Partly allowed

Sukh Singh Kachhi v. State of U.P.

Allahabad HC11 May 2023CRLA/2143/2017

Case brief

AI extract

What is this about?

A criminal appeal against a life sentence for sexual assault under Section 376(2)(i) IPC and Section 6 POCSO. The High Court upheld the conviction but modified the life sentence to 14 years rigorous imprisonment, running concurrently.

What did the court decide?

Conviction sustained; life sentence modified to fourteen years rigorous imprisonment; fines and default sentences retained.

Sukh Singh Kachhi Vs State of U.P. — Pension and Retirement Benefits | Allahabad HC (2023)

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Judgement Reserved on 25.04.2023

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Judgement Delivered on 11.05.2023

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Court No. - 47

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Case :- CRIMINAL APPEAL No. - 2143 of 2017 Appellant :- Sukh Singh Kachhi Respondent :- State of U.P. Counsel for Appellant :- Anita Singh,Anita Singh,Dharm Singh Parmar,Ruksana,Vikas Singh Counsel for Respondent :- G.A.

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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(Delivered by Hon'ble Syed Aftab Husain Rizvi,J.)

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We have heard Sri M.P. Yadav, learned counsel for the appellant and Sri Arunendra Singh, learned A.G.A. for the State.

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This criminal appeal is filed against judgement and order dated 16.03.2017 passed by Additional Sessions Judge, Court No.1, Hamirpur in Sessions Trial No.101 of 2013 arising out of Case Crime No.314 of 2013. By the impugned judgement and order, the trial court has held appellant, Sukh Singh Kachhi guilty for the offence punishable under Section 376 (2(i) I.P.C. and Section 6 of The Protection of Children From Sexual Offences Act and sentenced him to imprisonment for life and a fine of Rs.12,000/- and Rs.15,000/- respectively. In default of payment of fine, additional imprisonment for one year and one and a half years.

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3. NARRATION OF FACTS:

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The facts giving rise to present appeal are that the complainant gave an application dated 23.04.2013 at Police Station Rath, District Hamirpur alleging therein that the complainant had come to Swarnkar Dharmshala in the marriage of his brother-in-law (Sala). The Barat was staying at Swarnkar Dharmshala. In a room on first floor his daughter was sleeping. Anant Ram Gupta, the maternal uncle of the victim was also sleeping with the daughter of the complainant. Sukh Singh Kachhi waiter came into the room at about 1.00 a.m. and switched off the light. He put his hands into the under garment of the victim. She screamed, then complainant woke up. Sukh Singh Kachhi was caught on the spot. The victim was bleeding from

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her private parts. The complaint had come with the accused and the victim at Police Station to lodge the report. On the aforesaid application chik F.I.R. Case Crime No. 50 of 2013 was registered on 23.004.2013 at 2.30. The investigation was entrusted to SI Chandrashekhar Prasad who on 23.04.2013 recorded statement of the Head Constable Indrapal Singh the writer of the chik and G.D., the statement of the accused, Sukh Singh Kachhi. The victim was sent for medical examination to District Hospital, Hamirpur. On 24.04.2013 the Investigating Officer has recorded the statement of the victim through Female Constable Arti Srivastava. He recorded statement of other witnesses and the complainant, prepared siteplan at the instance of the complainant. At District Hospital, Hamirpur he took into possession the apparels of the victim and prepared its memo. Further investigation of the case was conducted by SSI Rampal Singh. On 27.04.2013, he moved an application for recording the statement under Section 164 Cr.P.C. which was recorded on 30.04.2013. On 04.05.2013 he recorded statement of Dr (Smt.) Asha who has conducted the medical examination of the victim. He also sent the apparels of the victim to the Forensic Science Laboratory. After completion of investigation, he submitted charge-sheet against the accused, Sukh Singh Kachhi.

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The trial court took the cognizance on the charge-sheet and framed charges against the appellant-accused for the offence under Section 376 (2(i) I.P.C. and Section 6 of The Protection of Children From Sexual Offences Act. The accused pleaded not guilty and claimed for trial.

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The prosecution produced seven witnesses in oral evidence and 10 documents marked as Ext. Ka-1 to Ext.Ka-10.

