Allowed

Krishnakant v. State of U.P. and Another

Allahabad HC27 Sept 2022CRLA/355/2018

Case brief

AI extract

What is this about?

Convictions for rape, penetrative sexual assault, a caste atrocity and intimidation were challenged. The court rejected reliance on an unproved school certificate, found caste status unestablished, and set aside the convictions and sentences. It allowed the appeal, acquitted the appellant of all charges and directed conditional immediate release.

What did the court decide?

All convictions and sentences set aside; appellant acquitted of all charges and directed to be released forthwith unless wanted in another case.

Krishnakant Vs State of U.P. and Another — Caste Atrocities | Allahabad HC (2022)

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(1)

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AFR Judgment reserved on 01.08.2022 Judgment delivered on 27.09.2022

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Court No. - 66

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Case :- CRIMINAL APPEAL No. - 355 of 2018

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Appellant :- Krishnakant Respondent :- State of U.P. and Another Counsel for Appellant :- Anuruddh Chaturvedi, Ajay Kumar Giri, Ram Milan Dwivedi, Surendra Kumar Counsel for Respondent :- G.A.

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Hon'ble Samit Gopal,J.

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The present Criminal Appeal under Section 374 (2) Criminal Procedure Code, 1973 read with Section 14-A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("SC/ST Act") has been filed by the accused appellant Krishnakant against the judgment and order dated 30.11.2017 passed in Special Criminal Case No. 73 of 2014 (State Vs. Krishnakant) convicting and sentencing the appellant under Section 376 Indian Penal Code, 1860 ("IPC") to 15 years Rigorous Imprisonment and a fine of Rs.15,000/-, under Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") to 15 years Rigorous Imprisonment and fine of Rs.15,000/-, under Section 3 (1) 11 SC/ST Act to 2 years Rigorous Imprisonment and a fine of Rs. 2,000/-, under Section 506 IPC to 1 year Rigorous Imprisonment and a fine of Rs. 1,000/-. It is further ordered that in default of payment of fine under Section 376 IPC and Section 4 POCSO Act the appellant shall undergo 2 years each additional imprisonment, under Section 3 (1) 11 SC/ST Act to 2 months additional imprisonment and under Section 506

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(2)

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IPC to 1 month additional imprisonment. The sentences have been ordered to run concurrently. It is further ordered that out of the fine as deposited, Rs.15,000/- as compensation shall be paid to the victim.

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The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and Section 228A of the IPC. She is, thus, referred to as 'X' in the judgment.

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The prosecution case as per an application dated 9.6.2013 given by victim ‘X’ to police of police station Kamasin, District Banda is that she is daughter of Shiv Poojan residing in village Pachauha, Police Station Kamasin, District Banda. On 23.5.2013 at about 10 a.m. she had gone towards the Southern Nala of the village to bring her buffaloes wherein Krishnakant Dwivedi of the village came from behind, caught hold of her, put a country-made pistol on her chest and committed rape on her. He threatened her that if she discloses it to anyone in the house then he would murder her brother and father. The incident has been witnessed by Chota S/o Babu Lal of the village. She came back home and told about the incident to her mother and father. On 1.6.2013, she along with her mother Smt. Siya Sakhi and father Shiv Poojan went to Police Station Kamasin and gave information on which her medical examination was done at the District Hospital, Banda. Her date of birth is 28.6.1996. She prays that a case be registered and legal action be taken.

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The said application is Exb : Ka-1 to the records.

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On the basis of the said application, an FIR was lodged as Case Crime No.144 of 2013 under Section 376, 506 IPC and

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(3)

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3(Ka)/4 POCSO Act, 2012 and Section 3(1)XII of the SC/ST Act, P.S. Kamasin, District Banda against Krishnakant Dwivedi on 9.6.2013 at 12.30 hours.

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The Chik FIR is Exb : Ka-3 to the records.

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The victim 'X' was medically examined by Dr. Charu Gautam, Medical Officer, Female District Hospital Banda while being brought by Constable Jamuna Devi on 1.6.2013 at 3 p.m. On her general examination, the doctor noted as follows:-

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"No injury over arm, fore arm, axilla, breast, abdomen, back, thigh and legs.

