Criminal Case No. 09 of 2019 · Nafr High Court
Case Details
1 VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.07 19:51:41 +0530 2025:CGHC:9282 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 569 of 2020 Naresh Ekka S/o Jhoesh Ekka Aged About 22 Years R/o Village Sishringa, Village,Thana Jashpur District Jashpur Chhattisgarh., ... Appellant versus State Of Chhattisgarh Through Police Station Bagbhar, District Jashpur Chhattisgarh., District ... Respondent For Appellant : Mr. Vivekanand Samadaar, Advocate on behalf of Mr. Sanjay Agrawal, Advocate. For Respondent/State : Ms. Isha Jajodiay, P. L. for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 21/02/2025 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 22.02.2020 passed by learned Special Judge, (POCSO Act, 2012) Pathalgaon District - Jashpur in Special Criminal Case No.09 of 2019, whereby the appellant has been convicted for the offence under Section 376 of IPC and sentenced for 2 R.I. 10 years and fine of Rs.5,000/-, in default of payment of fine further R.I. for 1 year. 2.
Legal Reasoning
The brief facts of the case are that on 06.08.2018, the victim PW-3 has made a written complaint Ex.P/4 to the police, alleging that at about 7:00a.m. on 06.08.2018 when she was waiting for bus at bus stand Bagbahar. The appellant came there and offered lift to drop at Chiknipani and when she went along with him up to Matphad Chowk, Chiknipani and when she was going by his own bicycle to village Maheshpur, the appellant followed her and took her to Kosabadi Jungle, assaulted her and committed rape upon her. When she shouted for help the persons who were grazing their cattle came for her rescue and then the appellant fled away from that place. Based on her written complaint the FIR Ex.P/5 was registered against the appellant for the offence under Sections 323, 307 & 376 of IPC and Section 4 of POCSO Act. The victim was sent for her medical examination to Community Health Center, Pathalgaon, where she was being medically examined by PW-2 Dr. Anita Minj, who after her medical examination gave report Ex.P/3. While medically examining the victim no injuries was found her body and mild blood was found on her private part after her medical examination the doctor has opined that the victim may be suffered from sexual intercourse. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. Spot map Ex.P/7 was prepared by the police. The Cloths of the victim as well as transfer certificate of Government Girl High School, Bagbahar has been seized vide seizure memo Ex.P/8. With respect to the age and date of birth of the victim School register has been seized vide seizure memo Ex.P/16 and after 3 retaining the attested true copy of the school register Ex.P/17-C the original register was returned back to the school. Aadhar card of the victim has also been seized. The appellant was arrested on 07.08.2018 and he too was sent for his medical examination to Community Health Center, Pathalgaon where he was medically examined by PW-9 Dr. A.S. Thakur, who gave his medical report Ex.P/13 and found the appellant capable to perform sexual intercourse. The cloths of the victim, her vaginal slides and the underwear of the appellant were sent for its chemical examination to Regional FSL, Ambikapur from where Ex.P/30 was received and according to the FSL report vaginal slides, underwear of the victim as well as underwear of the appellant were found to be stained with semen and sperm. Statement of the witnesses under Section 161 of Cr.P.C. and statement of victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation charge- sheet was filed before the learned trial Court against the appellant for the offence under Section 323, 307 & 376 of IPC and Section 4 of POCSO Act. 3. The learned trial court has framed charge against the appellant for the offence under Section 376, 506 part I & 307 of IPC and Section 6 of POCSO Act. The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant the prosecution examined as many as 19 witnesses and 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. 4 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 6.
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 witness, which cannot be made basis for convicting the appellant in the offence in question. There is no external injuries found on the body of the victim and there is no sign of any protest appears on her body even there is no sign of recent sexual intercourse found on the body of the victim. She being the major girl and having love affair with the appellant and she herself engaged in making consensual physical relation with the appellant and since their relation came into the knowledge of her parents, she lodged the report against him. In alterative he would submit that if the offence is found proved against the appellant, his undergone period may be considered to be sufficient sentence for the alleged offence. As the appellant is in jail since 08.08.2018. 7. On the other hand learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubts but for minor omission or contradictions the evidence of prosecution witnesses are fully reliable and the conviction can be based on the said evidence of the prosecution case. The evidence of the victim PW-3 itself is sufficient to hold that the appellant has committed rape upon her and the evidence of the victim has been corroborated by the evidence of the doctor who medically examined 5 her and found bleeding on her private part and opined that she was subjected to sexual intercourse. In FSL report the semen and sperm were found on the vaginal swab of the victim which further confirms the act of the appellant that he committed rape upon the victim. There is sufficient evidence against the appellant to hold that he has committed the offence and considering the heinousness of the offence the appellant is not entitled for any leniency and his appeal is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the record of the case. 9. With respect to the age and date of birth of the victim the learned trial Court after appreciating the oral as well as documentary evidence led by the prosecution has comes into conclusion in para 37 of its judgment that the prosecution has failed to prove that the victim was less than 18 years on the date of incident as there are different of dates of birth of the victim on different places i.e. Aadhar card Ex.P/10, her date of birth is recorded as 06.06.2002, whereas in the school record Ex.P/17-C the date of birth of the victim is 26.06.2002. The prosecution has tried to prove the school register by examining the witness PW-6 who is the assistant teacher of the school but he was not the author of the school register and the basis on which the date of birth of the victim has been recorded in the school record has also not been produced. Learned trial Court has also considered the evidence of the victim as well as her parents and hold that the victim was not minor on the date of incident and from considering the overall evidence produced by the prosecution this Court is of also in concur 6 with the finding recorded by the trial Court that the victim was not minor on the date of incident. 