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2022 Supreme(UK) 95
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Ramesh Chandra Khulbe, J.
Ashok Singh Kandari - Appellant
Versus
State of Uttarakhand – Respondent
Criminal Jail Appeal No.08 OF 2018
Decided On : 07-05-2022
Advocate Appeared:
For the Appellant : Mr. Mukul Dangi ld amicus curiae.
For the Respondent: Mr. V. S. Rathore, learned AGA.
The reliability of the victim's testimony in cases of sexual assault is crucial, and conviction can be based on the sole testimony of the victim without corroboration, as established in 'Ganesan vs. State' and 'Phool Singh vs. State of Madhya Pradesh'.
Headnote:
Rape - Sexual Offences - 376 IPC, 377 IPC, 506 IPC, Sec. 6 POCSO Act - The court affirmed the conviction and sentence of the appellant for committing rape, sodomy, and threatening to kill a 9-year-old victim, based on the victim's trustworthy testimony and medical evidence. The court cited legal principles from 'Ganesan vs. State' and 'Phool Singh vs. State of Madhya Pradesh' to emphasize the reliability of the victim's testimony in cases of sexual assault.
Fact of the Case:
The appellant was convicted and sentenced for raping and sodomizing his 9-year-old niece. The victim's mother caught the appellant in the act, and medical evidence supported the victim's testimony.
Finding of the Court:
The court found the appellant guilty based on the victim's trustworthy testimony and medical evidence, affirming the trial court's judgment and dismissing the appeal.
Issues: The main issue was the appellant's guilt in committing rape and sodomy on a minor, as well as the reliability of the victim's testimony.
Ratio Decidendi: The court relied on the victim's unblemished testimony and medical evidence to affirm the conviction, citing legal principles from 'Ganesan vs. State' and 'Phool Singh vs. State of Madhya Pradesh' to emphasize the reliability of the victim's testimony in cases of sexual assault.
Final Decision: The appeal was dismissed, and the appellant's conviction and sentence were affirmed.
JUDGMENT :
This is a horrible case where the victim, who is merely a child of 9 years of age, has been traumatized at the hands of appellant who raped and sodomized the victim, who is none other than his real niece.
2. Appellant-Ashok Singh Kandari has preferred this appeal from jail through the Secretary High Court Legal Service Committee assailing the judgment and order dated 12.03.2015 passed by the Trial Court in S.T. No.50 of 2014, State v. Ashok Singh Kandari, whereby the Trial Court convicted and sentenced him as under :-
| Conviction | Sentence | Fine (in Rs.) | Sentence in default of payment of fine |
| 376 IPC | 10 years’ R.I. | 10,000/- | Six months |
| 377 IPC | 10 years’ R.I. | 10,000/- | Six months |
| 506 IPC | 02 years’ R.I. | - | - |
| Sec. 6 POCSO Act | 10 years’ R.I. | 10,000/- | Six months |
3. Briefly stated, facts of the case are that on 30.04.2014, informant (PW5) lodged a First Information Report (Ex.Ka-8) with Police Station Lalkaun, District Nainital, in which it is alleged that “on 27.04.2014 at 2:30 P.M., accused Ashok Singh Kandari, who is her real brother, came to her house. She was working out of her house and when she returned to her house, she saw that her brother accused Ashok Singh Kandari was doing wrongful act with her daughter victim (PW-1) aged about 11 years. Accused was laid down upon her daughter (PW-1). She pushed the accused, then accused ran away by pushing her. Victim told her that her maternal uncle (accused) had been committed wrongful act with her for many days and threatened her not to tell about the incident to anyone, in case she would tell about the incident to anyone, he will kill her. The behavior of her daughter has been changed and her daughter seems fearful. Accused raped her daughter (PW-1) and he also sexually assaulted to her daughter for many days. Her husband is driving taxi, he returned to house from his work in the evening of 30.04.2014, then after consultation with him she approached police station and prayed to lodge her report.”
4. On the basis of above written-report, the case was registered as F.I.R. No.39 of 2014 u/s 376, 506 IPC and Section 3/4/5 (L)(m)(n)/6 of the Protection of Children from Sexual Offences Act (to be referred as ‘POCSO Act’ for brevity sake) against the accused Ashok Singh Kandari and after completing the investigation, police has submitted Charge-sheet Ex.Ka-18 against the accused Ashok Singh Kandari u/s 376, 506 IPC and Section 3/4/5 (L)(m)(n)/6 of POCSO Act.
5. Charges u/s 376, 377, 506 IPC along with Section 4 & 6 of the POCSO Act were levelled against the accused Ashok Singh Kandari. He pleaded not guilty and claimed for trial.
6. In support of its case, prosecution examined nine witnesses i.e. victim as P.W.1; Harish Chandra Joshi, Head Master Dr. Sushila Tiwari Junior High School Lalkuan as PW-2; Dr. Manju Rawat, Female Hospital Haldwani as PW-3; Dr. L. M. Rakholia as P.W.4; Mother of victim as P.W. 5; Rajendra Prasad Upreti, scribe of FIR as P.W.6; Constable Neeraj Singhal as P.W.7; Sub-Inspector Rajeev Upreti (first investigating officer) and S.I. Suman Pant (second I.O.) as P.W.9.
7. After completion of prosecution evidence, statement of accused-appellant Ashok Singh Kandari was recorded u/s 313 Cr. P. C. He denied the accusations of the prosecution and mainly stated that he has been falsely implicated in this case due to enmity, as the father of victim has to pay Rs.40,000/- which were taken by him from his father and to escape from the liability of payment, a concocted story was prepared to falsely implicate the accused.
8. After hearing both the parties, the Trial Court convicted the appellant and sentenced as mentioned in Paragraph no.1 of the judgment.
9. It is argued by learned amicus curiae that there is no evidence against the appellant; there is no medical report regarding sexual offence; the trial Court did not assess the e