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The statement of the accused under Section 313 Cr.P.C. was recorded. The accused has denied the prosecution case and has stated that the witnesses have given false evidence against him and a false case has been registered against him. In additional statement the accused has stated that the complainant was asking for meal. On refusal he has lodged the false case against him. However, no evidence in defence has been produced.

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Learned trial court, after hearing the arguments advanced on behalf of the parties, by the impugned judgement and order held the appellant guilty for the offence punishable under Section 376 (2)(i) I.P.C. and Section 6 of The Protection of Children From Sexual Offences Act and sentenced him as above.

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4. Prosecution Evidence:

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The medical examination of the victim was conducted on 23.04.2013 at 7.30 a.m. by Dr Asha Sachan, PW 4.

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General Examination:

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The victim was average built, her height 4 foot 2 inch, weight 23 kg., teeth 11 in upper side (one tooth missing) and 12 in lower side. The breasts were not developed and no auxiliary and pubic hair present.

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External Examination :

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No mark of injury seen at any part of body.

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Internal Examination :

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Hymen ruptured, fresh margins, post fourchette torn up, fresh bleeding coming from private part. Tears were present on past vaginal wall. Vaginal smears taken from swab and sent for pathological examination. Tears were stitched.

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Medical report has been proved by Dr. Asha Sachan PW 4 as Ext. Ka3. The witness has also stated that on 25.0.4.2013 she prepared supplementary report on the basis of X-ray report and pathological report. According to the X-ray report, 7 carpal bones were present on the wrist of the victim. Elbow and knee bones were not fused. According to the pathological report on the both slides some dead spermatozoa and plenty of RBC were found. The age of the victim was about 7 years. The witness has given opinion that the victim was sexually assaulted.. This witness has also proved the X-ray report Ext. Ka-5 in the handwriting of Dr Naresh Chand Vishal and pathological report Ext. Ka-6 in the handwriting of Dr. R.K.

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Mishra. This witness has also proved supplementary medical report as Ext. Ka-5.

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Complainant was examined as PW 1. This witness in his examinationin-chief has stated that on 22.04.2013 the marriage of his brother-in-law was being solemnized from Swarnkar Dharmshala and Barat was staying there. In a room on the first floor his seven years’ old daughter was sleeping. Her maternal uncle, the complainant himself and his wife were also sleeping there. At about 1.00 a.m. in the night the accused Sukh Singh Kachhi, who was working as a waiter, came inside the room. He switched off the light and put his hands in the lower under garments of his minor daughter and inserted finger in her private parts. The minor daughter screamed, then he woke up and caught Sukh Singh on the spot. The victim was bleeding from her private part, then he lodged the report. The witness has proved Tahrir marked as Ext. Ka-1. The witness has further stated that the victim was taken to the District Government Hospital where she was treated. The Sub Inspector took the apparel of the victim which she was wearing at the time of the incident and prepared its memo. The witness has proved his signature on it.

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The victim has been examined as PW 2. Before her statement the court has satisfied itself about the fact that she is able to depose. The victim in her examination-in-chief has stated that she has gone Rath with her parents, brother and sister to attend marriage of her maternal uncle. She was sleeping in Baratshala with her sister, brother and father in the night. One person came there and gagged her mouth with clothes. He put down her lower under garment and sexually assaulted her lying upon her. She screamed with pain then her father woke up, that person tried to run away from there but her maternal uncle and others caught him. She was bleeding from her private parts. Thereafter she became unconscious and regain consciousness in hospital where she was treated. The witness has also proved her statement recorded by the Magistrate under Section 164 Cr.P.C.

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as Ext. Ka-2. In the dock identification, the witness has correctly identified the accused.

