1. Impugning the correctness of the finding, conviction and sentencing vide Judgment and Order dated December 15, 2014, wherein the appellant was convicted under provisions of Section 5 (c) read with Sections 5 (j) (ii) and 5 (l) punishable under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 (hereinafter referred to as "POCSO Act") and also under Section 376 (2) (i) of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), the appellant has preferred the instant appeal under provisions of Section 374 (2) of the Code of Criminal Procedure, 1973.
2. On having been found guilty under the aforestated provisions, the appellant was convicted to undergo Rigorous Imprisonment (RI) for a period of 10 (ten) years and pay a fine of Rs.5,000/- under Section 5 (c) punishable under Section 6 of the POCSO Act. In default of payment of fine, the appellant was to further undergo two months RI. The appellant was also convicted to undergo RI for 10 (ten) years and pay a fine of Rs.5,000/- under Section 5 (j) (ii) punishable under Section 6 of the POCSO Act. In default of payment of fine, the appellant was ordered to further undergo two months RI. Further, under Section 5 (l) punishable under Section 6 of the POCSO Act, he was convicted to suffer the RI for a period of 10 (ten) years and pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo RI for two months. Under provision of Section 376 (2) (i) of the IPC, he was punished to undergo RI for a period of 10 (ten) years and pay a fine of Rs.5,000/-. In default of payment of fine, to serve further RI for two months. All the sentences were directed to run concurrently.
3. On August 23, 2013, the father of the victim lodged First Information Report in Ranipool Police Station stating that his elder daughter, aged about 15 years, on admission to the S.T.N.M. Hospital due to excessive bleeding gave birth of a female child. On inquiry, he was informed that the appellant herein, who happened to be a teacher in Nimthang School, had sexual intercourse with her. Taking notice of the said FIR, investigation began on the same date. After inquiry and investigation, a charge-sheet was filed on October 22, 2013, which was amended subsequently in the Special Court under POCSO Act against the appellant. The appellant was chargesheeted for having committed aggravated penetrative sexual assault on the minor victim on several occasions at her residence. Thus, committed an offence under Section 5(c) punishable under Section 6 of the POCSO Act. The appellant was also charge-sheeted for making the minor victim pregnant by penetrative sexual assault as defined in Section 5 (j) (ii) and Section 5 (l) punishable under Section 6 of the POCSO Act. The appellant was further charge-sheeted under provisions of Section 376 (2) (i) of the IPC for having committed rape on the minor victim of under 16 years of age.
4. During the investigation, the blood samples of the accused, minor victim and newly born baby was collected for DNA profile to examine paternity. DNA report, vide Exhibit-16, confirms that allele DNA profile of blood sample of newly born baby matches with the allele DNA profile of blood sample of minor victim and blood sample of the appellant holding that the newly born baby was the daughter of the minor victim and the appellant. The victim in her statement, Exhibit-7, recorded under Section 164 clearly stated that during November 2012 and thereafter on several occasions the appellant, taking advantage of absence of her father, came to her house and had sexual intercourse. On August 21, 2013 she felt severe pain on her stomach and was taken to the hospital, wherein she delivered a baby girl on August 22, 2013. She further stated that there is no doubt about the paternity of the baby, i.e. the appellant.
5. The appellant tendered apology in presence of senior citizens of the village, Zilla Panchayat, Panchayats of Upper and Lower Nandok, confessing that he had illicit relationship with the minor victim and he has fathered the baby child. The appellant further stated that the child would be entitled to her share in his moveable and immoveable properties and the victim will not face any difficulty in life. On the same day, the legally wedded wife of the appellant, namely Pabitra Sharma, gave an undertaking (Exhibit-6) in presence of the Panchayats and senior citizens that her husband, the appellant, is the father of the child and she was ready and willing to take the minor victim as co-wife of the appellant. She undertook that she will not misbehave and illtreat the victim girl in future. The appellant also gave one undertaking to this effect (Exhibit-4) in presence of the same people. It has come on record that the confessional statement and also the undertaking given before the senior citizens and Panchayats were not made in presence of the police officers and as such the same is not hit by the provisions of Sections 25 and 26 of the Indian Evidence Act, 1872.
