Court No.- 51
Case :- CRIMINAL JAIL APPEAL No. - 3718 of 2013
Appellant :- Dinesh Rai Respondent :- State Of U.P. Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A.
Hon'ble Bachchoo Lal, J. Hon'ble Siddharth,J.
(Delivered By Hon'ble Siddharth, J.)
1. Heard Ms. Kalpana Singh, learned Amicus Curiae appointed by this Court on behalf of the appellant and learned A.G.A. on behalf of the State.
2. This jail appeal is directed against the judgment and order dated 11.07.2013 passed by Sri Surendra Kumar Yadav, Special Judge, SC/ST Act, Gorakhpur in Sessions Trial No. 426 of 2010 under Section 376, 506 I.P.C. and 3/2(V) SC/ST Act, P.S. Bansgaon, District- Gorakhpur. By the aforesaid judgment and order the accused- appellant, Dinesh Rai, has been convicted and sentenced to ten years rigorous imprisonment and fine of Rs. 15,000/-under Section 376 I.P.C. On failure to deposit the fine the accused-appellant is to undergo one year's additional imprisonment. Under Section 506 I.P.C. he is convicted and sentenced with one year's rigorous imprisonment and a fine of Rs. 2,000/- and on failure to deposit fine one month's additional imprisonment is directed to be undergone. Punishment of life imprisonment alongwith Rs. 10,000/- fine and on failure to deposit fine, one year's of additional imprisonment is imposed under Section 3/2(V) of SC/ST Act. All the sentences are to run concurrently.
3. The prosecution case is that the informant, Rita Devi, wife of Chhote Lal, lodged a first information report dated 11.08.2009 at 4:00 p.m at P.S. Bansgaon, District- Gorakhpur alleging that on the same date at 12:00 p.m accused, Dinesh Rai, came to her house for getting his clothes ironed and while she was pressing clothes he enticed her daughter, Saloni, aged about 6 years and took her to the field and raped her. On alarm being raised by her daughter, she and many other villagers reached the spot and saw the incident. Accused threatened the informant of her life.
4. On the basis of the above first information report Case Crime No. 491 of 2009 was registered under Section 376, 506 I.P.C. and 3/2(V) SC/ST Act. Victim was medically examined on the same day at 9:30 p.m at District Women Hospital, Gorakhpur and injuries were found on her body and X-ray and Pathological test were conducted on 19.08.2009 and a supplementary medical report was also submitted by the District Women Hospital, Gorakhpur.
5. The investigating officer prepared the site plan and recorded the statements of the witnesses and submitted a charge-sheet under Sections 376, 506 I.P.C. and Section 3/2(V) of SC/ST Act before the Chief Judicial Magistrate, Court No. 15, Gorakhpur who committed the case to the Sessions Court for trial and charges against accused-appellant were framed under the aforesaid Sections.
6. Prosecution got the statement of informant, Smt. Rita Devi, recorded as P.W.-1, statement of Kumari Saloni, the victim, was recorded as P.W.- 2, statement of Nirhu Prasad, father of informant, Rita Devi, was recorded as P.W.-3, statement of Smt. Rita Devi, wife of Prem was recorded as P.W.- 4, statement of Dr. Nina Tripathi, was recorded as P.W.-5 statements of Constable Ram Shankar Chaudhary, and Circle Officer, Bansgaon, Rajendra Singh, were recorded as P.W.- 6 and 7 respectively.
7. Statement of accused-appellant was recorded under Section 313 Cr.P.C who denied the prosecution case and the statements of the prosecution witnesses and stated that the investigation has been fraudulently conducted and he has been implicated on account of enmity. No evidence was led in defence.
8. Informant, Smt. Rita Devi, P.W.-1 stated in her examination-in- chief that the incident is dated 11.08.2009 and it took place at about 12:00 p.m; that Dinesh Rai of the village came to my house for getting his clothes ironed and she started ironing the clothes inside the room; that during this period he took my daughter, Saloni, aged 6 years, towards north on the pretext of providing her namkeen and violated her in the field; she went on the spot and after seeing her the accused-appellant ran away. She came to her house and got the first information report typed at bansgoan and after affixing her thumb impression gave it to the S.H.O., Bansgaon. She proved the first information report and it was exhibited as Exhibit-1.
