Allahabad High Court
Anshu vs State Of U.P. on 5 May, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on 28.4.2025
Judgment Delivered on 05.05.2025
Neutral Citation No. - 2025:AHC:70770-DB
Court No. - 45
Case :- CRIMINAL APPEAL No. - 7579 of 2019
Appellant :- Anshu
Respondent :- State of U.P.
Counsel for Appellant :- Debee Shanker Pandey,Om Prakash Chaube,Pankaj Kumar Gupta,Sunita Chauhan
Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Sing[h,J.
Hon'ble Sandeep Jain,J.
1. Heard Shri Abhishek Mayank, learned Amicus Curiae and Shri L.D. Rajbhar, learned A.G.A. for the State.
2. Present criminal appeal arises from the judgement and order dated 16.10.2019 passed by Shri Rajesh Chowdhary, learned Additional District Judge/Special Judge, POCSO Act, Court no.1, Auraiya, in Special Case No. 74P/2019 (State vs Anshu) whereby the appellant has been convicted under Section 5(m) read with Section 6 of POCSO Act and Section 506 I.P.C. and sentenced to undergo life imprisonment (remainder of his natural life) for offence under Section 5(m) read with Section 6 of POCSO Act and to pay fine of Rs. 2,00,000/- and in default of payment of fine to further undergo simple imprisonment of one year; to undergo simple imprisonment of three years for the offence under Section 506 IPC.
3. The above trial emerged on the First Information Report in Case Crime No. 499-2019, P.S. Dibiyapur, District Auraiya, lodged on 09.09.2019, at about 07.48 PM. The F.I.R. is Ex.Ka-5 at the trial. The said F.I.R. was lodged on the Written Report submitted by 'F' i.e. father of the victim girl aged about ten years, namely, 'X'. It is Ex.Ka-3 at the trial. The Written Report discloses, on 09.09.2019 'F' had left to buy grocery from a fair price shop while 'M', the mother of 'X', had gone to tend to her animals. Meanwhile, 'X' left for Central Bank, Kanchausi Branch (hereinafter referred to as the 'Bank') to open a bank account. While returning, she met up with the appellant who gagged her mouth and took her inside his house and committed rape on her. 'X' returned home, limping and bleeding and narrated the incident. After some time, the appellant along with some others reached the residence of 'F' and threatened him with dire consenquences if the occurrence was reported to the police. The G.D. Entry (Ex. Ka-4) dated 09.09.2019 at 07.48 PM also supports the lodging of the F.I.R.
4. During investigation, the police recorded the statement of 'X' (P.W.-1 at the trial) under Section 161 Cr.P.C. In that, she narrated, while she was returning from the Bank, the appellant took her forcibly inside his house, disrobed her, gagged her mouth and committed wrong on her. She started bleeding in that occurrence and suffered pain. The appellant let her go after committing wrong act. She limped her way back to her home and told her father that the appellant had committed wrong on her. That statement was Ex.Ka-1 at the trial. Also, on 9.9.2019 itself, the police swung into action and recovered a muffler, underwear, bed-webbing ('Niwar') stained with blood and semen, from the place of occurrence, namely, the house of the appellant. The said Recovery Memo is Ex.Ka-8 at the trial. On 9.9.2019 itself, 'X' was subjected to medico-legal examination by Dr. Seema Gupta (P.W.-6 at the trial) at about 8.15 PM. In that, she recorded the following injuries:
"Posterior Fourchette Torn. Hymen Absent. A tear size 1(1/2) x 1cm x 0.5 cm present at 6'o clock position at Vagina. Clotted Blood and fresh bleeding present at tear. Clotted Blood present perineum and around anal region."
She further noted the following injuries in the genital:
"1(1/2) x 1cm x 0.1cm. Tear present at 6'o clock Position of Vagina. Fresh bleeding and clotted blood present."
Further, she opined as below:
"Vaginal tear present 6'o clock position fresh bleeding present and clotted blood present. This may be due to sexual assault."
5. The Medico-Legal Examination Report is Ex.Ka-6 at the trial. Also, on 16.09.2019, a Supplementary Medico-Legal Report was prepared with respect to the age of 'X'. It was opined, she was about 8 years of age. It is Ex.Ka-7 at the trial.
