Vinod Diwakar, J
1. We have heard Shri Sunil Kumar, learned counsel for the appellant and Shri Arunendra Kumar Singh, learned AGA for the state.
2. This appeal has been filed against the impugned judgment and order dated 18.12.2018 passed by Ist Additional Sessions Judge, Orai, District Jalaun, in Session Trial No. 56 of 2018 (State vs. Rahul), arising out of Case Crime No.20 of 2018, U/S 376(2)(i), 323 IPC read with Section 5(m)/6 of The Protection of Children from Sexual Offences Act, 2012, by which the trial court has convicted the accused-appellant Rahul for life imprisonment under Section 376(2)(i) IPC and to pay a fine of Rs. 50,000/-, and in default of payment of fine two years additional imprisonment.
3. In brief, the prosecution case is that on 21.04.2018 at about 07:46 p.m., the complainant Raghvendra Singh filed a written complaint at PS Kotra, District Jalaun, stating that his son went to school at 7:00 a.m., after that Rahul, son of Ramphal Singh, had come to his house on the date of incident and told his wife that he is taking his daughter aged two years (hereinafter referred to as victim “X”) to the temple. Accused-appellant Rahul took his daughter to the temple after combing her hair and putting a frock on her. When Rahul did not return till 9:00 a.m. with the baby girl, the complainant's wife asked Udaypal Singh whether he had seen Rahul in the temple. Udaypal Singh said he was coming from the temple but could not find them. After that complainant's wife and his father reached Rahul's house in search of the victim "X”. Accused Rahul is the first cousin of the complainant. On reaching the house of Rahul, the wife of the complainant, and his father saw that Rahul was on top of her daughter, and her daughter, victim “X”, was crying. Seeing the complainant's wife and his father, Rahul left victim “X” and fled away. The complainant's wife and father of the complainant picked victim “X” and saw that X's genitalia was swollen and blood was coming out of her private parts. Rahul has committed rape upon the daughter of the complainant. The complainant's wife and his father told the entire incident over the telephone to the complainant, and after that, the complainant reached home and saw her daughter “X” weeping. She was scared, and her face was also swollen.
4. On the basis of the written report, an FIR was registered on 21.04.2018 at 19:46 under Sections 376(2) (i), 323 IPC read with Section 5 (m)/ 6 of the Prevention of Children from Sexual Offences Act, 2012 at PS Kotra, District Jalaun, U.P. against the accused Rahul. As there was an allegation of sexual exploitation in the FIR, Medico-Legal Examination of Sexual Violence was conducted on 21.04.2018 at 10.45 p.m. by Sr. Medical Officer posted at District Women Hospital, Jalaun.
5. After registration of the FIR, the police conducted the investigation and recorded the statement under Section 161 Cr. P.C of (i) Raghvendra Singh, (ii) Udaypal Singh; (iii) Virendra Singh; (iv) Smt. Deepa; (v) Head Constable Chandra Kumari; (vi) Dr. Sunita Banojha; CMO Jalaun; and (vii) Constable Ram Bihari Pandey, and (viii) Inspector Ashok Kumar Pandey.
6. After collecting all the materials and upon culmination of investigation against the accused Rahul, the police filed the charge sheet on 25.05.2018, under Section 376(2)(i) and Section 323 IPC read with Section 5 (m)/ 6 of POCSO Act, 2012 against the accused-appellant. The CJM took cognizance and after complying with the requirements of section 207 Cr.P.C., committed the case to the Court of Sessions for trial.
7. The trial court framed the charges under Section 376(2)(i) read with Section 323 IPC and Section 5(M)/6 of POCSO Act, 2012. The order of charge dated 11.07.2018 was read out to the accused, and the accused-appellant denied the charges and demanded trial.
8. In order to prove its case, the prosecution has produced the following documentary evidence.
(i) Written Report dated 21.04.2018, Exhibited as Ka.1
(ii) FIR dated 21.04.2018, Exhibited as Ka. 4
(iii) Medico-Legal Examination Report dated 21.04.2018, Exhibited as Ka.
(iv) Charge sheet dated 25.04.2018, Exhibited as Ka.6.
9. Besides the above documentary evidence, the prosecution has examined complainant Raghvendra Singh as (PW-1); The victim’s mother Smt. Deepa as PW-2; Dr. Sunita Banojha as (PW-3); Constable Ram Bihari Pandey as PW-4; Inspector Ashok Kumar as (PW-5).
10. Complainant Raghvendra Singh- the father of the victim- was examined as PW-1; in examination-in-chief, he reiterated the facts as stated in FIR;, he stated that on 21.04.2018 at about 7.00 a.m., he was at village Hematpur, Jila Parishad Barier, when his wife Deepa telephonically informed that Rahul had come to his house and told her that he is taking victim “X” to Akshara Devi Temple. As Rahul is the complainant’s first cousin, his wife allowed the child to go with Rahul. When Rahul did not return till 9.00 a.m. with the baby girl, his wife asked Udaypal Singh- the complainant’s nephew- whether he had seen Rahul and victim “X” in the temple. Udaypal said he was coming from the temple but could not find them. Then his wife and his father -Virendra Singh reached Rahul’s house and saw that Rahul was naked and was lying on top of his daughter, who was crying; on his wife’s challenge, Rahul fled, leaving his daughter crying. His wife noticed that blood was coming out from the daughter’s private part, and there was swelling on the genitals. Rahul had raped his daughter “X”. His wife informed the complainant about the incident from his father’s phone. After coming home, the complainant went to the police station with his wife and father, and registered the FIR against Rahul.