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On examining the external genital, the doctor noted as follows:-

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“No injury over labia majora, minora and clitoris.”

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On examination of internal genital, the doctor noted as follows:-

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“Hymen torn old and healed. Vagina admits two fingers easily. Vaginal smear prepared and send to pathologist, P.H. Banda for confirmation of spermatozoa and urine pregnancy test for confirmation of pregnancy.”

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X-Ray was advised for determination of her age. The opinion as drawn by the doctor is as follows:-

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“Final opinion to be given after radiology and pathology report."

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The said report is Exb : Ka-5 to the records.

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A supplementary report dated 10.06.2013 was prepared by Dr. Charu Gautam in which the finding as per pathological report is as follows:-

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“Vaginal smear shows no dead or alive spermatozoa. Urine

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(4)

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pregnancy shows negative results.”

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The opinion according to radiological examination is as follows:-

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“Right Elbow joint- all epiphysis at right elbow joint are fused.

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Left and right wrist- AP epiphysis at lower end of right and left ulna are fused. Line of fusion seen in right and left radius with partial fusion in wrist joint.”

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The opinion about rape is given as follows:-

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“It is very difficult to say that rape is committed on her or not.”

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The said report is Exb : Ka-6 to the records.

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The X-Ray examination report dated 3.6.2013 is Exb : Ka-7 to the records which has been given by Dr. Gyanendra Neekhra. 6. The investigation concluded and a final report was submitted in favour of the accused-appellant stating therein that no case is made out against him and he has been falsely implicated. On the said final report, a protest petition was filed on which the accusedappellant was summoned to face trial.

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Subsequently vide order dated 1.1.2016 passed by Additional Sessions Judge/Fast Track Court, Banda, charge under Section 376 - Jha, 506 IPC, Section 4 POCSO Act, 2012 and 3 (1) XI SC/ ST Act was framed against the accused appellant.

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The accused pleaded not guilty and claimed to be tried.

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The prosecution in order to prove its case produced and examined victim ‘X’ as P.W.1, Shiv Poojan, the father of the victim as P.W.2, Smt. Shiv Dhuliya, the maternal aunt/mausi of the victim ‘X’ as P.W.3, Smt. Siya Sakhi, the mother of the victim ‘X’ as

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(5)

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P.W.4, Head Constable Ayodhya Prasad as P.W.5, Dr. Charu Gautam as P.W.6 and Dr. Gyanendra Neekhra as P.W.7.

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The statement of victim 'X' recorded under Section 164 Cr.P.C. was filed and proved as Exb : Ka-2 to the records.

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The accused-appellant in his statement recorded under Section 313 Cr.P.C. has denied the prosecution case and has stated that he has been falsely implicated in the present case.

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In defence he produced Anil Singh as D.W.1 and Sumer as D.W.2 and further filed the parivar register 57 Kha and papers of medical examination 58-Kha to 60-Kha.

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The trial court after conclusion of trial convicted and sentenced the accused-appellant as stated above.

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Heard Sri I.K. Chaturvedi, Senior Advocate assisted by Sri Saurav Chaturvedi holding brief of Sri Ram Milan Dwivedi, learned counsel for the appellant, Sri Ankit Srivastava, learned Brief Holder for the State of U.P. and perused the materials on record.

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Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. It is argued that victim 'X' is a major girl. It is argued that there is an enmity of the accused-appellant with the mother and mausi of victim 'X'. The matter was investigated and it was found that the accusedappellant has been falsely implicated and as such a final report was submitted in his favour after which he was summoned on a protest petition filed in the matter. It is argued that the medical examination of victim 'X' does not corroborate with the prosecution case. The doctor did not opine of any rape being committed on her but to the contrary looking to the medical examination report

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(6)