6. On 10.9.2019, the appellant was arrested. His half-pants and underwear on which bloodstain was noticed as also the shirt he was wearing, were recovered. That Recovery Memo is Ex.Ka-10 at the trial. On 11.9.2019, the statement of 'X' was recorded under Section 164 Cr.P.C.. In that, she stated, while she was returning from the Bank on 09.09.2019 in the afternoon, she met up with the appellant in the way. He forcibly gagged her mouth and took her inside his house. She was threatened with death if she protested. The appellant undressed the victim 'X' and committed penetrative sexual assault on her with his finger and thereafter with his penis. She started bleeding. He also inserted his penis into her mouth. On her pleading for mercy, the appellant let her go. She somehow limped back to her home and narrated the occurrence to her parents. The said statement is Ex.Ka-2 at the trial.
7. The clothing of the appellant, jacket, underwear as also the recovered items, namely, webbing of the bed and legging, underwear, frock of 'X' were sent for forensic examination. The report of the Forensic Science Laboratory, Lucknow, dated 14.10.2019 is on record. The same is inconclusive.
8. On such investigation, chargesheet (Ex.Ka-12 at the trial) was submitted by the Investigating Officer. Upon the case being committed for trial, the following charges were framed against the appellant.
"प्रथमः- यह कि दिनांक 09.09.2019 को समय अदम तहरीर स्थान ग्राम रोशनपुर थाना दिबियापुर जिला औरैया में जब प्रथम सूचना दाता की अवयस्क पुत्री उम्र 10 वर्ष सेन्ट्रल बैंक शाखा कंचौसी से वापस आ रही थी तथा जैसे ही आपके घर के पास पहुंची तो आप (अभियुक्त), प्रथम सूचना दाता की अवयस्क पुत्री को मुंह दबाकर अपने घर के अन्दर ले गये तथा उसकी पैजामी व pM~ द्वितीयः यह कि यथोक्त दिनांक, समय एवं स्थान पर जब प्रथम सूचना दाता की अवयस्क पुत्री उम्र 10 वर्ष सेन्ट्रल बैंक शाखा कंचौसी से वापस आ रही थी तथा जैसे ही आपके घर के पास पहुंची तो आप (अभियुक्त) पीड़िता उम्र 10 वर्ष को मुंह दबाकर अपने घर के अन्दर ले गये तथा आपने उसकी पैजामी व pM~
तृतीयः- यह कि यथोक्त दिनांक, समय एवं स्थान पर आपने, प्रथम सूचना दाता को रिपोर्ट न लिखाने तथा जान से मारने की धमकी देकर आपराधिक अभित्रास कारित किया। आपका यह कृत्य भा०दं०सं० की धारा 506 के अधीन दण्डनीय अपराध है एवं इस न्यायालय के संज्ञान में है।"
9. At the trial, besides the above documentary evidence, the prosecution led oral evidence through nine witnesses. 'X' was examined as P.W.-1. Upon due questioning by learned court below, it was determined that she was capable of furnishing intelligent answers. Thereafter, 'X' made a statement to the Court that on the date of occurrence she was returning from the Bank at about 01.00 PM when she met the appellant. He held her by her wrist and took her inside his house. He closed the door from inside and undressed her. Thereafter, he first committed penetrative sexual assault on 'X' with his finger. On 'X' crying for help, he gagged her mouth. Thereafter, he had inserted his penis into his mouth. He let go of her on her continuous crying for help and pleading. She reached her home, limping and bleeding in pain. There she narrated her suffering to her parents. She also proved her statements made during police investigation. She proved that she was taken to the doctor with the help of a lady police officer. She also proved her statement made under Section 164 Cr.P.C.
10. During her cross-examination, she stated that she had made her statements to the police and to the learned Magistrate on the dictates of her parents. She also stated, she was making that statement to the Court upon due deliberation with her parents.
11. As to time, she proved that she reached the Bank around 01.00 PM to affix her thumb impression and then she started back after about one hour. She denied the suggestion that her statement recorded under Section 164 Cr.P.C. was tutored. She specified that she was not helped by anyone when she made that statement. She proved that she made that statement to the police and the learned Magistrate. She specifically denied the suggestion that she was speaking falsehood.