6. Besides the aforestated confessional statements, it has been reiterated before me by Mr. B.K. Gupta, learned counsel appearing for the appellant, that the sexual assault leading to birth of a baby girl is not denied or disputed, but it was consensual. The learned trial Judge had examined the case independently from all angles.
7. Parents of the victim, namely Nar Bahadur Chettri, PW-1 and Sita Chettri (PW-4) in their statements have categorically stated that the date of birth of the victim was September 03, 1998 and on the relevant date when the appellant had committed penetrated sexual offence, she was less than 16 years of age. The father of the victim (PW-1) was consistent even in the cross-examination. PW-1 denied the suggestion that he was aware of the pregnancy of the victim. Suggestion to the effect that the birth certificate was manufactured for the purpose of the case, in fact she was major, was strongly denied by PW-1. PW-4 corroborating the statement of the father of the victim (PW-1) deposed that the victim daughter was not more than 18 years of age when she delivered a baby girl.
8. The argument of Mr. B.K. Gupta, learned counsel appearing for the appellant is in two folds. Firstly, the victim was not a minor at the relevant time when the alleged sexual assault was alleged to have taken place, as is evident from the evidence of PW-3, wife of the accused and PW-9. PW-3 has stated that she had two sons, aged about 24 and 23 years respectively and the victim was two years younger to her younger 23 years old son. She further emphatically stated that she had gone to the house of the parents of the victim on her birth. It was also contended that PW-9, a fellow villager, in his deposition had stated that the victim was about four years older to his son, who was 17 years of age on the date of deposition i.e. 27.10.2014. The birth certificate of the victim (Exhibit-2) and the immunization card of the victim"s mother (Exhibit-10) produced by the parents were not proved. The victim had given her age as 16 years while deposing before the Court and one year before, in the statement under Section 164 Cr. P.C. also she had claimed to be of 16 years and as such it is doubtful. Even in the medical report of the victim (Exhibit-12), the dates given was 14 years to 17 years at different places and as such the victim was not minor at the time of incident.
9. Secondly, he would contend that the victim did not shout or inform the parents about the sexual assault and as such the sexual contract was consensual. Mr. Gupta would further contend that Dr. Ritu Nath Deokota, Gynecologist & Obstetrician (PW-13), in his cross-examination, had stated that the newly born baby was full term baby, which is possible only after 39 to 40 weeks of conception. In such view of the matter, the conception has taken place prior to coming of the POCSO Act on 14th November, 2012. Thus, the trial and conviction under the provisions of POCSO Act is unauthorized, illegal and the same deserves to be set aside. Referring to an observation made in an article, wherein it was observed that Bombay High Court held that the child abuse law can"t have retrospective effect, the learned counsel seeks support for his aforestated arguments, without referring or producing relevant judgment or order.
10. Contrasting the contention of learned counsel for the appellant, Mr. J.B. Pradhan, learned Public Prosecutor would contend that the FIR was lodged on August 23, 2013 by the father of the victim, when he came to know about the offence of sexual assault made by the accused as to cause the minor victim as pregnant. Thereafter, after investigation, charge-sheet was filed. The offence committed by the accused was a continuing offence and as such the offence continued when the POCSO Act came into force. Relying on the provision of Section 472 Cr. P.C. where "Continuing Offence" is contemplated and defined and also on the observations made in Bhagirath Kanoria & Ors. Vs. State of M.P., (1984) 4 SCC 222 and Mohan Lal vs. State of Rajasthan, (2015) 6 SCC 222, the learned Public Prosecutor emphasized that the offence of sexual assault was a continuing offence. It is further stated that the offence stood proved by the DNA test of the victim, that of child and of the accused. The trial court was fully justified in conducting the trial under the provisions of POCSO Act as well as under IPC.
11. Having examined the evidences, which have come on record, and on considering the submissions advanced by the learned counsel appearing for the appellant as well as the learned Public Prosecutor, I proceed first to examine the age of the victim at the time of sexual assault.