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dated 1.6.2013 (Exb : Ka-5) specifically the examination of internal organs, it is clear that victim 'X' was habitual to sexual intercourse. The doctor in the supplementary medical examination report has given an inconclusive finding with regards to the allegation of rape stating that it is difficult to say that rape is committed on her or not and as such an inference can be drawn that there was no rape committed on her. It is argued that the present FIR has been lodged after an unexplained delay of 16 days. The incident is alleged to have taken place on 23.5.2013 after which the present FIR has been lodged on 9.6.2013. There is no explanation whatsoever regarding the delay in lodging of the FIR. It is argued that the medical examination of the victim 'X' was conducted on 1.6.2013 which was prior to lodging of the FIR and even in the same there was no suggestion of rape being committed on her. Even till the time of her medical examination which was after about 8 days of the occurrence, there was no whisper regarding the accused-appellant being involved in the matter. It is argued that as per the FIR, the victim has disclosed her date of birth as 28.6.1996 and as such at the time of occurrence, she would be around 17 years of age. It is argued that the trial court in its judgement and order of conviction has stated that at the time of arguments, the copy of the High School certificate of the victim 'X' was produced before the court in which her date of birth was written as 28.6.1997 which was taken to be true by the trial court and her age was assessed as about 15 years 10 months and 25 days at the time of occurrence which is an incorrect and illegal approach as the said document was not produced in evidence before the trial court and even the accused was not given an opportunity to challenge the same. It is argued

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(7)

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that a document produced in the trial all of a sudden without it being proved and without the accused being given the opportunity to challenge it cannot be considered. It is argued that there is nothing on record to show that the victim girl belongs to a caste falling within the SC/ST. The accused-appellant cannot be convicted under Section 376 IPC as per Section 42 POCSO Act. It is further argued that Chota, the alleged eye-witness of the case has not been produced by the prosecution. It is argued that looking to the glaring irregularities, illegalities and lack of evidence, the accused-appellant deserves to be acquitted. He has been in jail since 30.11.2015 and as such has undergone about 6 years and 10 months of incarceration. The appeal deserves to be allowed.

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Per contra learned counsel for the State has opposed the arguments of learned counsel for the appellant and argued that the occurrence of the present case is of 23.5.2013 of which the FIR was lodged on 9.6.2013. It is argued that the information about the incident was given by the victim herself at the police station on 1.6.2013 after which her medical examination was done. It is argued that there is no chance of false implication in the matter or even misidentity as the accused-appellant was known to the victim 'X'. It is argued that the contradictions in the statement of the witnesses are minor in nature as their statements have been recorded after 3 years of the incident and as such cropping of some contradictions is a natural consequence. The appellant is named in the FIR and there are allegations against him of committing rape on victim 'X'. The FIR has been lodged by the victim herself. There is no reason stated by the accused-appellant in his statement recorded under Section 313 Cr.P.C. for his false

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(8)

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implication. The appellant has active role in the present case. The trial court after examining the evidence on record has convicted the appellant. The present appeal deserves to be dismissed.

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Victim 'X' P.W.1 states that the incident is of 23.5.2013 when she was giving water to her buffaloes and the animals suddenly started running towards the South nala. She ran behind them wherein Krishna Kumar Dwivedi of the village caught hold of her from behind and threw her on the ground, threatened her with a country-made pistol and took out her salvar and committed rape on her. She tried to shout but he threatened her with a countrymade pistol and stated that if she tells it to her family members, he would murder them. She came back home and told about the incident to her family members but the side of the accused were pressurizing them regularly for not lodging a report. After that on 9.6.2013, she went to the police station with her parents and gave a tehrir written by her which is on record. She proves the same as Exb : Ka-1 to the records. She states that on 1.6.2013 she had given an information at the police station on the basis of which her medical examination report was done and her statement under Section 164 Cr.P.C. was recorded. She proves her statement under Section 164 Cr.P.C. and her signature on it. She states that she had given her statement before the Magistrate but in the same it is written that she did not know Krishna Kumar Dwivedi from before and came to know when with a boy Chotu disclosed about him and then she came to know of his name, is incorrect but he is of the same village and she knew him from before. She proves her statement which was marked as Exb : Ka-2 to the records.

