Nafr High Court
Case Details
1 2025:CGHC:10435 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 838 of 2018 1 - Mannu @ Abhimanyu S/o Jairam Pradhan Aged About 20 Years R/o Village Neurgaon, Police Station Kunda, District Kabirdham Chhattisgarh Present Address Behind Chandwadi Circuit House, Qtr. No. M. I. G. 38, Raigarh District Raigarh Chhattisgarh. ... appellant 1 - State Of Chhattisgarh Through The Station House OfÏcer, Police Station Sakti, District Janjgir Champa Chhattisgarh. versus ... Respondent For appellant : Mr. Rakesh Thakur, Advocate For Res./State : Mr. Swajeet Ubeja, Panel Lawyer Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 03.03.2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 18.04.2018 passed by learned 1st Additional Session Judge, Sakti, District- Janjgir Champa (C.G.) in Sessions Trial No. 11 of 2017 whereby the appellant has been convicted and sentenced as under: Conviction U/S Sentence Fine In default of Under Section Rigorous Rs. 5,000/- 6 months payment of Fine 2 366(A) of Indian Imprisonment Rigorous Penal Code for 5 years Imprisonment Under Section Rigorous Rs. 1,000/- 1 month 506(B) of Indian Imprisonment Penal Code for 2 years Rigorous Imprisonment Under Section 6 of Rigorous Rs. 5,000/- 6 months the Protection of Imprisonment Children from for 10 years Rigorous Imprisonment Sexual Offences Act, 2012 All the sentences will run concurrently 2. Case of the prosecution, in brief, is that on 19.02.2017, a written report Ex. P/ 1 was lodged by the father of the victim (PW01) with the allegation that on 18.02.2017 at about 5.00 pm, the appellant took his minor daughter with him towards Masaniya Hill and committed rape upon her. When she started crying he threatened her and left her to her house and fled away by his motorcycle. The victim informed the incident to her mother and when he returned back from the market he too have informed by them. The complainant has stated that when he had gone to the house of the appellant, he could not be found at his house therefore, he
Facts
has lodged the report. Based on the written report, the FIR Ex. P/2 was registered against the appellant for the offence under Section 376, 506B and 366-A of IPC and Section 4 of POCSO Act, 2012. The victim was sent for her medical examination to Community Health Centre, Sakti where Dr. Seema Nandni Chaudhri (PW12) has medically examined her and gave her report Ex. P/5. While medically examine the victim, the doctor has not found any external injuries on her body, her hymen was found intact and she opined in her clinical finding that there is no any penetration of vagina, no definite opinion of rape can be given. For second opinion, the victim was referred to gynecologist at higher Centre. Two slides of her vaginal swab were prepared, sealed and handed it 3 over to police for its chemical examination. When the victim was referred to higher Centre to a gynecologist, she was being medically examined by the Dr. P. C. Jain. (PW11), who after examination gave report Ex.P/6 and he too has given his opinion that no definite opinion can be given regarding the sexual assault with the victim. Vaginal smear report of the victim will decide that the act was occurred or not. The spot map (Ex.P/9) was prepared by the Patwari and spot map (Ex. P/3) was prepared by the Police. With respect to the age and date of birth of the victim, the Police has also seized the School Register vide seizure memo Ex. P/7 from Saraswati Shishu Mandir School, Sakti. After retaining the attested true copy of School register Ex. P/39C, the original Register Ex.P/39 was returned to the School. The underwear of the victim was seized vide seizure memo Ex. P/8. The appellant was arrested on 20.02.2017 and he too was sent for medical examination to Community Health Centre, Sakti where Dr. Prashant Singh Baisya (PW10) has medically examined him and gave his report Ex. P/24 and opined that the appellant is able to perform sexual intercourse. The Vaginal slides and underwear of the victim as well as underwear of the appellant were sent for chemical examination to Regional FSL, Bilaspur from where FSL report Ex. P/ 38 was received and no sperm and semen were found on the sent articles. 3. The statement of witnesses were recorded under section 161 of Cr.P.C. Statement of the victim and her father under Section 164 of Cr.P.C. have also been recorded. After completion of usual investigation, charge sheet was filed against the appellant before the learned trial Court for the offence under Section 376(2)(i), 366-A and 506-B of Indian Penal Code and Section 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”) 4 4. The Trial Court has framed charges against the appellant namely- Mannu @ Abhimanyu for the offences under Sections 366A, 506-B of IPC and Section 6 of POCSO Act, 2012 in alternative Section 376(2)(i) of IPC. The appellant denied the charge and claimed trial. 5. In order to establish the charge against the accused, the prosecution has examined as many as 15 witnesses. The statement of appellant was also recorded under section 313 of Cr.P.C. in which he denied the material appearing against him, plead innocence and submitted that he is innocent and has falsely been implicated in the case. 6. After appreciation of oral & documentary evidence available on record, the learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal.
