High Court of Chhattisgarh
Case Details
1 2025:CGHC:4327 NAFR VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.07 13:32:07 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 545 of 2020 Parbal Dhobi @ Khem Sai S/o Shiv Dhobi @ Shivprasad Aged About 25 Years R/o Village Boda, Khamhartoli , Police Station Batouli, District Sarguja Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through : Station House Officer, Police Station Batouli, District Sarguja Chhattisgarh. ... Respondent For Appellant : Mr. Arun Shukla, Advocate For Respondent/State : Mr. Atanu Ghosh, Dy. G.A for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 23/01/2025 1. The matter has been listed for order on status report of the appellant which is called from Central jail, Ambikapur, wherein, it is informed that the appellant is in jail since 28.11.2018, therefore, with the consent of the parties the matter has been heard finally. 2. The present appeal under Section 374(2) of Criminal Procedure Code 1973, has been filed by the appellant against the impugned judgment of conviction and sentenced dated 14.02.2020 passed by learned Special Judge, Sarguja, (Ambikapur) (under the SC/ST Prevention of Atrocities) Act, In special Sessions Case ( Atrocities) No.06/2019, 2 whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 363 of I.P.C. : R.I. for 3 years and fine of Rs. 500/- and in default of payment of fine Additional R.I. for 6 months. Under Section 366 of IPC : R.I. for 5 years and fine of Rs.1,000/- and in default of payment of fine additional R.I. for 1 year. Under Section 376(2)(i)(l)(n) : R.I. for 10 years and fine of Rs. of the I.P.C. 2,000/- and in default of payment of (All the sentences were directed to run concurrently.) fine additional R.I. for two years. 3.
Legal Reasoning
The brief facts of the case are that the victim who is partially deaf and dumb and differently abled girl. On 10.03.2018, she along with her mother had gone to field for grazing of her cattle and when the victim had gone to drink water near source of water fixed at the field and after a considerable period when she was not returned, her mother started searching her and then one villager has informed that her daughter was kidnapped by the appellant. On the same day at about 13:00 hours she lodged a report Ex.P/1 against the appellant which has been registered for the offence under Section 363 & 366 of IPC. During the investigation the victim was recovered on 17.03.2018 from the bus stand at Sitapur and recovery panchnama Ex.P/2 was prepared. The victim was sent for her medical examination to community health center, Batauli, where PW-5 Dr. Archana Mishra, medically examined her and gave report Ex.P/9. During her medial examination her hymen was found ruptured and dried semen with 3 blood was found present, near her private part. She opined that the victim is abused by sexual intercourse. Two slides of her vaginal swab were prepared sealed and handed over to the police for chemical examination. With respect to the age and social status of the victim, the police has seized the progress report card of class I of the victim and her social status certificate vide seizure memo Ex.P/4. Her social status certificate is Ex.P/4-A and progress report card of class I is Ex.P/4-B. Spot map Ex.P/5 was prepared by the police and Ex.P/7 was prepared by the patwari. The school register from the primary school, Boda, has also been seized vide sezure memo Ex.P/6. The appellant was arrested on 28.11.2018 and he too was sent for his medical examination to community Healthy Center, Batauli, where PW-10 Dr. Ganesh Beck has medically examined him and opined that the appellant was found to be capable to perform sexual intercourse. The vaginal slides of the victim and her lower was sent for chemical examination to Regional FSL, Ambikapur, from where report Ex.P/14 was received and according to the report no semen and sperm was found on the sent articles. 4. The 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. have also been recorded and after completion of usual investigation charge-sheet was filed against the appellant for the offence under Sections 363, 366, 376(2)(n) of IPC and Section 5(l)/(6) of POCSO Act and Section 3(2)(v-a) SC/ST Act. 5. Learned trial Court has framed charge for the offence under Section 363, 366 & 376(2)(i)(l)(n) of IPC and Section 5 (l)(m)/6 of POCSO Act, 4 and Section 3(2)(v-a) of SC/ST Act. The appellant abjured his guilt and claimed trial. 6. In order to prove the charge against the appellant the prosecution has examined as many as 10 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. 7. After appreciation of the oral as well as documentary evidence produced 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. 8.