9. Statement of Km. Saloni, P.W.- 2, was recorded wherein she stated that about three years back when she was at her house, Dinesh Rai, accused came to her house for getting clothes ironed during afternoon he told her that come along with me I will get namkeen for you and took me beneath the sheesham tree and he removed my underwear and did wrongful act with me. She cried and screamed and hearing the same the villagers came and seeing them Dinesh ran away. I was bleeding. Then my mother came on spot and took me to the house.
10. P.W.-3, Nirhu Prasad, stated that on 11.08.2009 he came to the house of his daughter, Rita, at 10:00 a.m. Dinesh Rai, accused, came at 12:00 p.m for getting clothes ironed. My daughter went inside for getting the clothes ironed. My grand-daughter, Saloni, was playing. Her age is about 6 years. Dinesh Rai, took Saloni with him on the pretext of providing her namkeen and raped her. On hearing the noise, I and my daughter, Rita, reached the spot and on seeing us the accused ran away from the spot. Blood was coming out from the private part of my grand-daughter and she was unconscious. The Inspector took her undergarment in possession and prepared a memo whereon I made the signature and the same is exhibit A-2. The Circle Officer recorded my statement and I took him to the place of incident.
11. Smt. Rita Devi, wife of Prem, stated in her examination-in-chief that about three years back at 12:00 p.m she was going to her field. Dinesh Rai, accused, was taking Saloni, daughter of my Devrani outside the village, I ask him where are you taking her and he replied that I am going to provide namkeen to Saloni. I returned from field at about half past two and saw that Dinesh Rai had ran away and Saloni was lying there unconscious.
12. P.W-5, Dr. Nina Tripathi, stated that she did not found any injury on the stomach of Saloni. During vaginal examination when the labia majora was separated it was painful and mild abrasion of 0.5 cm. was found on its right side. There was slight bleeding in wound. No blood or discharge was found from vagina. The medico-legal report was proved by her and exhibited as A-3. Supplementary medical report dated 19.08.2009 was submitted wherein no sperms were found and age of the victim from the x-ray report was found to be 6 years. As per the witness no definite opinion can be given about rape. She proved the supplementary medical report as Exhibit A-4.
13. P.W.-6 head constable, Ramshankar Chaudhary, stated that he was posted as head clerk on 11.11.2009 and the informant got the first information report lodged at 4:00 p.m as Chik No. 152/2009, Case Crime No. 491 of 2009, under Sections 376, 506 I.P.C. and Section 3/2(V) of SC/ST Act against Dinesh Rai and same was entered in the same general diary by him. The chik was exhibited as A-5 and the carbon copy of the same was exhibited as A-6. The fard of underwear of the victim was proved as exhibit A-7 and the underwear of accused, Dinesh Rai, was also proved and exhibited as material exhibit A-2.
14. P.W.- 7 Rajendra Singh, testified that on 11.08.2009, he was posted as Circle Officer, Bansgoan and conducted investigation of this case. He investigated the site and prepared the site plan, exhibit A-8. He also got recorded the statement of victim under Section 164 Cr.P.C. and after recording the statements of other witnesses submitted chargesheet, exhibit A-9, and sent the slide of the undergarments of the victim and the accused to Medico Legal Laboratory, Lucknow.
15. The statement of accused under Section 313 Cr.P.C. was recorded wherein he alleged false implication.
16. The learned trial court after considering the submission advanced before it by the learned counsels for the parties and after scrutinizing the evidence on record convicted the appellant under Sections 376, 506 I.P.C. and 3/2(V) of SC/ST Act.
17. Hence this jail appeal has been preferred by the accused from jail.
18. According to learned Amicus Curiae, having regard to all circumstances which resulted in appellant's conviction and keeping in view the fact that he has already undergone more than nine years of imprisonment and still continues to remain in jail, in case this court comes to the conclusion that the conviction and sentence awarded to the appellant is liable to be confirmed, than it should be confined to the period of sentence already undergone by the appellant. It has been further submitted by learned Amicus Curiae, that there are material contradictions in the statements of the witnesses for prosecution and she has argued at length and pointed out the discrepancies, which shall be considered hereinafter. She has pointed out that from the perusal of the first information report no allegation regarding offences under Sections 506 I.P.C. and 3(2)(V) of SC/ST Act are found to be proved and the accused has been illegally awarded punishment of imprisonment for life and fine by the court below without considering the facts of the case on record and also the law. She has vehemently argued that the punishment under the aforesaid provisions of law awarded to the accused-appellant should be set aside.