11. In his cross-examination, PW-1 stated that he is 12th pass and Kahtampur village- the place of his work, is about 90 km away from his village. His wife informed him about the incident at 10 a.m. over the telephone. The wife has studied till class V and his wife has a mobile. His uncle's son Udaypal had informed him on the phone about the incident. When he reached home, he found the girl at home. The girl could not speak as she was two years old. Rahul was alone at home at the time of the incident. The girl was wearing a frock. There was blood on the frock. He further stated that the blood had not reached her legs, and her mother gave a statement as the girl could not speak. The complainant was not at home, and his wife waited for him to reach home so that FIR could be lodged.
12. The mother of victim “X” was examined as PW-2; she has supported the prosecution case in examination-in-chief, which was recorded on 31.08.2018 but resiled from her statement during cross-examination, which was recorded on 07.09.2018- nine days thereafter. This witness stated that she saw that the accused-appellant Rahul was lying naked on her daughter, and on her challenge, the accused Rahul fled.
13. In cross-examination, PW-2 stated that her earlier statement recorded on 31.08.2018 was based on what the police and the lawyer had told her. The police told the witness that if she did not state as they suggested, her husband would go to jail, so out of fear, she stated facts based on the suggestion given by the police and the advocate on the prosecution's line in the examination-in-chief.
14. The witness further stated that on the date of the incident, at around 6–7:00 a.m., when the victim woke up, she was made to urinate, but the victim “X” faced difficulty in urinating and started crying. She noticed that she had redness on her genitals. On this, she gave the victim “X” to her father-in-law, who was working outside the house and got busy with work. When she came out, she could not see victim “X”, and on asking about the victim, he said she must be playing somewhere, and after that, her father-in-law went to find her. After 10-15 minutes, he brought her home and said that she was playing on the way – at some distance from their house- and the victim had some difficulty in passing urine and developed redness over her private parts. Meanwhile, someone called the police, and on the villager's complaint, the police took Rahul with them. The victim had also suffered an infection in the vagina on earlier occasions, and after local treatment, the same was cured.
15. Dr. Sunita Banojha, who had prepared the Medico-Legal Examination Report on Sexual Violence, was examined as PW-3. She deposed that the mother and father of victim “X”, aged about two years, had brought her to the hospital for internal and external examination. On external examination, it was found there was no fluid discharge or swelling on the opening part of the vagina, but there was a 01-inch injury and redness on her private parts, and, on the suggestion, she stated that the redness could come from rubbing or forceful entry of hard objects.
16. Constable Ram Bihari Pandey was examined as PW-4, who assigned Constable Muharir to register the FIR against the accused-appellant Rahul as Case Crime No. 20 of 2018 under Section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act, 2012 and proved the Chik FIR.
17. Inspector Ashok Kumar was examined as PW-5, who, after registration of F.I.R conducted the investigation and collected the oral and documentary evidence, and after that, filed the charge sheet against the accused-appellant under Section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act,2012 and proved the contents of the charge sheet.
18. Virendra Singh was examined as DW-1, who has stated that the victim is his grand-daughter, and the prosecution has developed a concocted story to implicate Rahul at the instance of one Vijay Gupta, who had enmity with the accused. The accused-appellant, Rahul, did not support Vijay Gupta in the village election, and therefore, he started carrying malice against the accused-appellant, Rahul and framed him in a false case in connivance with police and villagers.
19. On the basis of the material produced by the prosecution during the trial, the accused was confronted for recording his statement under section 313 Cr.P.C. The accused has stated that he has been falsely implicated at the behest of one Vijay Gupta, with whom the complainant’s father works. He had opposed his candidature in the Pradhan election.
20. On the basis of the evidence produced, the trial court has concluded that the guilt of the accused-appellant has been proved beyond reasonable doubt and, accordingly, convicted the accused-appellant for the offence under section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act and awarded life imprisonment with lesser sentences.
21. The trial court has concluded that the testimony of PW-3 is consistent, and there is no reason for the doctor to implicate the accused-appellant, falsely. As per the opinion of the Doctor, there was sexual assault by the aggressor on the child victim “X”, and the trial court found the testimony of PW-1 and chief examination of PW-2 reliable and trustworthy.
22. Shri Sunil Kumar, learned counsel for the accused-appellant, has argued that the evidence was so scanty that there was no evidence of a minor child being put to aggravated sexual assault by the accused-appellant. The conviction can't be based on scanty testimonies, and that learned trial court had committed patent illegality in appreciation the evidence.
23. Referring to certain portions of the testimony of PW-1, PW-2 and PW-3 on the subject, learned counsel has argued that the trial court erroneously failed to appreciate the following arguments.
23.1 PW-1- The first informant- is not the eyewitness of the incident; the entire evidence that comes forth from the PW-1 is hearsay evidence; the same is not admissible under the law.
23.2 PW-2, the mother of the victim, who is a witness to the fact, has resiled in the cross-examination; hence, her testimony recorded under examination-in-chief needs corroboration with medical evidence with precision.