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(9)

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In her cross-examination, she states that she is a student of B.A IInd year. She had studied class Xth at the time of incident. She does not remember when her class Xth board examination has finished. She was giving water to her buffaloes on 23.5.2013 at 10 a.m. Her house in village Pachauha on the Narayanpur Road at the corner. The South nala is about ½ km. away from her house where her buffaloes started running. Her buffaloes had run outside the village towards nala. They had reached the nala. They sat inside the nala. She tried to get them out of the nala but they did not come out and then she sat on the south corner. When she had reached the nala, Krishna Kant Dwivedi was not there. Chota @ Babu Lal Chamar was not there. She reached the nala at about 10 a.m. After about 2-4 minutes, the accused and Chota reached there. When the accused Krishna Kumar Dwivedi caught hold of her, Chota was about 2-4-10 steps away. The accused had caught her when she was sitting at the corner of the nala. The ground was rough and with rubbles. She was thrown on the ground from her back side. After throwing her down, her salvar was taken out. She tried to save herself at the time of incident and resisted the occurrence. She had received injury on her back at the time of incident. Her back did not get injured but there was pain which she is telling. The accused was on her top. The rape continued for 15-20 minutes. The accused was there for about 21-22 minutes and till that time Chota was also there. After that the accused went away along with Chota. She then wore her clothes and came back. She reached at about 10.30 a.m. She told about the incident after returning home to her parents. She went to the police station Kamasin with her parents on 1.6.2013. She reached police station at about 10 a.m. Prior to 1.6.2013 neither her parents nor she

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gave any complaint to the administration or police. On 1.6.2013, the police of police station Kamasin got her medical done. Her X- Ray was done after three days. After her medical examination, she did not return back to the police station but went to the house of her mausi in village Maki. She was called for her X-Ray examination at the police station. She went there with her parents and then she was taken for X-Ray by a police constable. On 1.6.2013, no report was lodged. The police got her medical examination and X-Ray done without any report. From 1.6.2013 to 8.6.2013 no Fax was done with regards to the incident. She does not have any copy of the Fax and neither is there any application on record. She went to the police station Kamasin on 9.6.2013 on her own. She did not call anyone. She reached the police station at 10 a.m. She got the report lodged on her own. Her report was lodged on 9.6.2013. Her statement was recorded before the Magistrate. Certain things had been written wrong in the statement and certain things are correct. There was no enmity at that time. She had stated that earlier her statement was recorded wrongly by the Magistrate but she does not know as to why the same was recorded as such. She states that it is incorrect that on the advice of her Advocate, she had given a wrong statement before the Magistrate. She further states that it is incorrect that the accused Krishna Kumar Dwivedi did not commit rape on her and threatened her with a country-made pistol. She states that the incident is not a false incident and story is not a fabrication and untrue that no such incident took place. She states that on the basis of her report, the case was lodged in which after investigation, final report was submitted. She states that it is incorrect that the Investigating Officer found the story to be false

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(11)

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and filed final report. She filed an application through her lawyer after filing of the final report and then the case again started. She denies that the entire story is false and with enmity. She further denies the suggestion that there was some dispute with regards to the harvesting of wheat and money between her parents and the family of the accused. She further denies that due to the said dispute, false case has been lodged and the accused-appellant has been implicated who threatened for it. She further denies that the accused has been falsely implicated under conspiracy. She further states that it is incorrect that after consultation and discussion her parents pressurized her for lodging of a report and under their pressure, she is given the false statement.

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Shiv Poojan, P.W.2 is the father of victim ‘X’. He states about the incident to have taken place on 23.5.2013. He states that the age of victim 'X' was about 17 years at that time. The victim 'X' had gone to bring her buffaloes at about 10 a.m. who had run away. Krishna Kumar Dwivedi was hiding near the nala who caught-hold of his daughter, threatened her with a country-made pistol and committed rape on her. He then threatened her of not disclosing it to anyone otherwise he would kill her. His daughter when came back home, told him about the incident after which he went to the police station with his daughter but his report was not lodged. He then gave an application to higher officials after which his report was lodged. The medical examination of his daughter was done. His statement was recorded during investigation.

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In cross-examination, he states that his original village is Babu Ka Purva. Pachauha is his Sasural. He had come to village Pachauha around 9-10 years ago and was living there. He had

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constructed a house around 5-6 years back. The land was given for construction of his house by Kailash Nath Dwivedi who is the grand-father of accused Krishna Kant Dwivedi. He does not work in the fields of Kailash Nath Dwivedi and the accused. To a suggestion given to him, he denies that due to present dispute he is being pressurized by the family members of the accused to vacate his house which is on their land and he has denied that he has threatened the accused of implicating him in a case. He further denies the suggestion that due to the said dispute after consultation he has implicated the accused in a false case.