Legal Reasoning
the point of age of the victim and therefore, there is no dispute on the fact that at the time of incident the victim was minor and about 10 years of age. 13. So far as the offence of procuring a girl for illicit intercourse and commission of rape are concerned, I again examined the evidence of victim (PW02), she stated in her evidence that on the date of incident the appellant took her to Masaniya Hill on the pretext that he is taking her to her maternal Aunt’s house. In Masaniya Hill after removing his clothes and her clothes committed rape upon her. When she started crying he threatened her and thereafter, left her near her house. She came back to her house and informed the incident to her mother and when her father came he too have been informed by them and thereafter, before the 7 police report has been lodged. In cross-examination, this witness remained firm by saying that the appellant committing rape upon her after taking her at Masaniya Hill. She firmly denied the suggestion given by the defence that there was a dispute with respect to the money transaction of Rs. 17,000/- with her father and the appellant. From the evidence of this witness she can be put into the definition of sterling witness and her evidence can be believed to convicted the appellant into offence in question. 14. The mother of the victim (PW03) has stated in her evidence that on the date of incident her daughter has informed her that the appellant took her towards Masaniya Hill and committed rape upon her. She also informed that the appellant threatened her that if she disclose the incident to anyone he would kill her. Thereafter, she informed the other family members and lodged the report to the police. Though she stated in her cross-examination that she herself has not seen the incident that the appellant taken her daughter with him but she stuck in saying that her daughter informed her about the incident that appellant has committed rape upon her. She too has been cross-examined about the dispute with respect to the Rs. 17,000/- with her husband and the appellant but she has also firmly denied. Even there was no date and time asked to this witness as to when the dispute arose with respect to the money transaction. 15. The father of the victim (PW01) has stated that when he returned back from the market, he was being informed by his wife and other family members that the victim was being subjected to rape by the appellant. PW01 is the witness to the fact that the appellant who is his relative and has taken the victim with him despite that her protest. Nothing in his cross-examination which makes his evidence doubtful that this witness 8 is raising false allegation against the appellant. Although he too has been examined that there was any dispute with respect to Rs. 17,000/- with the appellant but he too has denied the same. 16. PW08 is the persons who is the neighbour of the victim and had seen that the appellant had taken the victim and after some time he left her near her house. When the victim was left near her house, she was crying and when her mother asked her she disclosed about the incident that the appellant committed rape upon her. This witness too remained firm in the allegation made by the victim against the appellant that she disclosed about the incident to her mother and the appellant earlier took her on his motorcycle and after some time left her near her house. 17. From the evidence of all these witnesses, the involvement of the appellant has duly been proved by the prosecution and there is no scope of any reason to dis-believe their evidences. 18. Dr. Seema Nandani Chaudhri (PW12) who medically examined the victim though have not found any external and internal injuries on the body of the victim but in the opinion of this Court the injuries does not any significance in the offence like rape. 19. In the matter of Satyapal Vs. State of Haryana, reported in 2009 (6) SCC 635 in paragraph 18 the Hon’ble Supreme court has held that a slightest penetration can constitute the offence of rape, paragraph 18 is relevant which is reads as under:- “18. In Modi's Medical Jurisprudence, twenty-third edition, at pages 897 and 928, it is stated: "To constitute the offence of rape, it is not necessary that there would be complete penetration of the penis with 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 emission of semen or even an attempt at penetration is quite sufÏcient for the purpose of law. It is, therefore, quite 9 possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains……. xx xx xx xx At page 928: 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 perineum." 20. From all these consideration, this Court finds difÏcult to interfere or upset the well reasoned finding recorded by the learned trial Court for convicting the appellant and sentencing for the alleged offence of kidnapping the minor girl for illicit intercourse and committed rape upon her. 21. In the result, the appeal filed by the appellant fails and is hereby dismissed. He shall undergo the entire sentence awarded by the learned trial Court. 22. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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. 23. 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 amita Digitally signed by AMITA DUBEY Date: 2025.04.07 16:11:00 +0530