23.3 The prosecution has failed to produce Shri Udaypal Singh- the nephew of the complainant, even though he was a police witness in the charge sheet, whose name was also revealed in the FIR. He could be a potential witness of the prosecution, who could shed light on the prosecution's case about how the offence was committed.
23.4 The statement of PW-3, Dr. Sunita Banojha, who had prepared the Medico-Legal Examination Report of Sexual Violence, mentioned that no bleeding, tear, swelling or discharge from the vagina was detected.
23.5 Sexual assault is an independent offence viz a viz aggravated sexual assault.
23.6 The Court has also erred in discarding the testimony of DW-1, who was a witness of fact and had gone with PW-1 to the house of the accused-appellant and allegedly seen the incident.
23.7 There are inconsistencies and improvements in the statement of the prosecution witness. The ocular testimony of the witness does not corroborate the medical reports, and the medical reports do not substantiate the ingredients of Section 5(m)/6 of the POCSO Act,2012 and 375 IPC.
23.8 The trial court has failed to appreciate the statement of the accused recorded under Section 313 Cr.P.C. in which he has stated that he has been falsely implicated because of enmity.
23.9 The ingredients of an offence under Section 376(2)(i), 323 IPC read with Section 5(m)/6 POCSO Act are not made out in the facts of the case as no evidence of penetrative sexual assault and rape has been substantiated against the accused-appellant during the trial.
23.10 As Section 376(2)(i) had been omitted with effect from 21.04.2021 from the Penal Code through the Criminal Law (Amendment) Act, 2018, hence, the punishment awarded to the accused-appellant is hit by restrictions placed by Article 20(1) of the Constitution of India.
24. Learned counsel for the accused-appellant has drawn the attention of the Court succinctly on four points;
(i) No case against the accused-appellant is made out, as the testimonies of PW-1 and PW-3 are highly unreliable, and the cumulative effect of PW-2, and DW-1 makes the medical evidence unreliable, and therefore, the testimony of PW-3 be discarded. The trial court has committed patent illegality in discarding the testimony of DW-1, who is an eyewitness of the incident and has been dropped by the prosecution for the reason best known to them.
(ii) The ingredients of an offence under section 5(m)/6 of the POCSO Act has not been proved in the facts-circumstances of the case.
(iii) The punishment awarded to the accused-appellant is hit by Article 20(1) of the Constitution of India as section 376(2)(i) was not in existence on the date of the incident.
(iv) The punishment is disproportionate to the alleged offence, and the sentencing policy has not been followed in letter and spirit.
25. Per contra, learned A.G.A submits that the evidence on record proves the commission of rape punishable under section 376(2)(i), read with section 5(m)/6 of POCSO Act, 2012. The statement of the complainant, who was examined as PW-1 is definite with respect to the commission of the offence. The PW-2, the mother of the victim and the eyewitness of the case, is the sterling witness of the prosecution; this witness has supported the prosecution's case in examination-in-chief, even though she has resiled in her cross-examination. The examination-in-chief of PW-2 proves the allegation of rape against the accused-appellant. Dr. Sunita Banojha, who medically examined the victim, supported the case of the prosecution and stated that there was a patch of redness on the private parts of the victim and referred to the Medico-Legal Examination Report of Sexual Violence prepared by PW-3, which proved the commission of the offence of rape. The learned A.G.A urges that the cumulative effect of testimony of PW-1, PW-2 and PW-3 proves the guilt of accused-appellant beyond reasonable doubt.
26. He has urged that there is no reason for PW-3 to falsely implicate the accused-appellant, and from the opinion of the Doctor, it could safely be made out that there was a penetrative sexual assault by the aggressor on the child victim.
27. Before coming to the case in hand, it would be in the fitness of the case to go into the brief history of post-Nirbhaya case amendments in criminal law.
28. The brutal gang rape of a 23 years old physiotherapist on a bus in Delhi on 16 December 2012, shocked the entire nation and led to widespread outrage and protest. The Criminal Law (Amendment) Act, 2013 was introduced in the Parliament, which made significant changes in the Indian Penal Code 1860, Indian Evidence Act 1860, Code of Criminal Procedure 1973 and Protection of Children from Sexual Offence Act 2012, and received the Presidential assent on 02.04.2013, and deemed to come into force w.e.f 03.02.2013, when The Criminal Law (Amendment) Ordinance, 2013 came to effect. It was initially an Ordinance promulgated by the President of India on 03.02.2013 and became an Act w.e.f 03.02.2013.
29. Post- Nirbhaya case, in the wake of the Kathua Case [The Kathua case refers to the abduction, rape, and murder of an eight-year-old girl in January 2018]-as a consequence of the public uproar, the Cabinet approved the Criminal Law (Amendment) Ordinance 2018, and the President of India signed the Ordinance on April 21, 2018. Subsequently, to fulfil the constitutional obligation, the Ordinance became Act by the act of Parliament, which received the Presidential assent on August 11, 2018, and came into existence as the Criminal Law (Amendment) Act, 2018 with retrospective effect.
30. One of the salient features of the Criminal Law Amendment Act 2018, is that if a person rapes a woman under sixteen years of age, he be punished with not less than 20 years, which may extend to imprisonment for life, imprisonment for life means for the remainder of persons natural life.