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Shiv Dhuliya, P.W.3 is the mausi of the victim 'X'. She states that the incident had taken place about 3 years ago. The victim 'X' is the daughter of her sister. She had gone to give water to the buffaloes. The victim is resident of village Pachaunha, Police Station Kamasin. She has reached on the information given by the father of the victim 'X'. She was told about the incident by victim 'X'. Her daughter was raped by Shivakant. After the incident, she went to the police station with her daughter and lodged an FIR. Shivakant is the son of Suresh Tiwari Brahmin and resident of village Pachauha. Her daughter was medically examined in P.H.C. Her statement was recorded in the said matter. In her crossexamination, she states that she is not an eye-witness of the incident. She is telling about it on hearing it from someone.

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Siya Sakhi, P.W.4 the mother of victim 'X' states that the incident is of 3 years ago. On that date the mother of Jagmohan of the village had died and she had gone there. Her husband Shiv Poojan had gone to do work in the village. Her daughter victim 'X' and one small child were in the house. Her buffaloes freed

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themselves and ran towards nala. Her daughter victim 'X' had gone behind the animals where Krishna Kant Dwivedi was present from before who called her daughter and threatened her with a country-made pistol and told her not to tell about the incident to anyone otherwise he would kill her parents and brother. He had committed rape on her. Her daughter told about the incident when she came back to her. Then she told it to her husband after which her daughter victim 'X' was taken by her husband to the police station where their report was not lodged. The report was lodged after ten days. Her daughter was medically examined in District Hospital, Banda.

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In her cross-examination to a suggestion that there was some fight between the accused and her husband, she denies it. She states that it is incorrect that due to the said fight, the accused has told her husband to vacate the house which was constructed on his ancestral property. She states that it is correct that there is threat being extended of their being thrown out the house. She denies the suggestion that a false case has been lodged on the saying of persons.

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Head Constable Ayodhya Prasad, P.W.5 transcribed the Chik FIR of the case and the corresponding G.D. He proves the same.

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In cross-examination he states that the incident is of 23.5.2013. The FIR was lodged on 9.6.2013. He did not ask especially as to why the FIR is being lodged with delay. He states that Tejvali had also come with the first informant. He does not know as to which political party does he belong to. He states that he does not belong to Kamasin area and is of Maki area. Along with Tejvali, his wife had also come. No FIR has been lodged by

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the victim 'X' prior to 9.6.2013. She has not received any injury on her body otherwise the same would have been mentioned in the G.D. She did not bring any clothes which she was wearing at the time of the incident and also documents with regards to her age. He states that the Chik is on a printed proforma which is empty and is filled by him. It is his responsibility. He states that if any column is left blank then it is illegal but sometimes there is something left blank but the reference of the same in G.D. is important. He states that the page number is not filled in it. There is no signature of the first informant in it. He denies the suggestion that a FIR was lodged on the saying of politicians and S.O under pressure.

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Dr. Charu Gautam, P.W.6 had conducted the medical examination of victim 'X' on 1.6.2013. The details of the same have already been given above. She has also prepared the supplementary medical examination report. The details of the same have also been given above. She proves the same.

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Dr. Gyanendra Neekhra, P.W.7 states that on 3.6.2013, he was posted as Consultant in District Hospital, Jhansi. He was posted on the post of Radiologist. Under his supervision X-Ray of victim 'X' was done and report was prepared. He proves the X- Ray report and X-Ray plates.

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In cross-examination, he states that he did not give any opinion regarding age in the X-Ray report as he did not do the physical examination of the victim 'X'. He states that as per the X- Ray, victim 'X' was aged about 18 years.

