X vs State Of Uttarakhand And Another
2023 Latest Caselaw 1811 UK

                                           Reserved on:05.07.2023
                                           Delivered on:13.07.2023


HIGH COURT OF UTTARAKHAND AT NAINITAL

              Criminal Appeal No. 400 of 2022

X                                                 ........Appellant

                              Versus

State of Uttarakhand and Another               ........Respondents

Present:-
      Mr. Arun Pratap Shah, learned counsel for the appellant.
      Mr. J.S. Virk, learned Deputy Advocate General with Mr. Pankaj
      Joshi, learned Brief Holder for the State.
      Mr. Rajat Mittal, learned counsel for respondent no.2.

Coram :      Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Per: Hon'ble Pankaj Purohit, J.

The instant appeal is directed against the judgment and order dated 03.08.2022, passed by the learned Judge Fast Track Special Court/Additional District and Sessions Judge, Dehradun in Special Sessions Trial No. 140 of 2019, State of Uttarakhand Vs. Kamal Singh Bisht, whereby an application Paper No. 95- B moved by the appellant-victim for framing charge under Section 376 IPC and Section 4 of The Protection of Children from Sexual Offences Act, 2012, (for short "the POCSO Act") against the applicant, was rejected.

2. An F.I.R. was lodged against the private respondent by mother of the appellant-Prabha Devi in Police Station Mussoorie No. 0018 of 2019 dated 21.06.2019 under Sections 323, 504, 506, 354-A, 307 and 107 IPC and 7/8 of the POCSO Act and 3 (1) (x) (xi)

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, (for short "S.C. and S.T. Act")

3. As per the F.I.R. lodged by mother of the appellant, the minor daughter of the informant, victim aged about 17 years was called over telephone by Kamal Singh Bisht on 20.06.2019 at about 05:00 P.M. to come to Hathipaon near Mussoorie by-pass road to meet his friend-Pooja Jagwan; Kamal Singh Bisht is a resident of nearby village of the informant and the victim was well acquainted with him. It is stated that due to acquaintance, she went to meet him; on reaching there the victim found Pooja Jagwan and Kamal Singh Bisht standing near a bike and Kamal Singh Bisht introduced Pooja Jagwan to the victim and took the victim near a bush, below the road saying that he want to converse something important with her.

4. It is alleged that there Kamal Singh Bisht asked the victim to make relations with him and on protesting, he mis-behaved with the victim and started touching her private parts. At this the victim warned Kamal Singh Bisht to face legal consequences; infuriated by it, Kamal Singh Bisht slapped victim on her cheek and shut her mouth and started tearing her clothes. He threatened the victim and her family members with life; threatened her to have sexual relations with him and grabbed her neck, due to which she got frightened and ran-away from there and somehow managed to come back on to the road. Kamal Singh Bisht chased her and abused her with derogatory words "neech doomri" saying that he would not allow her to go from there alive, but victim did not submit to his demand and threatened him with legal actions. Both Kamal Singh Bisht and Pooja Jagwan were using caste coloured remarks upon her and she was abeting Kamal to commit maarpeet with her. According to the informant at about 09:00 P.M. she received a call from Police Station Kempty, Mussoorie that her daughter-victim was lying

unconscious in a secluded barren field near Kempty petrol pump and they had taken victim to St. Mary Hospital, Mussoorie and from there to Doon Hospital, Dehradun. The victim regained her senses on 21.06.2019 at about 06:00 A.M. in the Hospital and narrated the entire story to the informant. According to the informant, it is alleged that the victim was not recollecting anything, after she fell unconscious, at the place of occurrence at Mussoorie. The informant with these allegations suspected that Kamal Singh Bisht might have committed rape upon her; being a member of general caste, while the informant is a poor woman belonging to schedule caste.

5. On this F.I.R. investigation ensued and a charge- sheet was submitted against respondent no.2 under Sections 323, 504, 506, 354-A, 307 IPC and 7/8 of the POCSO Act 3(1) (R), 3 (1) (s), 3 (1) (w) of the S.C. and S.T. Act vide charge-sheet no. 19 of 2019 dated 20.08.2019. The learned Judge Fast Track Special Court/Additional District and Sessions Judge, POCSO, Dehradun took cognizance and summoned the accused to face the trial.

6. It is reflected from the record that on 07.01.2020, after hearing the learned counsel for the accused, the trial court framed charges against the respondent under Sections 354-A, 323, 504, 506, 307 IPC and under Section 7/8 of the Act and under Sections 3(1) (R), 3 (1) (s), 3 (1) (w) of the S.C. and S.T. Act. The respondent accused pleaded not guilty and claimed to be tried.

7. In-between, after framing of the charges, an application Paper No. 95-B dated 23.03.2022 supported by an affidavit was moved by the appellant-victim, after more than two years after framing of the charges,

requesting therein to frame charges against the respondent under Section 376 IPC and Section 4 of the POCSO Act, alleging therein that allegations made by her, prima-facie, warrant the framing of the charges under Sections 376 IPC and Section 4 of the POCSO Act against respondent no.2. It is also alleged in the said application that she was not informed about the framing of the charges, copies of the documents were not given to her under Section 25 (2) of the POCSO Act and her statement were recorded in a hurry.

8. This application moved by the appellant was objected by the learned counsel for the State through ADGC (Crl.), in which, it has been explained that the charges were framed against respondent no.2 on 07.01.2020 and against Pooja Sajwan on 12.02.2021, while the appellant had full knowledge of the proceedings of the case as she had engaged her own private Advocate, in the trial on 19.11.2019. It was further contended by learned ADGC (Crl.), in his objection dated 23.05.2022 that under Section 25 (2) of the POCSO Act (though wrongly written 20 (2) ), the copies of the papers are to be given after filing of a final report by the Police, while in the present case the charge-sheet was filed and despite this, on the asking of the appellant the trial court had already supplied the documents of the case to her. He denied the version of the appellant that his evidence was recorded in haste.

