Nafr High Court
Case Details
1 2025:CGHC:1693-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1788 of 2024 Pankaj Patel S/o Shri Deenbandhu Patel Aged About 25 Years R/o Village - Nawagaon Kala Thana - Dadhi District - Bemetara (CG.) versus ... Appellant State Of Chhattisgarh Through The District - Magistrate Kabirdham District - Kabirdham (C.G.) ... Respondent For Appellant For Respondent/State For Objector/Complainant Mr. Samir Singh, Advocate. : Mr. Sunil Sahu, Advocate. : Mr. Swajeet Singh Uboweja, 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 415(2) of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short, the BNSS) questioning the impugned judgment of conviction and order of sentence dated 24.09.2024 passed by the learned Additional Sessions Judge (FTC) / Special Judge, Protection of Children from Sexual Offences Act, 2012, District Kabirdham, in Special Sessions Trial No. 134/2024 whereby the appellant has been convicted for the offence punishable under Section 2 376(2)(f) 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. 500/-, and in default of payment of fine, to further undergo rigorous imprisonment for two months. 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. The father of the victim has also been served and is
Legal Reasoning
being represented by his counsel Mr. Samir Singh. 3 The appellant/convict Pankaj Patel was charged with the offence punishable under Sections 363, 366, 376(2)(f), (n) of IPC and Section 6 of POCSO Act alleging that on 21.03.2024 at 12:00 hours, being a relative of the victim, abducted the victim who was a child below 18 years of age, from the place of occurrence as mentioned in the First Information Report, Police Station- Rengakhar, District- Kabirdham, from the lawful guardianship of her parents with the intention of having illicit sexual intercourse with her or of compelling or alluring her to marry him and from 21.03.2024 to 30.04.2024 committed rape on the victim more than once without her consent and against her will and committed penetrative sexual assault on her more than once and committed aggravated penetrative sexual assault on her more than once. 4 The prosecution case, in brief, is that on 21.03.2024, the father of the victim (PW-3) lodged a report at Police Station-Pandatarai to the effect that on 21.03.2024, the victim came home after appearing in the class XII examination and left the house at 4.00 p.m. stating that she was going 3 to answer the nature’s call but she did not return home, then he inquired from the relatives in the neighbourhood and through mobile, but could not find any trace. It came to light that some unknown person has lured and kidnapped his minor girl. Based on the above information of the victim's father (PW-3), a missing person case number being 12/2024 was registered at the Police Station Pandatarai and an FIR (Exhibit P-8) was registered against the unknown person and the case was taken into investigation. During the investigation, the victim's class 10 th mark sheet (Exhibit P-12A) was seized in relation to her birth, as per the seizure memo (Exhibit P-12) and as per the seizure memo of the Dakhal Kharij register (Exhibit P-19). The victim was recovered from the possession of the appellant and a recovery panchnama (Exhibit P-2) was prepared, the statements of the victim and the witnesses were recorded. The victim said that the appellant lured her with a promise of marriage, abducted her knowing that she was a minor and repeatedly had physical relations with her on which sections 366, 376 (2) (n) of the IPC and Sections 4, 6 of the POCSO Act were added against the accused and a site map and site panchnama (Exhibit P-01, Exhibit P-10 and Exhibit P-11 respectively) of the incident spot were prepared by the police and the Patwari. The victim and the appellant were medically examined by the Doctors. The accused was arrested and an arrest memo (Exhibit P-25) was prepared and after investigation, a charge sheet was filed before the learned Additional Sessions Judge (FTC), Kawardha on 05.06.2024 for the offences under Sections 363, 366, 376(2)(n), 493 of the IPC and Sections 4 and 6 of the POCSO Act. 5 Charges were framed against the appellant/convict by the learned trial Court on 21.06.2024 for the offences under Sections 363, 366, 376(2)(n) 4 and Section 6 of the POCSO Act. The appellant denied the charges and prayed for trial. 6 In order to bring home the offence, prosecution examined as many as 12 witnesses, namely, the victim (PW-1), the victim's mother (PW-2), the victim's father (PW-3), Dr. Rishabh Chandra (PW-4), Head Constable Harilal Bhaskar (PW-5), the victim's uncle (PW-6), Sub-Inspector Thugiya (PW-4), Dr. Smriti Sonwani (PW-8), Patwari Domanram Sahu (PW-9), Head Constable Sanju Jharia (PW-10), Assistant Sub-Inspector Raghuvansh Patil (PW-11) and Inspector Janmejaya Pandey (PW-12) and has exhibited the documents from Exhibit P-1 to Exhibit P-33. The appellant did not produce any evidence in his defence. 7 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. 8 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. 9 Mr. Sunil Sahu, 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 had left the house on her own volition. The prosecution has not satisfactorily proved that the victim was below 18 years of age on the date of incident and in fact there was a love affair between the appellant and the victim. There are omissions and contradictions in the statement of the prosecution witnesses. Even the FSL report and the MLC report does not support the case of the 5 prosecution. It is a case of elopement and not of rape. Hence, the appellant deserves to be acquitted of the charges. 10 On the other hand, Mr. Uboweja, learned Panel Lawyer appearing for the State/respondent submits that the learned trial Court was fully 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. 