31. Now the question that arises before this Court is whether the trial court was justified in convicting the accused-appellant for committing the offence punishable under Section 376 (2)(i) IPC despite the same having been omitted by the promulgation of Criminal Law (Amendment) Ordinance, 2018 on the date of incident/ commission of the offence.
32. To avert this legal issue, we would, therefore, like to extract the relevant portion of the Criminal Law Ordinance, 2018, which received the Presidential assent on 21.04.2018:
“THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018
No. 2 OF 2018
Promulgated by the President in the Sixty-nine Year of the Republic of India.
An Ordinance further amended the Indian Penal Code, the Indian Evidence Act, of 1872, the Code of Criminal Procedure 1973 and the Protection of Children from Sexual Offences Act 2012.
WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action;
NOW, THEREFORE, in the exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:-
4. In section 376 of the Penal Code,-
(a) in sub-section (1), for the words “shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine”, the words “shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine” shall be substituted;
(b) in sub-section (2), clause (i) shall be omitted;
(c) after sub-section (2), the following sub-section shall be inserted, namely:-
“(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.”
33. In this regard, it is also necessary to extract the relevant portion of The Criminal Law (Amendment) Act, 2018, which was notified in the official Gazette on 21.04.2018:
“THE CRIMINAL LAW (AMENDMENT) ACT, 2018
NO. 22 OF 2018
[August 11, 2018.]
An Act further to amend the Indian Penal Code, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012.
Be it enacted by Parliament in the Sixty-ninth Year of the Republic of India as follows:-
CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Criminal Law (Amendment) Act, 2018.
(2) It shall be deemed to have come into force on April 21, 2018.
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4. In Section 376 of the Penal Code-
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(b) in sub-section (2), clause (i) shall be omitted;
(c) after sub-section (2), the following sub-section shall be inserted, namely:-
“(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.”
34. The contention of Shri Arunendra Kumar Singh, learned counsel for the state, is that all of the cases pending investigation/ trial on the date when this amendment came into effect were deemed to be covered by this amendment and to substantiate his argument has relied upon Section 6 of the General Clauses Act, 1897. Section 6 of the General Clauses Act, 1897 is reproduced hereinbelow for ready reference:
“6. Effect of repeal. – Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not –
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.
35. In the light of the Criminal Law (Amendment) Act, 2018, as extracted hereinabove, we proceed to avert the legal arguments of Shri Sunil Kumar.
36. It is a settled principle of interpretation of Criminal Law that the provisions have to be strictly construed and cannot be given retrospective effect unless the legislative intent and expression are clear beyond ambiguity. There is a plethora of judicial pronouncements on consideration of ex post facto law, a few of which need to be noted at this stage. L.R. Brothers Indo Flora Ltd. v. Commissioner of Central Excise (2020) SCC OnLine SC 705; Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602; Union of India v. Zora Singh (1992) 1 SCC 673.
37. In Hitendra Vishnu Thakur v. State of Maharashtra and Ors. (1994) 4 SCC 602, the Apex Court dwelled upon the ambit and scope of the amending Act and the retrospective effect of the Act/ Statute and eventually, ruled thus:
(i) A statute that affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly- defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to the right of action and right of appeal, even though remedial, is substantive in nature.
(iii) Every litigant has a vested right in substantive law, but no such right exists in procedural law.
(iv) A procedural statute should not, generally speaking, be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties regarding transactions already accomplished.
(v) A statute that changes the procedure and creates new rights and liabilities shall be construed as prospective in operation unless otherwise provided, either expressly or by necessary implication.
From the aforesaid analysis of law, it is graphically clear that there is a presumption against the retrospective operation of a statute, and further, a greater retrospective cannot be conferred on a statute than the language makes it necessary....."
38. The Hon'ble Supreme Court in the case of Soni Devrajbhai Babubhai vs. State of Gujarat and others (1991) 4 SCC 298 has occasioned to examine the applicability of Section 304-B of IPC where the dowry death had occurred prior to the insertion of Section 304-B of IPC and held that penal statute, which creates offences or which have the effect of increasing penalties for existing offences, would only be prospective because of the constitutional restriction imposed by Article 20 of the Constitution, because it manifestly shock's one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment.
39. As held in Kalpnath Rai vs. State (through CBI) (1997) 8 SCC 732 all legal ingredients of the offence must happen before the new offence comes into existence.
40. The defence counsel argued that the punishment awarded under Section 376(2)(i) IPC is hit by the restrictions placed under Article 20(1) of the Constitution of India as the penal provision has no applicability in the facts-circumstances of this case. The relevant portion of the Article 20(1) of the Constitution of India is extracted hereinbelow:
“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.”
41. The Criminal Law (Amendment) Ordinance, 2018 came into existence on 21.04.2018, i.e., on the fateful date of the incident and subsequently, the Ordinance got the approval of the Parliament and became Criminal Law (Amendment) Act, 2018 retrospectively. Therefore, on the date of the incident, the Ordinance had already been notified after receipt of Presidential assent. As a consequence, Section 376(2)(i) IPC had been omitted from the penal code. The object of bringing the Criminal Law (Amendment) Ordinance, 2018 was to rationalize the sentencing structure of offences against women and children by providing graded sentences linked to the age of the victim and the nature of the crime. It has not brought any change in the ingredients of the offence of rape under I.P.C and aggravated penetrative sexual assault in POCSO Act, 2012.