19. Per contra, learned A.G.A. has submitted that keeping in view the age of the victim no leniency should be shown to the accused, the sentence awarded to the accused is in accordance with law. The prosecution case stands proved beyond all reasonable doubt and medical evidence fully corroborates the prosecution case and therefore the conviction and sentence awarded to the accused does not appears to be unwarranted.
20. We have heard the learned counsels for the parties and perused the entire lower court record.
21. The record shows that the incident is alleged to have taken place on 11.08.2009 at about 12:00 p.m in Village- Jamuni Jot, P.S.- Bansgaon, District- Gorakhur. The written report of the occurrence was lodged on the same day at 4:00 p.m by P.W.- 1, Rita Devi, mother of the victim, at P.S. Bansgaon, District- Gorakhpur. It was stated in the first information report that on the date of incident the accused came to the house of P.W.-1 and gave clothes for ironing. While she was ironing the clothes inside he enticed her daughter, Saloni, aged about 6 years and took her to the field and started doing wrongful act with her, on alarm being raised she reached the place of occurrence alongwith many other persons who saw the incident. The accused is threatening her of life and therefore she has come to lodge the report.
22. P.W.-1, Rita Devi, has stated in her cross-examination that Dinesh Rai came to his house for getting clothes ironed and after giving the clothes to her went back. After five minutes he came back and asked whether the clothes have been ironed and then she stated that they would be ironed and then Dinesh Rai sat on the floor for about ½ hours. He did not ask about the children of the house. He does not indulges in any vice and she does not knows whether he is ill. After ½ hour she gave his clothes and he went back. She further stated that she does not knows the name of the person who typed the F.I.R. The contents of the F.I.R were read to her but she does not remembers its sentence. This witness has stated that Dinesh Rai was not known to her and prior to the incident he came to her house twice and thereafter he came back after four days and Dinesh Rai lives alone in his house. All his brothers have died. She has stated that she went to her father's house alongwith Dinesh Rai and she is giving statements as tutored by the government advocate.
23. She has further stated that after ten days of the incident the circle officer came and she took her to the place of incident which is 8 miles away from her house. She went in jeep with the circle officer. However P.W. 2, the victim, has stated that immediately after the incident police took me and my mother were taken to the place of incident in jeep by the police. She has admitted that she knows the name of the accused Dinesh Rai prior to the incident and her mother told his name. She has not stated anything about the commission of rape by Dinesh Rai during her cross-examination by her defence. She has also stated that the government advocate has tutored her.
24. P.W.-3, Nirahu Ram, who is father of the informant has deposed before the court that he was present when Dinesh Rai came. He does not knows Dinesh Rai but he saw him coming to the house of his daughter, Rita, off and on. When he met him for the first time his daughter told him that he is Dinesh Rai. He is the lone person in his family. He has stated that Dinesh Rai, gave pant-shirt for being ironed but did not took it back.
25. It has been observed that in the cross-examination, P.W.-1 has stated that Dinesh Rai, took back the clothes after being ironed but in the F.I.R. she has stated that he took, Saloni, while she was ironing his clothes on the pretext of providing her namkeen. P.W.-3 asserted that he went with his daughter, P.W.-1, to lodge the first information report but P.W.-1 has not stated that her father accompanied her when she got the first information report typed nor the name of her father is mentioned as witness in the first information report. He further stated that he put his signature on the report given to the police for registration of the F.I.R. but his signature does not finds place therein and only the thumb impression of Rita Devi is there. This witness has admitted receiving Rs. 25,000/- at the time of registration of the first information report and has also stated in the cross-examination that it is not correct to suggest that in case he does not contests this case the money will be taken back by the government. No other witness has stated about the receipt of the amount.
26. P.W.- 4, who is the elder aunt of the victim and sister-in-law of the informant, has stated that when she saw Saloni with Dinesh Rai at 12:00 p.m she asked him where they are going and he informed her that he is going to provide namkeen to Saloni. She has thereafter stated that when she returned at about half past two she saw that Dinesh Rai had ran away and Saloni was lying unconscious.
27. Only P.W.- 4, has stated about the time of half past two in the noon, when she saw Saloni lying unconscious, when neither P.W-1, nor P.W.-3 have stated when they reached the spot of occurrence at or about 2:30 p.m. They have only stated that after hearing the noise they went on the spot and saw Dinesh Rai running and Saloni bleeding. P.W.-1 never stated that Saloni was unconscious. Even Saloni in her examination-in-chief has nowhere stated that she became unconscious after the alleged act done by Dinesh Rai, accused. P.W.-4 has not stated a word about who took Saloni from the place of incident to her house or to the police station.
