1
Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
--------------------------------------------------------------------S.B.: HON’BLE MR. JUSTICE SATISH K. AGNIHOTRI, CJ.
-----------------------------------------------------------------------
Crl. A. No. 21 of 2015
Mukti Prasad Sharma,
Son of Shri Dilli Ram Sharma,
Resident of Nandok Busty,
East Sikkim.
Presently at Central Prison at Rongyek.
… Appellant
versus
State of Sikkim
… Respondent
Appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973.
----------------------------------------------------------------------Appearance:
Mr. B.K. Gupta, Advocate for the Appellant.
Mr. D.K. Siwakoti and Ms. Aruna Chhetri, Advocates
as „Amicus Curiae‟.
Mr. J.B. Pradhan, Public Prosecutor with Mr. Santosh
Kr. Chettri and Ms. Pollin Rai, Assistant Public
Prosecutors for the State.
-----------------------------------------------------------------------
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
JUDGMENT
(01.05.2017)
Satish K. Agnihotri, CJ
Impugning the correctness of the finding, conviction
and sentencing vide Judgment and Order dated December 15,
2014, wherein the appellant was convicted under provisions of
Section 5 (c) read with Sections 5 (j) (ii) and 5 (l) punishable
under Section 6 of the Protection of Children from Sexual
Offences (POCSO) Act, 2012 (hereinafter referred to as “POCSO
Act”) and also under Section 376 (2) (i) of the
Indian Penal
Code, 1860 (hereinafter referred to as “IPC”), the appellant has
preferred the instant appeal under provisions of Section 374 (2)
of the Code of Criminal Procedure, 1973.
2.
On having been found guilty under the aforestated
provisions, the appellant was convicted to undergo Rigorous
Imprisonment (RI) for a period of 10 (ten) years and pay a fine
of Rs.5,000/- under Section 5 (c) punishable under Section 6 of
the POCSO Act. In default of payment of fine, the appellant was
to further undergo two months RI. The appellant was also
convicted to undergo RI for 10 (ten) years and pay a fine of
Rs.5,000/- under Section 5 (j) (ii) punishable under Section 6 of
the POCSO Act. In default of payment of fine, the appellant was
ordered to further undergo two months RI.
Further, under
Section 5 (l) punishable under Section 6 of the POCSO Act, he
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
was convicted to suffer the RI for a period of 10 (ten) years and
pay a fine of Rs.5,000/-. In default of payment of fine, to further
undergo RI for two months. Under provision of Section 376 (2)
(i) of the IPC, he was punished to undergo RI for a period of 10
(ten) years and pay a fine of Rs.5,000/-. In default of payment
of fine, to serve further RI for two months.
All the sentences
were directed to run concurrently.
3.
On August 23, 2013, the father of the victim lodged
First Information Report in Ranipool Police Station stating that his
elder daughter, aged about 15 years, on admission to the
S.T.N.M. Hospital due to excessive bleeding gave birth of a
female child.
On inquiry, he was informed that the appellant
herein, who happened to be a teacher in Nimthang School, had
sexual intercourse with her.
Taking notice of the said FIR,
investigation began on the same date.
After inquiry and
investigation, a charge-sheet was filed on October 22, 2013,
which was amended subsequently in the Special Court under
POCSO Act against the appellant.
The appellant was charge-
sheeted for having committed aggravated penetrative sexual
assault on the minor victim on several occasions at her
residence.
Thus, committed an offence under Section 5(c)
punishable under Section 6 of the POCSO Act. The appellant was
also charge-sheeted for making the minor victim pregnant by
penetrative sexual assault as defined in Section 5 (j) (ii) and
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
Section 5 (l) punishable under Section 6 of the POCSO Act. The
appellant was further charge-sheeted under provisions of Section
376 (2) (i) of the IPC for having committed rape on the minor
victim of under 16 years of age.
4.
During the investigation, the blood samples of the
accused, minor victim and newly born baby was collected for
DNA profile to examine paternity. DNA report, vide Exhibit-16,
confirms that allele DNA profile of blood sample of newly born
baby matches with the allele DNA profile of blood sample of
minor victim and blood sample of the appellant holding that the
newly born baby was the daughter of the minor victim and the
appellant. The victim in her statement, Exhibit-7, recorded under
Section 164 clearly stated that during November 2012 and
thereafter on several occasions the appellant, taking advantage
of absence of her father, came to her house and had sexual
intercourse.
On August 21, 2013 she felt severe pain on her
stomach and was taken to the hospital, wherein she delivered a
baby girl on August 22, 2013. She further stated that there is no
doubt about the paternity of the baby, i.e. the appellant.
5.
