Kamil & Another vs State Of Uttarakhand

Sudhanshu Dhulia, J.

This appeal has been filed by the appellants against the judgment and order dated 04.09.2015 passed by the learned Fast Tract Court/Additional Session Judge/Special Judge POCSO, Rudrapur District Udham Singh Nagar in Session Trial No.05 of 2015 whereby the appellants have been convicted for the offences under Sections 376D and 366 of IPC, and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/-(Rupees Fifty Thousand Only) for the offences under Section 376D of IPC, and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) for the offence under Section 366 of IPC.

Appellant no.1 - Kamil is being represented by Senior Advocate Mr. M.C. Kandpal and Appellant no.2 - Gousul Kumar is represented by Mr. S.R.S.Gill, Advocate.

The brief facts of the case are that the first information report was lodged by the prosecutrix on 04.10.2014 at Police Station Sitarganj, District Udham Singh Nagar stating therein that on 3.10.2014 she had come to see the "dusshera" fair, where she was kidnapped by two boys. She knows the accused as they belong to her village and she names them as Kamil and Gousul Kamar (Appellant no.1 and 2 respectively before this Court). Thereafter she states that the two boys, namely, Kamil and Gousul Kamar tried to rape her, but they could not succeed and ran away. There is a report on record which is dated 05.10.2014 which suggests that she is not ready for her internal medical examination and she says so without any pressure or force. There are other documents on record which bears the signature of both the parents that they were asked to get the prosecutrix medically examined, which they refused. The statements of the prosecutrix were recorded under Section 164 Cr.P.C by the learned Magistrate on 07.10.2014 where she states that on 03.10.2014 at 12:00 P.M. she was at Ramleela Ground Sitarganj with her two aunts and her grand mother, to see the Dusshera fair and. When they were returning from the fair at about 01:00 p.m. in the afternoon, and as she trailing behind the rest of the party, she fell into a ditch, as her foot slipped. At that point, four to five boys whom she recognizes came to her rescue, two of them pulled her out from the ditch. They did nothing objectionable, though at one stage she states that at that time she had the impression that they were trying to molest her. She clearly states that no wrong was done by them and all they did were that they pulled her out of the ditch, where she had fallen.

Meanwhile in pursuance of the first information report, the Police has completed its investigation and filed a charge sheet under Sections 376 and 511 of IPC and 7/8 of the Protection of Children from Sexual Offences Act, 2012.

Considering that the offences were under Sections 376 and 511 of IPC and 7/8 Protection of Children from Sexual Offences Act, 2012, the matter was committed to Sessions. Thereafter, charges were framed on 31.01.2015 by the learned Special Sessions Judge, Udham Singh Nagar against the appellants under Section 376 IPC read with Section 511 IPC and under Sections 7/8 of the Protection of Children from Sexual Offences Act, 2012.

Though, initially, the charges were framed against the appellants under Section 376 IPC read with Section 511 IPC and under Sections 7/8 of the Protection of Children from Sexual Offences Act, 2012, but thereafter the charges were amended and charges were framed under Sections 376D and 366 of IPC and under Sections 5, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012.

The prosecution in order to establish its case has examined as many as eight witnesses.

In this case, the main witness is the prosecutrix herself. The prosecutrix was examined as P.W.1 to which we shall come in a while, but first we must consider the statements and the cross-examination of other witnesses, who were also present at the time of the incident and who are close blood relatives of the prosecutrix i.e. P.W.4 and P.W.5 they are her "Mausi" and "Bua", respectively. Both of them have turned hostile. P.W.4 in her examination-in-chief has clearly stated that on 03.10.2014 she was not returning at 01:00 A.M. in the night along with the prosecutrix and other relatives. The appellants did not try to catch the hand of the prosecutrix, leave aside making any attempt to rape her. A similar statement was also given by the P.W.5.

P.W.6 is the Doctor before whom the prosecutrix was brought by the Police and in the medical as well as in examination-in-chief she states as under:-

That on 05.10.2014 she was posted in District Hospital Rudrapur on emergency duty. The prosecutrix was brought before her. She was accompanied by her mother. When she asked the prosecutrix as well as her mother that she has their permission for the internal examination of the prosecutrix, both the mother as well as the daughter (the prosecutrix) refused to undergo the internal examination.

P.W.7 is the Head Constable and P.W.8 is the Investigating Officer. They are formal witnesses who conducted the investigation.

P.W. 2 is the mother of the prosecutrix and P.W. 3 is the Principal of the School.

P.W.2 states in her examination-in-chief that she is illiterate woman and on the fateful day i.e. on 03.10.2014 her daughter had gone along with her Mausi and her Aunt at Sitarganj Ramleela Maidan to see the "Ramleela fair". She was later told by her daughter, after she returned from the "fair", at about 10 P.M. in the night, that two of the accused who belong to their village, caught her and tried to rape her, but when an alarm was raised by her, her "Mausi" and "Bua", reached the spot and came to her rescue, and consequently, the accused (appellants) ran away. She in her cross-examination states that she did not go to the police station as her husband had gone there. Later when on 11.10.2014, she was informed that actually nothing had happened with her daughter, she refused to give permission for the internal medical examination of her daughter.

P.W.3 is the Principal of the School. He states that the prosecutrix was admitted in his school and the date of birth of the prosecutrix at the time of her registration is recorded as 10.07.2001. However, he further states that the date of birth was recorded not on the basis of other documents or medical examination but merely on the basis of the statement of the parents or guardians.

