Mohit vs State Of U.P.
2021 Latest Caselaw 2010 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  21.1.2021
 
Delivered on 04.02.2021
 
Court No. 86 
 

 
Case :- CRIMINAL APPEAL No. - 7466 of 2017
 
Appellant :- Mohit
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Jagdish Prasad Mishra, Mahendra Ram Maurya
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Subhash Chand,J.

1. The instant Criminal Appeal has been preferred on behalf of the appellant-convict Mohit against the judgment dated 09.11.2017 passed by the Additional Sessions Judge, Court No. 8, Muzaffarnagar in Special Sessions Trial No. 123/9 of 2017 (State Vs. Mohit) arising out of Case Crime No. 238 of 2017 under Sections 377 I.P.C. And 5/6 of Protection of Children from Sexual Offences Act, 2012, P.S. Kakrauli, District Muzaffarnagar whereby the learned trial court while acquitting the appellant for the offence under Section 377 of I.P.C, convicted him for the offence under Section 5/6 POCSO Act, 2012 and sentenced appellant Mohit with rigorous imprisonment for 10 years and a fine of Rs. 50,000/- and also ordered to undergo further imprisonment of two years in default of payment of fine.

2. The facts giving rise to this criminal appeal in brief are that the informant Dharmendra, son of Asharfi Lal, resident of village Bhuvapur, P.S. Kakrauli, District Muzaffarnagar moved a written information with the police station concerned with these allegations that on 20.04.2017 at 7:30 of evening his son Vasu 4 years old was sitting along-with other male and female kids in the buggi of Jaipal of his village. Jaipal asked all the children to get down from the buggi on reaching village, thereafter, Mohit 19 years of age of his village made attempt to lure the children giving gratification of Rs. 10. Other children went to their house but he lured to his son Vasu and took him near by the Government School of the village. When his son did not return to his house, all the family members made hectic search of him and found his child Vasu in unconscious condition near by the Government School and Mohit fled away from the place of occurrence having seeing them. The cloth of his son were blood stained, he has utter belief that Mohit had committed carnal intercourse against the order of nature to his child. He also made the complaint of the same to the family members of Mohit who also abused and did marpeet with him.

3. On this written information crime no. 238 of 2017 was registered under Section 377 I.P.C 3(a), 4 of POCSO Act, 2012 against Mohit with the Police Station Kakrauli, District Muzaffarnagar.

4. The I.O. after concluding the investigation filed charge sheet against the accused Mohit and the concerned court took cognizance on the same. The trial court framed the charge against the accused Mohit under sections 377 I.P.C. And under Section 3(a)/4 of POCSO Act, and the charge was read over and explained to the accused which was denied by him and claimed for trial.

5. On behalf of prosecution to prove the charge against the accused Mohit in documentary evidence filed the written information Exhibit Ka-1, medico legal examination report of victim Exhibit Ka-2, Supplementary report Exhibit Ka-3, chick F.I.R paper no. 4a/1 to 4a/3, site plan of the place of occurrence paper no. 7a and the charge sheet paper no. 3a/1 to 3a/4.

6. On behalf of prosecution in oral evidence examined P.W-1 Dharmendra, P.W-2 Pramita, P.W-3 Vasu, P.W-4 Dr. Mashkoor.

7. The statement of accused Mohit under section 313 Cr.P.C., was recorded in which he denied the incriminating circumstances in the evidence against him and stated that he has been falsely implicated in this case due to enmity. On behalf of accused no defence evidence was adduced.

8. The learned trial court after hearing the contentions of the learned counsel for the parties passed judgement on 09.11.2017 acquitting accused Mohit from the offence under Section 377 I.P.C; but held him guilty for the offence under Section 5/6 of POCSO Act, 2012 and sentenced with rigorous imprisonment for 10 years and also fine of Rs. 50,000/-, in default of payment of fine the convict Mohit was also directed to undergo an additional rigorous imprisonment for two years.

9. Aggrieved from the impugned judgment of conviction and sentence, this criminal appeal has been preferred on behalf of the appellant-convict Mohit on the ground that the conviction of the appellant held by the trial court is against the weight of the evidence on record. The learned trial court committed manifest illegality apparent on the face of record & convicted the appellant. P.W-2 Pramita in her statement has narrated that she came to know in regard of occurrence from the people of village but none of the person of the village was examined. Even no person of the village was named by this witness from whom she had come to know in regard to the occurrence. Statement of P.W-4 also does not corroborate the prosecution story. The trial court convicted the appellant for the offence under Section 5/6 of POCSO Act on the basis of wrong finding which is not sustainable in the eye of law.