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Anil Singh, D.W.1 has stated that Shiv Poojan who is the father of victim has a dispute with regards to harvesting of wheat

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with accused Krishnakant. Shiv Poojan has constructed a house on the ancestral land of Krishnakant. Due to the dispute of harvesting of wheat, Krishnakant had told Shiv Poojan to vacate his land. The brother-in-law (Sardu) of Shiv Poojan lives in village Sarda Marka and is issue less who is a politician of Bahujan Samaj Party and is very close to the local MLA. Victim 'X' was living with Tejbali from before the incident. Tejbali is her Mausa. Victim 'X' was living in village Sarda Marka. Tejbali in conspiracy with the MLA Gaya Charan Dinkar, had got a false FIR lodged under pressure against Krishnakant for money. He was a village Pradhan at that time. He had got conducted a panchayat for both the parties but the dispute could not be settled due to greed of money. Around 25 people had given an affidavit to C.O. Baberu. He filed the affidavit which was marked as Exb : Kha-1 to the records and stated that the said affidavit was taken by the C.O on 28.06.2013.

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Sumeru, D.W.2 has stated that he is not well educated. He is the neighbour of Shiv Poojan, the father of victim 'X'. Victim 'X' was living at the house of her Mausa in Sarda Marka at the time of incident. He states that there was a dispute between Krishnakant and Shiv Poojan relating to the harvesting of wheat and Shiv Poojan had told him that he would get him implicated in a case. He states that no such incident had happened with victim 'X'. Tejbali is brother-in-law (Sardu) of Shiv Poojan who for money got a false FIR lodged. Accused Krishnakant has been falsely implicated in the case.

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This Court first deals with the argument of learned counsel for the appellant that the conviction of the accused-appellant under

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(16)

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Section 376 IPC and Section 4 POCSO Act for a maximum sentence of 15 years in both is not justified as per Section 42 of the POCSO Act, the same would be illegal and incorrect.

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Section 42 POCSO Act provides that the offender found guilty of such offence shall be liable to punishment either under the POCSO Act or under IPC whichever is greater in degree. It reads as under:-

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“ 42:- Alternate punishment. - Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E, section 509 of the Indian Penal Code (45 of 1860) or section 67B of the Information Technology Act, 2000 (21 of 2000) then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. ”

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The sentence awarded to the accused-appellant by the trial court under Section 376 IPC is 15 years R.I., Rs.15,000/- as fine and in default of payment of fine 2 years additional imprisonment. Then under Section 4 POCSO Act to 15 years rigorous imprisonment, Rs.15,000/- as fine and in default of payment of fine to 2 years additional imprisonment.

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For determination regarding higher degree of sentence, Section 376 IPC is to be seen. It provides that whoever except in the cases provided in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a

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(17)

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term which shall not be less than seven years, but which may extend to imprisonment for life, or for a term which may extend to ten years and shall also be liable to fine, unless the women raped is his own wife and is not under 12 years of age, in which case he shall be punished with either description for a term which may extend to two years or fine or both. Thus, the punishment is under two parts in this Section being:-

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Not less than seven years, which may extend to life,

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For a term which may extend to ten years and shall also be liable to fine.

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Section 376 IPC reads as under:-

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“376. Punishment for rape. -

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(1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

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Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

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(2) Whoever,--

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(a) being a police officer commits rape-

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(i) within the limits of the police station to which he is appointed; or

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(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

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(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

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(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

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(c) 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 woman's or children's institution lakes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

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(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

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(e) commits rape on a woman knowing her to be pregnant; or

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(f) commits rape on a woman when she is under twelve years of age; or

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(g) commits gang rape,

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shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

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Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years,

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Explanation I.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.

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Explanation 2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children.

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Explanation 3.--"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.”

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In the present case the trial court has resorted to the second part of the conviction under Section 376 IPC whereas under Section 4 POCSO Act while dealing with penetrative sexual assault, the trial court while holding the victim to be less than 16 years of age (being of 15 years, 10 months and 25 days old) has resorted to the punishment of 15 years being not less than seven

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(20)

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years but which may extend to imprisonment for life and has also imposed fine as is also provided in it.

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Hence punishment under Section 4 POCSO Act is greater in degree as under Section 376 IPC, the punishment of imprisonment for life was with no fine but punishment which was with fine was up-to ten years only.

