High Court of Chhattisgarh
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.04.09 10:02:13 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 227 of 2019 NAFR 1 - Chotelal Khairwar S/o Late Chandrabhan (Markam) Aged About 45 Years R/o Ward No. 13 Loading Quarter, P.S. Rajhara, District- Balod, Chhattisgarh. Versus ... Appellant 1 - State of Chhattisgarh Through Aarkshi Kendra Rajhara, District- Balod, Chhattisgarh. ... Respondent For Appellant For Respondent : : Shri Sudhanshu Kumar Singh, Advocate. Shri Atanu Ghosh, Dy. Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 27.01.2025 1. The present appeal under Section 374(2) CrPC has been filed against the impugned judgment of conviction and order of sentence dated 23.01.2019 passed by the Special Judge (Incharge FTC) Balod, in Special Criminal Case (POCSO) No.30 of 2018 whereby the appellant has been convicted for the offence under Sections 376/511 IPC and Section 5(m)/6/18 of POCSO Act and sentenced to undergo RI for 10 years and fine of Rs.5000/-, in default of payment of fine amount, additional RI for 6 months for each of the offences. 2.
Facts
Brief facts of the case are that, on 04.02.2018 at about 6 PM when the complainant was coming out from his house, he saw his minor niece coming out from the house of the appellant. She came to him weeping 2 and on being asked, she disclosed that the appellant took her inside her house and after removing his and her clothes he inserted his private part on her private part. He also inserted his private part on her mouth and thereafter he asked her to go to her house. The complainant, PW-1 lodged a written complaint Ex.P/1 to the police on 04.02.2018 and FIR Ex.P/2 was registered against the appellant for the offence under Sections 376, 354-A IPC and Sections 3,4 & 6 of POCSO Act. The victim was sent for her medical examination to Govt. Hospital, Balod where PW-10, Dr. Sonam Deshmukh medically examined her and gave report Ex. P/28. While examining the victim, the doctor found no injuries on her body and opined that at present no any recent sign of sexual intercourse is seen. Two slides of vaginal swab of the victim was prepared, sealed and handed over to the police for chemical examination. With respect to age and date of birth of the victim, the police seized school admission and discharge register from Alfa International Modern School, Rajhara vide seizure memo Ex.P/4 and after retaining attested true copy of the same, the original was returned back. Birth certificate issued by the Registrar, Birth and Death, Rajhara Mines, Bhilai Steel Plant Ex.P/10 was also seized vide Ex.P/9. Spot Map Ex.P/18 was prepared by the police whereas Ex.P/12 was prepared by the Patwari. The appellant was arrested on 05.02.2018 and he too was sent for his medical examination to Govt. Hospital Chikhlakasa, where PW-7, Dr. Kalyan Kumar medically examined the appellant and gave report Ex.P/13 and found him capable to perform sexual intercourse, however opined that he does not find any sign of recent sexual activity. The underwear of appellant was seized vide Ex.P/19. The vaginal slide of victim, her underwear & pubic hair and 3 the underwear of appellant were sent for chemical examination to FSL Raipur from where FSL report Ex.P/30 was received. As per FSL report, no sperms or semen were found on the aforesaid articles. 3. The statement under Section 161 CrPC of the witnesses were recorded. The statement of victim under Section 164 CrPC was also recorded and after completion of usual investigation charge sheet was filed before the trial court for the offence under Sections 354-A (i) and 376 IPC and Sections 3A, 4 & 6 of POCSO Act. The trial court framed charge against the appellant for the offence under Section 376(2)(i) IPC and Section 5(m)/6 of POCSO Act. The appellant denied the charge and claimed trial. 4. To prove the guilt of appellant, the prosecution has examined 11 witnesses. The statement of appellant under Section 313 CrPC was recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence as complainant encroached over the land and constructed a house adjoining to his house for which there was a dispute between the complainant and the wife of appellant. 5. After appreciation of oral as well as documentary evidence, the Trial Court has convicted and sentenced the appellant for the offence under Section 376/511 IPC and Section 5(m)/6/18 of POCSO Act for attempting to commit rape and sentenced as stated in the earlier paragraph of this judgment. Hence this appeal. 6. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis for conviction of 4 the appellant. The victim was not consistence in her evidence. Her evidence is not corroborated with the evidence of other witnesses. She was a tutored witness. There was dispute between complainant and wife of appellant with respect to construction of house and therefore false report has been lodged against him making the victim instrumental to settle his score. On the basis of uncorroborated statement of the witnesses, the appellant cannot be convicted. No injury were found on the body of victim. Even FSL report was negative. Report was lodged by the uncle of victim and not by her parents which is also suspicious. Thus, the appellant is entitled for acquitted. 7. On the other hand, the counsel for the State opposes the submissions of appellant and have submitted that there is overwhelming evidence against the appellant that he committed the offence. The victim being 4-5 years old girl subjected to sexual intercourse by the appellant and she being victim of offence have dully supported the prosecution case that she was subjected to sexual by the appellant. Although from the act of the appellant, the offence of rape is proved but the trial court has convicted him for the offence of attempt to commit rape upon victim. There is nothing on her evidence to disbelieve and despite her gentle age she remain firm in saying that appellant has committed rape upon. The evidence of victim is supported by other witnesses. Further, even if no injuries were found and FSL report also being negative, that itself does not sufficient to hold that appellant has not committed any offence with the victim. There is sufficient evidence on record against the appellant which has rightly been considered by the trial court which needs no interference and the appeal is liable to be dismissed. 