JUDGMENT
MEENAKSHI MADAN RAI, J.
1. This Appeal is directed against the Judgment and Order of the Special Judge, POCSO Act, 2012, West Sikkim at Gyalshing, in Sessions Trial (POCSO) Case No. 02 of 2014, in which the Appellant was convicted for the offence under Section 3 of the POCSO Act, 2012 and sentenced to undergo Simple Imprisonment for 7 (seven) years and to pay a fine of Rs. 2000/- (Rupees Two Thousand) only, with a default stipulation.
2. The grounds raised in the Appeal, inter alia, are that the Learned Trial Court has failed to appreciate the facts and circumstances of the statement of witnesses recorded in the case and came to an erroneous finding by convicting the Appellant under Section 4 of the POCSO Act, 2012. That, the Prosecutrix is the wife of the Appellant and it was not him but his sister who had refused to accept the Prosecutrix as the Appellant's wife. That, the act of the Appellant or the Prosecution case does not fall under the definition of ‘Rape’ as provided under Section 375 of the Indian Penal Code, 1860. That, the Ld. Trial Court failed to evaluate the discrepancies in the evidence of the Prosecution witnesses and that of the Prosecutrix herself recorded u/S 164 CrPC and thereby reached an erroneous finding, hence the Appeal.
3. The incident giving rise to the present Appeal, took place between 03.05.2013 to 06.05.2013 The Victim aged about 14 years, a student of “Rimbi School” in West Sikkim was known to the Appellant, Pranil Gupta, a truck driver working at the construction site of one Topjor Bhutia PW-5, at Pelling. He was living in a room on the ground floor of one “Hotel Mt. Simvo” at Pelling, West Sikkim owned by PW-5. That, on 03.05.2013 the Victim went to Pelling to purchase a birthday cake taking along with her PW-16, her friend. The Victim, at Pelling called the Appellant on his mobile phone, who directed her to wait at “Pelling Phatak”. After waiting for some time, she called him again, on both occasions, using the mobile phone of a third person. The Appellant then directed the Victim to go to Pelling School ground, where she would be met by his sister-in-law. Following the instructions, the Victim and her friend went to the designated place where they met the lady and were taken to her room, also situated on the ground floor of Hotel Mt. Simvo. The Appellant, on reaching the place asked the Victim's friend to return home while he kept the Victim in his room and had sexual relations with her.
4. The family of the Victim on searching for her, learnt that she had been taken by the Appellant and reported the matter to the Panchayat. The family also contacted PW-5, who assured the family that he would bring the Victim and the Appellant to Rimbi on 05.05.2013 which was deferred to 06.05.2013 On the said date, both the Victim and the Appellant were then brought to the Victim's house at Rimbi by PW-5, where her parents along with the Panchayat and local gentry had assembled to discuss the matter. The family of the Appellant refused to accept the Victim as his wife, consequently, the Victim's family lodged the Complaint - Exhibit-6, informing that the Victim was a minor and had been sexually assaulted by the Appellant. On completion of investigation, Charge Sheet was submitted against the Appellant under Section 363/376 of the Indian Penal Code, 1860 read with Section 4 of the POCSO Act, 2012.
5. The Learned Trial Court finding prima facie materials against the Appellant, framed charges under Section 4 of the POCSO Act, 2012 and under Section 363 of the Indian Penal Code, 1860.
6. To prove its case, the Prosecution examined eighteen witnesses including the I.O of the case. The Learned Trial Court on consideration of the Prosecution evidence and relying on the same, convicted the Appellant under Section 4 of the POCSO Act, 2012 and sentenced him as reflected hereinabove.
7. When the Appeal came up for hearing, Learned Counsel for the Appellant vehemently put forth the argument that infact the Appellant and the Victim were having a love affair and the Appellant had married the Victim but his family members refused to accept her as his wife, she being from a different community. It was only thereafter that the F.I.R was lodged with the allegation that the Appellant had raped the Victim. That infact, PW-5 in his evidence has testified that he learnt that the Appellant had brought one girl to his room at Pelling after marrying her. That, the Section 164 CrPC statement of the Victim clarifies the position that the Complaint was filed only after the Appellant's family did not accept her as his wife. It was also urged that the Prosecutrix during evidence was declared hostile by the Prosecution and failed to support the Prosecution case. Besides, as per the ossification test she was found to be aged between 15 to 15.8 years and the Appellant had married her, resultant, there was no rape and the provisions of Section 4 of POCSO Act, 2012 are not attracted. It is also claimed that now the family members of the Appellant are ready to accept the Victim. That apart, it is argued that the evidence of PW-16 clearly indicates that the Victim went along with the Appellant to his room, and after a while told PW-16 to return home, while she stayed with the Appellant. That, there is thus a contradiction between the Section 164 CrPC statement of the Prosecutrix and PW-16 on this count. Learned Counsel for the Appellant would further argue that no injuries were found on the person of the Prosecutrix except in her genital area, added to which there is a contradiction between the deposition of PW-6 and PW-7 the examining doctors. That, although the Victim had several opportunities to escape from the room of the Appellant, she failed to do so as she was married to him, hence, this Appeal for an acquittal.
