Sukuma, Chhattisgarh v. State Of Chhattisgarh Through P.S. Sukma, District
Case Details
1 2025:CGHC:1694-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1079 of 2024 Golu Yadav S/o Paaklu Yadav Aged About 26 Years R/o Golaguda, Puranapara, P.S. Sukma, District : Sukuma, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through P.S. Sukma, District : Sukuma, Chhattisgarh ... Respondent For Appellant : Mr. Mayank Mulchandani and Mr. P.R.Patankar, Advocates For Respondent/State : Mr. Malay Jain, Panel Lawyer Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 10/01/2025 1 The appellant has filed this appeal under Section 374(2) of the Criminal Procedure Code, 1973 (for short, the Cr.P.C.)questioning the impugned judgment of conviction and order of sentence dated 21.05.2024 passed by the learned Additional Sessions Judge (FTC) South Bastar, 2 Dantewada, in Special Sessions (POCSO) Trial No. 50/2023 whereby the appellant has been convicted for the offence punishable under Section 376(2)(n) of the Indian Penal Code (for short, the IPC) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act) and has been sentenced under Section 6 of the POCSO Act, to rigorous imprisonment for 20 years with fine of Rs. 5,000/-, and in default of payment of fine, to further undergo rigorous imprisonment for one year. 2 Today, the matter is listed for hearing on IA No. 1/2024, which is an application for suspension of sentence and grant of bail to the appellant.
Legal Reasoning
However, with the consent of learned counsel for the parties, the matter is being heard finally. It is reported that notice has been served upon the mother (PW-2), however, none has appeared on her behalf. 3 The appellant/convict was charged for the offences under Sections 376(2) (d), 313 of the Indian Penal Code, 1860 (for short, the IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act), alleging that the accused, at any time from 15.09.2019 to 05.08.2020, in the forest and at various places situated within the area of Police Station Sukma, District Sukma, had made repeated physical relations with the victim, aged 16 years 11 months 4 days, who was a girl below 18 years of age, against her will and without her consent by giving her false assurance of marriage, due to which the victim became pregnant. It is also alleged against the accused that on or about 05.08.2020, he gave some pills to the victim which resulted into miscarriage of the pregnancy of the victim. 4 The case of prosecution, in brief, is that the victim made awritten complaint to the Police Station in-charge, Sukma to the effect that the 3 appellant established continuous physical relations with her by luring her to perform marriage but when she became pregnant, the appellant forced her to take pills for abortion which caused miscarriage. The appellant had given written assurance on a stamp paper in presence of the villagers that he would marry the victim, but he did not marry and started living with other woman. On the basis of the written complaint of the victim, an FIR was registered against the appellant at Sukma Police Station bearing Crime No. 77/2023 under Section 376, 376 (2) (n) of the IPC and Section 6 of the POCSO Act. 5 During the investigation, the spot map of the crime scene was prepared. After obtaining the consent of the victim and her guardian, the victim was medically examined. The appellant was also medically examined. The victim's class 10th mark-sheet related to her date of birth was seized. The statement of the other witnesses were recorded. The appellant was arrested and his information with regard to his arrest was duly given to his relatives. After completion of the investigation, charge sheet was filed against the appellant before the learned Additional Sessions Judge (FTC) Dantewada, District Dantewada, Sukma, on 18.10.2023 for the offences punishable under Sections 376, 376(2)(n), 313 of the IPC as well as Section 4, 5(l) and 6 of the POCSO Act. 6 Charges were framed against the appellant on 26.01.2023 for the offences under Sections 376(2)(n), 313 of the IPC and Section 6 of the POCSO Act. The appellant denied the charges and prayed for trial. 7 In order to bring home the offence, prosecution examined as many as 8 witnesses, namely, the victim (PW-1), mother of the victim (PW-2), Mrs. Manorama Dhruve Patwari (PW-3), Dr. Rama Mishra (PW-4), aunt of the
Legal Reasoning
victim (PW-5), Dr. Jaishankar Vats (PW-6), Mr. Faguram Lahare Sub- 4 Inspector (PW-7) and Dr. R.L. Gangesh (PW-8) were examined before the Court and exhibited as many as 21 exhibits. 8 The statement of the convict/appellant was recorded under section 313 CrPC wherein he has expressed his ignorance about most of the questions, however, some of them were denied as well. He stated that he was innocent and was falsely implicated. In support of his case, he got exhibited the statement of the victim under Section 161 Cr.P.C. exhibited as Exhibit D/1. 