S.K SAHOO, J.
The appellant faced trial for offences punishable under Section 376(2)(f) of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereafter for short ‘POCSO Act’) in the Court of Special Judge, Gajapati, Parlakhemundi in G.R Case No. 60 of 2013 for committing rape and penetrative sexual assault on Miss ‘S’ (hereafter ‘the victim’) on 12.12.2013 at 3.40 p.m in the Government Quarters of Revenue Department, Adava.
The learned trial Court vide impugned judgment and order dated 19/21.11.2014 found the appellant guilty under section 376(2)(i) of Indian Penal Code read with Section 4 of POCSO Act and accordingly convicted him of such offences and sentenced him to undergo imprisonment for life with a further direction that he shall not be released from custody till he completed 16 years in custody and also imposed fine of Rs. 30,000/-, in default, to undergo rigorous imprisonment for one year.
2. The prosecution case, as per the first informant report lodged by one Saroj Kumar Nayak (P.W.2), the father of the victim before Inspector-in-charge, Adava Police Station, Gajapati is that the informant was working as FRC Amin and since last five years he was staying with his family in the Government Quarters of Revenue Department which was situated near Adava Grama Panchayat. The appellant was also working with the informant in the same department and was staying in the neighborhood in another Government quarters. On 12.12.2013 at about 3.40 p.m, the appellant called the victim who was aged about five years to his house. The victim accompanied the appellant to his house. The appellant committed rape on the victim for which the victim cried and came out of the house of the appellant. At that time the wife of the informant marked semen stains over the private parts as well as on the thighs of the victim. The wife of the informant informed him about the incident for which the informant returned back home and found the incident to be true and accordingly he lodged the first information report.
On the basis of such report lodged by P.W.2, the Inspector-in-charge of Adava Police Station registered Adava P.S Case No. 48 of 2013 dated 14.12.2013 under Section 376(2)(f) Indian Penal Code against the appellant and directed P.W.13 Sunil Kumar Saraf, Sub-Inspector of Police to investigate the matter. P.W.13 examined the informant and other witnesses and seized the wearing apparels of the victim on being produced by her mother as per seizure list Ext.4 On 15.12.2013 he visited the house of the appellant as well as the informant and prepared the spot map Ext.10 He sent the victim as well as the appellant who was apprehended on 16.12.2013 to M.K.C.G Medical college and Hospital, Berhampur for their medical examination. The wearing apparels of the appellant were also seized under seizure list Ext.1 The biological materials of the victim and the appellant collected by medical officers in sealed packets were seized. The school admission register and attendance register of Government U.P School of Adava where the victim was reading and the birth certificate of the victim were seized under seizure list Ext.7 P.W.14 who was the Inspector-in-charge of Adava Police Station, took up the charge of investigation from P.W.13, received the medical reports of both the appellant and victim and after completion of investigation submitted charge-sheet against the appellant under Section 376(2)(f) read with Section 4 of the POCSO Act.
3. The defence plea of the appellant was one of denial and it was pleaded that due to official dispute between him and the informant, he had been falsely entangled in the case by the informant.
4. In order to prove its case, the prosecution examined fourteen witnesses.
P.W.1 P. Mohan Rao was the constable attached to Adava Police Station who is a witness to the seizure of wearing apparels of the appellant under seizure list Ext.1 and sealed envelopes containing biological samples of the appellant as well as the victim collected by Medical Officer under seizure list Ext.2
P.W.2 Saroj Kumar Naik is the informant in the case who is also the father of the victim and he stated to have heard about the incident not only from his wife but also from the victim daughter.
P.W.3 Martina Naik is the mother of the victim and she also stated about the incident which she heard from her victim daughter. She is a witness to the seizure of wearing apparels of the victim under seizure list Ext.4
P.W.4 is the victim who stated about the incident.
P.W.5 Debananda Bardhan stated to have visited the house of the informant after hearing from him about the incident. He found the victim crying and also noticed rape symptoms on the person of the victim.
P.W.6 Prafulla Kumar Nayak stated to have visited the house of the informant where the wife of the informant stated him about the occurrence.
P.W.7 Dr. Sandeep Das examined the victim at M.K.C.G Medical College and Hospital, Berhampur and proved his report Ext.5
P.W.8 Dr. Niranjan Sahoo examined the appellant at M.K.C.G Medical College and Hospital, Berhampur and proved his report Ext.6
P.W.9 Smt. Renu Behera was the Head mistress of Adava M.E School who stated about the seizure of school admission register, attendance register and date of birth certificate of the victim under seizure list Ext.7 She stated to have issued the birth certificate Ext.8 as per the entry made in the school admission register. She took the school admission register as well as attendance register in her zima as per zimanama vide Ext.9
P.W.10 Smt. Sarala Dalapati and P.W.11 Smt. Swapna Das were the Asst. Teachers attached to Adava M.E School who stated about the seizure of school documents under seizure list Ext.7
P.W.12 Benjamin Nayak stated to have visited the house of the informant and heard about the incident from the informant.