42. Any provision which increases the penalty, particularly if coupled with an additional liability to imprisonment, cannot be construed as retrospective when all the ingredients of the offence happened as per the existing law, as held in Re: Barattero (1994) 1 ALL ER 447 P 453 (CA), needless to say, by bringing Criminal Law Ordinance 2018, the minimum sentence has been increased from ten to twenty years for the commission of the offence of rape with a girl under sixteen years of age, whereas the maximum sentence is unchanged. The appellant’s conviction was held under the old sentencing system; therefore, the provisions of the Criminal Law Ordinance 2018 have not been invoked against the accused-appellant. The maximum sentence, post and after the Criminal Law (Amendment) Act, 2018 is the same; its only minimum sentence for rape which is increased to twenty years. So, in the instant case, whether the accused-appellant is awarded a sentence under Section 376(2)(i) IPC or Section 376(2) IPC has no bearing on his sentence as he has been awarded the maximum sentence of life imprisonment.
43. Thus, the legal position is that a statute that affects substantive rights is presumed to be prospective in operation unless made retrospective either expressly or by necessary intendment. Indian Penal Code is a substantive law that cannot have a retrospective operation unless otherwise provided, either expressly or by necessary implication, The same is valid subject to the restrictions placed by Article 20(1) of the Constitution of India.
44. Regrettably, the trial court has failed to notice the effect of the Criminal Law (Amendment) Ordinance, 2018, in the facts-circumstances of this case.
45. We may observe, straightaway, that we are not impressed by the argument of defence counsel that by omitting Section 376(2)(i) IPC through the Criminal Law (Amendment) Act, 2018, the ingredients of the offence of rape would ipso-facto be omitted. It is conspicous that, there was no change in the definition of rape under the Indian Penal Code and aggravated penetrative sexual assault under POCSO Act 2012 by the Amendment Act of 2018. The ingredients required for convicting the accused-appellant under rape with the minor are intact in pre and post-Amendment 2018, in criminal law. Only the punishment has been increased by inserting Section 376 (3) in IPC, resulting in the enhancement of the minimum punishment to twenty years.
46. As per The Criminal Law (Amendment), 2018, the words “shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine” has been substituted by “whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment of life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.” in section 376 IPC.
47. The conviction of the accused-appellant under Section 5(m)/6 of the Protection of Children from Sexual Offence Act, 2012. Section 5(m) of the POCSO Act, 2012 deals with an aggravated penetrative assault on a child below 12 years, and Section 6 prescribed the punishment for aggravated penetrative sexual assault with rigorous imprisonment not less than ten years, which may extend to imprisonment for life and fine.
48. Now, we will test the legality of the implications in awarding the sentence under section 376(2)(i) IPC to the accused–appellant in view of the law discussed herein above, in preceding para’s.
49. The trial court has sentenced the accused-appellant under Section 376 (2) (i) IPC because of the provision of Section 42 of the POCSO Act, 2012. Section 42 of the POCSO Act provides that where the specified offence is punishable both under the IPC and the POCSO then the accused shall be punished where it is greater in degree.
50. Reliance is placed on State of Uttar Pradesh vs. Shubhash @ Pappu (2022) 6 SCC 508 where the Apex Court while dealing with omission to frame, or absence of or error in charge has reiterated that the accused has to show failure of justice/prejudice caused to him. Mere defect in framing of charge would not render the conviction unsustainable, if the ingredients of the Section/Sections concerned are obvious or implicit in the incharge.
51. The trial court has framed the charge under Section 376(2)(i) and read over and explained the same to the accused-appellant of the said charge. From the aforesaid charge framed it can safely be said that the ingredients for the offence of rape were specifically brought to the notice of the accused. Therefore, at the most, it can be said to be a defective framing of charge by not specifically charging the accused under Section 376(3) of IPC.
52. While interpreting Section 464 of Cr.P.C., the Apex Court in Fainul Khan (2019) 9 SCC 549 case has observed and held that in case of omission or error in framing a charge, the accused has to show failure of justice/prejudice caused thereby.
53. In the light of the aforementioned principle of law stated by Apex Court which is now fairly settled, we have to examine the evidence of this case with a view to find out as to whether the trial court was justified in convicting the accused under Section 376(2)(i) of IPC which was not in-existence on the date when the Criminal Law (Amendment) Ordinance, 2018 came into effect.
54. Having perused the entire evidence and legal position, and the issue arising in the case, we have formed an opinion that the accused could not be sentenced under Section 376(2)(i) of IPC as the section was no longer part of the penal code on the date of the incident and should have been tried and sentenced under Section 376(2) IPC, under the new law, but unfortunately that’s not what has been done by the trial court, even though the act of the accused-appellant was fulfilling all the ingredients of the offence of rape on the date of the promulgation of the Criminal Law (Amendment) Ordinance, 2018. The accused-appellant should have been awarded sentence under the new law which came into existence on the date of the incident and was the law applicable on such date. The minimum sentence for the commission of the offence of rape with a woman under sixteen years of age has since been increased to twenty years in the new law.
55. Be that as it may, so far as the case of the accused-appellant is concerned, the trial court has convicted the accused-appellant for the maximum sentence of life imprisonment–which is the same in both scenarios - it’s only the minimum sentence which has been enhanced to twenty years in the new law. Therefore, no prejudice is caused to the accused-appellant. The life sentence was already in existence in the pre and post-Criminal Law (Amendment) Ordinance, 2018, against the ingredients of the offence committed by the accused-appellants, so the restriction imposed by Article 20 (1) would not come in the way of trial court to award life imprisonment or lessor sentence to the accused-appellant.