12. Thereafter, 'F' was examined as P.W.-2. He also proved that on 09.09.2019 'X' had left her home for the Bank. She returned from there, limping and crying in pain. On being enquired she disclosed that she has been raped by the appellant who is her cousin brother. As to the manner of commission of rape, he supported the FIR narration. He also proved, within five minutes of 'X' reaching home, the appellant also reached there and threatened 'F' with dire consequences if any police report were made about the occurrence. On being challenged, he fled therefrom. He also proved the Written Report submitted and the FIR, lodged by him.
13. During his cross-examination, besides admitting the fact that he had three brothers, one being father of the present appellant, he further proved he gained knowledge of the occurrence at about 3:00 p.m. when 'X' returned home. He further proved that the appellant had threatened 'F' not to report the matter to the police and had prevented him from calling on the Police Helpline Number 100. In that, he committed physical assault. On being challenged at that stage, he fled from the spot. He further stated that he had to wait at the Police Chowki Kanchausi for about two hours. There, the police authorities instead of lodging the First Information Report kept asking questions from 'X' about the occurrence.
14. Later, 'F', 'M' and 'X' were driven to the Dibiyapur Police Station in a police jeep where 'F' lodged the FIR.
15. He admitted existence of a civil dispute between the parties wherein he further disclosed that he had been deprived of his share in ancestral property, by his father. He further alleged that the father of the present appellant was not allowing 'F' to cultivate the land owned by 'F'. In that regard, a civil dispute was pending before the Consolidation Court. However, he denied the suggestion that he had lodged this false criminal case for reason of such other disputes.
16. Thereafter, 'M' was examined as P.W.-3. She also proved the occurrence as narrated to her by 'X'. In that she narrated that 'X' had gone to the bank at about 1:00 p.m. on 09.09.2019. She returned home crying and limping. On being questioned she disclosed that the appellant had pulled her inside his house, closed the door from inside and committed rape on her first with his fingers and then with his penis and still thereafter orally on her mouth. On examining 'X' in private, she discovered 'X' was bleeding from her private parts. Around that time the appellant also arrived and admitted his mistake and insisted that no police report may be made. On 'F' making a call on the Police Helpline Number 100 from his mobile phone, the appellant snatched his phone and committed physical assault on 'F'. By the time other persons had arrived. On the appellant being thus challenged, he fled from the spot, holding out threat to kill anyone who would dare to give evidence against him.
17. Thereafter, 'M' proved the fact of the FIR being lodged and the medical examination of 'X'. During her cross-examination, she admitted that there were pre-existing disputes between the parties with respect to the property wherein her husband had been deprived of his share in ancestral property. She also maintained, 'X' had gone to the Bank to open an account but it could not be opened because she was a minor. She further claimed that she had sent 'X' to the Bank and that she gained knowledge about the occurrence around 2-2:30 p.m. that someone had committed wrong on 'X'. As to the arrival of the appellant at her residence after a short while, she again maintained her earlier stand. No discrepancy occurred in that regard.
18. Thereafter, 'R' was examined as P.W.-4. She proved that she had seen the appellant catch hold of 'X' and take her to his house, at about 1:30 - 2.00 P.M.
19. During her cross-examination, she admitted that in 2018 her younger brother-in-law 'Q' had lodged a case against the appellant of enticing his daughter. However, she denied any earlier occurrence involving her husband and the present appellant wherein the appellant was allegedly assaulted/beaten by her husband. She also denied existence of any civil dispute between her husband and the father of the present appellant with respect to a vacant plot lying between their respective properties. As to knowledge of rape committed on 'X', she stated that she had seen 'X' walk back to her home.
20. Thereafter, Lady Constable Rekha was examined as P.W.-5. She proved the fact of the F.I.R. being lodged and G.D. entry recorded with respect thereto.
21. Next, Dr. Seema Gupta was examined as P.W.-6. She proved the Medico-Legal Report and the Supplementary Medico-Legal Report of 'X'. She proved injuries suffered by 'X'. She proved her opinion that the injuries may have been caused as a result of rape suffered by the victim 'X'. No material contradictions emerged during her cross-examination.
22. Next, Lady Constable Laxmi Chaudhary was examined as P.W.-7. She proved the statement of the victim recorded under Section 161 Cr.P.C. Next, S.I. Ram Prakash was examined as P.W.-8. He proved recoveries of muffler, underwear and striped bed webbing ('Niwar'). Last, Inspector Nirbhay Chandra was examined as P.W.-9. He proved the investigation.