9 The learned trial Court, after considering the statement of witnesses and evidence available on record, convicted and sentenced the appellant/ accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict. 10 Mr. Mayank Mulchandani and Mr. P.R.Patankar, learned counsel for the appellant submits that the appellant has been falsely implicated in this case. The victim herself has stated in her deposition that she was having love affair with the appellant and she never opposed the physical relationship. Even the Doctor who had examined the victim did not find any injuries or signs of forceful sexual intercourse. The mother of the victim could also not give the exact date of birth so as to arrive at a finding that the victim was a minor. In the present case, the victim was not a minor on the date of incident and she was a consenting party and as such, no case is made out against the appellant. Even the prosecution could not establish the fact that the victim was minor on the date of incident beyond reasonable doubt. Hence, the appellant deserves to be acquitted of the charges. 11 On the other hand, Mr. Malay Jain, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully 5 justified in convicting and sentencing the convict/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the appellant guilty of the offence. The order passed by the learned trial Court needs no interference and the appeal filed by the convict/appellant be dismissed. 12 None appears on behalf of the mother (PW-2) of the victim despite service of notice. 13 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 14 The appellant/convict is alleged to have been raped multiple times by the appellant and when she became pregnant, she was given pills to abort the pregnancy. According to the prosecution, the victim was aged about 16 years, 11 months and 4 days on the date of incident. 15 The victim (PW-1) in her deposition has stated that her date of birth was 11.10.2002. She knew the appellant-convict. When she became acquainted with her, she started talking to the appellant. She stated that the appellant had made forceful physical relationship with her for the first time in a house of one of their acquaintance and thereafter, in the forest also. She stated that a meeting of their society was held in their village where the appellant had assured that he would marry her but later he started living with other lady. The victim is a lady working as Multipurpose Worker in a Government Department. She admitted that while she was called by the appellant for the first time, she was residing alongwith her mother, two brothers and sister and admitted that she did not inform the incident to any of her family members. She had not been able to inform the Court as to how many times she had made physical 6 relationship with the appellant. She further complained that during the course of four years when they used to make physical relationship, the victim never informed either to her own parents or to the parents of the appellant. At paragraph 37 she has admitted that whenever the appellant used to call her for making physical relationship, she never resisted and she had also affection towards the appellant. 16 The mother of the victim (PW-2) stated that she was not aware of the date of birth of the victim and did not support the prosecution case as she specifically stated that neither she was having any knowledge about any incident or that any incident had occurred with her daughter. In cross examination, she has admitted that when the victim was in Class VII she had informed her that the appellant wanted to marry her but she had refused stating that when they become major, they can marry. This witness has denied the entire prosecution story and also denied that the victim was ever pregnant. Similarly, the aunt (PW-5) of the victim has also not supported the prosecution case and turned hostile. She stated that since the appellant had kept some other lady as her wife, the FIR was lodged. 17 Dr. Rama Mishra is the Medical OfÏcer who had conducted the MLC of the victim. In her report (Exhibit P/9) she did not found any injuries either externally or internally but the hymen was found to be old torn and she could not give any opinion with regard to the recent sexual intercourse. She had prepared vaginal smear slides, anal swab, urethral swab and after preserving it, handed over to the Lady Constable for FSL examination. Dr. R.L.Gangesh (PW-8) is the Radiologist who had conducted the sonography test of the victim but he did not find any significant abnormality in his report (Exhibit P/21). 7 18 Dr. Jayshankar Vats (PW-6) is the Medical OfÏcer who had examined the appellant and found him capable of performing sexual intercourse vide his report (Exhibit P/14). 19 The learned trial Court has arrived at a finding that the victim was below the age of 18 years only on the basis of the date of birth entered in the Class 10th marksheet as 11.10.2002. Neither any Teacher / Head Master of the concerned school has been examined by the prosecution nor any statement has been recorded by the police so as to arrive at a finding that on what basis the said date of birth was recorded. Not even the admission/discharge register of the concerned school has been exhibited. Even there is no Radiologist report which can suggest as to whether the victim was minor on the date of incident or not. The prosecution could not prove beyond reasonable doubt that the victim was below the age of 18 years as neither there is any other document except the mark-sheet nor the evidence of any personnel of the school where the victim was studying, has been examined in this case. 20 In the present case, both the mother and the aunt of the victim have turned hostile and not supported the prosecution case. They have denied the entire prosecution story. Further, it is an admitted position and it has specifically been deposed by the victim that she had love affair with the appellant and whenever he used to call her, she used to meet the appellant and made physical relationship with him and never resisted. She was free to tell to any person had the relationship was made forcefully or using threat or coercion or allurement. It appears that when the appellant made relationship with other lady, then only the victim became frustrated and lodged the FIR against the appellant. In the present case, the victim was free and not in any captivity of any kind and had it been a case of threat or coercion, she would not have told to 8 anyone but that is not the case in hand. She could have easily inform any of her own family members or the family members of the appellant if the appellant had made physical relationship after creating pressure or allurement. Even the mother and the aunt does not support the case of the victim. 21
Decision
In view of the above discussion, it can safely be held that the prosecution has failed to prove that the victim was a minor on the date of incident. 22 In Alamelu & Another v. State, represented by Inspector of Police {(2011) 2 SCC 385}, where the facts and circumstances were similar to that of this case, the Supreme Court observed as under: “51. This Court in Rameshwar v. State of Rajasthan {AIR 1952 SC 54} declared that corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Vivian Bose, J. speaking for the Court observed as follows:- "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, ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 52. The aforesaid proposition of law has been reiterated by this Court in numerous judgments subsequently. These observations leave no manner of doubt that a conviction can be recorded on the sole, uncorroborated testimony of a victim provided it does not suffer from any basic infirmities or improbabilities which render it unworthy of credence. xxx xxx xxx 9 54. Even PW5, Thiru Thirunavukarasu stated that Sekar (A1) had brought the girl with him to his house and told him that he had married her. They had come to see Trichy and requested a house to stay. This witness categorically stated that he thought that they were newly married couple. He had made them stay in Door No. 86 of the Police Colony, which was under his responsibility. On 10th August, 1993, the police inspector, who arrived there at 10.00 p.m. told this witness that Sekar (A1) had married the girl by threatening her and "spoiled her". The girl, according to the prosecution, was recovered from the aforesaid premises. Therefore, for six days, this girl was staying with Sekar (A1). She did not raise any protest. She did not even complain to this witness or any other residents in the locality. Her behavior of not complaining to anybody at any of the stages after being allegedly abducted would be wholly unnatural. 55. Earlier also, she had many opportunities to complain or to run away, but she made no such effort. It is noteworthy that she made no protest on seeing some known persons near the car, after her alleged abduction. She did not make any complaint at the residence of Selvi, sister of Sekar (A1) at Pudupatti. Again, there was no complaint on seeing her relatives allegedly assembled at the temple. Her relatives apparently took no steps at the time when mangalsutra was forcibly tied around her neck by Sekar (A1). No one sent for police help even though a car was available. She made no complaint when she was taken to the house of PW5, Thiru Thirunavukarasu and stayed at his place. Again, there was no protest when Sekar (A1) took her to the police station on 5th day of the alleged abduction and told at the Tiruchi Police Station that they had already been married. The above behaviour would not be natural for a girl who had been compelled to marry and subjected to illicit sexual intercourse. 56. In view of the aforesaid, we are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt any of the offences with which the appellants had been charged. It appears that the entire prosecution story has been concocted for reasons best known to the prosecution.” 10 23 In view of the above discussion, this Court is of the considered opinion that the prosecution has failed to establish its case beyond reasonable doubt and the judgment passed by the learned trial Court needs interference and as such, the judgment of conviction and order of sentence dated 21.05.2024 is hereby set aside and the appellant/ convict is acquitted of the charges. 24 Resultantly, this appeal stands allowed. 25 The appellant/convict is reported to be in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C. {Section 481 of the BNSS}, the accused-appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties 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 Supreme Court. 26 Registry is directed to transmit the trial court record along with a copy of this order to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.01.16 10:47:27 +0530