28. From the medico legal report and the supplementary report also the allegation of rape is not proved. As per the report dated 11.08.2009 of P.W.-5 the findings are :-
“ No marks of injury visible.
On separating labia majora- which was painful slight abrasion of about 0.5 cm. Visible on right side. Slight bleeding from abrasion present. Vaginal smear made with vaginal probe. No bleeding, no discharge from vagina visible.”
29. The relevant findings of the supplementary report dated 19.08.2009 are as follows:-
“No spermatazoa seen. No gonococci seen.
….....
….....
No definite opinion about rape can be given. Her age is about six years.
30. On the report about the clothes, the report dated 31.12.2009 of the Vidhi Vigyaan Prayogshala shows that on the underwear of the victim as well as the accused, no blood was found. No spermatazoa or semen was found on the underwear of the accused but spermatozoa was found on the underwear of the victim.
31. It has been argued that the absence of spermatozoa on the undergarment of the accused and its presence of the underwear of the victim is not correct. No blood has been found on any of the clothes either the accused or the victim when there is clear allegation that the victim was profusely bleeding as per the statement of P.W.-1 and P.W.-3. Even in the medical report dated 11.08.2009 no bleeding was visible from the vagina of the victim. It has been submitted that mere presence of spermatozoa on the underwear of victim does not proves that the rape was committed when there is no other corroborative medical evidence. In the statements of P.W.-1. It has been stated that the underwear worn by the victim at the time of registration of the F.I.R. was given to the circle officer and the same was sealed and sent for medical examination. P.W.-3 stated that blood coming out from the vagina of the victim had fallen on his kurta when he took her in his lap but despite such profuse bleeding no blood was found on the underwear of the victim in the report of the expert, which makes the taking of the same underwear by the police and preparing its fard doubtful.
32. The injury of only 0.5 cm has been found on the right side of labia majora and no injury has been found near or on labia minora or on the hymen. Therefore no opinion about rape can be formed on the basis of such an injury. The 0.5 cm injury can be caused even by nails or any sharp object.
33. Lastly, it has come in the statement of P.W.-3, that Rs. 25,000/- was received by him at the time of registration of F.I.R. P.W.-1, has stated that she and her family members do the work of mitti-gara (digging mud for building houses) and the ladies do the work of ironing clothes. The lure of money can also be a reason for implicating the accused. The financial condition of the P.W.-1 is such which can lead to false implication for getting Rs. 25,000/- which was a good amount in the year 2009 for people of such financial status. The fact of the accused being the only surviving member of the family have been mentioned by P.W. -1 and P.W.- 3 and he is also stated to be neighbour of P.W.- 1. This may be a reason for his implication since in her cross-examination, P.W.- 1 has admitted that she went to her father's house alongwith accused. However she has also stated that she does not knows him much. He is neither a friend nor a foe. But the fact that he accompanied to her father's house, which is stated to be 10 km away, shows that P.W.-1, mother of victim, knew the accused well and there may have been some reason, best known to P.W.-1, for implication of the accused in this case.
34. The offence of 506 I.P.C. alleged in the first information report by the P.W.-1, has not been proved by her in her cross-examination. No other witness has supported this allegation in the first information report. It was alleged in the F.I.R. that the accused is threatening her of life but in the examination-in-chief P.W.-1 has stated that when she came back after lodging F.I.R. the accused threatened her. She has not stated that the accused threatened her of life in her examination-in-chief. Therefore, the conviction and sentencing of the appellant under Section 506 I.P.C. cannot be sustained.
35. Now the argument of the learned Amicus Curiae regarding the implication under Section 3(2) (V) of the SC/ST Act is required to be considered.
36. Perusal of Section 3(2)(V) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is imperative,
3. (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(i). ...
(ii). ...
(iii). ..
(iv). ..
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
37. In the case of the Apex Court's judgment Asharfi vs. State of Uttar Pradesh, Crl. Appeal No. 1182 of 2015 dated 08.12.2017 has held hereunder:-
5. In respect of the offence under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant had been sentenced to life imprisonment. The gravamen of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging Scheduled Caste/Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are "......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe".
6. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words " on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.
7. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2) (v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.
8. The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW-3 Phoola Devi belonged to Scheduled Caste community. In the absence of evidence proving intention of the appellant in committing the offence upon PW-3-Phoola Devi only because she belongs to Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.
9. In the result, the conviction of the appellant under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the sentence of life imprisonment imposed upon him are set aside and the appeal is partly allowed.
