1 - Nikku @ Durgesh Verma S/o Late Rajendra Verma Aged About 21 Years v. 1 - State Of Chhattisgarh Through District Magistrate, Bilaspur, District Bilaspur Chhattisgarh
Case Details
1 2025:CGHC:6032-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 652 of 2021 1 - Nikku @ Durgesh Verma S/o Late Rajendra Verma Aged About 21 Years R/o Janji P. S. Seepat At Present R/o Nawadhih Bhujipara P. S. Seepat District Bilaspur Chhattisgarh ... appellant versus 1 - State Of Chhattisgarh Through District Magistrate, Bilaspur, District Bilaspur Chhattisgarh ... Respondent(s) For appellant For Respondent : : Mr. Dheerendra Pandey, Advocate Mr. Malay Jain, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Hon'ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 03.02.2025 1. The present criminal appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 07/05/2021 passed by learned Addl.
Legal Reasoning
Sessions Judge/ First FTSC (POCSO), Bilaspur (C.G.) in Special 2 Sessions Case No. 100/2020 whereby the appellant has been convicted and sentenced as below:- S.No. Conviction Sentence 1. Under Section 05(K)/06 of R.I. for life imprisonment and fine of Rs. 300/- POCSO Act. in default of fine Addl. R.I. for 3 years (for the rest of natural life time). 2. Brief facts of the case are that on 23/11/2019, the FIR (Ex-P/1) was lodged by the mother of the victim (PW/1) with the allegation that her minor daughter, who is deaf and differently abled child from her childhood, was subjected to rape by the appellant at about 5.15 pm in her house. The incident was witnessed by her neighbours and they informed the incident to her. When she came back to her neighbour’s house, the appellant fled away from the place by jumping across the boundary wall. She saw the injuries on her private part and then lodged the report. She also alleged that the appellant had threatened them that if they will lodge the report, he will kill them. The offence under Section 376 (2)(l) of IPC and Section 4 of POCSO Act have been registered against the appellant. The victim was sent for her medical examination to community health centre, Masturi where she was medically examined by PW-10 Dr. Parul Jogi, who after her medical examination, gave report. While medical examination of the victim, the doctor has not found any external injuries on all over her body and found that she is not habituated to intercourse and opined that she cannot give any opinion of recent intercourse. Two slides of her vaginal swabs were prepared, sealed and handed over to the Police for its chemical examination. Spot map (Ex-P/22) was prepared by the Police and (Ex-P/3) was prepared by the Patwari. Since the victim was deaf 3 and differently abled child, the Police has requested to the principal, deaf and dumb school, Tifra, Bilaspur to provide a translator to assist in recording statement of the victim and the letter (Ex-P/7) was given by the principle, deaf and dumb school, Tifra that the victim is not able to give her statement and recording of her statement is not possible. 3. The victim was also referred to State Mental Hospital, Sendari, Bilaspur for her medical as well as physical examination and the memo (Ex-P/8) was sent, thereafter, examination of the victim, the assessment report dated 04/12/2019 was sent to the Police and found that the victim was suffered from severe intellectual disability and his assessment report is (Ex-P/9). The victim was sent for her age determination to District Hospital, Bilaspur, where she was rediologically examined by Dr. K. L. Urao, who gave her X-Ray report (Ex-C/2). According to the X-Ray report of the victim, she was found in between the age of 15-17 years. The vaginal slides of the victim as well as her underwear were sent for chemical examination to Regional FSL, Bilaspur from where report (Ex- C/3) was received and according to the FSL report, no semen and sperms were found on the vaginal swab of the victim, however, semen and sperms were found on the underwear of the victim. The appellant was arrested on 30/06/2020 and he too was sent for his medical examination to the Primary Health Centre, Seepat, where Dr. R. S. Maravi has examined him and gave his report Ex- C/1. The document of Ex-C/1 i.e. the MLC report of the appellant, the ossification text report (Ex-C/2) gave by the Dr. K. L. Urao and the FSL report (Ex-C/3) have been admitted by the appellant as provided under Section 294 of Cr.P.C. and have not challenged the same. Statement under Section 161 of Cr.P.C. of the witnesses as well as Statement under Section 164 4 of Cr.P.C. of the victim have been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under Sections 376 (2)(l) of IPC & under Section 4 of POCSO Act before the trial Court. 4. The learned trial Court has framed charge against the appellant for the offence under Sections 376 (2)(l) of IPC and Section 5(k)/6 of POCSO Act. The appellant denied the charge and claimed trial. 5. In order to prove the charge, the prosecution has examined as many as 13 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the material appears against him, plead innocence and submitted that he has been falsely implicated in the offence he further submitted that on the instance of the mother of the victim, his mother has got removed from her job and then some quarrel took place between them and for that reason he has been falsely implicated in the present offence. 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 Para-1 of this judgment. Hence this appeal.
