Civil And Revenue District North Baster Kanker Chhattisgarh v. State Of Chhattisgarh Through The District Magistrate , Kanker
Case Details
1 Digitally signed by VAIBHAV SINGH Date: 2025.02.14 12:04:02 +0530 2025:CGHC:5427 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 316 of 2020 Manoj Kumar Padda S/o Late Shri Jethuram Padda Aged About 31 Years R/o Village Masbaras , Thana Antagarh, Civil And Revenue District North Baster Kanker Chhattisgarh., ... Appellant versus State Of Chhattisgarh Through The District Magistrate , Kanker , District North Baster Kanker Chhattisgarh. ... Respondent For Appellant : Mr. Sunil Sahu, Advocate For Respondent/State : Ms. Isha Jajodiya, P. L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 29/01/2025 1. The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure 1973, against the impugned judgment of conviction and sentenced dated 14.02.2020 passed by learned Special Judge, (POCSO) Act, Bhanupratappur, District – North Baster Kanker (C.G.) in Special Criminal Case No.29 of 2018, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence 2 Under Section 6 of Protection : R.I. for 10 years and fine of Rs. of Children’s from Sexual 10,000/- in default of payment of fine Offences Act 2012. Additional R.I. for 1 year. Under Section 506(II) of IPC : R.I. for 1 years and fine of Rs.100/- in default of payment of fine Additional R.I. for 1 month. (Both the sentences were directed to run concurrently.) 2.
Legal Reasoning
The brief facts of the case are that on 09.02.2018, the victim PW-3 approached to Sakhi One Stop Center, Kanker and informed the in charge that she was subjected to rape in the month of February 2015 and at that time the appellant gave her threatening with dire consequence and she could not recover from her fear and she made a complaint against him. At Sakhi One Stop Center the counseling was done and the counseling report Ex.P/5 was prepared. On the same day i.e. 09.02.2018 the victim lodged a written complaint Ex.P/6 to police of Police Station, Antagarh for registration of the FIR against the appellant under the aforesaid allegation of rape for her in the year 2015. Based on written complaint Ex.P/6 the FIR Ex.P/7 was registered against the appellant for the offence under Section 376(2) (f) & (n), 506 and 323 of IPC and Section 4 & 6 of POCSO Act. She was sent for her medical examination to Civil Hospital to Pakhanjur, since there was no lady doctor available at civil hospital Pakhanjur, therefore she was referred to Government Hospital, Bhanupratappur, where she was being medically examined by PW-13 Dr. Preeti Singh, who after her medical examined gave report Ex.P/23. During her 3 medical examination the doctor has not found any external injuries on her body. Since the incident is alleged to be of three year back she has not prepared any slide of her vaginal swab for determination of the age of the victim, she referred her for radiological examination. She also referred the victim to Gynecologist at District Hospital Kanker. The victim was being examined at Government Komal Dev, District Hospital, North Baster, Kanker on 23.02.2018 by PW-10 Dr. Kiranlata Thakur, who after examination gave report Ex.P/18. After her medical examination the doctor has opined that hymen old ruptured, intercourse may be possible. She prepared two vaginal slides from the vaginal swab of the victim, sealed and handed over to the police for its chemical examination. With respect to the age and date of birth of the victim one High school mark-sheet has been seized vide seizure memo Ex.P/3, school register has also been seized from Government Primary School, Dhobapara, vide seizure memo Ex.P/15. After retaining the attested true copy of the school register Ex.P/16-C, the original register was return back to the school. Spot map Ex.P/8 was prepared by the police and Ex.P/19 was prepared by the Patwari. Gram Panchayat registers have been seized vide seizure memo Ex.P/11 & Ex.P/12. The appellant was arrested on 12.03.2018 and he too was sent for his medical examination to Community Health Center, Antagarh, where PW-17 Dr. Sachindra Ghota has medically examined him and gave his report Ex.P/43. After his medical examination, the doctor has found him capable to perform sexual intercourse. The vaginal slides prepared from the vaginal swab of the victim were sent 4 for chemical examination to Regional FSL, Jagdalpur, from where report Ex.P/42 was received and no sperm and semen were found on the vaginal slides of the victim. 3. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and Statement of the victim under Section 164 of Cr.P.C. has also been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offence under Sections 376(2)(f)&(n), 506 and 323 of IPC and Section 4 and 6 of POCSO Act, before the learned trial Court. 4. The learned trial Court has framed charge against the appellant for the offence under Sections 376(AB), 376(2)(f)(n), 506 part II and 323 of IPC and Section 5(l)(m)(n)/6 of POCSO Act. The appellant abjured his guilt and claimed trial. 5. In order to prove the charges against the appellant, the prosecution has examined as many as 23 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. Two defence witnesses have been examined by the appellant in his defence. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal. 7.