There is in this case no certainity as to the age of the prosecutrix as the mother who was examined as P.W.2 states in her cross-examination that she was married 19 years back and the first child i.e. the prosecutrix was born immediately two years after the marriage, and the prosecutrix is her eldest child. According to this statement, the prosecutrix would be 17 years of age.

Now we come to the main witness i.e. P.W.1, the prosecutrix herself. The entire case of the prosecution rests on her examination-in-chief and cross examination in which she states that she was born on 10.07.2001 and on 03.10.2014 at about 12:00 to 1:00 P.M., she was coming with her Mausi, Bua, Jija, Didi and other children from Sitarganj, Ramleela fair. She was trailing behind the rest of the party and suddenly her foot slipped and she fell into a ditch. Then the two accused pulled her out from the ditch and thereafter they bodily lifted her and took her to a place where there were a lot of Popular trees. They took off her clothes, and their as well, and fell on top of her but meanwhile her Bua came to her rescue and then the two accused ran away. She further states that the accused and their family members had also threatened her father and mother. They also tried to give money to her father, which he refused. When she was asked as to why a different statement was given by her under Section 164 Cr.P.C, she says that statement under Section 164 Cr.P.C was given by her, as she and her family was under pressure. For the same reason, the medical examination was also denied. In the cross-examination she says that they had gone to see fair at about 11 o' clock in the night, contrary to what she has said earlier. She also states that they had not seen "Ravan" burning to indicate that it was night time when they were actually returning from the fair. On that fateful day, when the incident is alleged to have taken place, happens to the "Vijay Dashmi" day, where the effigy of "Ravan" is burnt. In the cross-examination, she says that she had narrated the entire incident to her mother. In cross-examination there are lot of discrepancies and contradictions, not just as to the time of the incident, but her statement given earlier under Section 164 Cr.P.C and her refusal for the medical examination, etc. Now she takes a stand that her family was threatened at the hands of the accused and the family members and it is for this reason she gave a different statement under Section 164 Cr.P.C and the same was the reason for not agreeing for the medical examination. Whereas earlier her statement was that they had visited the fair at about 12 noon and now she states that the incident is of the night. The place of occurrence was also the barrier post, earlier which then becomes a place where there were Popular trees. So far her statements to the Court were only as to the attempt to rape committed by the appellants but thereafter the Court in exercise of its power under Section 165 of Evidence Act, asked her questions suggesting whether she would like to give her statement in the absence of her mother and father. She agreed to that and her mother was taken out of the court room. She then says that on the fateful day she was raped by the accused and the fact that this was not to be disclosed was because she was already married by that time. She says that she was married when she was only 8 to 9 years of age, but her "gauna"* had not taken place as yet and therefore in order to hide this fact from her in-laws, a different colour was given to the incident. On the strength of this evidence which was given by the prosecutrix, the Court came to the conclusion that the rape indeed has been committed and convicted both the accused under Sections 376 and 376D of IPC as well as under Sections 6 and 8 of the Protection of Children from Sexual Offences Act, 2012) and the accused/appellants have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand Only) for the offences under Section 376D of IPC, and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/-(Rupees Twenty Five Thousand Only) for the offence under Section 366 of IPC.

The only question is whether on the strength of the evidence which the court had, such a conviction is possible?

*a custom/ceremony, in north India associated with consummation of marriage.*

It is indeed true that evidence has to be weighed and not counted. Even one evidence is enough for conviction, depending upon its credibility, particularly in a case of rape.

The evidence of the prosecutrix in a case of rape is again of immense importance. Her evidence is like that of an injured witness, and conviction can be based on the strength of the evidence of the prosecutrix alone.

In this case, however, we have seen that the other eye-witnesses who were close relatives of the prosecutrix i.e. P.W.4 (Bua) and P.W.5 (Mausi) have turned hostile. The father of the prosecutrix in fact has turned as a defense witness and gave a statement in favour of the accused. He also denied that he had married his daughter in the childhood. He totally denies the incidence of rape. The prosecutrix herself lodged the first information report in which she does not state about the rape. The first information report only discloses offences under Section 376 read with Section 511 of IPC where indication was given that rape was attempted. Thereafter in her statement under Section 164 Cr.P.C, she says nothing against the accused persons. In fact, all she says is that the accused persons had only pulled her out from the ditch and did nothing. In the statement given by her before the court, particularly on being examined by the court itself she gives a different story. She states that actually rape has been committed, but short of this, she says nothing further. The vacillating attitude of the prosecutrix from the lodging of the first information report and statement given under Section 164 Cr.P.C and thereafter examination-in-chief and cross-examination, does not inspire confidence. It is true that the conviction can be based on the sole testimony of the prosecutrix, as it is the settled position of law, but then in such cases this sole evidence must be put to very strict proof.

In this case, the statement of prosecutrix does not inspire confidence and we are of the considered view that based on the strength of the evidence of P.W.1, alone, conviction of rape was not possible. We, therefore, allow the appeal and set aside the judgment and order 04.09.2015 passed by the learned Fast Track Court/ Additional Session Judge/Special Judge POCSO, Rudrapur District Udham Singh Nagar in Session Trial No.05 of 2015. The appellants are acquitted of the charges framed against them. The appellants are in jail. They shall be released forthwith, unless wanted in some other cases.

Let a copy of this judgment along with lower court record be sent to the court below for onward compliance.