Arup Kumar Goswami, CJ
1. Heard Mr. William Tamang, learned Legal Aid Counsel for the petitioner and Ms. Pollin Rai, learned Assistant Public Prosecutor, Sikkim for the
respondent.
2. This appeal is directed against the judgment and order dated 28.02.2017 passed by the Court of learned District Judge, Protection of Children from
Sexual Offences, 2012, East Sikkim at Gangtok in Sessions Trial (POCSO) No.14/2015 convicting the accused/appellant under Section 366 IPC and
Section 4 of Protection of Children from Sexual Offences, 2012, for short, POCSO Act, and sentencing him to simple imprisonment of seven years
and to pay a fine of Rs.,1000/- only, for commission of the offence under Section 4 of the POCSO Act, in default of payment of fine, to undergo
further imprisonment for a period of one month and simple imprisonment of five years and to pay a fine of Rs.1,000/- only, in default of payment of
fine, to undergo further imprisonment of one month, for the commission of offence under Section 366 IPC. It was directed that both the sentences will
run concurrently.
3. The father of the victim lodged a Missing Entry Report before the Singtam Police Station on 14.03.2015 and based on the same, FIR (Exhibit-2)
No.93/SPS under Section 363 IPC was registered. It is stated in the FIR that his daughter, hereinafter referred as “X or victimâ€, aged about 14
years, had been missing since 11.03.2015 and that after searching her in many places, in the morning of 14.03.2015 at 08.10 am, they came to learn
that the appellant had taken her to his aunt’s house at “Y†(place name withheld).
4. During trial, prosecution had examined 17 witnesses including the Investigating Officer. Defence did not examine any witness. The appellant was
examined under Section 313 Cr.PC where the plea taken was that of denial.
5. The learned Trial Court relied on the evidence of PW-1, PW-2, PW-3, PW-4, PW-6, PW-8, PW-15, PW-16 and PW-17 to come to the conclusion
that the victim was taken out by the appellant to Darjeeling and to “Y†without the consent of victim’s lawful guardian.
6 The learned Trial Court relied on the evidence of PW-8 as well as Birth Certificate, marked as Exhibit-4, to hold that the victim was minor at the
time of commission of the offence. Apart from the evidence of PW-1, the learned Trial Court placed reliance on the evidence of PW-12 to come to
the conclusion that the prosecution has been able to prove beyond reasonable doubt that the appellant had committed penetrative sexual intercourse as
defined under Section 3 (a) of the POCSO Act. At the same time, the learned Trial Court had observed that sexual act could have been committed
with the consent of the victim, which, however, would be of no consequence as consent, even if there be any, would be irrelevant, as the victim was
minor.
7. Mr. Tamang submits that prosecution had miserably failed to prove the ingredients of Section 366 IPC as well as Section 4 of the POCSO Act and
therefore, the impugned judgment is not sustainable in law. He submits that there is contradiction between RFSL report (Exhibit-10) as well as Exhibit-
12, which is the medical report of the victim, and therefore, in absence of any corroboration, in the attending facts and circumstances of the case, no
reliance can be placed on the sole testimony of PW-1 (victim) to arrive at the finding that appellant had committed sexual intercourse with the victim.
In this context Mr. Tamang has also submitted that no reliance can be placed in the statement of the victim under Section 164 Cr.PC (Exhibit-1) in
view of the assertion of PW-1 in her cross-examination that she was unaware of what she had stated in her such statement. He has also drawn the
attention of the Court to Exhibit-15, the questionnaire for preliminary examination of PW-1 before her statement was recorded under Section 164
Cr.P.C with Special reference to answers given to question no.2 and 6, to contend that statements made by PW-1 under Section 164 Cr.PC is not
voluntary.
8. It is further submitted by him that evidence on record would also go to show that PW-1 had voluntarily accompanied the appellant and therefore,
she was a willing partner and therefore, prosecution miserably failed to prove the ingredients of Section 366 IPC. Learned Counsel submits that even
if charges are held to be proved, having regard to the fact and circumstances of the case, sentence imposed may be appropriately reduced. In this
connection, he places reliance on the judgment of the Hon’ble Supreme Court in the case of Md. Imran Khan versus State (Govt. of NCT Delhi),
reported in (2011) 10 SCC 192.
