Ankit Alias Rahul Saryam vs The State Of Madhya Pradesh

This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973, calling in question the legality, propriety and correctness of the judgment of conviction and order of sentence dated 14.01.2022 passed by the learned Special Judge (Protection of Children from Sexual Offences Act 2012) District Chhindwara, in Special Case No.171/2018, whereby the appellant has been convicted of the offences punishable under Section 366 of IPC and Sections 6 and 12 of the POCSO Act and sentenced to undergo RI for 5 years with fine of Rs.2000/- and in default of payment of fine additional RI for 2 months, RI for 10 years with fine of Rs.5000/- and in default of payment of fine additional RI for 2 months and RI for 1 year with fine of Rs.1000/- and in default of payment of fine additional RI for one month respectively.

The prosecution case, in brief, is that the victim, who was about 17 years of age and was studying in Class XI, was acquainted with the appellant. It is alleged that the appellant had developed acquaintance with the victim by providing her with a mobile phone and they used to remain in regular telephonic contact. According to the prosecution, taking advantage of such acquaintance, the appellant gradually started exerting pressure upon the victim to establish physical relations with him. It is alleged that on the date of the incident, after the victim left her school, she accompanied the appellant, who thereafter repeatedly established physical relations with her against her will. When the victim did not return home from school, her mother searched for her at different places and ultimately lodged a missing person report at Police Station Chhindwara. During investigation, the victim was recovered along with the appellant, whereupon her statements under Sections 161 and 164 of the CrPC were recorded. On the basis of her allegations, offences under Sections 363, 366, 376(1), 376(3) and 354-D of the IPC along with Sections 4, 6, 8 and 12 of the POCSO Act were registered against the appellant. The victim was medically examined and the appellant was also subjected to medical examination. Various articles were seized and forwarded for forensic examination. During investigation, the DNA profiling report dated 08.05.2020 confirmed the presence of the appellant's Y chromosome in the biological samples collected during investigation. Upon completion of investigation, charge-sheet was filed before the competent Court, from where the matter was committed to the Court of Sessions for trial. The appellant denied the charges and claimed false implication. After appreciating the evidence adduced by the prosecution, the learned Special Judge convicted the appellant under Section 366 IPC and Sections 6 and 12 of the POCSO Act and sentenced him accordingly by judgment dated 14.01.2022.

Learned counsel for the appellant submitted that the learned trial Court has failed to appreciate the material contradiction existing between the ocular testimony of the victim and the medical evidence available on record. Elaborating the submission, it is argued that although the DNA report dated 08.05.2020 was found to be positive, the medical examination report (Exhibit P/7) specifically records that the hymen of the victim was intact. According to the appellant, these two pieces of evidence create a substantial doubt regarding the prosecution case of penetrative sexual assault and the learned trial Court has failed to reconcile such inconsistency before recording conviction under Section 6 of the POCSO Act. It is further submitted that the prosecution has also failed to establish the age of the victim in accordance with law inasmuch as the mark-sheet (Exhibit P/7-C), relied upon by the prosecution to establish her date of birth, was never filed along with the charge-sheet but was directly produced before the trial Court during the recording of evidence. Such a course, according to the appellant, has caused serious prejudice to the defence and renders the age determination doubtful. In the alternative, learned counsel submits that even assuming the prosecution story to be substantially correct, the evidence available on record is insufficient to establish the ingredients constituting aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. It is urged that in the absence of convincing evidence demonstrating aggravated penetration, coupled with the medical finding that the hymen was intact, the appellant's case would, at the highest, fall within the ambit of Section 4 of the POCSO Act and not Section 6 thereof. It is, therefore, prayed that while maintaining such conviction as may be legally sustainable, the conviction under Section 6 of the POCSO Act deserves to be modified to one under Section 4 and the sentence consequently reduced.