P.W.13 Sunil Kumar Saraf is the Investigating Officer.
P.W.14 Onam Lakra was the Inspector-in-charge of Adava Police Station who is also another Investigating Officer of the case.
The prosecution exhibited ten documents. Ext.1, 2, 4, 7 are the seizure lists, Ext.3 is the plain paper FIR, Exts.5 and 6 are Medical Examination Reports of the victim and the appellant respectively, Ext.8 is the birth certificate of the victim, Ext.9 is the zimanama and Ext.10 is the spot map.
The defence exhibited one document. Ext. A is the command certificate.
5. Adverting over the age of the victim girl at the time of incident since for attracting the ingredients of offence under section 4 of POCSO Act which deals with punishment of penetrative sexual assault, the victim must be a child as per the definition of “child” provided under section 2(d) of the POCSO Act which indicates that “child” means any person below the age of eighteen years and also because section 376(2)(i) of Indian Penal Code will be attracted only when the rape is committed on a woman when she is under sixteen years of age, it transpires from the evidence of the informant P.W.2 that he has stated the age of the victim to be six years and that she was reading in Class-II. The mother of the victim has stated the age of the victim to be five years. The victim has stated her age as six years at the time of deposition. The doctor P.W.7 after considering the physical findings, dental examination and radiological findings opined the age of the victim to be around six years. The birth certificate Ext.8 issued by P.W.9, the Head Mistress indicates that as per the School Admission Register the date of birth of the victim was 2.3.2007 and thus as on the date of occurrence i.e, 12.12.2013 she was seven years old. Thus from the documentary evidence, medical evidence as well as ocular evidence, the prosecution has established that the victim was within five to seven years of age as on the date of occurrence. The learned counsel for the appellant Mr. Ramesh Agarwal while arguing the appeal did not dispute the age of the victim to be minor. The learned trial Court has also arrived at a finding that the victim girl was of tender age of five to six years on the date of occurrence. Thus so far as the age factor is concerned, the prosecution has successfully established that the victim was within the age group of five to seven years and thus one of the ingredients of both the offences i.e, section 376(2)(i) IPC and section 4 of POCSO Act regarding age is satisfied.
6. Now delineating towards the offence of rape or penetrative sexual assault on the victim, we found that the star witness on behalf of the prosecution is none other than the victim herself who has stated that on the date of occurrence while she was playing outside her house, the appellant called her and assaulted. She further stated that she returned to her house and informed her mother and opened her “chadi” and shown the same. The victim has not specifically stated that the appellant either raped her or committed penetrative sexual assault on her.
The learned counsel for the appellant Mr. Ramesh Agarwal contended that when the victim has not whispered about the vital ingredients of both the offences i.e, either commission of rape or penetrative sexual assault on her by the appellant and simply stated that the appellant assaulted her, the learned trial Court should not have convicted the appellant under such offences.
The learned counsel for the State Mr. D.K Mishra on the other hand submitted that since the victim was just aged about five to six years, it was certainly not expected of her to depose about the incident in a vivid manner keeping in mind the ingredients of the offences and therefore when she has stated that she was assaulted by the appellant and the parents of the victim have stated about the rape/assault on her private part by the appellant, the learned trial court was quite justified in convicting the appellant under both the offences.
After carefully considering the contentions raised by the respective counsels and going through the evidence, we find that P.W.3 who is the mother of the victim has stated that on the date of occurrence, the victim came to her crying and informed her that the appellant assaulted her on her private part and when she opened the “chadi”, she found sperm and bleeding. She has further stated that she informed the matter over phone to her husband and when her husband returned home and questioned the victim, she also informed that the appellant had done the same. Thus even P.W 3 has also not stated that the victim was subjected to commission of rape or penetrative sexual assault by the appellant.
P.W.2 who is the father of the victim has stated that his wife P.W.3 informed him over mobile phone that the victim had been raped and after he returned to his house, his wife removed the underwear of the victim and he found sperm all over the underwear and the victim daughter also informed him that the appellant committed rape on her. The commission of rape by the appellant as stated by P.W.2 has neither been supported by the victim nor even by victim's mother P.W.3
The doctor P.W.7 who was working as Associate Professor, FMT, MKCG Medical College & Hospital, Berhampur examined the victim on 16.12.2013 and she stated that her examination suggested that the victim was a nubile virgin on the date of her examination and there was no evidence to corroborate recent or past sexual intercourse. She found no injuries present on her person or in or around her private parts. She further stated that she had not done any penetrative test as the victim was a girl child aged about six years and her hymen was intact. She proved her report Ext.5 The doctor has further stated that however, considering the history as provided, possibility of an attempted act cannot be ruled out.