Legal Reasoning
Learned counsel for the appellant would submit that the prosecution 5 has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses, Which is not sufficient to hold the appellant guilty for the alleged offences. He would further submit that the incident is alleged to have been occurred in the month of February 2015 whereas after about 3 years of the said incident the FIR has been lodged on 09.02.2018 and there is no explanation for delay lodging of the FIR. He would further submit that the maternal aunt of the appellant PW-5 was the Sarpanch and the present appellant was upsarpanch, of the village and to remove him from the post of upsarpanch the entire exercise have been done and FIR have been lodged by saying that 3 years back the appellant has committed rape upon the victim. He would further submit that no one can expect that the victim after such a long period of 3 years, particularly in view of the fact that the other witnesses have stated that at that time there was a compromise taken place in the community meeting between the parties have lodged the report. Although, the victim appears to be minor but it is a case of false implication for that the appellant has sufficient reason for its false implication. Therefore, the impugned judgment of his conviction and sentence is bed in law and the same is liable to be set aside. 8. On the other hand learned counsel for the State vehemently opposes and submitted that from the evidence led by the prosecution, the guilt of the appellant is established. The victim PW-3 has duly supported her case and it is stated by her that she was under threat and 6 pressure of the appellant, therefore she could not lodged any report at that time. She would also submit that the appellant has confessed his guilt in the community meeting and the compromise was taken place there which itself prove the commission of the offence of rape. She would also submit that in the offences of rape, delay does not have any matter in lodging of the report and in the present case the delay have also been explained that due to fear she could not lodge any report. She would further submit that the appellant was removed from the post of upsarpanch which is subsequent to lodging of the report and the same cannot be connected that to remove him from the post of upsarpanch all the story have been created by the victim/complainant party. The victim was proved to be minor on the date of incident and less than 18 years of age, she was subjected rape by the appellant for which the learned trial Court has rightly convicted and sentenced the appellant and his appeal is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the record of the case. 10. So far as the age of the victim is concerned, the prosecution mainly relied upon the school register Ex.P/16-C and the High School mark- sheet of the victim which has been seized vide seizure memo Ex.P/3. In both these documents the date of birth of the victim is shown to be of 14.07.2003. The School register Ex.P/16-C is sought to be proved by PW-7 who is the Shiksha Karmi Grade-III in the school he stated in his evidence that the police has seized the school register vide 7 seizure memo Ex.P/15 with respect to the date of birth of the victim and after retaining the attested true copy of the school register Ex.P/16 the original register Ex.P16-C was return back to him. According to the school register the date of birth of the victim is 17.07.2003. In her cross-examination he admitted that he was not posted there at the time when her admission was made in the school. He further admitted that who has got her admitted in the school has not been mentioned in the school register. At the time of admission of the students in the school, their date of birth are usually recorded on assumption. There is every possibility of the difference of 4-5 years, in the actual age of the students as well as in the age shown in the school register. 11. PW-3 victim has stated in her evidence her age is 15 years and her date of birth is 14.07.2003. In cross-examination her age and date of birth have not been challenged by the defence and not a single question asked form her with respect to the date of birth or age. 12. PW-2 mother of the victim has stated that her daughter is aged about 14 years and her date of birth is 14.07.2003. In her cross-examination also her age and date of birth have not been challenged and no any question have been asked from her with respect to age and date of birth of the victim. 13. PW-6 father of the victim has stated that at the time of incident his daughter was aged about 15 years. In para 13 of cross-examination the appellant has given a suggestion that his daughter is aged about 15 years which he has admitted in his deposition no other question 8 have been asked form him also to challenge the age or date of birth of the victim. 14. PW-10 Dr. Kiranlata Thakur, has stated that on 23.02.2018 the victim was brought before her for her medical examination whose age was 14 years. In her cross-examination she stated that since she is not the radiologist, therefore, she could not tell as to whether there is any possibility of difference of 3 to 4 years in her age or not. Likewise, PW- 13 Dr. Preeti Singh who also medically examined the victim has disclosed the age of the victim is 14 years. She referred the victim for her radiological examination. From this witness also, no cross- examination has been done with respect to her date of birth or age of the victim. 15. Although the entries made in the school register cannot be taken into consideration when the same has not been proved by examining its author or on the basis on which the date of birth of the victim is recorded in the school register but in the present case in absence of any specific defence taken by the appellant in cross-examination of the witnesses it appears that the victim is aged about 14 – 15 years and certainly she was less than 16 years of age which corroborates the entries made in the school register Ex.P/16-C and the same has also been supported by her class 8th mark-sheet which has been seized vide seizure memo Ex.P/3 therefore, this Court of the opinion that the finding recorded by the learned trial Court that the victim was minor on the date of incident and less than 16 years of age appears to 9 be correct which is based on evidence available on record and this court is also in agreement with the said finding. 