11 Mr. Samir Singh, learned counsel for the complainant/objector does not oppose the bail application as well as the appeal and submits that he has no objection if the appellant is released on bail or if he is acquitted of the charges. 12 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 13 The appellant/convict is alleged to have kidnapped the victim from the lawful custody of their guardian and thereafter committed forceful sexual intercourse with her on multiple occasions. According to the prosecution, the victim was minor on the date of incident and below the age of 18 years. 14 The victim (PW-1) in her deposition before the trial Court has stated that her date of birth was 13.12.2006 and the appellant also used to live in their house. The appellant used to take the victim on his motorcycle and after dropping her to the school, he used to go to his computer classes. She has clearly deposed that on 21.03.2024, she left her house on her own will without telling anyone and went to Bilaspur and started residing 6 there in a rented house. Thereafter, she alongwith the appellant went to Maharashtra where they used to do the labour work. In cross examination, she has clearly deposed that she had accompanied the appellant to Maharashtra on her own where they stayed at Satara for 10- 15 days where they made physical relationship. However, it has further been clarified that the said physical relationship was not forceful but with the consent of both of them. She did not wanted any action to be taken against the appellant and prayed that the appellant may be released. As such, this witness was declared hostile. She has further deposed that she was above the age of 18 years. 15 The mother of the victim (PW-2) stated that the appellant was the son of her husband’s sister (nanand) and on the basis of guess work, she stated that the age of the victim was 17 years. On the date of incident, when the victim went missing, they had lodged the complaint at the Police Station. Later, when the victim was recovered, the victim informed her that she had gone with the appellant and were residing at Satara (Maharashtra). This witness was also declared hostile and has not supported the prosecution case. The father of the victim who is the complainant in this case, has admitted that he is not aware as to what is the exact date of birth of the victim but on the date of deposition, she was aged about 18 years. The appellant is his nephew (Bhanja) and used to reside in their house and was studying. He has denied that the victim had informed him that the appellant had ever lured her and made physical relationship and has denied the entire prosecution story. He further states that he got the date of birth of the victim recorded on the basis of guess work. 7 16 Dr. Rishabh Chandra (PW-4) is the Medical OfÏcer who had examined the appellant and found him capable of performing sexual intercourse vide his report (Exhibit P/15). He had handed over the underwear of the appellant to the Constable and advised for chemical examination. 17 Dr. Smriti Sonwani (PW-8) is the Medical OfÏcer who had conducted the MLC of the victim and vide her report (Exhibit P/21A), she found that the hymen of the victim was torn but there was no external or internal injuries present. She was advised for UPT test in which was reported to be negative. There were no signs of recent intercourse. Two slides were prepared and sent to the FSL for further examination. She had also handed over the underwear of the victim after marking the stained areas. 18 Exhibit P/33 is the FSL report which is negative and does not support the prosecution case as in none of the articles i.e. the underwear of the victim, appellant and the vaginal slides, no semen or human sperms have been found. 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 and the copy of admission discharge register wherein the date of birth was recorded as 13.12.2006. 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. 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 8 the marksheet 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 father of the victim have stated that they were illiterate and could not tell the exact date of birth of the victim. The victim, who was studying in Class 12th has deposed before the trial Court that she was above 18 years of age and had accompanied the appellant on her own will and she has further stated that she did not want any action against the appellant. She has clearly deposed that the physical relationship established between the appellant and the victim was consensual in nature and she had never attempted to escape or inform anyone that she was abducted by the appellant while they were in Satara (Maharashtra) on the contrary, they were living happily. The father and mother of the victim have also not supported the prosecution case and have turned hostile. The MLC and FSL also goes against the prosecution. It is a case of elopement and not abduction as the appellant and the victim had love affair. Even the counsel for the complainant has stated that he would have no objection if the appellant is acquitted of the charges. 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 Jarnail Singh v. State of Haryana {(2013) 7 SCC 263}, the Supreme Court, at paragarph 23 has observed as under: “23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our 9 considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 23 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:- 10 "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 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 11 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.” 24 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 24.09.2024 is hereby set aside and the appellant/ convict is acquitted of the charges. 25 Resultantly, this appeal stands allowed. 26 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 12 the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Supreme Court. 27 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: 2025.01.13 19:44:54 +0530