim had not stated before him during the investigating that the victim was raped by the appellant and during commission of rape he had pointed a knife towards the neck of the victim. The victim in her evidence deposed at the trial that the appellant had committed penetrative sexual assault after shutting her mouth with a white cloth at the point of knife.
24. The evidence of PW-1, the mother of the victim, is apparently based on the disclosure which was made to her by the victim on her return on 29.07.2014. She deposed in her evidence that the victim had told her about commission of rape by the appellant under the threat of life by pointing a knife towards her neck.
25. We have noted above that in his evidence the IO (PW-6) specifically denied in his cross-examination that PW-1 had disclosed to him during the course of investigation about the information given by the victim to her of an act of penetrative sexual assault committed by the appellant. Apparently, for the first time, at the trial, PW-1 deposed about the occurrence of penetrative sexual assault.
26. PW-2, the younger sister of the victim, whose age has been shown to be ten years at the time of deposition, in her deposition, supported the prosecution’s case that the victim was raped. However, in her cross-examination she specifically mentioned that she was deposing for the first time before the court and she had not made any such statement before anyone at any place, prior to her deposition in court.
27. The victim, in her examination-in-chief reiterated what she had stated in her statement under Section 164 of the CrPC. She also deposed that blood had oozed out during the commission of rape. PW-4 deposed that the victim had told her that the appellant had committed rape upon the victim. She too deposed in the cross-examination that she, for the first time, was deposing in the court that the appellant had committed rape upon the victim. Evidence of the father of the victim (PW-5) is also based on the disclosure made to him by the victim.
28. Based on the evidence of the prosecution’s witnesses as noted above, whether the prosecution has been able to prove a case of penetrative sexual assault so as to constitute an offence punishable under Section 6 of the POCSO Act, is the primordial issue in the present appeal.
29. Mr. Ansul, learned counsel appearing on behalf of the appellant has submitted that as per the initial version of the occurrence, as contained in the FIR, the allegation against the appellant was that he had entered into the house of the victim while she and her blind sister were there. The appellant, according to the FIR, had attempted to commit rape but on account of outcry being raised by the victim he had fled away. For the first time, 65 days after the occurrence the victim developed altogether a new story in her statement recorded under Section 164 of the CrPC when she alleged that the appellant had indulged in penetrative sexual assault on the point of knife. He has submitted that the story narrated by the victim in her statement under Section 164 of the CrPC has been picked up by the other witnesses and that it is a case of gross improvement. He has submitted that denial by the parents for medical examination of the victim soon after the occurrence and subsequently developing a story of commission of penetrative sexual assault 65 days after the date of occurrence makes the entire prosecution’s case highly doubtful. Further, no certificate has been brought on record to prove the age of the victim and there was no medical examination for ascertainment of age.
30. He has relied on Supreme Court’s decision in case of Tahsildar Singh vs. the State of U.P. (AIR 1959 SC 1012) in order to bring home his point that omission by the prosecution's witnesses to state what they, for the first time, deposed at the trial is a contradiction, in terms of the proviso to Section 162 of the CrPC. He has submitted that omission to allege rape in the initial version amounts to contradiction and material improvement. He has further argued that credit of the witnesses stands impeached in view of patent contradictions taken by the defence during the course of trial.
31. The learned Additional Public Prosecution, on the other hand, has submitted that the trial court has rightly convicted the appellant of commission of the offences punishable under Section 6 of the POCSO Act and Sections 376(2), 342 and 450 of the IPC, based on due analysis of the evidence of the prosecution’s witnesses who are consistent in their depositions. She has submitted that the oral testimony of the victim even without any corroboration is sufficient to hold an accused guilty of charge of commission of rape or penetrative sexual assault punishable under Section 6 of the POCSO Act. She has further submitted that Section 29 of the POCSO Act puts heavy burden on the person being prosecuted for committing offence punishable under Section 7 of the Act to establish his innocence as it presumes commission of offence by the person unless the contrary is proved. The appellant did not make any effort to prove the contrary and therefore the finding of conviction as recorded by the trial court is justified. She has submitted that the impugned judgment of conviction and the order of sentence recorded by the trial court does not call for any interference by this Court.