The appellant tendered apology in presence of senior
citizens of the village, Zilla Panchayat, Panchayats of Upper and
Lower Nandok, confessing that he had illicit relationship with the
minor victim and he has fathered the baby child. The appellant
further stated that the child would be entitled to her share in his
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
moveable and immoveable properties and the victim will not face
any difficulty in life. On the same day, the legally wedded wife of
the appellant, namely Pabitra Sharma, gave an undertaking
(Exhibit-6) in presence of the Panchayats and senior citizens that
her husband, the appellant, is the father of the child and she was
ready and willing to take the minor victim as co-wife of the
appellant.
She undertook that she will not misbehave and ill-
treat the victim girl in future.
The appellant also gave one
undertaking to this effect (Exhibit-4) in presence of the same
people. It has come on record that the confessional statement
and also the undertaking given before the senior citizens and
Panchayats were not made in presence of the police officers and
as such the same is not hit by the provisions of Sections 25 and
26 of the Indian Evidence Act, 1872.
6.
Besides the aforestated confessional statements, it
has been reiterated before me by Mr. B.K. Gupta, learned
counsel appearing for the appellant, that the sexual assault
leading to birth of a baby girl is not denied or disputed, but it was
consensual.
The learned trial Judge had examined the case
independently from all angles.
7.
PW-1
Parents of the victim, namely Nar Bahadur Chettri,
and
Sita
Chettri
(PW-4)
in
their
statements
have
categorically stated that the date of birth of the victim was
September 03, 1998 and on the relevant date when the appellant
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
had committed penetrated sexual offence, she was less than 16
years of age.
The father of the victim (PW-1) was consistent
even in the cross-examination. PW-1 denied the suggestion that
he was aware of the pregnancy of the victim. Suggestion to the
effect that the birth certificate was manufactured for the purpose
of the case, in fact she was major, was strongly denied by PW-1.
PW-4 corroborating the statement of the father of the victim
(PW-1) deposed that the victim daughter was not more than 18
years of age when she delivered a baby girl.
8.
The argument of Mr. B.K. Gupta, learned counsel
appearing for the appellant is in two folds. Firstly, the victim was
not a minor at the relevant time when the alleged sexual assault
was alleged to have taken place, as is evident from the evidence
of PW-3, wife of the accused and PW-9.
PW-3 has stated that
she had two sons, aged about 24 and 23 years respectively and
the victim was two years younger to her younger 23 years old
son.
She further emphatically stated that she had gone to the
house of the parents of the victim on her birth.
It was also
contended that PW-9, a fellow villager, in his deposition had
stated that the victim was about four years older to his son, who
was 17 years of age on the date of deposition i.e. 27.10.2014.
The
birth
certificate
of
the
victim
(Exhibit-2)
and
the
immunization card of the victim‟s mother (Exhibit-10) produced
by the parents were not proved. The victim had given her age as
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
16 years while deposing before the Court and one year before, in
the statement under Section 164 Cr. P.C. also she had claimed to
be of 16 years and as such it is doubtful. Even in the medical
report of the victim (Exhibit-12), the dates given was 14 years to
17 years at different places and as such the victim was not minor
at the time of incident.
9.
Secondly, he would contend that the victim did not
shout or inform the parents about the sexual assault and as such
the sexual contract was consensual.
Mr. Gupta would further
contend that Dr. Ritu Nath Deokota, Gynecologist & Obstetrician
(PW-13), in his cross-examination, had stated that the newly
born baby was full term baby, which is possible only after 39 to
40 weeks of conception.
In such view of the matter, the
conception has taken place prior to coming of the POCSO Act on
14th November, 2012.
Thus, the trial and conviction under the
provisions of POCSO Act is unauthorized, illegal and the same
deserves to be set aside.
Referring to an observation made in
an article, wherein it was observed that Bombay High Court held
that the child abuse law can‟t have retrospective effect, the
learned counsel seeks support for his aforestated arguments,
without referring or producing relevant judgment or order.
10.
Contrasting the contention of learned counsel for the
appellant, Mr. J.B. Pradhan, learned Public Prosecutor would
contend that the FIR was lodged on August 23, 2013 by the
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
father of the victim, when he came to know about the offence of
sexual assault made by the accused as to cause the minor victim
as pregnant.
filed.
Thereafter, after investigation, charge-sheet was
The offence committed by the accused was a continuing
offence and as such the offence continued when the POCSO Act
came into force. Relying on the provision of Section 472 Cr. P.C.
where “Continuing Offence” is contemplated and defined and also
on the observations made in Bhagirath Kanoria & Ors. Vs.
State of M.P.1 and Mohan Lal vs. State of Rajasthan2, the
learned Public Prosecutor emphasized that the offence of sexual
assault was a continuing offence.
It is further stated that the
offence stood proved by the DNA test of the victim, that of child
and of the accused.
The trial court was fully justified in
conducting the trial under the provisions of POCSO Act as well as
under IPC.
11.