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PW 3 is the maternal uncle of the victim. This witness has stated that on 22.04.2013, the marriage of his brother was being solemnized and Barat was staying at Swarnkar Dharshala, Rath. His brother-in-law, sister, maternal niece, maternal nephews were also present. After Teeka ceremony at 12 in the night they went to sleep in a room at the first floor of Swarnkar Dharmshala. At about 1.30 in the night he woke up on the scream of his maternal niece. He switched on the light of the room and then he saw one person rising from the body of his maternal niece, putting on his pants, trying to escape. He caught hold him at the door. His brother-in-law also woke up. The victim was bleeding from her private parts and she became unconscious and on his noise some other persons also came there. The accused told his name as Sukh Singh and that he works as waiter in the Dharmshala. He also confessed his guilt. Thereafter, he was taken to the Police Station Rath. The witness has further stated that on the dictation of PW 1 he has written the Tahrir, marked as Ext. Ka-1.

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HCP Indrapal Singh PW 5 in his examination-in-chief has stated that on 23.04.2023 he was posted at Police Station Rath as Constable Moharrir. At about 2.30 a.m. on the basis of written report of complainant, he registered Case Crime No.314 of 2013,the description of which was entered in G.D. No.2 at 2.30 a.m. The witness has proved chik F.I.R. and copy of G.D. entry as Ext. Ka-7 and Ka-8.

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SI Chandrashekhar Prasad PW 7 is the first Investigating Officer. The witness in his examination-in-chief has stated that on 23.04.2013 he was posted as Sub Inspector, Police Station Rath. He took up the investigation of this case and recorded statement of writer of chik and G.D., Indrapal Singh and Sukh Singh Kachhi (accused) who was available in the lock-up of the Police Station. On 24.04.2013, he recorded statement of the victim through woman Constable Arti Srivastava. He also recorded statement of complainant and other witnesses. On the pointing out of the complainant

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inspected the place of occurrence and prepared site-plan. He also took in possession the wearing apparels of the victim at the time of the incident and sealed it and prepared its memo. The witness has proved site-plan Ext. Ka10 and wearing apparel as Ext. Ka-11.

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SSI Ram Pal Singh PW 6 is the second Investigating Officer. The witness in his examination-in-chief has stated that on 26.04.2013, he was posted as SSI at Police Station Rath. On the direction of Circle Officer, the investigation of this case was entrusted to him after taking it from SI Chandrashekhar Prasad. On 29.04.2013 he moved an application before the court for recording statement of the victim under Section 164 Cr.P.C. On 30.04.2013 the statement of the victim under Section 164 Cr.P.C. was recorded before the court. On 4.05.2013 he recorded the statement of Dr (Smt.) Asha Sachan. The wearing apparel of the victim was sent to Forensic Science Laboratory and its description was made in the Case Diary on 25.0.4.2013. After completion of investigation he submitted charge-sheet Ext. Ka-9.

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5. SUBMISSIONS ON BEHALF OF THE APPELLANTS

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Learned counsel for the appellant submitted that the appellant accused is innocent and has been falsely implicated in the present case. The impugned judgement and order of conviction is absolutely illegal and perverse which has been passed ignoring the material and evidence available on record. Learned Sessions Judge has failed to consider the statement of the witnesses in favour of the appellant. Learned Sessions Judge has returned finding of conviction on the basis of presumption. There is neither any evidence nor material on record. All the witnesses of fact are interested witnesses. There is no independent witness to support the prosecution case. The prosecution has not assigned any motive to the appellant. The medical examination report of the victim does not corroborate the prosecution case because in the pathological report relation of dead spermatozoa has not been established with the accused. It is further contended that the prosecution is highly improbable because it has been alleged that the victim was sleeping

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inside the room with other family members. In the presence of other family members it was not possible to commit such type of act. Further only allegation in the F.I.R. is that the accused inserted his hands in the lower under garment of the victim. The complainant PW 1 in his statement has again stated the same thing. There is no allegation against the appellant in the F.I.R. that he committed rape with the victim. It appears that at the dead hours of night some unknown person has committed the offence and only on the basis of suspicion the accused-appellant has been implicated. Lastly, it is contended that the accused-appellant is in jail since the date of incident i.e. 23.04.2013 and has undergone more than 10 year of actual imprisonment and 11 and a half years of sentence including remission. He further submitted that the incident is of year 2013 when minimum punishment for the offence under Section 376(2)(i) I.P.C. was ten years and life imprisonment was maximum sentence. Learned counsel placed reliance on the following case laws:

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State of Chhattisgarh Versus Derha LawSuit (SC) 510

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Bavo @ Manubhai Ambalal Thakore Versus State of Gujrat [2012 (1) JIC 667 (SC).