9. Per contra, Ms. Pollin Rai has supported the impugned judgment. She submits that charge under Section 4 POCSO Act has been proved beyond
reasonable doubt. According to her, kidnapping of victim is established and in that view of the matter, even if it is held that ingredients of section 366
IPC has not been established beyond reasonable doubt, then also the victim having been taken out from the lawful guardian, appellant can be
convicted for the offence under Section 363 IPC. In support of her contention that there is ample power of the Court to alter or amend the charge,
whether by the Trial Court or by the Appellate Court, she has placed reliance on the judgment of the Hon’ble Supreme Court in the case of
Kantilal Chandulal versus state of Maharashtra, reported in (1969) 3 SCC 166 well as in the case of Anant Prakash Sinha versus State of Haryana,
reported in (2016) 6 SCC 105.
10. I have considered the submissions of the learned Counsel for the parties and have perused the evidence as well as materials on record.
11. In her statement under Section 164 CrPC, it is stated by PW-1 that she knew the appellant from her childhood being a co-villager and a distant
relative. The appellant had called her to Singtam on 11.03.2015. As she was already late for her school, she went to Singtam and met the appellant.
On being asked to board a vehicle she had boarded a vehicle, for which two tickets had already been purchased by him. She was not aware where
she was going to and was later on told that they were travelling to Darjeeling, where she was taken to the house of an aunt of the appellant where
they stayed for two days. Thereafter, they came to the house of another aunt at ‘Y’ where they stayed for one day and while they were there,
her father and one co-villager had come along with police and they were taken to Singtam Police Station. She stated that the appellant had indicated
on 08.03.2015 that they should get married, though earlier he had never said anything of that kind. She had responded by saying that she was like his
sister but he did not want to realize the same. She stated that in Darjeeling they have slept together and had sexual intercourse and earlier also they
used to have sexual intercourse.
12. In her deposition, PW-1 had stated that she had gone to Singtam as she was late for School and as the appellant had called her and on being asked
to board a Savari Taxi, she boarded the vehicle, tickets for which had already been purchased for the journey. She was not informed where the
appellant was taking her but vehicle headed towards Darjeeling. On reaching Darjeeling taxi stand, another taxi was taken to go to another place. The
name of the place she did not know. The place was at a distance of about 40 minutes from the place where they had alighted from the taxi. They had
shared the same bed and the appellant had committed sexual act on her on both the nights. After two days they had gone to the house of another aunt
at “Y†and there also they slept together but no sexual assault was committed.
13. PW-2, father of the victim, stated that the victim was aged about 14 years and was studying in Class VIII during the relevant period. He stated
that his wife was informed by wife of one his relatives that the appellant had called her up saying that he had taken PW-1. Coming to know about that,
he, along with his neighbour, had made some searches including at the house of the aunt of the appellant at Darjeeling but could not find them. He also
proved the Birth Certificate (Exhibit-4) of the victim, wherein date of birth was recorded as 10.06.2000.
14. PW-3 stated in his examination that the appellant had brought the victim girl stating her to be his wife and accordingly, they had stayed for one
night in his house in a room with one bed. It is stated that on the next day, parents of the victim along with police had come and had taken the victim
as well as appellant to the police station at Singtam.
15. PW-4 had deposed that he had accompanied the father of the victim to the house of the aunt of the appellant where both the victim and the
appellant were found. He also deposed that the police had seized the Birth Certificate of the victim girl from her father and that he was a witness to
Exhibit-5, Seizure Memo, by which the Birth Certificate, Exhibit-4 was seized.
16. PW-5 is a witness to the Seizure Memo (Exhibit-5) by which Birth Certificate (Exhibit-4) was seized. PW-6 is also a witness of Seizure Memo
(Exhibit-5). PW-7 is a witness of seizure of Exhibit-6 by which vaginal wash sample in a glass container and undergarment of the victim were seized.
PW-8 is the Chief Medical Officer of the District Hospital, Singtam who had issued the Verification Report (Exhibit-7) of the Birth Certificate as
requested by police.
17. PW-9 is a Medico Legal Specialist of STNM Hospital who had stated that he was of the opinion (Exhibit-9) that there was nothing to suggest that
the appellant was not capable of sexual intercourse.
18. PW-10 had prepared the Forensic Examination Report (Exhibit-10). She had stated as follows:
“The Case Exhibits were packed and sealed in a cardboard box when the same were received at RFSL, Saramsa from the SDPO, Rangpo, East
Sikkim. Following were the Exhibits received:
1. One blue coloured underwear said to belong to the accused marked as Exbt.A by the Police and marked in the Laboratory as BIO-124 A (MO II
shown to me in the Court today).
2. Penile swab of the accused collected in bottle still in wet condition marked as Exbt. B by the Police and marked in the Laboratory as BIO 124 B.
(MO III shown to me in the Court today).