9. The learned ADGC (Crl.) further submitted that under Section 216 Cr.P.C. it is provided that even after the framing of the charges, the charges can be altered or added at any time, on the basis of the evidence available on record and since the evidence of the victim was still continuing and no new facts had come, the charges could be changed and modified after new facts came to light and accordingly, requested to reject the application.

10. Trial court by reason of the impugned order dated 03.08.2022 rejected the said application Paper No. 95-B moved by the appellant.

11. Heard learned counsel for the parties.

12. Preliminary objections have been raised on behalf of respondent no.2 through his learned counsel, Mr. Rajat Mittal that the appeal is not maintainable and rather remedy available to the appellant against impugned order 03.08.2022 is of revision under Sections 397 and 401 of the Code.

13. We have given our thoughtful consideration upon the preliminary objection of the maintainability of the present appeal before this Court at the behest of appellant-victim.

14. This is an appeal filed by the appellant under Section 14-A of the S.C. and S.T. Act. Section 14-A is quoted hereunder:-

[14-A. Appeals.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

(2) Notwithstanding anything contained in sub-section (3) of Section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Executive Special Court granting or refusing bail.

(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:

Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.

(4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.]"

15. Section 14-A starts with non-obstante clause and says that an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an exclusive Special Court to the High Court, both on facts and law.

16. From perusal of sub-section 1 of Section 14-A of S.C. and S.T. Act, there is no manner of doubt in the mind of this Court that an appeal would lie against any order passed by the Special Court, not being interlocutory order, to the High Court and accordingly, the appeal against the impugned order dated 03.08.2022 is quite maintainable. The preliminary objection advanced on behalf of respondent no.2 is hereby rejected.

17. Learned counsel for the appellant took us to the impugned order as well as from the record of the case, especially contents of the F.I.R. and the statements recorded under Section 164 of the Code by the appellant-victim and on the strength of these documents, it is strenuously argued that the case against respondent no.2 comes within the fold of Section 376 IPC and Section 4 of the Act; and, accordingly, the trial court was in error in not framing the charges under Section 376 IPC and Section 4 of the Act.

18. Per-contra, Mr. J.S. Virk, learned Deputy Advocate General for the State and learned Advocate for respondent no.2 supported the judgment by taking us through Section 3 and Section 7 of the POCSO Act, which defines "penetrative sexual assault" and "sexual assault" respectively, which are punishable under Sections 4 and 8 of the POCSO Act respectively.

19. Section 3 which is punishable under Section 4 and Section 7, which is punishable under Section 8 of the POCSO Act are quoted hereunder:-

"3. Penetrative sexual assaults.-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 a party of the body, not being the penis into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

7. Sexual Assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

20. Apart from that out attention was also drawn to the provision of Section 375 of IPC, which defines 'rape' and it was submitted that by learned counsels for the respondents that the allegations made in the F.I.R., the statement recorded under Section 164 of the Code would not constitute an offence punishable under Section 376 IPC and Section 4 of the Act.

21. With the help of learned counsel for the parties, we have gone through the contents of the F.I.R and the statements recorded under Section 164 of the Code. The allegations are only to extent that the accused-respondent no.2 insisted the victim to have sexual relations with him, on her denial he extended threat to her life and slapped on her cheek, on which, she became unconscious. When she regained consciousness, he allegedly pressed her neck. She somehow managed to run-away from respondent-Kamal Singh Bisht, who tried to threw her from the rock. According to the

victim, respondent no.2 tried to tear her clothes and touched her private parts, on which, she again run-away pushing respondent no.2 aside.

22. From perusal of the allegations made in the 164 statements as well as in the F.I.R., we are of the considered opinion that prima-facie, the allegations made against the applicant can only prima-facie fulfill the ingredients of offence defined under Section 7 of the Act. There are no allegations which could bring even prima-facie the case under Section 3 of the Act, which is punishable under Section 4 of the Act.

23. The allegations made may reach close to the offence as defined under Section 7 of the POCSO Act and charge under Section 7/8 of POCSO Act has already been framed by the learned trial court.

24. Accordingly, the trial court has not committed any illegality by rejecting the application Paper No. 95-B moved by the appellant by the impugned order dated 03.08.2022.

25. There is yet another aspect of the matter that the charge can always be altered and added at any time under Section 216 before the judgment is pronounced. In this view of the matter too there is no infirmity and illegality in the impugned judgment.

26. Learned counsel for the appellant further submitted that the provisions of Section 15-A has not been followed by the trial court, inasmuch as, the victim was not given a timely notice and was not heard at the time of the framing of the charges and thereby, the provision contained under Section 15-A sub-sections 3 and 5 were infringed.

27. We have gone through the provision of Section 15- A, and also took notice of the objection given by the learned ADGC (Crl.) to the appellant's application Paper No. 95-B moved by the appellant during the trial.

28. From the record, it is evident that the appellant has been represented by a private Advocate whom she engaged on 19.11.2019, hence, there is no need to sent any notice to her.

29. From perusal of Section 15-A (5), it is reflected that the victim or her dependent is not entitled to be heard at the time of framing of the charges. But here in the case in hand, the victim has throughout been represented by a private Counsel engaged by her to look after her interest.

30. In this view of the matter the appeal is accordingly dismissed. The impugned order dated 03.08.2022, passed by learned the learned Judge Fast Track Special Court/Additional District and Sessions Judge, Dehradun in Special Sessions Trial No. 140 of 2019, State of Uttarakhand Vs. Kamal Singh Bisht is affirmed.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

SK