Nafr High Court
Case Details
1 2025:CGHC:8592-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 675 of 2021 Jai Kumar Ghasiya S/o Jot Ram Aged About 22 Years R/o Village Dhodhapara (Laxmipur) Police Station Bhatgaon District Surajpur Chhattisgarh. versus ... Appellant State of Chhattisgarh Through Police of Police Station Bhatgaon District Surajpur Chhattisgarh. ... Respondent For Appellant : Mr. Anil Gulati, Advocate For Respondent : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board P er Ramesh Sinha, CJ 19/02/2025 1. This criminal appeal arises out of the impugned judgment of conviction and order of sentence dated 30.04.2021 passed by the Additional Sessions Judge, Fast Track Special Court, Surajpur, District- Surajpur in Special Sessions Trial No.15/2020, whereby the appellant/accused has been convicted and sentenced in the following manner with a direction to run all the sentences concurrently. RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 2 CONVICTION SENTENCE Under Section 363 of Rigorous Imprisonment for 7 year with Indian Penal Code. fine of Rs.1,000/-, in default of payment of fine additional R.I. for 04 months. Under Section 366-A of Rigorous Imprisonment for 10 year with Indian Penal Code. fine of Rs.1,000/-, in default of payment of fine additional R.I. for 04 months. Under Section 376(A)(B) Rigorous Imprisonment for Life with fine of Indian Penal Code. of Rs.1,000/-, in default of payment of fine additional R.I. for 04 months. Under Section 5(ड)/6 of Rigorous Imprisonment for Life with fine Protection of Children of Rs.1,000/-, in default of payment of from Sexual Offences fine additional R.I. for 04 months. Act, 2012. 2. The prosecution story, in brief, is that the father of the minor victim/complainant lodged a report at Bhatgaon Police Station, stating that on 18.03.2020, at around 07:30 PM, he had gone to the market to buy a bulb, and upon returning home, he found that his 7- year-old minor daughter was missing. His children informed him that the victim had been taken away by Jai Kumar Ghasia/appellant herein of village Dhodhapara (Laxmipur). The complainant reported the incident at Bhatgaon Police Station on 19.03.2020. Based on
Facts
this report, the police registered a First Information Report (FIR) as Crime No. 32/2020, naming the accused and charging him under Sections 363, 366-A, and 376 AB of the Indian Penal Code, 1860, 3 along with Sections 5(m) and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The accused was arrested on 20.03.2020, and after investigation, charge sheet No. 26/20 was filed before the court. 3. During the investigation, Investigating OfÏcer, Aradhana Banode, as per Ex.P-04 seized the aganwadi attendance registered (Ex.P-05C) presented by Anganwadi worker Chanda Singh (PW-4) in front of witnesses to determine the age of the victim. A map of the place of incident was prepared. A site map of the incident was obtained from patwari. The victim (PW-3) was examined. The statements of the witnesses were recorded. The statement of the victim was recorded under Section 164 CrPC vide Ex.P-3. The appellant was arrested on 20.03.2020. Panty worn by the victim and her vaginal slide were seized. The seized panty and vaginal slide of the victim were sent to State Forensic Science Laboratory, Ambikapur for chemical examination. After completion of investigation, charge-sheet was filed before the jurisdictional Court under Section 363, 366-A, 376(A)(B) of the IPC and Sections 5(ड)/6 of the POCSO Act. The trial Court has framed the charges under Section 363, 366-A, 376(A)(B) of the IPC and Sections 5(ड)/6 of the POCSO Act against the appellant. In order to establish the charge against the appellant, the prosecution examined as many as 14 witnesses and exhibited 27 4. 5. 6. 4 documents. The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence passed by the learned trial Court is bad in law. There is no evidence against the appellant and the case of the prosecution is based on surmises, so the appeal be allowed and the appellant be acquitted. He further submits that the learned trial Court has erred in believing the statement of the prosecutrix because there is large number of contradictions amongst the statement of the prosecution witnesses. There is no legally admissible evidence in support of age of the prosecutrix showing her to be minor on the date of incident. Even the document i.e. birth certificate has not been taken on record which can prove the prosecutrix to be minor on the date of incident. He also submits that no ossification test of the prosecutrix was conducted to ascertain her exact age. Thus, there is no authentic proof of age of the prosecutrix. There is delay in lodging the FIR and no plausible explanation was offered by the prosecutrix for delay in lodging the FIR. He lastly submits that the trial Court has awarded the sentence of life imprisonment which would mean imprisonment for rest of the natural life which is too harsh considering the evidence available on 5 record and the same may be converted to rigorous imprisonment for 20 years. As such, the appeal deserves to be allowed in full or in part. 8. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the trial Court has rightly convicted and sentenced the appellant, in which no interference is called for by this Court. 9. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 10. The victim in her 164 CrPC statement (Ex.P-3) has stated that she knows the accused. She also mentioned that she has three siblings and resides in Village Lakshmipur. A long time ago, the accused, Ghasia, forcibly took her to a field and later made her sit on his motorbike and took her to a secluded area. There, the accused removed her clothes and underwear and raped her forcefully and told her not to tell anyone about the incident and even threatened to kill her. When the accused, Ghasia, was bringing her back, they fell off his motorbike near a shop, causing an injury near her lip. The accused then left her a short distance away, after which she informed her family that the accused had forcibly taken her away. The victim also admitted that while she was sitting on the bike with the accused, she fell off. Thus, from these statements made by the victim, it is clearly established that the accused was present with the victim at the time, date, and place of the incident. 11. Chanda Singh (Anganwadi worker) (PW-04), stated that the 6 attendance register is marked as Ex.P-05, with its certified copy marked as Ex.P-05C, bearing her signature on parts “A to A”. Investigation OfÏcer Aradhana Banode seized it from her as per Ex.P-04. Additionally, upon examining the attendance register (Ex.P-05C) submitted by the prosecution regarding the victim’s birth details, it records her date of birth as 04.12.2012. Based on this, the victim’s age at the time of the incident was 7 years, 3 months, and 14 days. The accused did not present any documents to dispute this claim. Therefore, based on the above evidence, investigation, and analysis, it is established that the victim was under 12 years of age at the time of the incident. 