16. So far as the involvement of the present appellant in the offence in question is concerned, it is not in dispute that the FIR has been lodged on 09.02.2018 for the offence which has allegedly been committed in the month of February 2015. The reason for delay explained by the victim that she was being threatened by the appellant therefore she could not disclosed the incident to anyone. PW-3 victim has stated in her evidence that on the date of incident the appellant their parents send her along with the appellant to watch Ramayana play. The appellant took her towards Lampuri Jangal and after removing her cloths, committed rape upon her and threatened her not to disclose the incident to anyone and left her on the way at about 4:30 in the night. She return back to her house and then she disclosed the incident to her mother. A village meeting was called where the compromise took place between her and the appellant. Thereafter, she lodged the written complaint Ex.P/6. In cross-examination, she admitted that due to fear she could not lodge any report to the police earlier. She admitted that a village meeting was also convened in which compromise was taken place between her and the appellant and only after going Sakhi Center, she lodged the report, she admitted in para 16 if she would not have gone to Sakhi center, the report would not have been lodged by her. She also admitted in para 18 that on the instance of her maternal aunt PW-5 she lodged the report and her maternal aunt PW-5, have assured that she will support her, she 10 further stated that if she would not have supported her, she would not have lodged the report. 17. PW-2 mother of the victim has also stated that on the date of incident they sent her daughter along with the appellant for watching Ramayana play. He took her towards Jungal and in the next morning when her daughter came back she disclosed the incident of rape. When she scolded the appellant the appellant he confessed his guilt and asked to forgive him. She called a village meeting where they compromised the matter. 18. She had taken her daughter to Sakhi Center, Kanker and thereafter they lodged the report to the police. She deviated from her police statement Ex.P/4 and have not supported her statement as recorded in Ex.P/4. There are omission and contradictions in her evidence with that of 161 Cr.P.C. statement Ex.P/4. In cross-examination she too have admitted that in the village meeting she entered into compromise with the appellant. She even admitted at the instance of PW-5, the victim was taken to Sakhi Center and on the instance of Sakhi Center, she lodged the report. She further admitted that after the village meeting, there was no any other incident in the village and she is having cordial relation with the appellant. She also admitted that on the date of incident, she neither lodged any report to the police nor she has taken to her daughter to the doctor. She also admitted that she does not want to lodge any report because of the reason that they have entered into compromise. Although the reason for delayed lodging of the FIR has been asked from this witness but there is no 11 explanation for causing delay in report to the police and it is only stated that her daughter was taken to the police station where she disclosed the incident on the instance of Sakhi Center. She further admitted that she does not want to lodge any report against the appellant because they have entered into compromise and she also did not want that the appellant is to be convicted. 19. PW-4 is the worker at One Stop Sakhi center, Kanker. She stated in her evidence that on 08.02.2018 the victim has lodged a report at Sakhi One Stop center, Kanker and she disclosed that in the year 2015 the appellant came to her house, took her with him on the pretext of watching Ramayana play but he took her towards jungal and committed rape upon her. In the morning at about 4:00am he left her on the way to her house. She immediately disclosed the incident to her parent but at that time they have not taken any action. They took the victim to the police station and then report has been lodged. She admitted in her cross-examination that she has not recorded her statement. On the basis of disclosure of the incident by her, she prepared the counseling report. She further admitted that in the counseling, the appellant was not called. She was being sent along with the victim to the police station by the center head. She also admitted that the victim has disclosed that a village meeting was convened in the village in which they have compromised the matter. 20. PW-5 is sarpanch of the village has stated in her evidence that after the incident he was being informed by the victim and her mother that the appellant has committed rape upon her. Thereafter, a meeting was 12 convened in the village by her parents but she was not in the meeting. She is maternal aunt of the victim. She was being informed by a villager that there are certain beneficial scheme in favor of the children with respect to their education and their nurture at Sakhi Center. She informed the scheme to the parents of the victim and thereafter, they had gone to Sakhi Center, Kanker. The mother of the victim was also called there. She further stated that in the year 2018 the police persons have seized the panchayat register in which a resolution was passed for removal of the appellant from the post of upsarpanch. The resolution for his removal was passed because he committed rape upon minor girl. The panchayat proposal