Per contra, learned Government Advocate appearing for the respondent/State submitted that the learned trial Court has rightly appreciated the entire oral, documentary and scientific evidence before recording the conviction. It was contended that the testimony of the victim is natural, consistent and inspires confidence. Her version regarding the appellant developing acquaintance with her by providing a mobile phone, remaining in regular contact and thereafter repeatedly pressurizing her to establish physical relations has remained consistent throughout the trial and has not been shaken in cross-examination. It was further argued that the DNA profiling report dated 08.05.2020 conclusively establishes the involvement of the appellant and lends complete corroboration to the testimony of the victim. Therefore, the medical finding that the hymen of the victim was intact cannot by itself discredit the prosecution case, as medical evidence is only corroborative in nature and cannot prevail over reliable ocular and scientific evidence.

Reliance was placed on the decision of the Hon'ble Supreme Court in Radhakrishna Nagesh Vs. State of Andhra Pradesh, (2013) 11 SCC 688 , wherein it has been held that absence of injuries or an intact hymen does not necessarily rule out penetrative sexual assault and that medical evidence must be appreciated along with the ocular and forensic evidence. It was, therefore, submitted that the testimony of the victim, duly corroborated by the DNA report and the other evidence on record, clearly establishes the guilt of the appellant beyond reasonable doubt.

It has been further submitted that the appellant's challenge regarding the age of the victim is devoid of merit because, sufficient documentary evidence was produced to establish that the victim was below eighteen years of age and merely because the mark-sheet was exhibited during the course of trial instead of being filed along with the charge-sheet, no prejudice has been caused to the defence because the trial court itself had ordered the victim to bring the said document and give evidence in the court. The appellant was afforded full opportunity to cross-examine the prosecution witnesses with respect to the said document and, therefore, the objection regarding its production is legally unsustainable. Accordingly, it was prayed that the appeal, being devoid of merit, deserves to be dismissed and the judgment of conviction and sentence passed by the learned trial Court be affirmed.

Heard the learned counsel for the parties and have carefully perused the record.

The first limb of argument advanced on behalf of the appellant relates to the alleged contradiction between the medical evidence and the scientific evidence. The medical examination report Ex.P-7 indicates that the hymen of the victim was found intact, whereas the DNA profiling report dated 08.05.2020 has confirmed the presence of the appellant's Y chromosome in the biological samples of the victim examined by the FSL Sagar. In this regard the Hon'ble Apex Court in Radhakrishna Nagesh (supra), has held that:

A careful scrutiny of the medical evidence reveals that the doctor has specifically noted that the hymen of the victim was intact. At the same time, the scientific evidence indicates the presence of the appellant's Y chromosome, thus the DNA report was positive. These two pieces of evidence are not mutually destructive. The Hon'ble Supreme Court in Radhakrishna Nagesh (supra), has held that an intact hymen or absence of injuries on the private parts of the victim does not necessarily exclude penetration or sexual assault. The Apex Court observed that medical evidence cannot be appreciated in isolation and that the cumulative effect of ocular testimony, medical opinion and forensic evidence has to be considered while recording findings in sexual offence cases. The Supreme Court further held that rupture of the hymen is not an indispensable requirement for proving penetration and that the extent of penetration and its medical consequences would always depend upon the peculiar facts and circumstances of each case.

In case of conflict or contradiction between ocular and medical evidence, the Hon'ble Apex Court in Radhakrishna Nagesh (supra), has held that:

It is true that in the present case, the medical report does not record any rupture of the hymen. However, this circumstance, by itself, cannot be elevated to a conclusive circumstance to completely demolish the prosecution case. Modern forensic science as well as settled principles of criminal jurisprudence recognize that rupture of the hymen is neither a universal nor an indispensable consequence of penetration. The elasticity of the hymen, the age of the victim, the manner in which the act is committed and several other factors vary from case to case. Consequently, the existence of an intact hymen cannot, in every case, be treated as proof of absence of penetration. The scientific evidence in the present case assumes considerable significance because the DNA report provides independent corroboration to the version of the victim and materially connects the appellant with the occurrence. Therefore, the argument that the prosecution case must fail merely because the hymen remained intact cannot be accepted in its absolute form.