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Manoj Mishra alias Chokkau Versus State of Uttar Pradesh (2022) 1 Supreme Court Cases (Cri) 143

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Learned counsel has submitted that in the aforesaid case the apex court has modified the sentence and released the accused after ten years of imprisonment, the minimum punishment prescribed.

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6. SUBMISSIONS ON BEHALF OF THE STATE

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Per contra, learned A.G.A. contended that the accused has been caught on the spot by the complainant and other witnesses and a prompt F.I.R. has been lodged. The victim PW 2 in her statement has categorically stated that the accused sexually assaulted her lying upon her. She was bleeding from her private parts. The statement of the victim and other witnesses stand corroborated by the medical evidence also. The F.I.R. of this case has been

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lodged by the father of the victim. The prosecution case is that the family of the complainant has gone to attend marriage of his brother-in-law and they were staying at Swarnkar Dharmshala. The incident is of night when all were sleeping. The victim is a girl of tender age. The complainant has lodged the F.I.R. as per his own knowledge but statement of the victim and the medical examination report fully corroborates that the victim was sexually assaulted. The wearing apparels of the victim were taken in possession by the Investigating Officer. From the evidence on record the prosecution case stands proved beyond reasonable doubt. Learned trial court has properly appreciated the evidence on record and rightly held the accused-appellant guilty. The victim was a minor girl. The appellant has been convicted for the offences punishable under Section 376 (2)(i) I.P.C. and Section 6 of The Protection of Children From Sexual Offences Act. There is no illegality in the order of the conviction recorded by the trial court and the sentence awarded to the appellant is also appropriate.

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7. ANALYSIS :

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The prosecution case is based on direct evidence. PW 2 is the the victim herself. In her deposition before the trial court, she has stated that she has gone to attend marriage of her maternal uncle at Rath with her parents, brother and sister. When she was sleeping a person came there and gagged her mouth, he put off her lower under garment and sexually assaulted her lying upon her. She screamed with pain, then her father woke up. That person tried to run away but he was caught by her maternal uncle and others. The witness has further stated that she was bleeding from her private parts and she became unconscious. The witness has also corroborated her previous statement recorded under Section 164 Cr.P.C., Ext. Ka-2. The witness has also identified the accused present in the court on dock identification. The witness has further corroborated the date and time of the incident and has stated that the incident has occurred in the night at about 1.00 a.m. on 23.04.2013. The witness has stated about the presence of her family members including father and maternal uncle who have also been produced

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by the prosecution. PW 1 is the father of the victim. This witness has stated that the marriage of his brother-in-law was being solemnized from Swarnkar Dharmshala and Barat was staying at Dharmshala. In a room on first floor his minor daughter aged about 7 years was sleeping. Besides her, her maternal uncle, the complainant himself and his wife were also sleeping. At about 1.00 a.m. in the night the accused Sukh Singh who was serving as a waiter came inside the room and switched off the light of the room. He put his hands in the lower under garment of the victim and inserted the finger in her private parts. The victim screamed then they woke up and caught Sukh Singh on the spot. The witness has further stated that the victim was bleeding from her private parts. He was taken to the Police Station where report was lodged. PW 3 is the maternal uncle of the victim. This witness has also corroborated the prosecution version and has deposed that on 22.04.2013 the marriage of his brother Hari Shanker Gupta was being solemnized at Rath town. The Barat was staying at Swarnkar Dharmshala. His brother-in-law, sister, maternal niece and nephews have come to attend the marriage ceremony. After 12 in the night they all went to sleep in a room on first floor. At about 1.30 a.m. he woke up on the screams of his maternal niece. He switched on the light, then he saw a person trying to run away from the spot, getting up from the body of the victim, while wearing his pants. He was caught at the door of the room. The witness has further stated that the victim was bleeding from her private parts and she has become unconscious. On interrogation the accused told his name as Sukh Singh and also that he works as a waiter in the Dharmshala. He confessed his guilt and stated that he has sexually assaulted the victim. He was taken to the Police Station Rath where at the instance of his brother-in-law he scribed the Tahrir.