12. PW-1, father of the victim in his deposition has stated that the date of birth of his victim daughter was 03rd September, 1998. In support, he produced the birth certificate (Exhibit-2) issued on 22nd April, 2013. On being accosted in the crossexamination, he reiterated that the age of his daughter was not above 16 years at the time of incident and the certificate was not produced for the purpose of showing the victim as minor and also to fix the accused in the matter. The victim (PW-2) in her evidence made on 25th September, 2014, stated that she was 16 years of age and was studying in Class IX at the time of the incident. In the cross-examination, she reiterated that she was not more than 18 years at the relevant time. The mother of the victim (PW-4) deposed that her victim daughter was 15 years old and she was studying in Class VIII during the period of offence committed. Moreover, the immunization record of the minor victim (Exhibit-10) and of PW-4 clearly states the date of birth of PW-2 as 03rd September, 1998. The record cannot be doubted subsequently without there being any cogent reason.
13. The contention of Mr. B.K. Gupta that PW-3, the wife of the accused and PW-9, a fellow citizen had stated on the basis of age of their children that she was more than 18 years of age at the time of incident, did not find any corroboration from any record and also the defence has not produced the birth certificates of children of PW-3 and PW-9. Statements made by PW-1, PW-2 and PW-4 could not be demolished in the cross examination. Besides, the younger paternal uncle (PW-5) of the victim had further corroborated that the victim was 15 years of age and was studying in Class IX in Nandok Little Angels School. Further, the age of the victim stand corroborated by Exhibit ? 4, the undertaking given by the appellant on 22nd August, 2013, Exhibit ? 5, apology tendered by the appellant and Exhibit ? 6, undertaking given by Pabitra Sharma (PW-3), on the same day. In Exhibit ? 4, executed by the accused/ appellant, it is clearly stated that "until the victim does not attain the age of 18 years the accused will not disturb at her home", which clearly establishes that even the accused knew that at the time of making Exhibit-4, the victim was less than 18 years. PW-5, PW-6, PW-7, PW-8, PW-9 and PW-12, who were witnesses to the execution of Exhibit-4, Exhibit-5 and Exhibit-6, have clearly stated that the said exhibits were executed in their presence, which were not denied by the accused and his wife (PW-3) also. Veracity of the birth certificate was doubted by the accused, but, no attempt was made to disprove it by insisting on production and examination of certificate giving authority. Mere obtaining birth certificate, at later stage of time, cannot be the ground to discredit the same. Thus, the finding recorded by the trial Court that the age of the victim was 14 years when the offence was committed and 15 years at the time of delivery of the child does not warrant interference.
14. Referring to property seizure memo (Exhibit-28), containing patient file, discharge certificate of the minor victim from the hospital dated 23rd August, 2013, wherein the accused was referred as husband of minor victim and also to the undertaking given by him to accept minor victim as his wife, Mr. Gupta has put forth a very strange submission that the minor victim be treated as his wife and the sexual contract was done with her consent. Thus, it does not make out a case of rape or sexual assault. This contention of the appellant deserves to be rejected outright, as the accused cannot treat the victim as his wife even if he is ready and willing to accept her as his wife or in some record, he has been mentioned as her husband. The sexual intercourse does not forge a relationship between the parties as husband and wife, unless it is solemnized with the consent of both the parties. It was further contended that sexual contact was consensual. Sexual assault or sexual contact with the woman, who is under 18 years of age, is defined as rape under Section 375 IPC and there is no contemplation of consent under the provisions of POCSO Act in a case of sexual assault on a child of below the age of 18 years. A child less than 18 years of age is not capable of giving consent, legally or physically. Thus, the notion of consensual sexual intercourse pleaded by the appellant is impermissible under the law.