Having examined the evidences, which have come on
record, and on considering the submissions advanced by the
learned counsel appearing for the appellant as well as the
learned Public Prosecutor, I proceed first to examine the age of
the victim at the time of sexual assault.
12.
PW-1, father of the victim in his deposition has stated
that the date of birth of his victim daughter was 03rd September,
----------------------------------1
(1984) 4 SCC 222
2
(2015) 6 SCC 222
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Crl. A. No. 21/2015
Mukti Prasad Sharma vs. State of Sikkim
1998.
In support, he produced the birth certificate (Exhibit-2)
issued on 22nd April, 2013.
On being accosted in the cross-
examination, he reiterated that the age of his daughter was not
above 16 years at the time of incident and the certificate was not
produced for the purpose of showing the victim as minor and also
to fix the accused in the matter.
The victim (PW-2) in her
evidence made on 25th September, 2014, stated that she was 16
years of age and was studying in Class IX at the time of the
incident. In the cross-examination, she reiterated that she was
not more than 18 years at the relevant time. The mother of the
victim (PW-4) deposed that her victim daughter was 15 years old
and she was studying in Class VIII during the period of offence
committed.
Moreover, the immunization record of the minor
victim (Exhibit-10) and of PW-4 clearly states the date of birth of
PW-2 as 03rd September, 1998. The record cannot be doubted
subsequently without there being any cogent reason.
13.
The contention of Mr. B.K. Gupta that PW-3, the wife
of the accused and PW-9, a fellow citizen had stated on the basis
of age of their children that she was more than 18 years of age
at the time of incident, did not find any corroboration from any
record and also the defence has not produced the birth
certificates of children of PW-3 and PW-9.
Statements made by
PW-1, PW-2 and PW-4 could not be demolished in the cross-
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Mukti Prasad Sharma vs. State of Sikkim
examination. Besides, the younger paternal uncle (PW-5) of the
victim had further corroborated that the victim was 15 years of
age and was studying in Class IX in Nandok Little Angels School.
Further, the age of the victim stand corroborated by Exhibit – 4,
the undertaking given by the appellant on 22nd August, 2013,
Exhibit – 5, apology tendered by the appellant and Exhibit – 6,
undertaking given by Pabitra Sharma (PW-3), on the same day.
In Exhibit – 4, executed by the accused/ appellant, it is clearly
stated that “until the victim does not attain the age of 18 years
the accused will not disturb at her home”, which clearly
establishes that even the accused knew that at the time of
making Exhibit-4, the victim was less than 18 years.
PW-5,
PW-6, PW-7, PW-8, PW-9 and PW-12, who were witnesses to the
execution of Exhibit-4, Exhibit-5 and Exhibit-6, have clearly
stated that the said exhibits were executed in their presence,
which were not denied by the accused and his wife (PW-3) also.
Veracity of the birth certificate was doubted by the accused, but,
no attempt was made to disprove it by insisting on production
and examination of certificate giving authority.
Mere obtaining
birth certificate, at later stage of time, cannot be the ground to
discredit the same. Thus, the finding recorded by the trial Court
that the age of the victim was 14 years when the offence was
committed and 15 years at the time of delivery of the child does
not warrant interference.
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Mukti Prasad Sharma vs. State of Sikkim
14.
Referring to property seizure memo (Exhibit-28),
containing patient file, discharge certificate of the minor victim
from the hospital dated 23rd August, 2013, wherein the accused
was referred as husband of minor victim and also to the
undertaking given by him to accept minor victim as his wife, Mr.
Gupta has put forth a very strange submission that the minor
victim be treated as his wife and the sexual contract was done
with her consent. Thus, it does not make out a case of rape or
sexual assault. This contention of the appellant deserves to be
rejected outright, as the accused cannot treat the victim as his
wife even if he is ready and willing to accept her as his wife or in
some record, he has been mentioned as her husband.
The
sexual intercourse does not forge a relationship between the
parties as husband and wife, unless it is solemnized with the
consent of both the parties. It was further contended that sexual
contact was consensual.
Sexual assault or sexual contact with
the woman, who is under 18 years of age, is defined as rape
under Section 375 IPC and there is no contemplation of consent
under the provisions of POCSO Act in a case of sexual assault on
a child of below the age of 18 years. A child less than 18 years
of age is not capable of giving consent, legally or physically.
Thus, the notion of consensual sexual intercourse pleaded by the
appellant is impermissible under the law.
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Mukti Prasad Sharma vs. State of Sikkim
15.
The second question that arises for consideration is as
to whether provisions of POCSO Act are applicable in the facts of
the case when it is alleged that the offence of committing sexual
assault had taken place prior to 14th November, 2012.
The
victim (PW-2) in her deposition had stated that some times in the
year 2012, the exact date and month was not disclosed, when
her father was away in his duty, the mother had also gone for
work, the appellant came to her house and sexually abused her
after threatening and closing her mouth.