Legal Reasoning
7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradiction in the evidence of prosecution witnesses. The statement of the victim could not be recorded in the case and therefore, the offence against the appellant could not be proved by the prosecution. The other witnesses who allegedly seen the incident, have not supported the prosecution’s case, even the witness who informed the family members of the victim have not been 5 examined. There is no evidence on record that the victim was minor on the date of incident. From the ossification test report (Ex-C/2), the doctor has opined that the victim was aged about 15-17 years but in view of the fact that there is admissible range of error of margin of two years in either sides, the benefit goes to the accused in positive side and the victim cannot be hold to be minor on the date of incident. There is no evidence on record that the appellant has committed rape upon the victim yet he has been convicted on assumption and therefore, the impugned judgment of conviction and sentence is liable to be set aside and the appellant is entitled for acquittal. 8. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omission and contradictions, the evidence of prosecution witnesses are fully reliable. From the examination report, the deaf and dumb school, Tifra, Bilaspur as well as from the report of Mental Hospital, Sendari, Bilaspur, the victim was found suffered by severe intellectual disability and therefore, her statement could not be recorded but the fact remains that the incident was witnessed by her neighbours who immediately informed the mother of the victim. The semen and sperms were found on the underwear of the victim which further corroborates the involvement of the appellant in the offence. The victim was minor and differently abled girl, the age of the victim has duly been proved by ossification test report in which the extended range of error of margin has already been considered by the doctor which further cannot be considered in positive side and therefore, the learned trial Court has rightly appreciated the evidence as well as the 6 law laid down by the Hon’ble Supreme Court and has convicted the appellant and sentenced him which needs no interference. 9. We have heard learned counsel for the parties and perused the record. 10.So far as the age of the victim is concerned, the prosecution has mainly relied upon the ossification test report (Ex-C/2) which is admitted by the appellant under Section 294 of Cr.P.C. In the said ossification test report, the age of the victim is assessed as 15-17 years. The said ossification test report is based on the joint of bones of the body, although, the said ossification test report (Ex-C/2) was admitted by the appellant but the fact of error of margin can also be necessary to be considered as the ossification test report is only piece of evidence to determine the age of the victim. 11. In the matter of Ramdev Chouhan Vs. State of Assam. reported in (2001) 5 SCC 714, in para 51 and 52 of its judgment, the Hon’ble Supreme Court has held that:- 51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr B.C. Roy is in consonance with the guidelines provided in the textbooks on medical jurisprudence (vide Modi's Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence). Ossification test is done for multiple joints, for which the radiological report e was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Raju's Medical Jurisprudence (6th Edn., p. 198): "If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the 7 margin of error may be reduced. Sometimes this margin is reduced to six months on either side." 52. Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered. …………... 12. The Hon’ble Supreme Court in the matter of Jay Mala Vs. Home Secretary, Goverment of J & K 982 (2) SCC 538 has absorbed in para-9 that :- “………...However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side………...” 13. When the ossification report shows the age of the victim is 15-17 years and by giving error of margin of two years in positive side, the age of the victim comes to about 19 years, therefore, from the evidence available on record as well as from the law laid down by the Hon’ble Supreme Court in the aforesaid cases, the victim cannot be hold to be minor on the date of incident yet, the learned trial Court has held her minor. 14.So far as, the offence of rape is concerned, we again examined the evidence led by the prosecution in the case. 15.PW/1 who is the mother of the victim has stated in her evidence that her daughter is physically and differently abled on the date of incident, when she had gone to her sister in law’s house, her niece 8 came there and informed that a boy has entered in her house and when she reached to her own house, she saw that the boy was standing on the lane. Her neighbour has informed her that the boy who was standing on the lane has committed rape upon her daughter. When her daughter raised alarm, her neighbour had seen the incident from their terrace. When she reached to her house, she found her daughter in naked condition and the boy was abusing and threatening her