3. Blood Sample of the accused collected in a filter paper marked as Exbt. C by the Police and marked in the Laboratory as BIO 124 C (MO IV
shown to me I the Court today).
4. One dirty light green coloured underwear of the victim containing suspected blood stain along with one sanitary napkin marked as Exbt. D by the
Police and marked in the Laboratory as BIO 124 D (MO V (collectively) shown to me in the Court today).
5. One glass vial containing vaginal wash of the victim marked as Exbt. E by the Police and marked in the Laboratory as BIO 124 E (MO I shown to
me in the Court today)
6. One syringe containing vaginal swab collected in a cotton gauze marked as Exbt.F by the Police and marked in the Laboratory as BIO 124 F (MO
VI shown to me in the Court today).
The above Exhibits were examined by using Serological Techniques and based on these examinations, the results were obtained as:
1. Exbt. BIO 124 (MO II) gave positive test for the presence of human semen. However, Blood Group could not be ascertained.
2. Sample Blood bearing Exbt. BIO 124 C (MO IV) gave positive test for Blood Group AB.
3. Human blood could be detected in Exbt. BIO 124 D (MO V) and it gave positive test for Blood Group A.
4. Human semen could be detected in Exbt. BIO 124 E (MO I) and Exbt. BIO 124 F (MO VI). However, Blood Group could not be ascertained.
5. Human semen or any other body fluid could not be detected in Exbt. BIO 124 B (MO III).â€
19. She stated in her cross-examination that she could not ascertain blood group in any of the Exhibits apart from the sample Blood MO IV and MO
V. She also stated that she could not come to the conclusion as to whether semen found in MO I and MO VI belongs to the appellant.
20. PW-11 is the Station House Officer who had endorsed the FIR for investigation.
21. PW-12 is the Doctor who had examined the victim on 14.03.2015 at 11.30 am. He deposed that vaginal wash report showed numerous non motile
spermatozoa in the multiple samples examined. He also deposed that based on his examination and vaginal sample report he was of the opinion that
there had been sexual intercourse with the patient within a period of five days from the date of examination. In his evidence he had also stated that
there is an old tear present in the hymen at 5 and 7 O’ clock position. In cross-examination, he stated that such tear could be two months old. He
also stated that presence of non motile spermatozoa indicates sexual intercourse with the patient within a span of five days, though, in Exhibit-12, it
was not indicated that the victim had sexual intercourse within a period of five days from the date of examination. He also stated that victim did not
tell him the name of the person with whom she had sexual intercourse although it was recorded that according to the victim, she had sexual
intercourse. It is also indicated in Exhibit-12 that numerous non motile spermatozoa were seen in the multiple samples examined.
22. PW-13 is the father of the appellant and nothing hinges on his evidence.
23. PW-14 is the Medical Officer at Singtam District hospital who had examined the appellant on 14.03.2015 at 03.00 pm. He had deposed that there
was no visible external sign of injury and that smegma was absent. It is also stated that in order to determine whether the individual was capable of
performing sexual intercourse or not, he was referred to Medico Legal Specialist at STNM Hospital, Gangtok. It is already noticed that PW-9 had
examined the appellant at STNM Hospital.
24. PW-15 is the aunt of the appellant in Darjeeling where the appellant had stayed for two nights. She deposed that the appellant had introduced the
victim as his wife and therefore, a single bed was arranged for them to sleep in a separate room.
25. PW-16 is the Chief Judicial Magistrate who had recorded Section 164 Cr.PC statement of the victim.
26. PW -17 is the Investigating Officer who deposed with regard to the steps taken by him during the course of the investigation.
27. A consideration of the evidence as noted hereinabove would go to show that that Exhibit-4, original Birth Certificate of the victim, was seized from
PW-2, father of the victim, at Singtam Police Station. The Birth Certificate shows date of registration as 20.06.2000 and date of birth is reflected as
10.06.2000.
28. Evidence of parents with regard to date of birth of a child is the best evidence when such evidence is backed by unimpeachable document. In the
instant case, PW-2 deposed that his daughter was aged about 14 years when the offence was committed. The Birth Certificate goes to show that the
victim had not completed 15 years on the date of occurrence.
29. Having regard to the evidence on record, there is no escape from the conclusion that PW-1, i.e. the victim, was a minor and below 15 years on the
date of occurrence.
30. There is categorical evidence of PW-1 having sexual intercourse with the appellant during the two nights they had stayed together in Darjeeling.