Again after about 15
days, when her parents and other members of the family were
absent in the house, he came and assaulted her sexually. The
baby was born on 22nd August, 2013. As per the deposition of
the Gynecologist (PW-13), the baby was full term baby, which as
per the medical jurisprudence, was possible after 39 to 40 weeks
from the date of conception.
months and above.
39 to 40 weeks means about 9
Going back from 22nd August, 2013, the
conception must have taken place some times in November,
2012.
Whether the baby was conceived in the first sexual
assault or in the second sexual assault is not clear from the
records.
Thus, it cannot be said with certainty that the sexual
assault was made before 14th November, 2012. If the baby was
conceived in the first sexual assault, the second sexual assault
must have taken place after 14th November, 2012, when the
POCSO Act came into force. In such factual settings, it is difficult
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Mukti Prasad Sharma vs. State of Sikkim
to establish the date of offence precisely.
Sexual assault
continued even after 14th November, 2012.
16.
It is well settled principles of law that the statutory
provisions be appreciated and understood in the light of
constitutional provisions, particularly, provisions contained in
fundamental rights, i.e. Part - III of the Constitution of India.
Article 20 of the Constitution of India prescribes as under: “20.
Protection in respect of conviction for offences:(1) No person shall be convicted of any offence
except for violation of a law in force at the time of the
commission of the act charged as an offence, nor be
subjected to a penalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence.
(2)
No person shall be prosecuted and punished
for the same offence more than once.
(3)
No person accused of any offence shall be
compelled to be a witness against himself.”
17.
On bare perusal of the Article, it is crystal clear that
the conviction and sentence in criminal proceedings has to be
done under the prevailing law and not under ex post facto law.
18.
In
Ravinder
Singh
vs.
State
of
Himachal
Pradesh3, the Supreme Court has held as under:“10.
It is trite law that the sentence imposable on the
date of commission of the offence has to determine the
sentence imposable on completion of trial. This position is
clear even on a bare reading of Article 20 (1) of the
Constitution of India, 1950 (in short, „the Constitution‟).
xxx
xxx
xxx
Under Article 20(1) of the Constitution what is
prohibited is the conviction and sentence in criminal
proceedings under ex post facto law.”
----------------------------3
AIR 2010 SC 199
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Mukti Prasad Sharma vs. State of Sikkim
19.
Thus, I have no hesitation to hold that the accused
was rightly and legally tried under the provisions of POCSO Act
read with IPC.
20.
Clause (j) (ii) of Section 5 of the POCSO Act defines
that whoever commits penetrative sexual assault on a child,
making the child pregnant as a consequence of sexual assault, is
punishable under Section 6 of the POCSO Act, which shall not be
less than ten years of rigorous imprisonment but which may
extend to imprisonment for life and shall also be liable to fine.
Clause (l) of Section 5 prescribes that whoever commits
penetrative sexual assault on the child more than once or
repeatedly, in the case on hand, it has come on record that the
offence was not committed once but subsequently also.
The
accused was a public servant, being a teacher, and as such he
comes within the ambit of Section 5 (c) also. All the aforestated
offences are punishable under Section 6 of the POCSO Act,
wherein
the
minimum
imprisonment with fine.
sentence
is
10
years
of
rigorous
The trial court has rightly found the
appellant guilty of various charges as above and convicted
accordingly.
21.
In the case on hand, an attempt was made on the
part of the Court to persuade the victim to undertake education
for which the learned Public Prosecutor, on instruction, submitted
that the Government is ready and willing to extend educational
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Mukti Prasad Sharma vs. State of Sikkim
assistance as and where she wishes to pursue. The minor victim
strongly declined to go for education. However, keeping in view
the fact that the child, a baby girl, has been adopted by the
father of the victim, it is proper to direct the appellant to part
with a substantive sum for proper care and help of the victim as
well as the child.
22.
Rule 7 of the Protection of Children from Sexual
Offences Rules, 2012, provides for payment of compensation.
The trial court has already directed the State Legal Services
Authority to release a sum of Rs.1.00 lakh (Rupees One Lakh)
payable to the victim. In addition, I am inclined, as the appellant
has undertaken in Exhibit-4 that the victim will be entitled to her
share in the moveable and immoveable property of the appellant,
to order that the appellant shall arrange to deposit in a
Nationalised Bank, a sum of Rs. 2.00 Lakhs (Rupees Two Lakhs)
for care and need of the victim and her daughter, within a period
of six months, at the disposal of the victim. This direction shall
not come in the way of the newly born child to claim the share in
the property of the appellant, in accordance with the law.
23.
Resultantly, the conviction and sentences awarded by
the trial court is confirmed. The appeal is dismissed.
Sd/Chief Justice
01.05.2017
jk
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