Legal Reasoning
Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses which can not made basis for conviction of the appellant. There is no cogent and clinching evidence, with respect to the age of the victim that she was minor on the date of incident. Only on the basis of her progress report card of Class I, her age cannot be determined. He would further submit that the parents of the victim have admitted that the victim might be 19 to 20 years of age and in that condition it cannot be hold the victim was minor on the date of incident. He would further submit that there is no injuries found on the body of the victim. She has not protested or make any alarm while committing the alleged act by the appellant, even she has not shouted or not tried to save herself. The FSL report has been found negative and no semen and sperm has been found on the vaginal slides of the victim which further strengthen the case of the appellant that he had 5 not committed any offence with her. Therefore, the appellant is entitled for benefit of doubt and he may be acquitted form the alleged offence. 9. On the other hand learned counsel for the State opposes and submitted that the prosecution has proved its case beyond reasonable doubt. There is no discrepancy in the prosecution witnesses. But for minor omission or contradictions they remain firm. The age of the victim has been proved by progress report card of Class I which has been supported by her own evidence and also the evidence of her parents. The school register has also been seized with respect to the date of birth of the victim. According to the school record, the victim was minor on the date of incident and less than 18 years of age. He would further submit that the victim was differently abled child and having less IQ, who has been subjected to rape by the appellant. Although, no injuries have been found on the body of the victim but her hymen was found ruptured, dry semen with blood was found near her private part and doctor has opined that victim is abused by sexual intercourse. Therefore, there is sufficient evidence against the appellant on record to convict him for the alleged offence and there is no merits in the appeal filed by the appellant and the same is liable to be dismissed. 10. I have heard learned counsel for the parties and perused the record of the case. 11. So far as the age and date of birth of the victim is concerned, the prosecution has relied upon the progress report card of Class I Ex.P/4-B, and the school register which has been sized vide seizer memo Ex.P/6. According to the school record her date of birth is 03.04.2005, although no teacher of the school have been examined 6 but the progress report card is proved by PW-1 who is the mother of the victim. PW-1 mother of the victim stated in her evidence that the age of the victim is 14 years and she is differently abled child. In the cross-examination, she admitted that the age of her elder daughter is 25 years and the victim is 3 years younger than her elder daughter. She was being taken by her father to get her admission in the school. PW-2 father of the victim has also stated that the age of the victim is 14 years, and he too is admitted in his cross-examination that his elder daughter is aged about 25 years and victim is 3 years younger than her elder daughter. He has got her admitted in the school and at the time of her admission in the school, he had not produced any kotawari register or birth certificate. He further admitted that he got her date of birth recorded in the school on assumption. 12. PW-3 the victim stated in her evidence that her age is 14 years. Although she has not been cross-examined on the point of her age but in the facts and evidence available on record from the one line statement her age can not be determined that she was minor, in absence of any documentary proof. PW-5 Dr. Archana Mishra, who medically examined the victim have stated that the victim was brought before her for medical examination, who was 14 years of age. In cross-examination she stated that she has written the age of the victim on the basis of police memo and she could not state about the age of the victim. 13. From the evidence available on record the prosecution could not be able to proved that the victim was minor and less than 18 years of age as there is no documentary evidence except progress report card of the victim, although vide seizure memo Ex.P/6 school record has 7 been seized, but the said school record has not been proved either by producing its attested true copy or by examining the author of the school register. The parents of the victim have not supported the age of the victim, therefore, there is lack of cogent and clinching evidence in the case and under the quality of the evidence produced by the prosecution it cannot be safely hold that victim was minor on the date of incident. 14. So far as the offence of kidnapping and rape are concerned, I again examined the evidence of the victim PW-3. She stated in her evidence that when she had gone to field for grazing her cattle along with her mother, at the time of incident when she had gone to drink water in the water source fixed in the field, the appellant committed rape upon her. In cross-examination she denied suggestion given by the defence that the appellant has not committed bad work with her and she stuck in saying that the appellant has committed rape upon her. The evidence of this witness is recorded by the learned trial Court after satisfying her mental status and note has been put in the deposition sheet that she feel comfortable in the atmosphere of the Court and then her evidence was recorded. The note recorded by learned trial Court in her deposition sheet shows that she was not normal but there was some deficiency in