Arguments
7. Learned counsel for the appellant would argue that the prosecution has failed to prove its case against the appellant beyond all reasonable doubts. There are material omissions and contradictions in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. He would also submit that there is no legally admissible evidence with respect to the age and date of birth of the victim. He would further submit that no injuries have been found on the body of the victim and there is no sign of any sexual assault found on the body of the victim as her hymn was found intact and there is no external injuries on or near about her private part. There was a dispute with respect to the money transaction between the appellant and the father of the victim and for which the appellant has been hold in false case of rape. There is no cogent and clinching evidence to convict the appellant for offence in question and therefore, he is entitled for acquittal. 8. On the other hand, learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that the 5 prosecution has proved its case beyond reasonable doubt. From the offence against the victim, the guilt of the appellant is duly proved that he committed rape upon her in the Masaniya Hill. Although, no injuries have been found on the body of the victim that itself does not makes the prosecution case doubtful as injuries is not required to be found in every case and it depend upon facts of the each case. Even if her hymen was found intact, complete penetration would not be necessary to constitute the offence of rape and even slightest penetration could constitute the offence of rape. In the present case the evidence of the victim does not suffers from any infirmity which has duly been supported by her 161 of Cr.P.C. statement. From the other evidence it has also been proved that the victim was being taken by the appellant and after commission of the offence left her near by her house and thus, the guilt of the appellant in offence in question has duly been established by the prosecution by leading cogent and clinching evidence. He would further submit that the victim was minor aged about 10 years and her age was proved by the school record Ex. P/39C. Her age has not been specifically challenge by the defence therefore, all the ingredient of procuring the minor girl for illicit intercourse as well as rape are fully established by the prosecution and the appeal of the appellant is liable to be dismissed. 9. I have heard the counsel for the parties and perused the material available on record. 10. So far as at the time of incident the age of the victim is concerned, from perusal of the record as well as the material produced by the prosecution during the trial, it would reflect that the appellant has not specifically challenged the age of the victim. The victim was 10 years of age at the time of incident which has been proved by the prosecution by leading the evidence of PW15 who is the Headmaster of the school who 6 stated in his evidence that the police has seized the school Register and as per the School Register, the date of birth of the victim is mentioned as 04.03.2006. In cross-examination, he stated that he himself has got admitted the victim in the school and made entries in the School Register. He issued the attested true copy of the school register which is Ex. P/ 39C. From the evidence of this witness the school register Ex. P. 39C is found proved that her date of birth in the school was recorded as 04.03.2006 and on the date of incident she was aged about 10 years. 11. While examining the victim (PW02), the learned trial Court has observed her age is about 10 years therefore, the said part of her evidence regarding her age has not been cross-examined by the defence. Likewise her father (PW01) has also not been cross-examined on the point of her age except the suggestion given by the prosecution that the school register has not been seized from the Headmaster. 12. The mother of the victim(PW03) has also not been cross-examined on