23. Thereafter, the statement of the victim was recorded under Section 164 Cr.P.C. No defence evidence was led. In such facts and evidence, the learned court below has convicted the appellant.
24. Learned Amicus Curiae would submit, the prosecution story is doubtful. The F.I.R. was not lodged promptly. It is motivated. Pre-existence of serious civil dispute is admitted to the prosecution. In that, it was specifically admitted by 'F', the father of 'X', that he had been deprived of his ancestral property by his father in favour of his siblings and that, at present, the father of the appellant was not allowing 'F' to cultivate his self-owned land. Similar statement was made by 'M', the mother of 'X'. Thus, it has been submitted, the appellant has been falsely blamed for the occurrence that may have been caused otherwise.
25. In that regard, it has been stressed, 'M' also admitted that she first learnt that some person had committed wrong on her daughter 'X'. Second, it has been stressed, the true relationship of the parties was deliberately hidden by the prosecution, inasmuch as, though named in the F.I.R., the relationship of the appellant with 'X' being her cousin brother was not disclosed, either in the F.I.R. or in the statement of 'X' recorded under Section 161 or under Section 164 Cr.P.C.. Therefore, the occurrence that may have been caused otherwise, has been blamed on the present appellant, for collateral purposes only.
26. It is wholly incredulous to allege that 'X' suffered such an assault and limped back to her home about 1 km away, without any person noticing her. Further, no corroboration exists of any assault made by the appellant on 'F'. In fact, no corroboration exists of the appellant having reached the residence of 'F' after causing the occurrence. Neither there is any detail of phone call made by 'F' to the police nor there is any independent witness of that occurrence. Also, it has been stressed, no independent witness came forward to prove any part of the occurrence. 'R' (P.W.-4) was a interested witness as she was having a grudge against the appellant, arising from an earlier case lodged by her younger brother-in-law against the appellant.
27. Then, though 'X' is described to have returned from the bank on foot and is further described to have limped back to her home from the residence of the appellant, neither any Closed-circuit Television (C.C.T.V.) footage was obtained from the bank premises to prove that part of the prosecution story nor any independent witness/Bank employee was examined to establish that 'X' had gone to the Bank and/or was seen limping back to her home from the house of the appellant, after the occurrence.
28. Thus, it has been submitted, wholly incredulous and unproven prosecution version exists that 10 year old 'X' had gone to the Bank on her own to open an account. It is well-known that a minor of age 10 years, may never be able to open a bank account. Keeping in mind the social profile of the parties, the prosecution story is completely baseless and false.
29. Coming to the statement made by 'X', it has been submitted, she has offered an inconsistent and improbable account of the occurrence wherein she disclosed that she was wronged by the appellant. Later, in her statement recorded under Section 164 Cr.P.C., it was disclosed, she was forcibly taken to the house of the appellant who undressed her, and first made her to suffer "penetrative sexual assault" on her private part with his finger, then with his penis and later orally on her mouth. Neither presence of any spermatazoa was found in the vaginal swab test nor any D.N.A. matching could establish that the appellant had caused that occurrence. Though the clothing and bed-webbing ('Niwar') of the appellant as also clothing of 'X' were sent for forensic test, besides reporting presence of human blood and semen, neither the blood type was matched nor D.N.A. matching could establish that the occurrence had been caused by the appellant. It has also been submitted, the recovery of clothing of 'X', her muffler cloth and bed webbing ('Niwar') was not made at the pointing out by the appellant. Rather, it is claimed to have been recovered by the police on 09.09.2019 itself, in the absence of any independent witness. At the same time, 'M' claims to have been present at that time. Thus, the recovery has also been challenged.
30. It is further submitted, during her examination, 'X' did not establish occurrence of rape. She was recalled under Section 311 Cr.P.C. At that belated stage, she alleged commission of rape, by the appellant. In that regard, reliance has been placed on the statement of Dr. Seema Gupta (P.W.-6), that 'X' told her that she had not suffered any bleeding.
31. Lastly, it has been submitted, the entire investigation was concluded within a very short time of ten days. Even the trial proceeding began on 19.09.2019, with the framing of charges and it was concluded within a month on 16.10.2019. In such facts, proper opportunity to defend was denied. Thus, rules of natural justice are claimed to have been violated.