Analyses of evidence
56. The defence counsel has urged that there are material contradictions and embellishments in the testimony of PW-1 and PW-2. Witness PW-1 states in his examination-in-chief that he had received the intimation from his wife through his father’s phone, and his wife told him that her daughter was bleeding from the private parts and had swelling, whereas in examination-in-chief, the witness states that he was informed by one Udaylal Singh- the nephew of the complainant, and further stated that the frock had blood and blood had not reached her legs, an on perusal of Medico-Legal Examination Report of Sexual Violence prepared by Dr. Sunit Bhanojha, who was examined as PW-3, it transpires that there was reddishness on the vagina and no bleeding, tear, swelling and discharge from the vagina is detected.
57. It’s a well-accepted phrase in criminal jurisprudence that a man can tell a lie, but the circumstances do not—the Hon’ble Supreme Court in Rajesh Yadav and others Vs. The state of Uttar Pradesh (2022) 12 SCC 200 has occasion to deal with in criminal appeal arising out of the judgement rendered by the High Court convicting the accused for life while acquitting all of them for the charges framed under Section 307 IPC. Aggrieved by the conviction by the High Court, the accused preferred criminal appeal before Supreme Court. While dealing with the appreciation of evidence, the Apex Court has classified the evidence broadly into three categories, namely;
(i) wholly reliable;
(ii) wholly unreliable and;
(iii) neither wholly reliable nor wholly unreliable;
58. The offence, if the evidence and circumstances surrounding it make the Court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, the Court can also note the contradictions available in evidence.
59. The relevant portion of Rajesh Yadav’s case is extracted hereinbelow:
“22. The expression “hostile witness” does not find a place in the Evidence Act. It is coined to mean testimony of a witness turning to depose in favour of the opposite party. We must bear in mind that a witness may depose in favour of a party in whose favour it is meant to be given through his chief examination while changing his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief-examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief-examination could be termed as evidence. Such evidence would become complete after the cross-examination. Once evidence is completed, the said testimony as a whole is meant for the Court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief-exmination was completed and there are circumstances indicating the reasons behind the subsequent statement, which the Court could decipher. It is well within the powers of the Court to make an assessment, being a matter before it and come to the correct conclusion."
60. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof, which are admissible in law, can be used by the prosecution or the defence.
61. Apex Court in Vinod Kumar v. State of Punjab (2015) 3 SCC 220 had already dealt with a situation where a witness, after rendering testimony in line with the prosecution’s version, completely abandoned it, in view of the long adjournments given permitting an act of manoeuvring. While taking note of such situations occurring with regularity, it expressed its anguish and observed that: (SCC pp. 244-46, paras 51-53 & 57)
"51. Though painful, it is necessary to note that PW 7 was examined-in-chief on 30-09-1999 and cross-examined on 25-05-2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier, had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evidence, for no reason whatsoever, it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined.
52. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the Public Prosecutor, PW 7 has accepted about the correctness of his statement in the Court on 13-09-1999. He has also accepted that he had not made any complaint to the Presiding Office of the Court in writing or verbally that the Inspector was threatening him to make a false statement in the Court. It has also been accepted by him that he had given the statement in the Court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13-9-1999 after going through and admitting it to be correct. It has come in the re-examination that PW 7 had not stated in his statement dated 13-09-1999 in the Court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.”
62. As has been noticed earlier, in the instant case, the examination-in-chief of PW-2 was recorded on 31.08.2018, wherein the witnesses supported the prosecution case, and the cross-examination was conducted on 07.09.2018- after a gap of seven days- the witness resiled from the examination-in-chief and came up with an altogether new explanation about the injury on the private part of the girl child and about the manner in which the examination -in- chief has been recorded, allowing ample time to pressurize the witness and to gain over her by adopting all kind of tactics. In fact, it is not at all appreciable to call a witness for cross-examination after a week. It is imperative, in such circumstances, if the examination-in-chief is over, that the cross-examination should be completed on the same day. If the examination continues till late hours, the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination has been deferred for a week for the mother of the victim, who has limited say in the patriarchal society in such nature of crimes and the accused is the cousin of her husband.
63. PW-2 - the mother of the victim -in her statement, stated two material facts;
(i) She and Virendra Singh- her father-in-law, who has been examined as DW-1, had seen the accused-appellant committing rape upon the victim.
(ii) The victim was bleeding from her private parts; but resiled in cross-examination, which was conducted more than a week later, leaving space for improvements and embellishment in favour of the accused.
64. It is the duty of the Court to see that not only the interest of the accused is protected but also that the societal and collective interest is safeguarded.
65. Child rape is a heinous crime that occurs in our society and is often perpetuated by close relatives. It violates a child’s right to protection and is an egregious breach of trust; poverty, illiteracy and social stigma which are prevalent in families that dissuade them from reporting the case. The consequences of child rape are devastating and long-lasting. Apart from the physical and emotional trauma faced by the child, they also have to deal with society’s stigma and discrimination. The crime affects their mental health, educational and career prospects, and even their ability to form healthy relationship in the future.