38. The punishment of the accused under Section 376 is required to be considered. The relevant provisions are Section 375 and 376 I.P.C. and are as under:-
'375. A man is said to commit "rape" if he-—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent.
Third/y.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourth/y.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifth/y.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'.
Punishment for rape.
376.
1. Whoever, except in the cases provided for in sub- section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not he less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
2. Whoever,—
a. being a police officer, commits rape—
i. within the limits of the police station to which such police officer is appointed; or
ii. in the premises of any station house; or
iii. on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
b. being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
c. being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
d. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
e. being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
f. being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
g. commits rape during communal or sectarian violence; or
h. commits rape on a woman knowing her to be pregnant; or
i. commits rape on a woman when she is under sixteen years of age; or
j. commits rape, on a woman incapable of giving consent; or
k. being in a position of control or dominance over a woman, commits rape on such woman; or
l. commits rape on a woman suffering from mental or physical disability; or
m. while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
n. commits rape repeatedly on the same woman, 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.
Explanation.—For the purposes of this sub-section,—
a. "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any Jaw for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government!, or the State Government;
b. "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
c. "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861;
d. "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Punishment for causing death or resulting in persistent vegetative state of victim.
376A. Whoever, commits an offence punishable under sub-section (l) or sub¬section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, 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, or with death.
Sexual intercourse by husband upon his wife during separation 376B. Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Explanation.—In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
Sexual intercourse by person in authority.
376C. Whoever, being—
a. in a position of authority or in a 6duciary relationship; or
b. a public servant; or
c. superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women's or children's institution; or
d. on the management of a hospital or being on the staff of a hospital, abuses such position or 6duciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than 6ve years, but which may extend to ten years, and shall also be liable to fine.
Explanation l.—In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
Explanation 2. —For the purposes of this section, Explanation I to section 375 shall also be applicable.
Explanation 3.—"Superintendent", in relation to a jail, remand home or other place of custody or a women's or children's institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.
Explanation 4.—The expressions "hospital" and "women's or children's institution" shall respectively have the same meaning as in Explanation to sub-section (2) of section 376.
Gang rape.
376D. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with 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 section shall be paid to the victim.
Punishment for repeat offenders.
376E. Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 3760 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.'
39. In the present case, since the appellant has been convicted for committing rape on a six year minor girl his case comes under 376 (2)(i) I.P.C. At the time of the judgment of the trial court he was punished under Section 3(2)(f) I.P.C., but the minimum sentence of 10 years was the same before and after amendment of 2013.
40. These inconsistencies apart, the testimony of the prosecutrix, with relation to the incident of rape is reassuring as she has been consistent throughout in describing what the accused did to her. Her description of the act of rape is accurate and narrated with the understanding of a six year old child. It is not spoken of with the sophistication of an adult, and from this one can be reassured that the child has not been coached. Furthermore, despite the cross examiner having put several suggestive questions to her about she denied these suggestions and in fact volunteered more than once that Dinesh Rai raped her.
41. The law with regard to the testimony of child witnesses can be summed up thus. The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of its evidence is convinced about the quality and reliability of the same. (Ratansinh Dalsukhbai Nayak v. State of Gujarat 2004 (1) SCC 64) It should be accepted albeit with circumspection. This decision had accepted the observations Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] where it was held that:
"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
In Pancchi v State of U.P AIR 1998 SC 2726 it was held:
"It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence if a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and this a child witness is easy prey to tutoring."
42. In earlier cases the Supreme Court urged caution while dealing with the testimony of a child witness. The position seemed to be that it is necessary to see whether the testimony of a child has been corroborated in essential particulars, unless the circumstances render it safe to accept the testimony without corroboration (Porapati Muthiah ILR 1965 AP 650; Shaik Umar Saheb 1957 AP 343; Abbas v. Emperor 1933 Lah 667; Jalwanti v State 1953 Pat 246; Munna v State 1985 Cr LJ 1925 (All.).) However, the later position is that there is no rigid rule that corroboration is essential. (Munna v. State (1985) Cr. L. J 1925 (All) Jarina Khatun v. State of Assam 1992 Crl. L.J 733 (735) Gau.)
43. A common sense approach was advocated by the Court in the early case of Mohamed Sugal Esa v. The King A.I.R 1946 P.C.3:
"Once there is admissible evidence a court can act upon it; corroboration, unless required by a statute, goes only to the weight and value of the evidence. It is a sound rule not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law.";
and later in Rameshwar v. State of Rajasthan AIR 1952 SC 54 where the Court held :
"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."