“Penetrative sexual assault” has been defined under section 3 of POCSO Act which is quoted herein below:-“3. Penetrative sexual assault:- A person is said to commit “penetrative sexual assault” if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or with any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”
From the statement of the victim as well as Medical Officer P.W.7, none of the ingredients of section 3 of POCSO Act is satisfied in this case. Therefore it cannot be said that section 4 of POCSO Act which deals with punishment of penetrative sexual assault is attracted.
Similarly in absence of any statement of the victim that she was raped by the appellant or in absence of any corroborative medical evidence, it would not be proper to convict the appellant under section 376(2)(i) IPC. Merely because the victim has stated that she was assaulted by the appellant, we cannot stretch it to the extent that what she meant by assault means “rape” or “penetrative sexual assault” particularly when there is no other surrounding circumstances including the medical evidence which would justify to arrive at such a conclusion. The statement of the informant P.W.2 that his wife (P.W.3) informed him over mobile phone that the victim was raped is not at all acceptable particularly when P.W.3 has not corroborated the same. It appears that P.W.2 is making a statement in an exaggerated manner.
Though P.W.3 has stated that when she opened the “chadi”, she found sperm and bleeding and P.W.2 has stated that he found sperm all over the underwear of the victim but the victim's underwear was neither seized by police nor sent for chemical examination. What was seized was one faded green colour ladies top and green colour ladies full pant of the victim under seizure list Ext.4 Those seized articles were sent for chemical examination to Deputy Director, RFSL, Berhampur on 3.2.2014 along with other articles seized in the case through S.D.J.M, Parlakhemundi but the chemical examination report was not produced before the trial Court and the seized exhibits were also not produced during trial. We called for the chemical examination report vide our orders dated 20.3.2015 and 23.3.2015 and in pursuance to our orders, Deputy Director, RFSL, Berhmapur appeared before us on 2.4.2015 and produced the chemical examiner's report. We recorded the additional evidence of Ramanath Swain, Deputy Director, Berhampur invoking our power under section 391 Cr.P.C on 2.4.2015 in open Court as C.W.1 During his examination C.W.1 stated that he has neither examined the materials nor given the report and one Chaturbhuja Panda who was the S.O and A.C.E of RFSL, Berhampur had examined the materials and furnished the report. The report is dated 23.3.2015 which clearly indicates that after receipt of the order of the Court, the report was prepared in a hurried manner. While expressing our displeasure, serious concern and dismay over such attitude of the Government agency, we are of the opinion the chemical examination report which was furnished in this case in pursuance to our direction cannot be considered at all as it is a virtually a one line report which indicates that stains of semen, stains of blood and foreign hair could not be detected in any of the exhibits.
7. The learned counsel for the appellant Mr. Ramesh Agarwal placed a decision of the Hon'ble Supreme Court in case of Radhu v. State Of Madhya Pradesh reported in 2007 (4) Crimes 1 (SC), wherein it is held as follows:-
“5………The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case”
The learned counsel for the appellant further placed another decision of the Hon'ble Supreme Court in case of Rajoo Alias Ramakant v. State Of Madhya Pradesh. reported in AIR 2009 Supreme Court 858, wherein it is observed as follows:-
“9……It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved.”
Even if the materials available on record do not suggest the commission of rape or penetrative sexual assault on the victim, yet it is to be examined whether any other offence is made out?
The victim has stated that the appellant called her and assaulted and when she returned her home, she informed her mother and opened her “chadi” and shown the same to her mother. By this conduct of the victim, it is obvious that there was assault in her private parts. Even P.W.3, the mother of the victim has also corroborated her evidence and stated that the victim disclosed before her that she was assaulted on her private parts. The Doctor P.W.7 who examined the victim has stated that considering the history as provided, the possibility of an attempted act cannot be ruled out. In view of such statements made by the victim, her mother as well as the doctor, we are of the view that the ingredients of offence under section 354 IPC which deals with assault or criminal force to woman with intent to outrage her modesty is clearly made out.
Similarly section 8 of the POCSO Act provides punishment for sexual assault and “sexual assault” has been defined under section 7 of the said Act. A person who with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit “sexual assault”. In view of the materials available on record, when the assault has been made on the private parts of the victim, we are of the view that the ingredients of the offence under section 8 of the POCSO Act is also clearly made out.