10. So far as the allegation of rape is concerned the victim PW-3 have stated in her evidence that on the date of incident when she was waiting for bus in Bagbahar bus stand the appellant came there, asked her to accompany with him and he will left her wherever she wanted to go. Since the bus was delayed she has taken lift and thereafter, the appellant left her near Chiknipani Bharari Nala. She took her bicycle from there and returning to her house. As and when she reached near Kosabadi Jungle, the appellant again came there and started dragging towards jungle. She tried her level best to save herself from the clutches of appellant but since the appellant was over power she cannot succeeded to save herself. The appellant dragged her toward jungle and committed rape upon her after removing her cloths. She repeatedly requested to leave her but the appellant has not shown his mercy and committed rape upon her and he beaten her also. After hearing her shout, the persons who were grazing their cattle came there and rescued her. The persons who came there and have caught hold the appellant and took him to Chiknipani Panchayat and thereafter, her parents were called and they took them to police station. In cross-examination she firmly stated that when she was waiting for bus at Bagbahar bus stand, the appellant came there asked for lift and he dropped her after some distance and when she was going to her house by her own bicycle, on the way, the appellant dragged towards jungle and committed rape upon her. In cross- examination, she admitted the suggestion given by the defence that the appellant dragged her towards jungle after about 50 meters and 7 she was helpless at that time, she was subjected to rape by the appellant which continued up to one hour. She also admitted that by the act of the appellant blood was also came out from her private part from her evidence the act of the appellant has duly been proved by her that on the way the appellant dragged her towards jungle and committed rape upon her. The defence could not extracted any material from her cross-examination so that her evidence could be disbelieved. She firmly stated that she was being raped by the appellant. 11. In the matter of State of Punjab Vs. Gurmit Singh, 1996 (2) SCC 384, The Hon’ble Supreme Court has held in para 21 of its judgment:- 21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for 8 evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. 12. PW-2 Dr. Anita Minj who medically examined the victim have stated that on being medically examined the victim a slight bleeding was found present from her private part and opined that the victim was suffered by sexual intercourse and she proved her report Ex.P/3. Although in her cross-examination, she admitted that she has not found any complete sexual intercourse with the victim and therefore, she opined that the victim was attempted by sexual intercourse. From the FSL report Ex.P/30, the semen and sperm were found on the vaginal swab of the victim, which confirms that the victim was subjected to sexual intercourse by the appellant. 13. The Hon’ble Supreme Court has considered in its judgment of “Satpal Vs. State of Haryana” 2009 (6) SCC 635 that it is not necessary that there has to be some injury on the genitalia or any other part of body. In para 18 of its judgment, it is held that:- 18. In modi’s Medical Jurisprudence, 23rd Edn., at PP. 897 and 928, it is stated: “To constitute the offence of rape, it is not necessary that there should be complete penetration of the panis with the emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda, with or without the emission of semen, or even an attempt at penetration is quite 9 sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains… * * * In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum.” 14. PW-4 who is the father of the victim have stated in his evidence that on the date of incident at about 4:00pm, he came to know about the incident through the police station Bagbahar and when he rushed to the police station, his daughter has also informed him about the incident. He also disclosed about the incident whatever his daughter has informed him that on the way she was being dragged towards jungle and subjected to rape by the appellant. 15. PW-5 the mother of the victim has also supported the prosecution’s case that her daughter was subjected to rape by the appellant on the way when she was coming from her school. The evidence of the victim is supported by the PW-11 who is the person who was grazing his cattle in the jungle, when heard the noise of the victim, he went there and caught hold the appellant who was trying to flee away from the place. Thereafter, the appellant was being taken to the panchayat. In his cross-examination nothing could be elicited by the defence to disbelieve his evidence. Similar the statement of PW-12 and PW-13. 16. PW-8 who is sarpanch of the village who too have stated that on the date of incident the victim as well the appellant were taken to 10 panchayat where the appellant disclosed his name and they disclosed about the incident thereafter, she has taken them to police station. 17. From all these evidence the involvement of the appellant is found proved by the learned trial Court and this Court is also of the opinion that there are sufficient evidence against the appellant to hold him guilty for the alleged commission of offence of rape upon the victim that on the date of incident he dragged her towards jungle and committed rape upon her. I do not found any ground to differ with the finding recorded by the learned trial Court. 18.
Decision
In the result, the appeal filed by the appellant being devoid of merit and is hereby dismissed. The appellant is reported to be in jail since 08.08.2018 he shall serve entire jail sentence as awarded by the learned 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. 20. 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