32. On the other hand, learned A.G.A. would submit, the F.I.R. was lodged most promptly within hours of the occurrence. Though the exact time of occurrence is not noted in the F.I.R., at the same time, it is on record that the matter was reported to the police at about 7.48 PM, on 09.09.2019 and it was also duly proved. After such F.I.R. was registered, 'X' was taken for Medico-Legal Examination. She reached the hospital at about 8.15 PM. Dr. Seema Gupta (P.W.-6) proved that even at that time, fresh blood was oozing though not flowing from the private part of 'X'. Therefore, clearly, the occurrence had taken place during the day hours, as proven by the prosecution witnesses of fact.
33. The F.I.R. being prompt, it has been submitted, there is no doubt that the same narrates what actually transpired. That version was fully proven at the trial on the strength of the evidence led by 'F', 'M' and 'X', as corroborated by 'R'. In absence of any material discrepancy or serious doubt during their cross-examination, all submissions advanced by learned Amicus Curiae may only contain purely theoritical possibilities but not give rise to any reasonable doubt.
34. Heavily relying on the statement made by 'X', it has been submitted, she gave the exact account of the occurrence wherein while returning from the Bank undeniably located near the house of the appellant, he took her to his house, closed the door and committed "penetrative sexual assault" on her. In that, she started bleeding.
35. That nature of occurrence is wholly corroborated by the injury report duly proven by Dr. Seema Gupta (P.W.-6). Though DNA matching may not exist, at the same time, due corroboration exists for reason of presence of human male semen proved in the vaginal smear of 'X' and on the clothing material (as proved by the F.S.L. in its report dated 14.10.2019). That report also confirmed the presence of human semen on the clothing of 'X'. In absence of any reasonable doubt to that part of the prosecution story as narrated by 'X', 'F' and 'M', the learned court below has rightly convicted the appellant for the offence alleged. In the context of the occurrence caused by an adult on an infant girl, below 12 years of age, it has further been submitted, the learned court below has rightly awarded maximum sentence being life imprisonment. No leniency may be observed in that regard.
36. Having heard learned counsel for the parties and having perused the record, in the first place, merely because the F.I.R. does not narrate the time of the occurrence, it cannot be described as belated. 'F' lodged the F.I.R. on 09.09.2019 whereby he first reported to the police at about 07:48 PM that 'X' had suffered rape committed by the appellant, on 09.09.2019. It may also be noted that the F.I.R. contains a full narration of the ingredients of the cognizable offence, alleged. In that, it has been disclosed, 'X' had gone to the Bank to open an account and that the occurrence was caused while she was returning from the bank. That fact was also proven by 'F', 'M' and 'X', at the trial. No doubt emerged during their cross-examination that 'X' had gone to the Bank and was returning from there. In that, it was further narrated, 'X' was returning from the bank at about 01.00 PM. It being a matter of common knowledge that banking hours start at about 10.00 AM. The fact that F.I.R. narrated that 'X' had gone to the bank and was returning from there clearly indicated that the occurrence had been caused after 10.00 AM. Also, considering the fact that it was duly proven by the prosecution that 'X' had gone to the Bank on foot, on her own and was returning from there on foot, it has to be acknowledged that time would have been consumed by 'X' in reaching the Bank, spending time there (described as 1 hour), before she would have started back for home.
37. In absence of any effective cross-examination on those counts, we do not find any reason to doubt the prosecution story that the occurrence took place around 01.00 PM as narrated at the trial. The corroboration of time of occurrence, if required, clearly exists in the medical examination led by Dr. Seema Gupta (P.W.-6 at the trial). She proved, she examined 'X' at around 08.00 PM. At that time, blood was oozing from the injury suffered on her private part. It was not flowing and it had also not fully clotted. Thus, she proved that the occurrence would have been caused some hours prior to the medical examination. Therefore, it stands established that the occurrence was caused on 09.09.2019, during banking hours. To the extent, the prosecution has led evidence to establish that such occurrence was caused at about 01.00 PM and since there is no effective cross-examination to doubt that prosecution story, we find no inconsistency or doubt in the facts narrated in the F.I.R. and the facts proven at the trial. It is a settled principle of law that the F.I.R. is not an encyclopaedia. The prosecution is not burdened to disclose each and every fact related to the occurrence with exactitude, in the F.I.R., including the time of the occurrence.