15. The second question that arises for consideration is as to whether provisions of POCSO Act are applicable in the facts of the case when it is alleged that the offence of committing sexual assault had taken place prior to 14th November, 2012. The victim (PW-2) in her deposition had stated that some times in the year 2012, the exact date and month was not disclosed, when her father was away in his duty, the mother had also gone for work, the appellant came to her house and sexually abused her after threatening and closing her mouth. Again after about 15 days, when her parents and other members of the family were absent in the house, he came and assaulted her sexually. The baby was born on 22nd August, 2013. As per the deposition of the Gynecologist (PW-13), the baby was full term baby, which as per the medical jurisprudence, was possible after 39 to 40 weeks from the date of conception. 39 to 40 weeks means about 9 months and above. Going back from 22nd August, 2013, the conception must have taken place some times in November, 2012. Whether the baby was conceived in the first sexual assault or in the second sexual assault is not clear from the records. Thus, it cannot be said with certainty that the sexual assault was made before 14th November, 2012. If the baby was conceived in the first sexual assault, the second sexual assault must have taken place after 14th November, 2012, when the POCSO Act came into force. In such factual settings, it is difficult to establish the date of offence precisely. Sexual assault continued even after 14th November, 2012.
16. It is well settled principles of law that the statutory provisions be appreciated and understood in the light of constitutional provisions, particularly, provisions contained in fundamental rights, i.e. Part - III of the Constitution of India. Article 20 of the Constitution of India prescribes as under: -
"20. Protection in respect of conviction for offences:-
(1) No person shall be convicted of any offence
except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence.
(2) No person shall be prosecuted and punished
for the same offence more than once.
(3) No person accused of any offence shall be
compelled to be a witness against himself."
17. On bare perusal of the Article, it is crystal clear that
the conviction and sentence in criminal proceedings has to be
done under the prevailing law and not under ex post facto law.
18. In Ravinder Singh vs. State of Himachal Pradesh, AIR 2010 SC 199 , the Supreme Court has held as under:-
"10. It is trite law that the sentence imposable on the
date of commission of the offence has to determine the
sentence imposable on completion of trial. This position is
clear even on a bare reading of Article 20 (1) of the
Constitution of India, 1950 (in short, "the Constitution").
xxx xxx xxx
Under Article 20(1) of the Constitution what is
prohibited is the conviction and sentence in criminal
proceedings under ex post facto law."
19. Thus, I have no hesitation to hold that the accused
was rightly and legally tried under the provisions of POCSO Act
read with IPC.
20. Clause (j) (ii) of Section 5 of the POCSO Act defines that whoever commits penetrative sexual assault on a child, making the child pregnant as a consequence of sexual assault, is punishable under Section 6 of the POCSO Act, which shall not be less than ten years of rigorous imprisonment but which may extend to imprisonment for life and shall also be liable to fine. Clause (l) of Section 5 prescribes that whoever commits penetrative sexual assault on the child more than once or repeatedly, in the case on hand, it has come on record that the offence was not committed once but subsequently also. The accused was a public servant, being a teacher, and as such he comes within the ambit of Section 5 (c) also. All the aforestated offences are punishable under Section 6 of the POCSO Act, wherein the minimum sentence is 10 years of rigorous imprisonment with fine. The trial court has rightly found the appellant guilty of various charges as above and convicted accordingly.
21. In the case on hand, an attempt was made on the part of the Court to persuade the victim to undertake education for which the learned Public Prosecutor, on instruction, submitted that the Government is ready and willing to extend educational assistance as and where she wishes to pursue. The minor victim strongly declined to go for education. However, keeping in view the fact that the child, a baby girl, has been adopted by the father of the victim, it is proper to direct the appellant to part with a substantive sum for proper care and help of the victim as well as the child.
22. Rule 7 of the Protection of Children from Sexual Offences Rules, 2012, provides for payment of compensation. The trial court has already directed the State Legal Services Authority to release a sum of Rs.1.00 lakh (Rupees One Lakh) payable to the victim. In addition, I am inclined, as the appellant has undertaken in Exhibit-4 that the victim will be entitled to her share in the moveable and immoveable property of the appellant, to order that the appellant shall arrange to deposit in a Nationalised Bank, a sum of Rs. 2.00 Lakhs (Rupees Two Lakhs) for care and need of the victim and her daughter, within a period of six months, at the disposal of the victim. This direction shall not come in the way of the newly born child to claim the share in the property of the appellant, in accordance with the law.
23. Resultantly, the conviction and sentences awarded by the trial court is confirmed. The appeal is dismissed.