66. There is a societal stigma around discussing or reporting sexual abuse, specially when it involves close relatives. This perpetuates a culture of secrecy and silence, allowing the abuse to continue. Children from poorer families may be more vulnerable to abuse, as their parents may need to rely on extended family members for help and support, and the children may be sent away to play, work or study in other households.
67. Coming back to the appreciation of evidence at hand, at the outset, our attention is drawn to the fact that the witness, victim and accused are lineal ascendants. The victim is a lineal ascendant of the accused related by the first degree of the relationship. The mother of the victim has stated in her examination-in-chief that the accused is the “राहुल मेरे चचेरे देवर हैं।” In such circumstances, there is all likelihood that the immediate relatives would have pressurized the witness to resile from her previous statement recorded on 31.08.2018.
68. The trial court has heavily relied upon the testimony of Dr. Sunita Bhanojha, who was examined as PW-3. She is a prosecution’s sterling witness. Dr. Sunita Bhanojha prepared the Medico-Legal Report of Sexual Offence, which is Ex-Ka-2. The relevant portion of the Medico-Legal Report of Sexual Offence Report is extracted herein after:
“ 15. A History of Sexual Violence “पीड़िता का पारिवारिक चाचा जो पीड़िता के तीन चार घर छोड़ कर रहता है। आज सुबह सात बजे पीड़िता की मॉ से पूंछ कर पीड़िता को ले गया और करीब 10.00 बजे पीड़िता के साथ राहुल नाम का लड़का उम्र करीब 22 साल मिला।”
17. Examination of injuries on the body, if any – about 1-inch slight reddish colour injury seen around vulva genitals.
23. Provisional/primary opinion there is suggestive use of recent forceful injury around the internal vulva.”
69. The relevant portion of the testimony of PW-3 is been extracted hereinbelow:
“मेरी राय मे- पीडता की बैजाइना के मुंह पर ऐसा निशान है जिसमे ताजा बल पूर्वक चोट पहुंचाई हो यह चोट लिग के रगड़ने व प्रवेशन से भी आ सकती है। मेरे पूछने पर उसकी मां ने मुझे यह नही बताया कि उसकी बैजाइना मे खुजली है या इऩ्फैक्शन है। साक्षी ने पत्रावली मे कागज सं० 10क/1 लगायत 10क/15 देखकर कहा कि यही मेडीकल रिपोर्ट मेरे हस्तलेख व हस्ताक्षर मे है। जिसकी पुष्टि करती हूँ। इस पर प्रदर्श क-2 डाला गया।”
70. On appreciation of the statement of Doctor Sunita Bhanojha in the light of the statement of PW-2, we find that the medical evidence completely diffracts the oral testimony of PW-2, and the medical evidence makes the ocular testimony improbable and rules out the possibility of medical evidence being untrue. On perusal of the statement of Doctor Sunit Bhanojha in consonance with the Medico-Legal Examination Report of Sexual Violence dated 21.04.2018, it reflects that the victim had about 01-inch slight reddish colour injury around the vulva genitals and, therefore, the act of aggravated penetrative sexual seems quiet likely on the victim.
71. Learned defence counsel has heavily relied upon Mahendra Singh and others vs. State of Madhya Pradesh (2022) 7 SCC 157 wherein it was held that it is the settled law that the same treatment is required to be given to the defence witness as is to be given to the prosecution witness. The relevant part is extracted herein below:
“20. It is a settled law that same treatment is required to be given to the defence witness(es) as is to be given to the prosecution witness(es).”
72. In the light of Mahendra Singh and others case (supra) the testimony DW-1 could not be discarded. He further urged that police had arrayed Virendra Singh as a police witness. As per the prosecution case, Virendra Singh is the eye witness of the case and had seen the accused-appellant committing rape upon the victim. PW-1 and PW-2 have also stated that Virendra Singh was present at the place of the offence, but the prosecution had dropped this witness for the reason best known to them. Virendra Singh was examined as a defence witness and submitted an explanation on the lines of the contents which comes in the cross-examination of the PW-2. Needless to say, Virendra Singh is the victim's grandfather, and PW-2 is the victim's mother; further states that the prosecution has not explained why the PW-2 had resiled in cross-examination, and Virendra Singh had to come in the witness box as a defence witness; this casts serious doubt on the prosecution story.
73. PW-2 and DW-1 are the mother and grandfather of the girl child, the victim “X”. The medical evidence requires searching with precision for critical analysis of their testimony in the facts- circumstances of the case. The non-examination of police witnesses Uday Pal Singh and Virendra Singh, whose names are mentioned in the FIR, would not affect the prosecution case in the light of the law laid down in Rajesh Yadav’s case (supra). A mere non-examination of a witness per se will not vitiate the prosecution case. It depends upon the quality, not the quantity of the witnesses and its importance. If the Court is satisfied with the explanation given by the prosecution along with the adequacy of the materials, sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the Court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it.
74. Even though Virendra Singh has been examined as DW-1 but his testimony would not help the accused; if we believe the testimony of DW-1, it would render the testimony of PW-1, chief - examination of PW-2 recorded on 31.08.2018 and testimony of Dr. Sunita Bhanojha, who had examined the victim and prepared the Medico-Legal Sexual Examination Report on 21.04.2018 uncorroborated and unreliable, and the same would be the highly unrealistic and desultory approach, and shall not be in conformity with the settled law of evidence to deal with a hostile witness.