38. To the extent, the F.I.R. narrates and contains the ingredients of the offence alleged, with particulars of the occurrence as also the offender, with date and place of occurrence and it clearly suggests that the occurrence was caused during banking hours, we find that the F.I.R. lodged was wholly proper and in accordance with law. It cannot be doubted as unreliable for reason of time being, not specified.
39. As to the occurrence, 'X' has proven the occurrence beyond reasonable doubt. In that, she narrated that the appellant took her to his house, closed the room from inside; undressed her and, committed "penetrative sexual assault" on her - first with his finger, then with his penis (on her private parts), and then orally, on her mouth. Again, merely because the F.I.R. does not narrate full details of such an occurrence, it may not be observed to be defective or deficient on that count. The First Information Report offers the starting point of the investigation. To the extent, it contains the ingredients of a cognizable offence alleged, we are not inclined to look beyond that point, to doubt the F.I.R. itself. As to her statements made during investigation and at the trial, we find in her first statement made to the police under Section 161 Cr.P.C., it was Ex.Ka-1 at the trial. In that, she merely stated that the appellant had gagged her mouth and committed wrong on her. It led to bleeding and pain, and the appellant let her go after causing such occurrence. She limped back home. In her statement recorded under Section 164 Cr.P.C. on 11.09.2019, she was able to give full details of the occurrence wherein she reiterated that the appellant took her to his house, gagged her mouth; undressed her and committed "penetrative sexual assault" first with his finger causing bleeding and thereafter with his penis on her private parts and then on her mouth, whereafter he let her go. She limped back home. At the trial, 'X' reiterated the statement made under Section 164 Cr.P.C., alleging "penetrative sexual assault". As to the other description of the occurrence, her statement remained the same.
40. In the nature of occurrence suffered by a minor aged about 10 years, we find it natural on her part to have only described the occurrence as a wrong done on her, soon after the occurrence. An innocent child who may have suffered such "aggravated penetrative sexual assault" may never be in a position to rationalise the most traumatic and scary experience and to be able to narrate the same with details, soon after the occurrence. At that stage, a child (or even an adult for that matter), may remain in the grip of extreme trauma as may not allow their mental faculties to function properly or rationally. Here, it was also proven, 'X' had suffered extensive injuries on her private parts leading not only to bleeding but also extensive tearing that prevented her from walking normally. Thus, she limped back home.
41. In such circumstances, she narrated her extreme ordeal to her parents and to the police, initially. Therefore, it may never be said that her statement made on 11.09.2019 under Section 164 Cr.P.C. is a material improvement over her statement made under Section 161 Cr.P.C. After two days had passed during which 'X' received medical treatment and more than that having spent time in the safety of her home in the care of her parents, she would have gained some composure and control over her faculties, to be able to make a more coherent statement containing description of the occurrence. In such circumstances, on 11.09.2019, she described that the appellant first gagged her mouth and undressed her and thereafter committed "penetrative sexual assault" on her private part first with his finger that led to bleeding and thereafter with his penis that would have led to tear injuries suffered by her. Thereafter, he committed rape on her mouth, with his penis. We find no reason to doubt that statement made by 'X' as an improvement. Shock and trauma are known to disorient an otherwise very mature, calm and composed adult human being. Here, we are dealing with a minor barely 10 years of age, who had suffered extreme traumatic experience involving "aggravated sexual assault" committed on her, by a person known to her. At the trial, she made no departure from the statement made under Section 164 Cr.P.C. To that extent, we find no good ground to doubt the same.