8. The Additional Public Prosecutor for the State, for his part argued that there was no illegality in the Judgment and Order of Sentence of the Learned Trial Court which had been arrived at on the basis of the Prosecution evidence and therefore required no interference.
9. The rival contentions put forth by Learned Counsel for the Appellant and Learned Additional Public Prosecutor at the Bar were heard at length and given careful consideration. I have also carefully perused the entire evidence and documents on record, as well as the impugned Judgment and Order.
10. The short question that arises for consideration by this Court is whether the Appellant committed the offence of penetrative sexual assault as defined under Section 3 of the POCSO Act, 2012 and is to face penalty under Section 4 of the same Act.
11. The only evidence of relevance on this point is that of the Victim, PW-10 and the Gynecologist PW-7, who examined her. Their evidence shall be discussed subsequently, as I deem it essential to first deal with the age of the Victim.
12. Exhibit-12 is the Birth Certificate of the Victim showing her Date of Birth to be 05.04.1999 However, it is pertinent to point out at this juncture, that there is no witness to the seizure of Exhibit - 12, as a result, no witnesses have been examined by the Prosecution to prove the seizure or contents of the document. The father of the Victim, who was examined as PW-9, did not identify Exhibit-12 or prove its contents, neither did the mother of the Victim, examined as PW-15, identify the document or prove it. Thus, this document would have to be disregarded for obvious reasons. The option then would be to fall back on the ossification test of the Victim which is Exhibit - 4. Vide this document, the approximate bone age of the Victim is found to be between 15 years to 15.8 years. Exhibit-4, has been proved by PW-8, the Radiologist at Namchi District Hospital. Even assuming that the Victim is 15 to 15.8 years, she still comes under the umbrella of protection of “child”, as defined in Section 2(d) of the POCSO Act, 2012.
13. In the Indian Penal Code, 1860, Section 375 defines the offence of Rape clause, Sixthly of the Section reads as follows:-
“Sixthly.- With or without her consent, when she is under eighteen years of age.”
This Section, thus indicates that under the Indian Penal Code, 1860, when the offence of rape has been committed, the consent of the victim under 18 years of age is irrelevant. Similarly, for an offence under POCSO Act, 2012 which is a more stringent Act, the consent of the child would be of no consequence, as she is protected by the provisions of law.
14. It may be true that the Victim stayed with the accused on her own free will, to this extent PW-16 in her evidence has deposed that “My friend ……. (Victim) telephonically called some person and she asked me to accompany her towards Pelling ground, there we met a lady and I, along with ……. (Victim) accompanied the said lady in her room. Thereafter, the Accused came in the house of the said lady, I stayed in the room of the said lady, however, my friend ……. (Victim) along with the accused went to the room of the accused. After a while my friend ……. (Victim) told me to go home and she stayed with the accused.”
15. The Learned Trial Court in the impugned Judgment at Paragraph 45, has also observed that “The Victim herself went along with her friend to Pelling to meet the accused and she stayed with the accused with her own will”. Thereby implying that the Victim had consented to stay with the Appellant and impliedly found no offence under Section 363 of the Indian Penal Code, 1860 but, as already pointed out, for an offence under Section 3 of the POCSO Act, 2012 the consent of a minor is irrelevant.
16. Section 29 of the POCSO Act, 2012 enjoins upon the Court that where a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and 9 of the Act, 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.
17. In the backdrop of the above, the evidence furnished by the Prosecution may be carefully analysed.
18. PW-6, Dr. O.T Lepcha had examined the minor Victim but did not examine the genital of the Victim, as according to him PW-7, the Gynecologist at District Hospital, Geyzing had conducted such examination of the Victim. The evidence of PW-6, thus, only shows that the Victim had an abrasion over the extensor surface of the right index finger.
19. PW-7, the Gynecologist, in her evidence stated that:-
“Consent for medical was given by her father Shri. Sancha Hang Limboo.
History given by Victim and father of Victim that Victim was taken by person named Praneel Gupta R/o Bijan Bari on 03.05.2013 at around 01.30 pm to his room at Pelling, where she was kept till 06.05.2013, 04.30 pm. She gives history of sexual contact 6-7 times. Last contact at around 9 pm on 05.05.2013 Clothing changed at home and washed which was worn at the time of incidence. History of mile (sic) bleeding on Saturday. Urine passing but complains of mild pain. Menarche attained February, 2013. Last monthly period 06.04.2013
On examination: patient was conscious, well oriented, pulse rate 88 bpm. Blood Pressure: 100/60 MMHG, Chest was clinically clear. Per abdomen soft, BS on present, Breast - well developed.