75. The Apex Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar (2014) 3 SCC 401. The relevant portion is extracted herein below:
“In a matter of appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the law of evidence that any particular number of witness is to be examined to prove/disprove effect. It is a time-honoured principle that evidence must be weighed, not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on the value provided to each witness rather than the multiplicity or plurality of witnesses. It is quality, not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any weight. Thus, conviction can ever be based on the testimony of a sole eyewitnesses if the same is inspires confidence. (Vide Vadivelue Thevar v. State of Madras AIR 1957 SC 614, Kunju v. State of T.N. (2008) 2 SCC 151, Bipin Kumar Mondal v. State of W.B (2010) 12 SCC 91, Mahesh v. State of M.P (2011) 9 SCC 626, Prithipal Singh v. State of Punjab (2012) 1 SCC 10 and Kishan Chand v. State of Haryana (2013) 2 SCC 502)”
76. The police recorded statements of four related witnesses, namely, (i) Raghvendra Singh-the father of the victim; (ii) Uday Pal Sing- the nephew of the complainant; (iii) Virendra Singh-the grandfather of the victim; (iv) Smt. Deepa- the mother of the victim. Out of four, two -Raghvendra Singh and Smt. Deepa - has been examined as a prosecution witness, whereas Virendra Singh has been examined as DW-1, and the prosecution has dropped Uday Pal Singh. All witnesses are related witnesses. The PW-1, PW-2 and DW-3 are related witnesses, they could be interested witnesses in the instant case as the victim is a lineal descendent of the accused related by the first degree of the relationship, but PW-3, who conducted the external and internal medical examination of the victim is an independent witness, and there is no reason for her to implicate the accused in the commissioning of the offence. There is no delay in the registration of the FIR. PW-2 though resiled, but supported the prosecution’s case in examination-in-chief. Strangely, in the cross-examination, she resiled. We do not wish to say anything about the credibility of PW-2 and DW-1 being the related and interested witnesses, and the evidence of PW-1 and PW-3 is found corroborated, cogent and reliable. The testimony of PW-1 and PW-3 and the chief examination of PW-2 are credible and reliable and hence deserve to be accepted. Merely because the prosecution did not produce the DW-1 and police witness, Uday Pal Singh, the entire prosecution case would not become false.
77. Thus, on the aforesaid conclusion, we are in conformity with the trial court's findings and can safely conclude that the ingredients of rape under IPC and the ingredients of penetrative aggravating sexual assault under the POCSO Act, 2012 are established qua accused-appellant.
78. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature; rather, various factors like the nature, gravity, manner and circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed as held in Shimbhu and Anr. Vs. State of Haryana (2014) 13 SCC 318.
79. Before we evaluate the case at hand in the light of the above-established principle that all punishments must be directly proportionate to the crime committed, it is imperative to comprehend the legislative intent behind Section 3(m)/6 POCSO Act, 2012, which is as under:
“6. Whoever, commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.”
80. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of aggravated penetrative sexual assault, for a term, which shall not be less than 10 years, but it may extend to life and shall also be liable to fine. The Court may impose a sentence of either description of a term not less than 10 years but which may extend to life imprisonment. Thus, the normal sentence in a case of aggravated penetrative sexual assault is 10 years, and in exceptional cases may go to life imprisonment.
81. The defence counsel has urged that the punishment should always be proportionate/commensurate to the gravity of the offence. In the instant case, it is disproportionate to the gravity of the offence. Hence he prays for a reduction of sentence of imprisonment for a term less than life imprisonment (Vide Vadivelue Thevar v. State of Madras AIR 1957 SC 614, Kunju v. State of T.N. (2008) 2 SCC 151, Bipin Kumar Mondal v. State of W.B (2010) 12 SCC 91, Mahesh v. State of M.P. (2011) 9 SCC 626, Prithipal Singh v. State of Punjab (2012) 1 SCC 10 and Kishan Chand v. State of Haryana (2013) 2 SCC 502)”.
82. The Court's discretionary power to impose a sentence should not be used indiscriminately in a routine, casual and cavalier manner. The special and adequate reasons must be recorded for awarding life imprisonment. Regrettably, we noticed that the trial court has failed to record the reason for awarding life imprisonment in the facts- circumstances of the case.
83. That the accused has not caused any physical injury to the victim, the accused-appellants come from an impoverished socio-economic background, have a family comprising an aged father, and have unblemished jail conduct. When all these factors are added together, it is also visualized that there is nothing on record to rule out the probability of reformation and rehabilitation of the appellant. He is a man of clean antecedents; otherwise, nothing is brought on record to prove the contrary.
84. For the reasons elucidated herein above, we deem it appropriate to partly allow the appeal and modify the sentence, and award the rigorous imprisonment for a term of twenty years with a fine of Rs. 50,000/- and in default of payment of fine two years additional imprisonment and with R.I. for the offence of rape, and one year sentence under section 323 IPC. We refrain to award punishment under Section 5 (m)/6 of POCSO Act 2012, because of the mandate of Section 42 of the POCSO Act, 2012.
85. The accused-appellant’s incarceration period in the aforesaid case crime shall be adjusted as per law. The fine imposed upon the accused shall be given to the victim “ X” as compensation.