10. I have heard submissions made by the learned counsel for the appellant and also learned A.G.A. for the State, and perused the materials brought on record.

11. The learned counsel for the appellant has submitted that although the trial court has acquitted the appellant from the offence under Section 377 I.P.C but has convicted the appellant for the offence under Section 5/6 of POCSO Act relying upon the testimony of P.W-3 Vasu. This witness was child witness, his competency as a child witness was not properly testified by the court below to declare the witness as competent who was of the age of four years. Moreover, the statement of this witness P.W-3, Vasu is not corroborated by the statement of P.W-1, Dharmendra informant and P.W-2, Pramita who have denied in their statement in regard to commission of alleged crime by the appellant-accused Mohit. Moreover this single testimony of P.W-3, Master Vasu is also not corroborated with the medical evidence. As such the conviction and sentence passed by the learned trial court is illegal based on perverse finding and accordingly submitted to allow this appeal and to set aside the conviction and sentence of the appellant-accused Mohit .

12. Learned A.G.A opposed the contentions made by the learned counsel for the appellant and contended that the single testimony of P.W-3 is sufficient for the conviction of the appellant-accused. This witness P.W-3, Vasu before examination by the court was also testified by the court in regard to his competency as a witness and court after having satisfied that this witness was competent, examined this witness. Testimony of this witness is natural which shall be relied even if the medical evidence does not support the ocular evidence. The ocular evidence is to prevail to medical evidence which is simply an opinion of expert.

13. The trial court has acquitted the appellant Mohit from the offence under Section 377 of I.P.C but convicted the appellant-accused for the offence under Section 5/6 of POCSO Act, 2012 while the trial court had framed charge against the appellant-convict Mohit under Section 3a/4 of POCSO Act, 2012. Therefore, it will be pertinent to mention her the provisions of Section 3a/4 and 5/6 of POCSO Act, 2012 which reads as under:

Section 3 of POCSO Act, 2012 defines penetrative sexual assault as under:

A person is said to commit "penetrative sexual assault" if-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or part of the body, not being the penis, into the vagina, the urethra or anus of a child or makes the child to do so with him or any other person; or

(c) ...............

(d) .................

Section-4 provides the punishment for penetrative sexual assault.--

"Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."

Section-5 defines the aggravated penetrative sexual assault.

Section-5(m) of POCSO Act, 2012 provides:

"who ever commits penetrative sexual assault on a child below 12 years" is said to commit aggravate penetrative sexual assault.

Section-6 provides punishment for aggravated penetrative sexual assault--

"Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."

14. On behalf of prosecution to prove the prosecution case have examined P.W-1, informant Dharmendra. This witness in his examination-in-chief has stated that on the fateful day one unknown person had committed unnatural offence with his son Master Vasu near by the Government School of the village. He saw his son in an unconscious condition and that unknown person having seen him fled away from the place of occurrence. He could not recognize that person. After sometime some people of the village who had attracted there, told him that person was Mohit. This witness was declared hostile by the prosecution and was cross-examined, this witness denied the statement under Section 161 Cr.P.C given to the Investigating Officer.

P.W-2, Pramita in her examination-in-chief says that on the date, time and place of occurrence Mohit had committed unnatural offence with Vasu. They had seen Vasu in unconscious condition and Mohit fled away from the place of occurrence having seen them. In cross-examination this witness says at the time of occurrence when she reached at the school many persons of the village thronged there, she is telling the name of Mohit what the people of village had told her. Vasu also did not tell her in regard to the occurrence. She neither saw the occurrence nor saw Mohit running away from the place of occurrence.

So far as the testimony of P.W-1, Dharmendra and P.W-2, Pramita is concerned the testimony of both these witnesses is based on hearsay evidence. The source of their knowledge is what the people of the village had told them. None of the person of the village was named by any of these witness, therefore, the testimony of both the witnesses is not admissible in evidence. Hon'ble Apex Court held in Subhakar Narayanji Laddha Vs. State of Maharashtra (2006) 12 SCC pg. 545. Statement of witness before the court on the basis of what the witness had known from her husband and had no direct knowledge of the occurrence, her statement was also held inadmissible in evidence; moreso when the husband was not examined.