12. Investigating OfÏcer (PW-08) has stated that on 20.03.2020, he had sent a letter to the female Medical OfÏcer at the Primary Health Center, Ajb Nagar, to conduct a medical examination of the victim's private parts after obtaining consent from the victim's father. 13. Dr. Suchita Nirmala Kindo (Medical OfÏcer) PW-01 has stated that on 20.03.2020, the victim was brought before her by Lady Constable No. 193 Rajni Singh, Thana-Bhatgaon, for examination. Upon external examination, the doctor found that the victim appeared to be a minor girl of 6-7 years old, physically and mentally normal, with no visible external injuries. The witness further stated that upon internal examination, she found that the victim's vagina had a very small opening, and the surrounding area was extremely painful to the 7 touch. The victim was screaming in pain. The doctor prepared two vaginal slides using an ear bud and found blood in the vaginal opening. The vaginal opening was torn, measuring half a centimeter. During cross-examination, the witness accepted that the victim was not capable of sexual intercourse. However, she further stated that the victim's vagina was torn due to forced sexual intercourse. No other substantial challenge was made by the defence. 14. Similarly, Dr. Maheshwar Singh, Medical OfÏcer PW-02, stated that on 20.03.2020, he examined the accused Jay Kumar Ghisia and found no symptoms indicating that he was incapable of sexual intercourse. 15. Investigating OfÏcer PW-08 further stated that on 21.03.2020, he seized two vaginal slides and the victim's brown underwear, sealed in a packet, from Lady Constable No. 193 Rajni Singh, in the presence of witnesses, as per seizure memo Ex.P-21. 16. The investigating ofÏcer also sent the seized vaginal slides and underwear for chemical examination to the Regional Forensic Science Laboratory, Ambikapur, through the Superintendent of Police, Surajpur, with a covering letter Ex.P-25 and FSL report Ex.P-27. 17. FSL report Ex.P-27, prepared under Section 46 of the Evidence Act, confirms the presence of semen stains and human sperm on 8 the victim's vaginal slides A1, A2, and underwear B, corroborating the occurrence of forced sexual intercourse with the victim. 18. Thus, the available evidence in the case indicates that on the date of the incident, the accused Jay Kumar Ghisia committed forced sexual intercourse with the minor victim, taking her away from her home to a field. This is corroborated by the statements of the victim, her father, and other independent witnesses, as well as the medical evidence and FSL report. 19. In the Indian society refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. The State of Rajasthan (AIR 1952 SC 54) were: 9 “The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...”. 20. 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 Court, therefore, shoulders 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 inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difÏcult to place implicit reliance on her testimony, it may look for evidence which may lend assurance 10 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. This position was highlighted in State of Punjab v. Gurmeet Singh (1996 (2) SCC 384). 21. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of 11 the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. 22. The Supreme Court in the matter of Ranjit Hazarika v. State of Assam reported in AIR 1998 SC 635 has held that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. 23. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:-
Legal Reasoning
“In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber 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 12 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 everyone 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 similar such tests to be applied, it can 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 13 sieve the other supporting materials for holding the offender guilty of the charge alleged.” 24. As per the statement of the prosecutrix (PW-3), she knows the accused and has three siblings resides in Village Lakshmipur. The accused, Ghasia, forcibly took her to a field and later made her sit on his motorbike and took her to a secluded area. There, the accused removed her clothes and underwear, and raped her forcefully and told her not to tell anyone about the incident and even threatened that he would kill her, bury her alive, after that the accused forcefully had physical relations with her. 25. Considering the aforesaid facts and circumstances of the case, particularly the statement of victim recorded under 164 of CrPC, statement of Chanda Singh (Anganwadi worker) (PW-04), Investigating OfÏcer (PW-08), Dr. Suchita Nirmala Kindo (Medical OfÏcer) PW-01, Dr. Maheshwar Singh, Medical OfÏcer PW-02 and also considering the FSL report (Ex.P-27) and MLC report (Ex.P-1), it is quite clear from the documentary and oral evidence presented by the prosecution on record and its analysis that the accused/appellant has forcefully committed rape the victim, who was a minor girl. The prosecution has also been successful in proving beyond reasonable doubt that on the date of the incident the victim was minor. Thus, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. 26. Consequently, the conviction as awarded by the trial Court under 14 Sections 363, 366-A, and 376 AB of the Indian Penal Code, 1860, along with Sections 5(m) and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is hereby upheld, however, considering the submission advanced by learned counsel for the appellant, also considering the evidence of the victim (PW-3) and the material available on record, this Court is of the view that the sentence of life imprisonment which would mean imprisonment for rest of the natural life, is too harsh and instead, the same is converted to rigorous imprisonment for 20 years. The imposition of fine amount and the default sentence is upheld. 27. The appellant is stated to be in jail since 20.03.2020 being the date of arrest. He is directed to serve out the sentence as modified above. 28. The criminal appeal is partly allowed to the extent indicated hereinabove. 29. 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. 15 30. Let a certified copy of this judgment along with the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Rahul Dewangan