8. The learned counsel for the appellant contended that the victim P.W.4 is a tutored witness and therefore no reliance can be placed on her statement. He further contendeed that there was official dispute between the father of the victim and the appellant and the appellant was a member of scheduled caste and therefore the chance of false implication cannot be ruled out and possibility of setting up the minor child by tutoring her also cannot be ruled out.
The learned counsel further placed a decision of the Hon'ble Supreme Court reported in case of State of Karnataka v. Shantappa Madivalappa Galapuji reported in JT 2009 (5) SC 660 wherein reliance was placed in case of Dattu Ramrao Sakhare v. State of Maharashtra reported in JT 1997 (5) SC 370 and it is held as follows:-
“7…….This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence, the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”
The learned counsel for the State on the other hand submitted that it is quite absurd to think that because of official dispute, the parents of the victim would falsely involve their minor daughter in a case of rape by the appellant. He further submitted that nothing has been brought out in the cross examination of the victim to show that she was tutored by her parents to depose falsehood against the appellant and therefore the contention raised by the learned counsel for the appellant have no legs to stand.
Considering the submissions of the respective counsels, we are of the view that the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. Under section 118 of the Evidence Act, a child witness is a competent witness provided that she is able to understand the questions put to him/her and give rational answers to such questions. If the particular child who has appeared in the witness box is intelligent enough to be able to understand as to what evidence he/she was giving and able to understand the questions and able to give rational answers, there is no infirmity in acting upon the evidence of a child witness.
The learned trial Court in this case has conducted some preliminary inquiry to test the intellectual capacity and understanding of the victim to give a rational account of what has been done to her. We have perused the questions put by the learned trial Court and answers given by the victim. The observation of the learned trial Court after such preliminary inquiry is that the witness is giving rational answers. We are of the view that the learned trial Court has taken sufficient precautions before recording the evidence of a child witness. The learned counsel for the appellant pointed out a line from the cross examination of the victim where she has stated that as her parents asked her on the date of her deposition, she was deposing in that way and from this statement, the learned counsel urged that the parents of the victim have tutored her to speak falsehood. We are not inclined to accept such a contention in as much as had that been the state of affairs, the victim would have gone to the extent of saying that the appellant raped her or committed penetrative sexual assault on her.
The whole evidence of the child witness is to be appraised. The victim has denied the suggestion of the defence that while she was playing, her brother Babu assaulted her for which she returned to the house and informed the matter. She has also denied the suggestion of the defence that when the appellant called her, she went to the house to take permission from her mother. She has also denied to suggestion of the defence that no such occurrence had taken place and that she was deposing falsehood at the instance of her parents.
After perusing the statement of the victim, we found that there is absence of any materials whatsoever that she had been tutored or influenced by her parents. Her testimony appears to be natural and straightforward. She was a competent witness to depose and her immediate conduct in disclosing about the incident before her mother is admissible under section 6 of the Evidence Act as res gestae.
The defence has failed to establish any kind of official dispute between the appellant and the father of the victim and except the bald statement of the appellant in the 313 Cr.P.C statement regarding official dispute, nothing has been elicited to substantiate such plea. It is also not believable that for the sake of any official dispute, if any, P.W.2 would involve his minor daughter in a case of rape by the appellant in as much as it would not only hamper the prestige of the family but likely to spoil the future of the victim girl.
9. The learned counsel for the appellant submitted that there is two days delay in lodging the FIR and therefore there was every chance of concocting a case against the appellant.
We are of the view that in a case of this nature where the reputation of the family and career and life of a young child is involved, ordinarily there used to be deliberation in the family as to whether to lodge the FIR or not. Thus we are of the view that the delay of two days in lodging of FIR is not at all fatal to the prosecution.
10. In view of our analysis, we are of the view that the conviction of the appellant under section 376(2)(i) IPC is not sustainable in the eye of law and accordingly the same is set aside and instead he is convicted under section 354 IPC. Similarly the order of conviction of the appellant under section 4 of POCSO Act is set aside and instead he is convicted under section 8 of POCSO Act.
Section 42 of the POCSO Act states about alternate punishment. Since both the sections i.e, section 354 IPC and section 8 of POCSO Act carries maximum punishment for five years and also payment of fine, the appellant is sentenced to undergo R.I for five years and to pay fine of Rs. 30,000/-, in default, to undergo R.I for one year more for the offences under section 354 IPC read with section 8 of POCSO Act. If the fine amount is realised, the same has to be given as compensation to the victim girl under section 357 Cr.P.C
In the result the Criminal Appeal is allowed in part.
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