Though in Section 164 Cr.PC statement she had stated that earlier also they had sexual intercourse, she had not stated so in her evidence. Statement
made under Section 164 Cr.PC is not a substantive piece of evidence and the same may be used only for contradiction or corroboration. Even if the
statement made under Section 164 Cr.PC is discarded, it is to be noticed that evidence of PW-1 is not impeached in any manner.
31. That the victim and the appellant were found in the residence of PW-3 is an established fact. Though PW-2 had stated that he had lodged FIR
(Exhibit-2) on 14.03.2015 at around 08.10 am before proceeding to Darjeeling, it appears that the same is not correct as it was indicated in the said
FIR that he had found out that the appellant had taken the victim to his aunt’s house at Y. However, above discrepancy will have no bearing in the
facts of the case. Evidence of PW-3 as well as PW-15 demonstrates that the victim was introduced by the appellant as wife because of which they
were put together in a room. It is, however, to be noticed that the victim, at no point of time, put any resistance or controverted the assertion of the
appellant.
32. Evidence of PW-12 along with Exhibit-12 demonstrated that vaginal wash showed numerous non motile spermatozoa in the multiple samples
examined. Even if the opinion that the victim had sexual intercourse within a period of five days from the date of examination was not recorded by
PW-12, there is no suggestion that his opinion as stated before the Court is incorrect or false. That apart, the facts remain that the victim was taken to
the District Hospital, Singtam immediately on being recovered on 14.03.2015 and that the victim was with the appellant all along. Defence had not
brought any evidence to indicate that PW-1 was accompanied by any other person who could have had sexual intercourse with her. In the instant
case, defence had adduced no evidence. It is also to be noted that there is a presumption attached under Section 29 of the POCSO Act to the effect
that where any person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9, 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. In
the background of above circumstances, even though it could not be ascertained as to whether semen found in MO-I i.e., glass containing vaginal
wash of the victim or MO-VI, syringe containing vaginal swab collected in cotton gauze, belong to the appellant or not, the same is of no consequence.
33. On the basis of evidence available on record, I am of the opinion that prosecution was able to prove the offence under Section 3(a) POCSO Act
and therefore, the learned Trial Court did not commit any error in convicting the appellant under Section 4 of the POCSO Act.
34. Section 359 IPC provides that Kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship. Section 361 provides
that whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound
mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such
minor or person from lawful guardianship.
35. Section 366 IPC provides that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she
will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely
that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment as indicated therein and whoever, by means of criminal
intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent
that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punished as indicated
therein.
36. In the case of State of Haryana versus Raja Ram, reported in (1973) 1 SCC 544, in the context of Section 361 IPC, the Hon‟ble Supreme Court
had observed that the section seems as much to direct the minor children from being seduced for improper purposes as to protect the right of
privileges of guardians having lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor
under the ages specified in the section, out of the keeping of the lawful guardian without the consent of such guardian. The use of the word 'keeping'
connotes the idea of charge, protection, maintenance and control; further, the guardian's charge and control are compatible with the independence of
action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. The consent of the
minor who is taken or enticed is wholly immaterial; it is only the guardian's consent, that would take a case out of the purview of the section. It is not
necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates
willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
37. Evidence on record demonstrates that the appellant had called over the victim to meet him at Singtam and had asked the victim to board a Taxi.
Even if it is to be taken that victim had consented to go along with the appellant, such consent would be immaterial and the materials on record, taken
as a whole, would be indicative of the fact that the victim was persuaded to go with the appellant. The appellant had introduced the victim as his wife
to PW-3 and PW-15 and on such assertion he was provided a bed to be shared by him and the victim. It demonstrates that the appellant had the
intention that the victim would be seduced to elicit intercourse and it is already held that the prosecution has been able to establish that the appellant
had sexual intercourse with the victim. In that view of the matter, I am of the considered view that the conviction of the appellant under Section 366
IPC does not warrant any interference.
38. The decision cited by Mr. William Tamang in the case of Md. Imran Khan (supra) cannot be pressed into service in the facts of the present case.
In that case, the appeal before the High Court was pending for ten years and the victim was more than 15 years of age. The appellants were also
young boys and in such circumstances, sentence was imposed which was less than statutorily prescribed. In the present case, the incident took place
in 2015 and the appeal is pending for less than two years before this Court. The appellant was sentenced with minimum imprisonment prescribed by
law and, therefore, no occasion arises for this Court to consider reduction of sentence less than statutorily prescribed.
39. In view of the above discussions, I find no merit in this appeal and, accordingly, the same is dismissed.
40. In terms of the above, all pending Interlocutory applications, if any, stand disposed of.
41. Lower Court records be sent back.