5 8. I have heard the counsel for the parties and perused the records of the case. 9. So far as the age of victim is concerned, she being five years old girl, her age has not been challenged by the appellant. Further, the age of victim has been proved by PW-3, who is the Principal of School from where the school register Ex.P/5-A was seized. In his evidence he has duly proved that in the school register the date of birth of victim is 21.03.2013. Although, he is not the person who made entries in the school register, but even if he has not made any entry in the school register, he has duly proved the school register and its entries that date of birth of victim is recorded as 21.03.2013. Further, from the birth certificate of victim Ex.P/10 issued by the Registrar, Birth and Deaths, Rajhara Mines, Bhilai Steel Plant, it is proved that date of birth of victim is 21.03.2013. The said birth certificate issued by the competent authority is admissible under Section 35 of the Indian Evidence Act, 1872. Further, the appellant has not challenged the age of victim. Therefore, the findings recorded by the trial court that victim was aged about five years remain unrebutted. 10. So far as the offence of rape against the appellant is concerned, PW-1, the victim, have stated in her evidence that she know the appellant who resides nearby her house and she called her “Dada”. She states that he inserted his private part on her mouth and pressed her chest. He also inserted his private part between her two legs. She started weeping and informed the incident to her elder father and thereafter she also informed her grandmother and mother. In cross examination she firmly answers every question asked by the defence and remain firm in saying that appellant has committed the offence. Even she 6 denied that on being instructed by her parents, she is deposing against the appellant. 11. In such a tender age of five years when she strongly supported her case that appellant has committed offence with her, she can be considered to be the sterling witness upon which conviction can safely be made as held by the Supreme Court in the matter of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, 2020 (3) SSC 443, in which it was observed as under: “5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under:
Legal Reasoning
“22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 7 12. PW-2, the complainant who is uncle of victim, have stated that on the date of incident when he was coming out from his house, he saw the victim coming out from the house of appellant. She was crying. When he asked the reason of her crying, she disclosed that appellant has committed rape upon her. He informed the incident to his neighbor and parents of victim and thereafter they lodged the report immediately. Written report is Ex.P/1 and FIR is Ex.P/2. Although he admitted in his cross examination that prior to incident there was a dispute between him and the wife of the appellant, but he denied that dispute arose by him with respect to construction of house and encroachment. From his cross-examination, no sufficient material is extracted by the defence for lodging of any false report against him. Merely some dispute arose between him and the wife of appellant, it cannot be accepted that appellant is being dragged in a false case by making the victim instrumental, particularly when the victim is not his own daughter. The evidence of this witness has also been corroborated with the evidence of victim that she informed the incident to her elder father and this witness has also stated in his evidence that victim informed him about the incident and immediately report has been lodged. 13. PW-4 is the mother of victim, who too have stated that on the date of incident about 6:30 in the evening when she the victim came from the house of appellant she was crying and when her elder father asked her as to why she is weeping, she disclosed the entire incident to him. She disclosed to her also and on the same day they lodged the report. Even in her cross-examination of this witness also, nothing extracted by the defence with regard to false implication. Though she was being 8 cross examined on the point of some dispute occurred between them, but in the nature of allegation of the present case particularly when the victim fully supported her case, there cannot be considered to be sufficient reason for false implication. 14. PW-5 is the father of victim who also supported the prosecution’s case that on the date of incident at about 6:30 PM when he was in his house, his brother i.e. complainant PW-2 informed him over telephone about the incident and when he asked from the victim, she too have disclosed about the incident to him and thereafter they lodged report on the same day. In cross-examination also he remain firm and nothing could be extracted from this witness also by the defence. 15. Though, the victim was medically examined and no injuries were found on her body, but the manner in which the alleged offence is said to have been committed with her, even if no injuries were found, it does not dilute the prosecution’s case or its gravity. 16. From the entire evidence it conclusively comes that on the date of incident the appellant committed offence with the victim PW-1. Although, from the evidence as well as definition of Section 375 of IPC it appears that the appellant has committed the offence of rape, yet the trial court has considered tit o be an attempt of rape and has convicted the appellant for the offence under Section 376/511 IPC and Section 5(m)/6/18 of the POCSO Act. Therefore, this court does not find any sufficient ground to hold that the conviction and sentence of the appellant is perverse or contrary to facts or evidence available on record. 9 17. The Hon’ble Supreme Court in Prahlad and Others Vs. State of Haryana, 2015 (8)SCC 688 has observed in paragraph 17 & 18 of its judgment as under: “17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the “fon juris” of our Constitution. The said rights are constitutionally secured. 18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution.” 18.
Decision
In the result, the appeal fails and is dismissed. The appellant is stated to be in jail. He shall serve out the entire sentence awarded by the trial court by means of impugned judgment of conviction and order of sentenced passed by the trial court. 19. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 10 20. The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. inder Sd/- (Ravindra Kumar Agrawal) Judge