32. We have perused the impugned judgment and order of the trial court as well as the lower court’s records. We have given our thoughtful considerations to the rival submissions made on behalf of the appellant and the State. On closer scrutiny of the disclosure made in the First Information Report, the statement of the victim recorded under Section 164 of the CrPC and the evidence of the witnesses at the trial, it can be easily culled out that all the witnesses, other than the victim (PW-3), have deposed on the basis of what was disclosed to them by the victim (PW-3). PW-3 had disclosed the entire occurrence to her father on his return on 29.07.2014 and what was disclosed to her father was clearly mentioned in the First Information Report. In the First Information Report there is no mention of commission of penetrative sexual assault. It is true that an FIR is not a substantive piece of evidence. However, omission of the important fact of commission of rape/ penetrative sexual assault affecting probabilities of the case is relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution’s case, as held by the Supreme Court in the case of Ram Kumar Pandey vs. State of Madhya Pradesh reported in (1975) 3 SCC 815, paragraph 9 of which reads thus :-
“9. No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9-15 p.m. on March 23, 1970, were bound to have been communicated. If his daughers had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.”
33. The said decision in the case of Ram Kumar Pandey (supra) has been rightly pressed into service by Mr. Ansul, learned counsel appearing on behalf of the appellant.
34. Subsequent improvement in the statement under Section 164 of the CrPC made by the victim is apparent wherein she, for the first time, after the date of occurrence, made accusation of penetrative sexual assault.
35. As has been noted above, in the meantime, soon after the occurrence had taken place, the parents of the victim had declined medical examination of the victim. This could be for the reason that there was no accusation of penetrative sexual assault in the First Information Report. The defence has been able to obtain contradiction from the IO on the point of statement made by the witnesses under Section 162 of the CrPC in the light of their subsequent depositions in their evidence at the trial. What they had not disclosed to the IO during the investigation, they deposed at the trial.
36. In case of Tahsildar Singh (supra) the Supreme Court, while discussing as to how an omission to state an important fact may become a contradiction in terms of the proviso to Section 162 of the CrPC, has noted in paragraph 25 that though a particular statement is not expressly recorded under Section 162 of the CrPC, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement. The Supreme Court in case of Tahsildar Singh (supra) has lucidly enunciated the three case in which the aforesaid fiction is permissible, viz., (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration : in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word “only” can be implied i.e. the witness saw A only stabbing B;
(ii) a negative aspect of a positive recital in a statement : illustration in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and
(iii) when the statement before the police and that before the court cannot stand together : illustration : the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false.
37. On conjoint reading of the evidence of the witnesses, patent contradictions and improvement made by the prosecution during the course of trial, we are of the considered view that the prosecution failed to discharge its primary duty of making out a case of penetrative sexual assault within the meaning of Section 3 of the POCSO Act. Section 29 of the POCSO Act shall have application only when the prosecution is in a position to establish a prima facie case of penetrative sexual assault (Section 3 of the POCSO Act, punishable under Section 4 thereof), aggravated penetrative sexual assault (Section 5 of the POCSO Act, punishable under Section 6 thereof) or aggravated sexual assault punishable under Section 10 of the POCSO Act.
38. However, we are of the considered opinion on careful reading of the evidence adduced at the trial that commission of offence of sexual assault within the meaning of Section 7 of the POCSO Act punishable under Section 8 of the POCSO Act stands proved with the aid of Section 29 of the POCSO Act. Sections 7 and 8 of the POCSO Act read as under :-
7. Sexual assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
8. Punishment for sexual assault.- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”
39. The evidence of the victim appears to be correct to the extent her deposition relates to conduct of the appellant in touching her with sexual intent involving physical content, but without penetration. Accordingly, the conviction of the appellant vide judgment and order dated 30.03.2017/04.04.2017 passed by the learned Special Judge, POCSO Act, Muzaffarpur in Meenapur P.S. Case No. 320 of 2014, Trial No. 26 of 2015, for commission of the offence punishable under Section 6 of the POCSO Act and Section 376(2) of the IPC is set aside. The appellant is, however, held guilty of the offence punishable under Section 8 of the POCSO Act. Maximum sentence for the offence punishable under Section 8 of the POCSO Act is imprisonment for five years. The appellant has already remained in custody for more than five years.
40. Accordingly, after having held the appellant guilty of the offence punishable under Section 8 of the POCSO Act and the fact that the appellant has been held to be a juvenile within the meaning of Section 2(k) of the JJ Act 2000, let the appellant be released forthwith if not required in any other case.
41. The appeal is accordingly allowed in part.