44. It would be seen that the Court has over the years attributed to the testimony of child witnesses the same kind of credibility that it attached to the statement of any other witness if the testimony is consistent. In the present case the prosecutrix has been consistent on the material particulars with regard to the instance when she was raped. Her relatives substantially corroborated the incidents that occurred subsequent to her rape. All of this evidence was put to the accused. He had the opportunity to lead evidence but he did not.
45. In State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393, the Supreme Court held that in cases involving sexual offences, harassment, molestation etc., the court is duty bound to deal with such cases with utmost sensitivity. It was held that:
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
46. A few words here about the manner in which depositions of Court witnesses are to be recorded. Across jurisdictions, it has been the experience that characteristics of the courtroom interfere with a child‟s ability to give his or her evidence. Findings indicate that a change in the environment in which questioning takes place can affect the quality of evidence given by a child. It has been observed that children are more forthcoming and accurate when their interviews are conducted in settings that are less formal, more familiar, and more private than a courtroom. This indicates that there is a need for modifying standard courtroom procedures to accommodate the special needs of child witnesses. Subjecting a child to the adversarial process has also been found to be problematic when the witness is a child. In such a system, children are forced to relive (on the questioner‟s terms) the trauma of having been the victim of, or a witness to a crime. Most children have difficulties coping with two elements of this system: confrontation and cross examination.
47. Children are also found incapable of coping with cross examination. No doubt, doing justice to the accused‟s rights demand that the evidence of a witness to his or her guilt should be tested for its credibility. But to do so certain language devices are used during cross examination, which a child witness is incapable of fully comprehending, and in most cases, little or no modification is made by the parties in instances where the witness is a child. No consideration is given in terms of linguistic appropriateness, and comprehensibility; and concern for the child‟s psychology are "peripheral at best, and totally exploited at worst."
48. It is thus the society‟s responsibility to create an environment that will maximize the accuracy of a child's evidence and minimize the stress experienced by that child while at the same time protecting the rights of the accused. Young children are also unable to think in an abstract, hypothetical manner. It is said that children tend to interpret questions literally, so questions must be specific in order to obtain the necessary information. This means that children will have difficulty in explaining their own thinking and will also not be able to explain how they came to a conclusion. These issues need to taken into consideration while cross examining children. Questions will have to be asked in a literal, concrete fashion. Cross examination often fails with children because they are unaware of the importance attached to accuracy and consistency and are highly suggestible. Children do not understand the purpose of this technique and young children especially are not able to place themselves in a position where they can view matters from another perspective.
49. The legal system in India so far has not deliberated on child developmental psychology other than to issue guidelines prescribed for the examination of child witnesses based on basic knowledge of child psychology. To do justice to both the child (victim or witness) and the accused, there is the need for all interaction with children to be premised on some knowledge of developmental psychology. This link between the law and psychology has to be made. At the bare minimum, this will have to include attempts to create an ability to assess the developmental level of the child being interviewed; in the case of an abused child, knowledge of the psychology of abuse so that the interviewer has a knowledge of how victims of abuse react i.e. non-disclosure, recantation etc; the knowledge of age appropriate questioning techniques. Interviewers should have a knowledge of child development, children and communication, child memory and suggestibility, children and sexuality and the psychology of victimization. Such practices will be essential for reducing the confusion that arises from developmentally inappropriate interviewing practices and improve the accuracy of information provided.
50. In spite of inconsistencies and minor contradictions in the statement of witnesses, the child witness, P.W.- 2, Saloni, has clearly proved the facts alleged against the accused. Her statement under Section 164 Cr.P.C., recorded soon after the incident clearly proves the incident which took place and therefore only on the basis of the testimony of P.W.-2, the conviction and sentence of the accused can be upheld.
51. Applying the principles of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would meet, if the sentence of appellant under Section 376 I.P.C. is only maintained.
52. The conviction of the appellant under Section 376 I.P.C. is upheld. However, the sentence of life imprisonment awarded to the appellant under Sections 3(2)(V) of S.C. Act and under Section 506 I.P.C. is set aside. He shall be released from jail after completing 10 years of sentence and after depositing fine.
53. To this extent, the impugned judgment and order stand modified. The learned Amicus Curiae shall be paid Rs. 15,000/- as her fees for her able assistance to the Court.
54. Appeal is partly allowed.
Order Date: 25.08.2018 Rohit