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IN THE HIGH COURT OF ALLAHABAD
SAMIT GOPAL, J.
Krishnakant – Appellant
Versus
State of U.P. and Another – Respondents
Criminal Appeal No.355 of 2018
Decided on : 27-09-2022
POCSO Act - Conviction under Section 376 IPC set aside - Victim's age not established - SC/ST Act charge not proven - Lack of medical evidence for penetrative sexual assault - Enmity between parties - Appeal allowed, accused acquitted
Fact of the Case:
The victim, referred to as 'X', alleged that the accused, Krishnakant Dwivedi, committed rape on her. The prosecution case was based on the victim's statement, medical examination, and witness testimonies. The accused denied the allegations and claimed false implication.
Finding of the Court:
The court found that the victim's age was not conclusively established, the charge under the SC/ST Act was not proven, and there was a lack of medical evidence for penetrative sexual assault. The court also noted the enmity between the parties.
Issues: The key issues were the victim's age, the validity of the SC/ST Act charge, the lack of medical evidence for the alleged assault, and the presence of enmity between the parties.
Ratio Decidendi: The court set aside the conviction under Section 376 IPC due to the victim's age not being established and the charge under the SC/ST Act not being proven. The lack of medical evidence for the alleged assault and the presence of enmity between the parties influenced the court's decision to allow the appeal and acquit the accused.
Final Decision: The appeal was allowed, and the accused was acquitted of all charges. The court directed the release of the accused from jail if not wanted in any other case and ordered the trial court records to be sent for necessary follow-up action.
JUDGMENT :
Samit Gopal, J.
1. The present Criminal Appeal under Section 374 (2) Criminal Procedure Code, 1973 read with Section 14-A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("SC/ST Act") has been filed by the accused appellant Krishnakant against the judgment and order dated 30.11.2017 passed in Special Criminal Case No. 73 of 2014 (State Vs. Krishnakant) convicting and sentencing the appellant under Section 376 Indian Penal Code, 1860 ("IPC") to 15 years Rigorous Imprisonment and a fine of Rs.15,000/-, under Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act") to 15 years Rigorous Imprisonment and fine of Rs.15,000/-, under Section 3 (1) 11 SC/ST Act to 2 years Rigorous Imprisonment and a fine of Rs. 2,000/-, under Section 506 IPC to 1 year Rigorous Imprisonment and a fine of Rs. 1,000/-. It is further ordered that in default of payment of fine under Section 376 IPC and Section 4 POCSO Act the appellant shall undergo 2 years each additional imprisonment, under Section 3 (1) 11 SC/ST Act to 2 months additional imprisonment and under Section 506 IPC to 1 month additional imprisonment. The sentences have been ordered to run concurrently. It is further ordered that out of the fine as deposited, Rs.15,000/-as compensation shall be paid to the victim.
2. The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and Section 228A of the IPC. She is, thus, referred to as 'X' in the judgment.
3. The prosecution case as per an application dated 9.6.2013 given by victim ‘X’ to police of police station Kamasin, District Banda is that she is daughter of Shiv Poojan residing in village Pachauha, Police Station Kamasin, District Banda. On 23.5.2013 at about 10 a.m. she had gone towards the Southern Nala of the village to bring her buffaloes wherein Krishnakant Dwivedi of the village came from behind, caught hold of her, put a country-made pistol on her chest and committed rape on her. He threatened her that if she discloses it to anyone in the house then he would murder her brother and father. The incident has been witnessed by Chota S/o Babu Lal of the village. She came back home and told about the incident to her mother and father. On 1.6.2013, she along with her mother Smt. Siya Sakhi and father Shiv Poojan went to Police Station Kamasin and gave information on which her medical examination was done at the District Hospital, Banda. Her date of birth is 28.6.1996. She prays that a case be registered and legal action be taken.
The said application is Exb : Ka-1 to the records.
4. On the basis of the said application, an FIR was lodged as Case Crime No.144 of 2013 under Section 376, 506 IPC and 3(Ka)/4 POCSO Act, 2012 and Section 3(1)XII of the SC/ST Act, P.S. Kamasin, District Banda against Krishnakant Dwivedi on 9.6.2013 at 12.30 hours. The Chik FIR is Exb : Ka-3 to the records.
5. The victim 'X' was medically examined by Dr. Charu Gautam, Medical Officer, Female District Hospital Banda while being brought by Constable Jamuna Devi on 1.6.2013 at 3 p.m. On her general examination, the doctor noted as follows:-
"No injury over arm, fore arm, axilla, breast, abdomen, back, thigh and legs.
On examining the external genital, the doctor noted as follows:-
“No injury over labia majora, minora and clitoris.”
On examination of internal genital, the doctor noted as follows:-
“Hymen torn old and healed. Vagina admits two fingers easily. Vaginal smear prepared and send to pathologist, P.H. Banda for confirmation of spermatozoa and urine pregnancy test for confirmation of pregnancy.”
X-Ray was advised for determination of her age. The opinion as drawn by the doctor is as follows:-
“Final opinion to be given after radiology and pathology report."
The said report is Exb : Ka-5 to the records. A supplementary report dated 10.06.2013 was prepared by Dr. Charu Gautam in which the finding as per patho
AI
The main legal point established in the judgment is the requirement for conclusive evidence to establish the victim's age and the need for corroborative medical evidence in cases of alleged sexual as....
The trial court erred in convicting under both IPC and POCSO Act without sufficient corroborative evidence, violating Section 42 of the POCSO Act regarding sentencing options.
Medical evidence via ossification tests carries a two-year margin of error requiring the benefit of doubt to favor the accused. Testimony characterized by material contradictions and a lack of indepe....
The reliability of the victim's testimony, corroborative evidence, and the legal provisions of the POCSO Act were crucial in establishing the guilt of the appellant.
The court held that discrepancies in the victim's testimony and lack of corroborating evidence created reasonable doubt, leading to the appellant's acquittal.
The victim's consistent statement, medical evidence, and corroborating witness testimonies are crucial in establishing the occurrence of the crime and the victim's age, even in the absence of eyewitn....
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