neighbours. Thereafter, she lodged the report at Seepat Police Station. A leading question was asked from this witness and then she stated that her neighbour have informed her about the details of incident and when they tried to save the victim, the boy fled away from the spot after jumping the boundary wall. They also informed her that the boy had tried to commit rape upon her daughter and she also admitted that she also saw the private part of the victim and redness was found there. In cross examination, she admitted that she herself has not seen the incident and came to know about the incident by disclosing the incident by her neighbours. She also admitted that the persons of the vicinity insisted her for lodging of the report and she had gone to the police station along with them. She further stated that what has been written in her report she did not know. She further admitted that during recording of her police statement (Ex-P/4), she has disclosed that she was not acquainted with the appellant. She further admitted that whatever she is deposing, is on the basis of information given by the persons of the vicinity. She also did not state as to other members of her family were present in the house or not. She stated that no injuries were seen on the body of the victim. 9 16.PW/2 who is the victim who appeared before the Court for recording of her statement, but due to her disability, she could not give her evidence and a note has been made in her deposition sheet that her evidence could not be recorded as she is not responding the gestures. 17.PW/3 who is the teacher of Deaf and Dumb School, Tifra, Bilaspur, has proved the memo (Ex-P/6) and their reply (Ex-P/7). He also stated that the victim was not able to speak anything and therefore, recording of her statement even by translator could not be possible. 18.Pw/4 Dr. Dinesh Kumar Lahri who medically examined the victim at Mental Hospital, Sendari, Bilapur, gave report (Ex-P/8) and according to him, the victim has found severe intellectual disability and according to her mother, she was a patient of Epilepsy and she is unable to perform her routine work. She also proved the report (Ex-P/9) in which it has been opined that the victim is suffered by severe intellectual disability. 19.PW/5 and PW/6 who are claiming to be eye witnesses, have not supported the prosecution’s case and they turned hostile. They stated in their evidence that they did not know about any incident with the victim. 20.PW/8 is the maternal aunt of the victim, who has stated in her evidence that she was being called by the mother of the victim and informed that the appellant has entered in her house and asked her to accompany up to Police Station and the leading question was asked from this witness, she admitted that she stated about the incident. In cross- examination, she admitted that she is not witnessed the incident and have deposed on the information gathered from the spot. She further 10 admitted that at the time when she reached to the house of the victim, the crowd was gathered there but why crowd was gathered, she did not know. She also admitted that the mother of the victim has lodged the report on the instance of her community persons. 21.PW/10 Dr. Parul Jogi, who medically examined the victim has stated in her evidence that she medically examined her on 24.11.2019 and as per her disability certificate, she was deaf and dumb. She does not found any external injuries on her body and prepared the vaginal slide of the victim. She opined that no definite opinion can be given regarding recent intercourse. 22.From all these evidence, there is no sufficient evidence to hold conviction of the appellant for the alleged offence. The two eye witness PW/5 and PW/6 have turned hostile and not supported the prosecution case. The mother of the victim Pw/1 and maternal aunt of the victim Pw/8 are the witness who have gathered the information from their neighbours but the original source of their information have not supported the prosecution’s case. The victim has not been examined due to her disability and no injuries have been found on her body which can support the allegation against the appellant that the victim was subjected to forceful sexual intercourse by the appellant. In absence of any cogent and clinching evidence with respect to the allegation of rape, he cannot be convicted in such a superficial evidence led by the prosecution and under the facts and circumstances of the case, the appellant is entitled for benefit of doubt. 23.In the result the appeal is Allowed. The judgment of conviction and sentences passed against the appellant are set aside. The appellant is 11 acquitted from all the charges. The appellant is reported to be in jail since 30/06/2020. He be released forthwith if not required in any other case. 24.Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Nikku @ Durgesh Verma is directed to furnish a personal bond for a sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six 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, shall appear before the Hon’ble Supreme Court. 25.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.03.03 10:51:36 +0530