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The Court thus comes to the conclusion that the punishment under Section 4 POCSO Act is a graver punishment. Hence as per Section 42 POCSO Act, in case of a conviction under Section 376 IPC and for penetrative sexual assault punishable under Section 4 POCSO Act, the sentence has to be awarded under Section 4 POCSO Act only because it is a sentence of greater degree.

¶120

Hence the argument of the learned counsel for the appellant that the accused-appellant cannot be convicted under Section 376 IPC finds force. As such the sentence as awarded under Section 376 IPC is set-aside.

¶121

Now coming to the issue of the age of the victim 'X' in the FIR lodged by herself, she discloses her date of birth as 28.6.1996. Her medical examination was done and her X-Ray examination was done for ascertainment of her age but in the supplementary examination report, the doctor did not opine with regards to the estimation of her age. Dr. Gyanendra Neekhra, P.W.7 in his crossexamination has stated that as per the X-Ray examination, the victim was aged about 18 years. The trial court in the impugned judgement and order while giving a finding with regards to the estimation of age has stated that at the time of arguments, a copy of the High School Certificate of victim 'X' was produced which

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showed her date of birth as 28.6.1997. It is further stated that in the protest petition, the date of birth of the victim was stated as 28.6.1997 and since the incident is of 23.5.2013, the victim would be aged about 15 years 10 months and 25 days of age. It is trite law that for relying upon a document, it has to be proved in the trial. A document which has not been proved in the trial, cannot be considered by just providing it at the fag end of trial by one of the parties and no finding can be based on the basis of the same.

¶124

The Apex Court in the case of Ram Murti v. State of Haryana : (1970) 3 SCC 21 has held that an unproved and unexibited document cannot be treated as evidence in a case. The observations in paragraph 6 and 7 of the said judgment are as follows:

¶125

" 6. The trial court, in support of its conclusion on the question of age of the prosecutrix, relied on the birth certificate Ex. PL and the report of Dr Ajmer Kaur, Ex. PA. The omission on the part of the prosecuting agency to get Satnam Kaur's bones X- rayed as advised by Dr Ajmer Kaur was not considered by that court to be very material. Considering that the prosecutrix was only a student of 9th Class at the time of the occurrence that court felt that Dr Ajmer Kaur's estimate other age was trustworthy and the prosecutrix was held to be definitely below 18 years of age. That court also took into consideration an unproved and unexhibited school certificate which appears to have been obtained by the Investigating Officer from the Dev Samaj School. According to this certificate the date of Satnam Kaur's birth is stated by the trial court to be August 5, 1948. We had a look at this document. It is dated April 9, 1965 and purports to certify the

¶126

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date of Satnam Kaur's birth according to the school register to be November 5, 1948 and is signed by someone describing herself as Head Mistress, Dev Samaj Girls' High School. We fail to understand how the trial court felt justified in taking this document into consideration and holding the date of birth as entered in this document to be August 5, 1948. We, however, need not say anything more about the merits of this document because the Counsel for the State in this Court has rightly declined to place any reliance on it. In the High Court the learned single Judge dealt with the question of age in the following manner:

¶128

“According to her medical examination by Dr Ajmer Kaur, mentioned above, the was between 16 and 17 years of age. During the course of investigation, her birth entry PL was obtained showing that a daughter was born to Hans Raj on 25th September, 1949, with the aid of Bhagwanti Dai. This entry was made in the register on 27th September, 1949. There is evidence on the record that Bhagwanti was acting as a Dai at the time of the birth of Satnam Kaur. Moreover it is also amply clear from the statements of Hans Raj and his wife that she was below 18 years of age. Besides the above, there is the school entry which shows that Satnam Kaur was born on 5th August, 1948. It is true that there is discrepancy between the school certificate and the birth entry PL. But in any case, her age was proved to be below 18 years at the time of the commission of this offence. The learned Counsel for the appellant submitted that Dr Ajmer Kaur advised X-ray examination of the prosecutrix to find out her age, but that was not done. The Counsel, therefore, maintained that there was no satisfactory evidence on the record to show that she was below 18 years at the time of this occurrence. As remarked above, I have no doubt in my mind that taking into consideration the statement of Hans Raj, father of Satnam Kaur, and her mother as also the medical examination by Dr Ajmer Kaur, entry PL, and school certificate, she was definitely below 18 years.”