42. As to the submission that 'X' had been tutored inasmuch as she admitted that she has been spoken to by her parents before she made statement to the Court, we cannot accept that submission either. Clearly, a child 10 years of age is not supposed to know the manners and ways of Courts and/or the police. They may also not understand offence, trial and punishment under statutory law. They may only have a nebulous concept of right and wrong, love and hate. They are not supposed or equipped to suffer a traumatic experience and occurrence of this magnitude involving a heinous offence of rape. Though, 'X' was able to describe the experience suffered by her but she may never be expected to have understood the motive of the appellant to cause that occurrence or the occurrence itself. At that tender age, children may never be cognizant of such facts. They may only feel pain, hurt, shame, guilt, dejection and like emotions upon suffering such occurrence. It is the parents and family of such unfortunate children who may understand the occurrences and the need and means to provide legal remedy in such circumstance. It therefore, becomes the natural duty of such parents and others to speak to the victim children and to help them seek justice. Seen in that context, the statements made by 'X' that she had been spoken to by her parents, is wholly natural and expected. Unless that counselling was first offered by the parents of 'X', she may not have been able to stand up and make a statement either under Section 161 Cr.P.C. or under Section 164 Cr.P.C. and less so before the Court - to establish the ingredients of the offence, on the test of the law and child may only feel intimidated and over powered and thus disabled to narrate such occurrence to strangers be it a police personnel or a Court. Unless it is first explained to a child (by their parents), why they are required to be present in a Court or before the police to make a statement, the victim child may be completely befuddled and confused and even traumatised upon their appearance, either before the police or the Court. They may clam up and not speak or cry and not speak or offer conduct that may not be found trustworthy by the police or the Court. To the extent, the learned Court below allowed for the necessary statement to arise and also necessary cross-examination to be done, we find no fault. In such circumstances, it cannot be said that 'X' gave tutored evidence before the Court.
43. As to the motive of false implication, in the first place no evidence was led to establish such bad blood between the parties as may have provoked 'F' and 'M' to cause such extensive injuries to their daughter only to set up a false case against the appellant. Merely because 'F' and 'M' admitted to existence of prior civil disputes, it may not be expected, therefore they would have either caused such occurrence or would have hidden the real culprit. The occurrence is undoubted. It is proven both on the strength of oral evidence as also medical opinion. As to place of occurrence, there is less to doubt, in face of the undoubted recovery of blood and semen stained underwear of the appellant as also recovery of similarly blood and semen stained underwear and also muffler cloth of 'X', from the room where the occurrence had been caused by the appellant (inside his house). That material was confronted to the appellant. No doubt has emerged with respect to that recovery. The entire defence theory that the occurrence may not have been caused in the manner disclosed or that it may have been caused by a third person, is thus found baseless. In absence of any explanation to the above recoveries made from inside the house of the appellant as described by the prosecution, no reasonable doubt may ever arise that the occurrence was caused by the appellant inside his house. Merely because such recovery was made prior to the arrest of the appellant, also does not create any doubt. To the extent such recoveries were made of clothing of 'X' and bed-webbing ('Niwar') from the room of the appellant, by the police and to the extent that fact cannot be doubted, all other objections in that regard, fade into insignificance.
44. The fact that the DNA matching did not arise is of lesser consequence in face of what has been discussed above. While DNA matching may have led to a stronger proof by way of corroboration, it may not be said, unless such corroboration existed, the prosecution story may not have been proven beyond reasonable doubt. Here, on the strength of strong ocular evidence as corroborated by medical evidence as also recovery of blood and semen stained clothing of 'X' and bed-webbing ('Niwar') from the room of the appellant and blood-stained clothing of the appellant, no reasonable doubt may arise as to the occurrence or completeness of the prosecution story, as narrated.
45. In view of the above, we find no error in the order of the learned court below in convicting the appellant for the offence under Section 5(m) read with Section 6 POCSO Act and Section 506 IPC. To that extent, the appeal does not deserve acceptance.
46. On the issue of sentencing, we find, in the entirety of the facts and circumstances noted above including the age of the appellant, sentence of twenty years imprisonment without remission would meet the ends of justice. Fine imposed by the trial Court is maintained.
47. The appellant is in jail. He may be released after serving the modified sentence of twenty years and payment of fine.
48. The amount of fine to be deposited by the appellant, shall be paid to the victim 'X'. In case of default in payment of fine, the appellant shall further undergo imprisonment of one year.
49. Present appeal is accordingly partly allowed.
50. Learned Amicus Curiae may be paid Rs. 25,000/- for his assistance to the Court, within two weeks.
51. Let a copy of this order be communicated to the jail authorities concerned through Registrar (Compliance) of this Court.
52. Let the trial Court record be returned to the court concerned alongwith a copy of this order.
Order Date :- 5.5.2025
Prakhar/SA/Abhilash/Faraz
(Sandeep Jain, J.) (S.D. Singh, J.)