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The competency of PW 2, the child witness who deposed before the trial court, has been ensured by the court before recording her statement and after being satisfied that the victim is competent to depose her statement has been recorded. All the three witnesses have been cross-examined at length by the defence but there is no major contradiction or discrepancy in their

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oral testimony. The medical evidence also corroborates oral testimony of aforesaid witnesses. The victim has been medically examined on 23.04.2013 at 7.30 a.m. by Dr Asha Sachan PW 4 who stated that in internal examination the hymen was freshly torn and bleeding was present. The internal surface of vagina was lacerated which was stitched by her. The witness has further stated that she prepared the slide of vaginal swab and sent it for pathological examination and also referred the victim for X-ray. The witness has corroborated the prosecution case of sexual assault. This witness has also proved pathology report Ext. Ka-6 and supplementary medical report Ext. Ka-4 prepared on the basis of the X-ray report and pathology report. According to the pathology report Ext. Ka-6 dead spermatozoa and RBC was seen in the examination. The witness has further stated that the spermatozoa remains alive for 24 to 48 hours while dead spermatozoa remains on the body for 4-5 days and according to the pathology report dead spermatozoa was found in the slide of vaginal swab. So medical evidence further corroborates oral testimony of the victim PW 2 as well as other witnesses, the complainant PW 1 and maternal uncle PW 3.

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This is correct that there are some contradictions and infirmity. In the F.I.R. it is alleged that the accused inserted his hand inside the lower under garment of the victim and inserted his finger into her private part while the victim has stated that the accused lying on her sexually assaulted her. The incident is of dead hour of the night and it is consistent prosecution case that the victim and other family members were sleeping. The victim screamed from pain and on her screams other family members also woke up. It is also consistent prosecution case that accused was caught on the spot by the family members of the victim and PW 3 also stated that when he woke up, then he saw that accused was putting his pant, trying to flee but he was caught on the spot. It is also consistent case of the prosecution that the victim was bleeding from her private parts. She was first taken to the police station from where she was taken to the District Government Hospital, Hamirpur where she was examined and treated. As the incident has occurred at the dead hours of night while all were sleeping, the complainant may not

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be in a position to assess as to what has actually happened when he lodged the F.I.R. It is also fully established from the evidence on record that the victim was in her sleep when sexual assault was committed, causing pain and bleeding from her private parts. She screamed with pain, then other family members woke up. The accused was caught on the spot. There is no discrepancy in this prosecution version and this prosecution version further stands corroborated with medical evidence. The presence of the complainant PW 1 and PW 3 who are father and maternal uncle of the victim is quite natural. So their presence on the spot is also established.

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It is settled legal position that evidence of rape victim stands at par with the evidence of an injured witness. It is also settled proposition of law that if the evidence of the victim inspires confidence and appears to be trustworthy and natural no further corroboration is required. In Ganga Singh Versus State of Madhya Pradesh (2013) 7 SCC, 278 , it has been held that a victim of rape has to be given same weight as given to an injured witness and her evidence needs no corroboration.

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The time of the incident also stands proved from the evidence and there is no discrepancy regarding the time of the incident. The place of the occurrence is also established. The prosecution witnesses have consistently stated that the incident has occurred inside the room on the first floor of the Swarnkar Dharmshala where Barat was staying and they were sleeping. Site-plan Ext. Ka-10 also indicates the place of the occurrence inside the room with letter “A” as stated by the prosecution witnesses. The Investigating Officer Chandrashekhar Prasad PW 7 has proved the site-plan Ext. Ka-10 which has been prepared on the pointing of the complainant.

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The incident is of 1.00 a.m. in the night and the F.I.R. of the case has been lodged in the same night at 2.30 a.m. So the F.I.R. is prompt and there is no inordinate delay in lodging the F.I.R. The accused has been caught on the spot and the victim and the accused were taken to the Police Station. HCP Indrapal Singh PW 5 has proved the F.I.R. and carbon copy of G.D. as Ext. Ka-8 and Ka-7. This witness in his cross-examination has also corroborated the prosecution version that the complainant has come to lodge

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the F.I.R. with victim and other family members. Sukh Singh was also brought at the Police Station by the complainant and his companions.