The appellant has also questioned the age of the victim on the ground that the mark-sheet was produced during trial and not along with the charge-sheet. This contention is equally devoid of merit. The document was duly exhibited during trial and the defence was afforded adequate opportunity to challenge its authenticity by cross-examining the prosecution witnesses. Apart from the said document, the oral and documentary evidence on record sufficiently establishes that the victim was below eighteen years of age on the date of the incident. Hence, no prejudice can be said to have been caused to the appellant.

However, the question which now arises for consideration is whether the prosecution has proved the ingredients necessary to sustain the conviction under Section 6 of the POCSO Act, 2012. Section 6 of the Act prescribes punishment for aggravated penetrative sexual assault as defined under Section 5 of the Act. In the present case, the prosecution case is that the appellant had repeatedly established physical relations with the victim. The aggravating circumstance relevant for consideration, therefore, is the one contemplated under Section 5(l) of the POCSO Act, which relates to commission of penetrative sexual assault on the child repeatedly.

In order to attract Section 5(l) of the POCSO Act, the prosecution is required to establish not merely the commission of penetrative sexual assault, but also that such penetrative sexual assault was committed repeatedly. In the present case, the prosecutrix, in paragraph 6 of her deposition before the Trial Court, has stated that the appellant had established physical relations with her. Likewise, in her statement recorded under Section 164 of the Code of Criminal Procedure, she alleged that the appellant had committed sexual assault upon her. However, neither in her deposition before the Trial Court nor in her statement under Section 164 of the Code of Criminal Procedure has the prosecutrix specifically stated that the appellant had committed penetrative sexual assault upon her on more than one occasion. The evidence on record, therefore, establishes the commission of penetrative sexual assault, but does not satisfactorily establish the specific aggravating circumstance of repeated commission of penetrative sexual assault as contemplated under Section 5(l) of the POCSO Act.

The mere use of the expression "repeatedly" in the prosecution case, in the absence of substantive evidence establishing commission of penetrative sexual assault on more than one occasion, cannot by itself be sufficient to attract Section 5(l) of the POCSO Act. The fact that the hymen of the prosecutrix was found intact, as already discussed hereinabove, is not determinative of the question whether the sexual assault was committed repeatedly. However, the said medical finding, when considered in conjunction with the other evidence available on record, may lend support to the inference that the penetration, if any, was limited in nature, which may explain the absence of rupture of the hymen, though the same by itself cannot be treated as conclusive. The question of applicability of Section 5(l) has to be decided on the basis of the substantive evidence available on record. In the present case, such evidence is lacking.

Accordingly, while the prosecution has succeeded in establishing the commission of penetrative sexual assault punishable under Section 4 of the POCSO Act, it has failed to establish beyond reasonable doubt the aggravating circumstance contemplated under Section 5(l) of the said Act. Consequently, the conviction of the appellant under Section 6 of the POCSO Act cannot be sustained and is liable to be modified to one under Section 4 of the POCSO Act. Consequently, the sentence of rigorous imprisonment for ten years imposed under Section 6 of the Act is set aside and is substituted by rigorous imprisonment for seven years together with the fine imposed by the learned trial Court. In default of payment of fine, the appellant shall undergo the default sentence as directed by the learned trial Court. The sentences awarded for the remaining offences shall remain unaltered and shall run concurrently. The appellant shall also be entitled to the benefit of set-off under Section 428 of the Code of Criminal Procedure for the period already undergone during investigation, trial and pendency of the present appeal.

Consequently, the criminal appeal succeeds in part and is partly allowed. The impugned judgment dated 14.01.2022 passed by the learned Special Judge, POCSO Act, District Chhindwara, in Special Case No.171/2018, stands modified only to the extent indicated hereinabove. In all other respects, the findings of conviction and the remaining directions contained in the impugned judgment are affirmed. The Registry is directed to transmit the record of the trial Court along with a copy of this judgment forthwith for information and necessary compliance.