her IQ. 15. PW-1, the mother of the victim has stated in her evidence that her daughter is known patient of epilepsy and she was deaf and not able to speak. On the date of incident when her daughter had gone with her to field for grazing the cattle, she had gone to drink water near source of water fixed in the field and when she could not return, she started searching her. She raised suspicion upon the appellant then 8 lodged the report against him. After about a week, one villager has informed that the appellant left the victim at bus stand and then she take her back with her. When she asked, then she disclosed about the incident slowly as she was not able to speak and she informed the entire evidence of rape, thereafter, she lodged the report. In cross- examination she admitted that the victim had gone with her to grazing her cattle and when she had gone to drink water she could not return. She did not know as to with whom she had gone, but the victim has informed that the appellant took her with him. She further stated that mental condition of her daughter is not good. 16. PW-2, the father of the victim has stated in his evidence that his daughter had gone to grazing her cattle along with his wife and when she could not return back, they started searching her and thereafter, they came to know that the appellant had kidnapped her, and then they lodged the report. After about 8 days the appellant left her at Sitapur bus stand which was informed to them by his another daughter and they took her back to his house. His daughter has informed about the incident that the appellant has committed rape upon her. He has given her progress report card to the police which is Ex.P/4-B, in cross-examination he also stuck in saying whatever incident disclosed by the victim to him. He also stated that his daughter is having less IQ and speak very slowly. 17. PW-4, who is working as B.R.P. at Block Disability Center, Batauli. She received a letter for recording of statement of the victim who is differently abled girl aged about 14 years from SDO, Sitapur, she recorded the statement of the victim on 10.01.2019. She was differently abled child and her IQ was found equal to 8 year old child. 9 Her mother has also informed that when they had gone to field, the appellant kidnapped her. She recorded her statement after understanding of her gesture and words. The statement of the victim is Ex.P/8. In cross-examination she admitted that she is the expert of disability of hearing. She further admitted that she is not the expert of mental examination or mental deficiency. 18. PW-5 Dr. Archana Mishra who medically examined the victim have found her hymen was ruptured, no injuries was found near private part but dried semen with blood was found near the private part. She denied in her cross-examination that the blood which was found near her private part was of her menses blood. PW-6 is the person who did videography while the statement under Section 164 of Cr.P.C. of the victim was recorded before the Magistrate. 19. Close scrutiny of the evidence makes it clear that the victim, though she was major but she was differently abled girl and even she could not speak fluently due to her less IQ and mental condition. She was being kidnapped by the appellant towards the field and has committed rape upon her. He left her after about 4 days near bus stand Sitapur. From the evidence of the victim it has been found proved that she was subjected to sexual intercourse by the appellant against her will. Particularly, when she has been found to be differently abled and disabled person, it cannot be said that she had given consent in making sexual relation with the appellant. From the evidence of the victim as well as her parents and also from the evidence of doctor and her MLC report Ex.P/9, the prosecution has able to prove that the appellant has abducted the victim, who is differently abled and has committed rape upon her. 20. The learned trial Court has properly appreciated the evidence with 10 respect to allegation of abduction and rape upon the victim , I do not find any reason to disagree with the finding recorded by the learned trial Court. However, the prosecution could not establish the fact that the victim was minor on the date of incident. Therefore, the conviction and sentence of the appellant for the offence under Section 5(l)(m)/6 of POCSO Act is not made out and he has been acquitted from the offence under the POCSO Act. Whereas, the appellant has been acquitted from the offence of Section 363 & 376(2)(i) of IPC also, however, his conviction for the offence under Section 366 & 376(2)(l) & (n) of IPC are maintained. As the appellant has already been sentenced for the offence under Section 376(2)(l)&(n) of IPC for R.I. for 10 years with fine of Rs.2,000/- in default of payment of fine further R.I. for 2 years, the default sentence is also reduced from 2 years R.I. to 2 months R.I and for the offence of Section 366 IPC, the default sentence is reduced to 1 month in place of 1 year. Thus, the sentence of the appellant is modified as below:- Conviction Sentence Under Section 366 of IPC : R.I. for 5 years and fine of Rs.1,000/- in default of payment of fine amount further R.I. for 01 month. Under Section 376(2) : R.I. for 10 years with fine of Rs. (l)&(n) of IPC 2,000/- in default of payment of fine further R.I. for 2 months. (All the sentences are directed to run concurrently.) 21. The appeal is partly allowed to the extent as above. 22. The appellant is reported to be jail since 28.11.2018, he shall serve his remaining sentence as awarded by this Court. 23. Registry is directed to send a copy of this judgment to the concerned 11 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. 24. 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