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According to the prosecution version, the age of the victim was seven years at the time of incident. Dr Asha Sachan PW 4 medically examining the victim has referred for X-ray to determine her age. On the basis of X-ray report, Dr Asha Sachan has prepared supplementary report Ext Ka-4. In her examination-in-chief, she has stated that according to the X-ray report the age of the victim was about seven years. Seven carpal bones were present on the wrists. The bones of elbow and knee joints were not fused. On external examination her breasts were found undeveloped. Auxiliary and public hair was not present. The victim in her statement before Magistrate under Section 164 Cr.P.C. has also told her age as seven years. The statement of the victim in the court was recorded on 02.06.2015, near about three years after the incident and she has stated her age as about 10 years. So from the evidence on record it is proved that at the time of the incident the age of the victim was about seven years. Thus she was less than 12 years of age at the time of occurrence.

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The accused in his statement under Section 313 Cr.P.C. has only denied the prosecution version and has stated that a false report has been lodged and the witnesses have given false statements. The accused has also stated that he has been prosecuted due to enmity. In his additional statement the accused has stated that the complainant was asking for meal and on his refusal a false case was lodged against him. There is no evidence of any kind regarding enmity between the accused and the complainant. Even no suggestion has been put either to the complainant or to any other witness that the accused has been falsely implicated due to enmity. So there is no material on record to indicate any false implication.

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From analysis of prosecution evidence it is clear that the victim has supported the prosecution case. The medical evidence also corroborates the oral testimony of the victim. Accused was caught on the spot by the family members of the victim. The complainant PW 1 and PW 3 have further corroborated the prosecution version. There is no serious infirmity,

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discrepancy or contradiction in the oral statement of the victim PW 2 which may effect her reliability. So there is no reason to disbelieve her. There is nothing in cross-examination of the victim which may reflect that the witness is tutored one. There is no reason for false implication of the accused-appellant in the instant case.

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Applying the principle of law as analyzed above, it is clear that there is sufficient evidence on record to prove that the accused sexually assaulted the victim aged about seven years. Learned trial court has analyzed the entire evidence on record and on its basis has recorded the finding of guilt of the appellant-accused. The finding of conviction recorded by the trial court is just and proper and there is no illegality or perversity in it. The finding of conviction recorded by the trial court needs no interference.

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The court below has sentenced the accused-appellant with imprisonment for life and fine of Rs.12,000/- on the charge under Section 376(2)(i) I.P.C. and imprisonment for life with fine of Rs.15,000/- on the charge under Section 6 of The Protection of Children From Sexual Offences Act. In default, sentence of one year’s and one and a half years rigorous imprisonment has also been imposed.

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The incident is of year 2013 and at the relevant point of time the punishment prescribed for such an offence was minimum 10 years which may be extended for life with fine.

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Considering submission of learned counsel for the appellant in this respect, the facts and circumstances of the case and relevant penal provision applicable at the time of occurrence, we are of the view that ends of justice would be served if the appellant is punished with 14 years’ imprisonment. The sentence is liable to be modified to above effect and the appeal is liable to be allowed in part to that extent.

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Accordingly, the appeal is allowed in part. The conviction of the appellant-accused under Section 376(2)(i) I.P.C. and Section 6 of The Protection of Children From Sexual Offences Act is hereby sustained. However, the sentence is modified to the extent indicated above. The imprisonment of life awarded by the trial court is modified and is reduced to

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the period of imprisonment for 14 years each for charge under Section 376(2)(i) I.P.C. and Section 6 of The Protection of Children From Sexual Offences Act. Both the sentences shall run concurrently. However, the fine and default sentence imposed by the trial court is maintained. The fine, if any deposited, shall be paid to the victim.

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The copy of this judgement and order along with lower court record be transmitted to the trial court for necessary compliance. Order Date :- 11.05.2023 MN/-

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Digitally signed by :- MAHENDRA NATH High Court of Judicature at Allahabad

Sukh Singh Kachhi v. State of U.P.

Case brief

What is this about?

What did the court decide?

Sukh Singh Kachhi v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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