¶129

7. It is clear that in the High Court also it was not appreciated that the unproved and unexhibited school certificate could not be

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treated as evidence in the case. Nor was it noticed that according to this document Satnam Kaur's date of birth was November 5, 1948. The question of age of the prosecutrix in cases under Sections 366 and 376 IPC is always of importance. It was particularly so in this case because according to the medical evidence the prosecutrix was found to have been used to sexual intercourse and the rupture of the hymen was old. The High Court having acquitted the appellant for an offence under Section 376 IPC, because the prosecutrix appeared to be a consenting party not only to the impugned acts of sexual intercourse in question but even on earlier occasions, it was, in our opinion, a fit case in which that court should have examined the question of her age more closely. On the evidence on the record we are far from satisfied that there is any trustworthy evidence on the record on which the conclusion that Satnam Kaur, prosecutrix, was under 18 years of age in March, 1965 can safely be founded. "

¶132

In the present case, there is a departure from the said settled proposition of law as the trial court has during arguments taken the High School Certificate of the victim and considered it along with the date of birth mentioned in the protest petition for reaching to a conclusion with regards to the age of the victim. The same is an incorrect approach of the trial court. In the FIR, the victim has disclosed her date of birth as 28.6.1996. The radiologist has opined as per the radiological examination in his crossexamination as her being aged about 18 years of age. Thus, even by giving a benefit of variation of two years, she would be a major. 35. The next question to be dealt with is with regards to the offence under the SC/ST Act. The accused-appellant has been convicted under Section 3(1) 11 of the said Act. The trial court has in it's finding with regards to the said offence stated that from the records it finds that charge has been framed under the SC/ST Act. It further opines that there is no dispute that the victim girl belongs to the category of SC/ST and the accused is not belonging to the

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said group. A perusal of the FIR shows that there is no such averment in it that the victim belongs to the caste which came in the category of SC/ST. There was no document filed to establish the caste of the prosecutrix. The prosecution has not established that the first informant belong to a caste falling within the SC/ST Act. The trial court while giving its finding with regards to the same has fallen back on the fact that charge has been framed under the SC/ST Act and there is no dispute that the victim belongs to the same which is not based on any evidence and is not a proper approach.

¶135

With regards to the offence under the POCSO Act, Section 4 of the Act deals with punishment for penetrative for sexual assault. The medical evidence does not corroborate with the prosecution story. The medical examination report Exb : Ka-5 and the statement of Dr. Charu Gautam, P.W.6 does not anywhere state that rape was committed upon the victim. The doctor in her statement stated that she has given a supplementary report and in her opinion it cannot be said as to whether rape was committed upon the victim or not. In such circumstances it is seen that there is no corroboration of the allegation that penetrative sexual assault was committed upon the victim 'X'.

¶136

Even the enmity between the first informant and the accused-appellant as has been stated by the accused in his statement recorded under Section 313 Cr.P.C. is corroborated by the statement of Anil Singh, D.W.1 and Sumeru, D.W.2. The same would go to show that the parties were enmical to each other. There was even a panchayat held for resolving their dispute but the same could not be resolved, as such it cannot be said that

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there was no enmity between the parties.

¶139

In view of the discussions as stated above, the present appeal deserves to be allowed. The appellant deserves to be acquitted of the charges levelled against him.

¶140

The appeal stands allowed. The judgment and order of the trial court is hereby set-aside. The appellant is acquitted of the charges levelled against him.

¶141

The accused-appellant is stated to be in jail since 30.11.2015. He is directed to be released from jail forthwith if not wanted in any other case.

¶142

The office is directed to send the certified copy of this judgment along with the trial court records to the trial court concerned forthwith for necessary information and follow-up action.

¶143

(Samit Gopal, J.)

¶144

Dated : 27.09.2022.

¶145

Gaurav

¶146

Digitally signed by GAURAV KULSHRESTHA Date: 2022.09.27 15:14:49 IST Reason: Location: High Court of Judicature at Allahabad

Krishnakant v. State of U.P. and Another

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Krishnakant v. State of U.P. and Another

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