The Allahabad High Court has acquitted an accused who had been sentenced to 15 years imprisonment and fine under POCSO Act and SC/ST Act in Kamasin police station area of Banda district.
A single-judge bench of Justice Samit Gopal passed this order while hearing a Criminal Appeal filed by Krishnakant.
The 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 order dated 30.11.2017 passed in Special Criminal Case 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 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.
The prosecution case as per an application dated 9.6.2013 given by victim to police at Kamasin police station, District Banda is that she is the daughter of Shiv Poojan residing in village Pachauha, Police Station Kamasin, District Banda. On 23.5.2013 at about 10 am, 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.
On the basis of the said application, an FIR was lodged as Case under Section 376, 506 IPC and 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.
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 accused appellant was summoned to face trial.
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. The accused pleaded not guilty and claimed to be tried.
The accused-appellant in his statement recorded under Section 313 CrPC has denied the prosecution case and has stated that he has been falsely implicated in the case.
The counsel for the appellant argued that he has been falsely implicated in the case. It is argued that the victim is a major girl. It is argued that there is an enmity of the accused-appellant with the mother and aunt of the victim. The matter was investigated and it was found that the accused appellant had 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 the victim 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 dated 1.6.2013 specifically the examination of internal organs, it is clear that victim 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 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 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 at 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.
Per contra counsel for the State has opposed the arguments of the counsel for the appellant and argued that the occurrence of the 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. The appeal deserves to be dismissed.
The Court noted,
In the 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 cross examination 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.
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 its 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 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 belongs 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.
With regards to the offence under the POCSO Act, Section 4 of the Act deals with punishment for penetrative sexual assault. The medical evidence does not corroborate the prosecution story. The medical examination report and the statement of Dr Charu Gautam 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.
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 CrPC is corroborated by the statement of Anil Singh and Sumeru. The same would go to show that the parties were identical 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 there was no enmity between the parties.
In view of the discussions as stated above, the appeal deserves to be allowed. The appellant deserves to be acquitted of the charges levelled against him,” the Court observed while allowing the appeal.
“The judgment and order of the trial court is hereby set-aside. The appellant is acquitted of the charges levelled against him. 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,” the Court ordered.