register has also been seized vide seizure memo Ex.P/12. In cross-examination she admitted that the victim is her niece. She was the sarpanch since 2015 and the appellant was upsarpanch. In further cross-examination, she stated that a resolution was passed in gram panchayat that the appellant should be removed from the post of up sarpanch and in his place any other person is to be elected. The said resolution was passed on 19.02.2016 which is article A-1. She further admitted that the father of the victim has not made any application for village meeting. She further admitted that no notice was issued to the appellant for his removal from the post of upsarpanch. She further admitted that the resolution which was passed for removal of the appellant from the post of up sarpanch is not in any register but it was written in a blank paper. The resolution passed by the gram panchayat has not been intimated to the higher authorities. They have got prepared the 13 document in apprehension that the appellant may not commit any other offence in future. She further admitted that they have not taken any further action in view of the resolution passed by the gram panchayat. 21. PW-6 is the father of the victim have stated in his evidence that on the date of incident the appellant took his minor daughter with him to watch Ramayana play. He left his daughter back to his house at about 4:00am and thereafter he called the village meeting and in the said village meeting they have settled their disputes. Subsequently, he sent his daughter to Sakhi Center, Kanker where his daughter has lodged report against the appellant. At this stage this witnesses is declared hostile and he resile from his police statement Ex.P/14. In cross- examination he admitted that in his police statement he has not disclosed that the appellant has committed rape upon his daughter and how the police persons have written it in his police statement he did not know the reason. He also admitted that he has not lodged report against the appellant to the police station and he or his family members having no fear from the appellant and they are having cordial relation with the family of the appellant. He further stated that he does not want to take any action against the appellant because they have compromised the matter. 22. PW-9 is the Center Administrator of Sakhi One Stop Center, Kanker. She stated in her evidence that on 08.08.2018, the victim came to Sakhi center kanker. She was uncomfortable and informed that she was subjected to rape and she wanted to made complaint against it. 14 She informed the details of the incident which she suffered. She also disclosed that a village meeting was convened but no action was taken against the appellant. In cross-examination she admitted that she recorded the statement of the victim. The appellant was not called for counseling and she prepared the counseling report on the basis of the statement of the victim. 23. PW-10 Dr. Kiranlata Thakur has medically examined the victim and have not found any external injuries on her body. There is no definite opinion given by the doctor that the victim was subjected to forceful sexual intercourse. 24. The another doctor PW-13 Dr. Preeti Singh, who also examine the victim on 10.02.2018 has also not found any external injuries. Since the alleged incident was 3 years old, she has not prepared any vaginal slides of the victim. She opined that there was no injury on the hymen and she referred the victim to radiologist for age determination. 25. Close scrutiny of the evidence available on record makes it clear that the victim has lodged the report for the incident which has allegedly committed three years back. The reasons for delay have been disclosed that she was scared by the threatening given by the appellant whereas, the parents of the victim and other witnesses have admitted that after the incident the village meeting was convened in which the compromise was taken place between the parties and the parents of the victim does not want to prosecute their complaint further and even they did not want the conviction of the appellant in the offence. They did not wish to lodge any report against the 15 appellant. It is the One Stop Sakhi Center on whose instance the FIR has been lodged. One important fact in the case is that the maternal aunt of the victim PW-5 is sarpanch of the village where the appellant was upsarpanch. There was a resolution for removal of the appellant from the post of upsarpanch and to appoint any other person on that post. There is no reason for delay in lodging the report after three years when the parties have entered into compromise as the evidence available on record, one can not expect that the victim was under fear or any pressure of the appellant where as it reflects that due to the panchayat matter some disputes occurs between the appellant and the maternal aunt of the victim who was the sarpanch of the village and to eliminate the appellant from the post of upsarpanch, they have taken the support and alleged that three years back the victim was subjected to rape by the appellant and made the victim instrumental for the same. 26. Therefore, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubts against the appellant and the appellant is entitled for benefit of doubt. 27. In the result the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentences is hereby set aside. The appellant is acquitted from the alleged offences. The appellant is reported to be in jail since 12.03.2018. He be released forthwith if not required in any other case. 28. Keeping in view, the provisions of Section 481 of B.N.S.S., the appellant is directed to furnish a personal bond for sum of Rs.25,000/- 16 with one reliable surety in the like amount before the Court concerned which shall be effective for a period of 6 months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof she appeared before the Hon’ble Supreme Court. 29. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav