K v. Thomas S/o Late Baru Thomas Aged About 71 Years R/o Ward No. 3, New
Case Details
1 CRA No.359 of 2016 RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.07.11 13:34:22 +0530 2025:CGHC:31989 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 359 of 2016 K. V. Thomas S/o Late Baru Thomas Aged About 71 Years R/o Ward No. 3, New Market Bacheli, P.S. - Bacheli, District - Dantewada - Chhattisgarh , Chhattisgarh versus Appellant State Of Chhattisgarh Through Police Station Bacheli, District - Dantewada - Chhattisgarh , Chhattisgarh (Cause title is taken from Case Information System) Respondent(s) For Appellants : Mr. P.R. Patankar and Mr. Mayank Mulchandani, For Respondents/State
Legal Reasoning
: Mr. Shailendra Sharma, PL Advocate Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board 10/07/2025 Heard. 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 03/03/2016 passed in Special Sessions Trial No. 19/2015 by the learned Special Additional Sessions Judge (FTC), South Bastar, Dantewada (C.G.) whereby the appellant has been convicted under Sections 9 (m) 2 CRA No.359 of 2016 and 10 of the POCSO act, 2012 2. Case of the prosecution, in brief, is that Complainant Sajida Begum made a report at the police station alleging therein that she has two daughters, aged 5 years and 2 years. Her husband Sharafat Hussain had gone to Bhilai for his work. On 11.10.2015 at 10:00 am, when both her children were not found at home, she went out to look them, then the younger daughter indicated that the victim is in the house of the accused. She went to the house of the accused and saw that her elder daughter/victim was lying on the bed in the inner room of the accused and the accused was touching the private parts of her daughter. Immediately, she took her daughter out of the house of the accused and asked him what were he doing with the Victim. Subsequently, she called the neighbours and questioned the Victim in front of them, then the Victim told that earlier also the accused had touched her private parts and told her not to tell the mother. On the above report of the Complainant, First Information Report (Ex.P-1) was registered in Bacheli police station and the case was taken into investigation. During the investigation, a site map (Ex.P-2 of the incident spot was prepared. The accused was arrested. The photocopy of the victim's admission form (Article A) and certificate (Ex.P-4) regarding the birth of the victim were seized and seizure memo (Ex.P-5) was prepared. Statements of witnesses were recorded. After complete investigation, a charge-sheet was filed against the appellant. 3. In order to bring home the offence, the prosecution has examined 08 3 CRA No.359 of 2016 witnesses in its support. Statements of the accused/appellant under Section 313 Cr.P.C were recorded, wherein he has pleaded his innocence and false implication in the matter. 4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 03/03/2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 5. Mr. P.R. Patankar and Mr. Mayank Mulchandani, learned counsel for the appellant submit that the appellant has been falsely implicated in the present case. There are material contradictions and omissions in the statement of the prosecution witnesses. He would submit that the appellant was septuagenarian at the time of the alleged incident as such the benefit of Probation of Offencers Act ought to have extended to him. The statement of the father of the Victim is hearsay and as such is not reliable. Therefore, the conviction of the appellant is not sustainable. 6. Per Contra, Mr. Shailendra Sharma, learned counsel for the Panel Lawyer for the State would oppose the submissions made by the counsel for the appellant and submits that there are sufficient evidence against the appellant as such the trial Court has rightly convicted and sentenced
Decision
the appellant. The impugned judgment is well merited and does not call for any interference. 7. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with 4 CRA No.359 of 2016 utmost circumspection. 8. There is no dispute with regard to the age of the Victim and therefore, it is held that she was minor below 18 years of the age. 9. The question remains for consideration before this Court, whether the appellant committed the offence with the minor Victim or not?. 10. PW1- Mother of the Victim has deposed in her examination-in-chief that she is having two daughters aged about 5 years and 2 years respectively. Her husband works as driver of a truck. She stated that on the date of incident, her husband had gone to Bhilai, and when she called her elder daughter, she did not replied, then her younger daughter told her by sign towards the house of the appellant. Subsequently, she went inside the house of the appellant and saw that the Victim was lying on the bed of the appellant and the appellant was touching her private part. Thereafter, she asked the appellant, what was he doing with the Victim, then, he came outside. She further deposed that when the neighbor asked the Victim, she told them the appellant was touching her private part. In cross-examination, this witness has admitted that she had seen the appellant was touching private part of the Victim. 11. PW2- Father of the Victim has deposed in his examination-in-chief that on the date of incident, his wife called him over mobile phone twice. At about 8:30, when he made a call to her, then his wife narrated the entire incident to him. He deposed that his wife had narrated the incident to him that the appellant after lying the Victim on bed, was touching her 5 CRA No.359 of 2016 private part, to which, he said that the appellant is septuagenarian and he cannot do the same, on which, his wife while emphasizing her voice said that she had seen the incident by her own eyes. Nothing has been brought on by the defence in his cross-examination. 12. PW3- Victim in her examination-in-chief has deposed that the appellant put off her knicker and touched her private part. The appellant had told her not to disclose the same to her mother. She categorically deposed that on the date of incident, she was lying on the bed of the appellant. 13. The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:- “22. 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 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 6 CRA No.359 of 2016 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 recise, 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 sieve the other supporting materials for holding the offender guilty of the charge alleged.” 7 CRA No.359 of 2016 14. Also, the Supreme Court in the matter of State of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 SCC 550 held as under:- “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 the prosecutrix must necessarily depend on the facts and 8 CRA No.359 of 2016 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.” 15. Reverting to the facts of the present case, as per the evidence of the mother (PW1), Father (PW2) and the Victim (PW3), it is crystal clear that the appellant, on the date of incident, after lying the Victim on the bed was touching her private part. Nothing has been brought on by the prosecution in their cross-examination. 16. The law is well settled that the prosecutrix is a Victim of, and not an accomplice in, a sex offence and there is no provision in the Evidence Act requiring corroboration in material particulars of the evidence of the prosecutrix as is in the case of evidence of accomplice. (See: Ganga Singh v. State of M.P., (2013) 7SCC 178). 17. Considering the entire evidence available on record and the facts and circumstances of the case, it would be safe for this Court to hold that the appellant has committed the offence with the minor victim. 18. For the foregoing discussions, this Court is of the opinion that the prosecution has fully proved its case beyond reasonable doubts. Therefore, the conviction as awarded by the trial Court to the appellant is hereby upheld. 9 CRA No.359 of 2016 19. Accordingly, this Criminal Appeal is dismissed. 20. It is stated that the appellant is on bail. His bail bonds are cancelled and he is directed to surrender/or be taken into custody to serve out the remaining sentence. 21. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also 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. Sd/- (Bibhu Datta Guru) Judge Rahul/Gowri