15. So far as the testimony of witness P.W-3, Vasu is concerned; before examination of this witness, the court testified the competency of this witness and in regard to the same asked name of his father, brother. This child could not tell the name of the school in which he was studying and told to the court that telling lie is bad. Thereafter, the court declared him competent and examined him. During examination this witness said that Mohit is his uncle and he put off his underwear, he inserted his finger in his anus whereby the blood also oozed.

For testimony of child witness to be admissible one condition which is to be fulfilled is that the witness should be competent. To testify the child as a competent witness, it is very necessary to testify the intellectual of the child whether he understands the questions put to him or gives rational answers to those questions. The mental development of a child witness vary in different situations depending upon the conditions he lives in and nurtured.

The testimony of this child witness has to be relied upon cautiously. The court has to see whether the testimony of this child is trustworthy and is also corroborated with some other evidence on record or not. On behalf of the prosecution the two witnesses of the fact who is P.W-1, Dharmendra father of the victim and P.W-2, Pramita both have denied the commission of the offence by Mohit. As such the testimony of this witness is not corroborated with the statement of P.W-1, Dharmendra and P.W-2, Pramita.

P.W-4, Dr. Mashkoor in his statement says that on 21.04.2017 at 3:05 P.M, he conducted the medical examination of Vasu aged five years old. There was no external injury on any part of the body of this child. The child only complained pain on his neck. There was no injury on the neck also. There was no injury or abrasion on the anus region. For examination of sperm two slides were prepared by him which were sent to district hospital, Muzaffarnagar. This report is in his handwriting and signature, Exhibit KA-2 as marked there. Supplementary report was also prepared by him and in the slide no spermatozoa is seen. Exhibit Ka-3 is marked on the Supplementary report.

This witness could not opine whether the carnal intercourse against the order of nature committed or not, there was no injury in the anus even there was no blood therein. As such the statement of P.W-3, Vasu is not corroborated with medical evidence.

16. It is also pertinent here that the Investigating Officer neither had recorded the statement of victim Vasu under Section 161 Cr.P.C, nor he got recorded the statement of victim Vasu under Section 164 Cr.P.C by the Magistrate. The reason in the case diary is shown by the Investigating Officer that the victim, except telling his name, could not give the answer of any question on interrogation during the investigation. The name of victim Vasu is also not figured in the list of witnesses in the charge-sheet. It is appalling even then the learned trial court permitted the examination of victim Vasu during trial for the first time who was never interrogated by Investigating Officer.

17. Therefore, the testimony of victim P.W-3, Vasu appears to be tutored and does not inspire confidence. Hon'ble Apex Court held in Ratan Singh Dilkhush Bhai Nayak Vs. State of Gujrat, 2004(1) SCC 64. The child witness are amenable to tutoring. Child witness are liable to be influenced easily and moulded. Therefore, court should make careful scrutiny of the evidence of child witness.

As such the finding recorded by the trial court holding the appellant guilty of the offence of aggravated sexual assault under Section 5/6 of POCSO Act suffers from infirmity.

18. The reasonable view is to give benefit of doubt to the convict-appellant. The Hon'ble Apex Court held in Suresh Chandra Jana Vs. State of West Bengal, 2017(6) Supreme at page 35. The theory of adopting view beneficial to accused, if the two views are possible. If both the views are reasonable and plausible, the reasonable view being beneficial to the accused should be adopted.

19. As such in view of the reappreciating of the evidence in this appeal, the conviction and sentence passed by the trial court of the appellant-convict for the offence under Section 5/6 of POCSO Act deserves to set aside. Accordingly, this criminal appeal deserves to be allowed.

This criminal appeal is hereby allowed. The judgment of conviction and the sentence passed by the trial court in Sessions Trial No. 123/9 of 2017 (State Vs. Mohit) arising out of Case Crime No. 238 of 2017 under Section 5/6 of POCSO Act, 2012, P.S. Kakrauli, District Muzaffarnagar is set aside. Let the appellant be released from jail if he is not wanted in some other case provided the bail bonds are furnished on his behalf before the trial court in compliance of Section 437-A of Cr.P.C to the satisfaction of the court concerned.

20. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.

21. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked.

22. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Subhash Chand, J.)

Dated: 04.02.2021

PS