Case Title:
Mukish Vs. State
Date:
19th May, 2022
Bench:
Hon'ble Ms. Justice Mukta Gupta
Hon'ble Ms. Justice Mini Pushkarna
Parties:
Appellant – Mukish
Respondent – State
Subject
An appeal was filed by the appellant challenging the decision passed by Lower Court stating that the prosecution was not successful in establishing the guilt of the appellant and convicted him for the offence punishable under section 6 of the POCSO Act.
Important Provisions
Section 6 of the POCSO Act – Punishment for aggravated penetrative sexual assault.
Section 29 of the POCSO Act – When a person is prosecuted for committing an offence of sexual assault against a minor, the Special Court trying the case shall presume the accused to be guilty.
Overview
- The mother of the victim along with her husband and two children were residing at the given address.
- In the night around 10.00 PM Mukish (appellant) had taken the victim to sleep with him.
- The mother of the victim heard cries of her daughter and asked the appellant to send her the daughter but he refused to do so.
- The father of the victim then on suspicion removed the blanket and found that the appellant had removed the pant and nicker of his daughter and his own.
- The victim was taken from appellant and was found bleeding from her vagina. The appellant ran away from their in the meanwhile.
- The police came and registered the complaint and also sent the victim to the hospital for medical examination.
- The police caught the appellant and also seized one pillow, three blankets, one shirt, and one bedsheet.
- All 15 witnesses were examined.
Issues raised
- Whether non-examination of a 4-year-old rape victim was fatal to prosecution case?
Advancements made by the appellants
- The learned counsel for the appellant argued that the mother and father of the victim had not supported the case of the prosecution and had deposed in favour of the appellant.
- The learned counsel challenged the sentence awarded to the appellant and prayed for leniency by reducing the sentence and relied upon judgments provided in T.K Gopal Vs. State of Karnataka AIR 2000 SC 1669; Nawabuddin vs. State of Uttrakhand, 2022 (3) SCALE 16; Ramher vs. State (Govt. of NCT) of Delhi, 2014 (140) DRJ 344 (DB), to support the same.
- The jail conduct of the appellant was satisfactory and the appellant was the sole bread earner, thereby prayed to reduce the sentence awarded to the appellant.
Judgment Analysis
- The Court held that the evidence of hostile witness need not be rejected and can be accepted to an extent consistent with the case of prosecution or defence. The Court relied upon the cases of Balu Sonba Shinde vs. State of Maharashtra, (2002) 7 SCC 543; Khujji @ Surendra Tiwari vs. State of Madhya Pradesh, (1991) 3 SCC 627; Jodhraj Singh vs. State of Rajasthan, (2007) 15 SCC 294 and Radha Mohan Singh @ Lal Saheb vs. State of U.P., (2006) 2 SCC 450 to convey the same.
- The learned Trial Court was justified in holding that non-examination of the victim did not prove fatal for the prosecution case in view of the scientific evidence available on record.
- The DNA profile of human semen detected from the blanket matched with the DNA profile of the blood of the accused.
- It was rightly held by the trial that the detection of semen sufficiently proves penetrative sexual assault even in the absence of any testimony of the victim or her parents.
- Section 29 of the POCSO Act provides that where a person is prosecuted for committing any offence under Sections 3, 5, 7 and Section 9 of the Act, the Special Court shall presume, that such person has committed the offence, unless the contrary is proved.
- Section 30 of the POCSO Act provides for presumption of culpable mental state.
Conclusion
The Court concluded by stating that the appellant was rightly convicted for the offence under Section 6 of the POCSO Act. The accused had committed a heinous crime of rape on a four-year-old girl thereby the case does not inspire any case for leniency in the sentence awarded against him. The appeal was dismissed.
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