Axillary (sic) & pubic hair - sparse. Injury: Abrasion light red color .5 × 1 cm approximate over right index finger.
On local examination:- undergarment not worn. White discharge present, foul smell present. Healing abrasion 1 cm × 2 cm over the left labia. Pubic hair sample taken and sent for examination. Congestion reddish present over posterior commissure and inner side of left labia minora. Hymen defect on 7 O'clock position, opening one finger loose, no bleeding seen. Swab taken from periurethral and vagina canal and sent for examination of presence of spermatozoa for further examination and opinion referred to Medico Legal Expert, STNM Hospital, Gangtok. Exhibit-3 is my report, wherein Exhibit - 3(a) is my report.”
20. Her evidence thus reveals that besides the Victim's Father, the Victim also narrated to her that she had sexual contact with the Appellant.
21. Although, it is evident that PW-7 in her evidence-in-chief, has not put forth a specific opinion that the Victim had been sexually assaulted, however, under cross examination she has stated that “It is not a fact that she was not involved in any sexual intercourse.” Added to this, is the evidence of PW-10, the Victim herself, who was declared hostile by the Prosecution, but under cross examination by the Learned Additional Public Prosecutor, admitted that Exhibit-8 in four pages is her statement recorded by the Court and the contents are her true statements. Thereafter, while being cross examined by Learned Legal Aid Counsel for the Appellant, she has further asserted that “It is not a fact that I did not state before the Court that Accused Committed rape on me”. Exhibit-8, the Section 164 CrPC statement of the Victim, on being perused for corroborative purposes, indicates that the Victim has stated that on the next day i.e 06.04.2013, the Appellant opened her clothes, although she resisted and cried and that night he raped her five times. Thus, it is evident that the Appellant had committed the offence of penetrative sexual assault as defined in Section 3 of the POCSO Act, 2012.
22. It may be observed here that Section 30 of the POCSO Act, 2012 provides that -
“30. Presumption and culpable mental state - (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that Prosecution.”
(emphasis supplied)
23. In this regard, the Appellant was examined under Section 313 CrPC, however, all that he said was that he was innocent and had been falsely implicated in the case. In response to Question No. 38, he stated that he had not kidnapped the Victim but she had come to his place on her own and they got married. That, he was not aware that she was a minor. The Accused failed to take advantage of the provisions of Section 30 supra to prove that he had no such mental state with respect to the act charged as an offence.
24. It must also be borne in mind that Section 30(2) of the POCSO Act, 2012 requires that a fact is stated to be proved for the purposes of Section 30(1), only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. It has also been clarified that “Culpable Mental State” includes intention, motive, knowledge of the fact and the belief in or reason to believe a fact. Thus, mere denial of the offence U/S 313 of the CrPC by the accused will not suffice, he has to establish lack of mensrea beyond a reasonable doubt.
25. While dealing with the claim of the Appellant that infact he married the Victim, appears to be far fetched for the reason that there is no proof of any ceremony/ritual to legalise the bond and no visit to either a temple or any other place of worship by the Victim and the Appellant, as is expected in the Indian context, to solemnise a wedding. No proof of wedding was furnished by the Appellant by way of placing before the Court any invitation cards or any witness to the ceremony, binding the Appellant and the Victim as husband and wife. There can be no assumption of marriage merely because the minor Victim stayed with the Appellant of her own free will. It is undisputed that the Appellant kept the Victim in his room. This plea appears to be a frail effort by the Appellant to absolve himself of the crime.
26. From the entire discussions hereinabove and on consideration of the evidence on record, one is left in no manner of doubt that although the Victim had voluntarily gone to the room of the Appellant, however, he committed the offence of penetrative sexual assault on the minor, then aged about 15 years. Consequently, there appears to be no illegality in the Judgment of the Learned Trial Court, which after relying on the evidence furnished by the Prosecution, convicted the Appellant under Section 4 of the POCSO Act, 2012 for having committed the offence under Section 3.
27. The minimum sentence prescribed for an offence under Section 3 of the POCSO Act, 2012 is provided in Section 4, which lays down that the imprisonment shall not be less than seven years, but which may extend to imprisonment for life. Hence, there appears to be no requirement to interfere with the Sentence of the Learned Trial Court.
28. In the end result, I find no substance in the Appeal and hence, uphold the Conviction and Sentence imposed on the Appellant by the Learned Special Court, POCSO Act, 2012.
29. Appeal dismissed.
30. Records of the Learned Trial Court be remitted.
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