North Bastar Kanker Chhattisgarh v. ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date
Case Details
1 2025:CGHC:8606-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2018 of 2023 Dhanraj Shori S/o Sukalram Shori, aged about 30 years, resident of Dongaripara, Ghotha, Police Police Station Bhanupratappur, District - North Bastar Kanker Chhattisgarh ... Appellant versus ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.02.20 11:32:01 +0530 State of Chhattisgarh, through Police of Police Station Bhanupratappur, District North Bastar Kanker Chhattisgarh. ... Respondent : ________________________________________________________ Mr. Ishwar Jaiswal, Advocate For Appellant For Respondent/State : Mr. Hariom Rai, Panel Lawyer ________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 19.02.2025 1. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 05.09.2023 passed by the learned Special Judge (POCSO Act), Bhanupratappur, District – North Bastar, Kanker (C.G.) in Special Criminal Case (POCSO) No. 22/2022, whereby the learned Special Judge has convicted and 2 sentenced the appellant with a direction to run all the sentences concurrently in the following manner : CONVICTION SENTENCE U/s 376AB of IPC Rigorous imprisonment for 20 years with fine of Rs.10,000/-, in default of payment of fine additional R.I. for 01 year. 2. Prosecution case, in brief, is that the complainant (mother of the victim) appeared at the Bhanupratappur Police Station on 17.07.2022 and submitted a written application to the effect that she is a resident of village-Ghotha, Dongripara. She has 05 children, out of which her daughter victim is 8 years old. When she came home with futu (mushroom) from the field on Friday evening, dated 15.07.2022, her husband and her nephew/accused Dhanraj were at home and her children were playing in the house. She told her husband that she will make boiled futu as there is no oil in the house to make the vegetable. Then the accused Dhanraj said that he will give oil from his house and took her daughter victim with him at 05:00 pm. Thereafter, as her daughter did not return home till about 6:00 p.m., she went to Dhanraj's house to inquire about the victim, then Dhanraj was walking towards his house from the direction of the pond and her daughter was coming crying. The mother of the victim further stated in her written complaint that after that when she asked her daughter, the victim, why she was crying, her daughter told that Dhanraj said that he would give oil from his house and while taking her to his house, he said that he would 3 show her fish in the pond and after taking her to the pond, he took off her saree and chaddi and Dhanraj also took off his pant and chaddi and became naked and made her lie down on the ground and raped her forcefully. After that, she went to the house of the accused Dhanraj and when she asked why he did this to her daughter, the accused threatened to kill her and her family if she told anyone else about the incident of raping the victim. When she informed the village Kotwar about this, he suggested to report to the police station. The accused Dhanraj, knowing that her daughter, the victim, was a minor, raped her forcefully and threatened to kill her. Therefore, please take the trouble of registering a report and taking action against Dhanraj. 3. On the basis of the above written report of the complainant (mother
Facts
of the victim), a First Information Report was lodged against the accused under Sections 376AB, 506 of IPC and Sections 4, 6 of the POCSO Act at Police Station Bhanupratappur under Crime No. 139/2022 and the case was taken up for investigation and during the investigation, the statement of the prosecutrix was recorded by a woman police officer and as per her statement, the accused was
Legal Reasoning
found to have prima facie committed the said crime, and after completing all the necessary formalities and investigation work related to the investigation, charge-sheet was prepared against the accused under Sections 376AB, 506 IPC and Section 4, 5(>) M and 6 POCSO Act and presented before the Court of Special Judge 4 (POCSO Act) Bhanupratappur, District – North Bastar, Kanker, which is registered as Special Criminal Case No. 22/2022. 4. On the basis of the charge-sheet presented before the Court, when charges were framed accused Dhanraj Shori under Section 376 AB of IPC and Section-4 of the POCSO Act and read out and explained to him, he denied the alleged crime and in his statement, while expressing his innocence, said that he was falsely implicated and expressed his intention to present evidence in his defence. 5. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 15 witnesses, namely, Victim PW-01, Samsay Komra PW-02, Tularam PW-03, mother of the victim PW-04, father of the victim PW-05, Jagdish Koreti PW-06, Dr. Akanksha Dariyo PW-07, Patwari Praveen Kumar Narwas PW-08, Staff Nurse Rajni Gajbhiye PW-09, Dr. Anjali Nareti PW-10, Dr. Vivek Deshmukh PW-11, Constable Mithlesh Markam PW-12, Sub Inspector Tej Verma PW-13, Head Constable Umitra Tekam PW-14 and Constable Pawan Rekha PW-15. 6. As documentary evidence in the case by the prosecution, statement of the accused under section 164 Cr.P.C. Ex.P.-01, Patwari's map Ex.P.-02, Panchnama Ex.P.-03, written application Ex.P.-04, First Information Report Ex.P.-05, consent letter for private part test Ex.P.-06, spot map Ex.P.-07, seizure letter of birth certificate of the accused Ex.P.-08, certificate issued by the father of the accused regarding the date of birth of the accused Ex.P.-09, private part test 5 report of the accused Ex.P.-10, memorandum for demanding delivery register Ex.P.-11, seizure letter of delivery register Ex.P.-12, surrender letter Ex.P.-13, private part test report of the accused Ex.P.-14, private part test report of the accused Ex.P.-15 and curie report of the examination of the accused Ex.P.-16 have been marked as exhibits in evidence. 7. Similarly, seizure memo of underwear and semen slide of accused by prosecution Ex.P.-17, seizure memo of underwear and vaginal slide of victim Ex.P.-18, arrest panchnama of accused Ex.P.-19, information of arrest Ex.P.-20, request letter for recording statement of prosecutrix under section-164 Cr.P.C. Ex.P.-21, complaint for private part examination of accused Ex.P.-22, report for query of medical report of accused Ex.P.-23, report sent to Tehsildar for providing Patwari Nazri-Naksha, report sent for chemical examination of seized articles Ex.P.-25, acknowledgment receipt Ex.P.-26, chemical test report Ex.P.-27, query report of the examination report of the victim Ex.P.-28 and examination form Ex.P.-29 have been marked as exhibits in evidence. 8. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 05.09.2023 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment. 9. Learned counsel for the appellant vehemently argued that the 6 learned trial Court has failed to properly appreciate the evidence led by the prosecution and has wrongly convicted the appellant. The prosecution failed to prove the case against the appellant beyond reasonable doubt. The statements of the victim are full of conjectures and surmises and are highly unreliable. The age of the victim has not been proved and no ossification test for determining the age has been done which makes the whole case of prosecution doubtful. He further argued that learned trial Court erred in reading FSL report (Ex.P-27) which also does not prove the incident of rape. He further submitted that the learned trial Court has failed to properly appreciate the evidence led by the prosecution and has wrongly convicted the appellant. The prosecution has failed to prove the case against the appellant beyond reasonable doubt. He contended that there is no independent witness to corroborate the evidence of the victim. Hence, the conviction is liable to be set aside. 10. On the other hand, learned State counsel for the State/respondent submitted that the appellant has committed a heinous crime of rape against minor girl, who is his cousin, aged about 10 years 08 months and 21 days and the same has been duly proved by the prosecution beyond reasonable doubt. As such, the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference. 7 11. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 12. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor ? 13. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 14. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows : “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the 8 Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. 9 (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 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 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 10 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.” 15. In this regard, the statement of the victim (PW-01) is that at present her age is 11 years. The mother of the victim (PW-04) has expressed that she does not know the date of birth of her daughter, the victim, and has stated that the age of the victim is about 08 years. Similarly, the father of the victim (PW-05) has stated that the date of birth of his daughter is 24.09.2011, who was born in Government Hospital Bhanupratappur and at present her age is 09-10 years. Independent witnesses Ramsai (PW-02), 11 Tularam (PW-03) and Jagdish Koreti (PW-06) have also stated the age of the victim as stated by her parents to be 8 years. In this way, as per the statements of prosecutrix (PW-01) and her parents and independent witnesses, the age of the victim on the date of the incident is stated to be less than 12 years. 16. The prosecution has also presented the Birth Certificate of the victim marked as Article-A, in which her date of birth has been mentioned as 24.10.2011 and a certified copy of dakhil kharij register Article – A2C, in which also the date of birth of the victim has been mentioned as 24.10.2011. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, as 24.10.2011 hence, we are of the considered opinion that the learned Special Judge has rightly held that the date of birth of the victim is 24.10.2011 and her age on the date of incident i.e. on 15.07.2022 was 10 years 08 months and 21 days, which is less than 12 years. 17. 18. The next question for consideration before us is whether the appellant has committed rape on minor victim ? In this regard, the statement of the victim (PW-01) in the main examination is that she knows the accused Dhanraj Shori. The incident took place at the time of taking out the futu (mushroom). On the date of the incident, her mother had brought the futu from the jungle in the evening. At that time, the accused Dhanraj Shori, a resident of her village, had come to their house. When her 12 mother said that there was no oil in the house to make the futu, the accused Dhanraj Shori asked her mother to get oil from his house to make the futu, then her mother sent her with the accused to get the oil. At the same time, the accused Dhanraj took her to the pond on the pretext of showing her the fish and slept near the pond and made her sleep with him. After making her sleep with him, the accused inserted his urinal into her urinal. At that time, she called out to her mother for help, but her mother could not hear at first. Later, when she called out to her mother again, her mother came near the pond and beat the accused with a stick. After that, the accused went to his house and her mother brought her home from near the pond. 19. In the main examination of the victim (PW-01), she further stated that on coming home, she had shown her body to her mother. Blood was oozing from her urinal. The next day her mother had called a meeting in the village, but neither the accused nor his family members came to the meeting. After that, her parents said that they would file a report and she was taken along with the villagers to Bhanupratappur police station to lodge a report. When the police interrogated her at the police station, she told the same things to the police that she has told in the Court today. After registering the report at the police station and interrogating her, the police took her to Bhanupratappur hospital for examination, where she was examined by a lady doctor. After the medical 13 examination, the police took her to the Court of Kanker to record her statement, where he gave the statement of Ex.P.-01. 20. The mother of the victim, PW-04, has also stated in the main examination that she knows the accused Dhanraj Shori. The incident took place on a Friday during the rainy season last year. She had gone to her field to collect futu (mushroom). She returned home with futu at around 05:00 in the evening, when the accused Dhanraj Shori had come to her house. The accused took her daughter victim to his house, saying that he would give oil to cook futu. After some time, when her daughter victim did not return home, she called out to her daughter victim from her house and was going to the house of the accused Dhanraj Shori, when both the accused Dhanraj and her daughter victim were coming towards her house. When her daughter victim met her, she told in front of the accused's house that she was returning from the accused's house, when the accused took her near the Gudra pond, removed her clothes, made her lie down on the ground and put his urine in her urine spot. 21. In the examination-in-chief of the mother of the prosecutrix, PW- 04, it is further stated that on being told the aforesaid things by her daughter prosecutrix, two times meeting were arranged at village, but the accused Dhanraj Shori did not come to the meeting and fled to another village. After that, she, along with her husband and the village Kotwar, Panch, went to Bhanupratappur police station with the victim to lodge a report against accused 14 Dhanraj Shori. At the police station, she gave a written report (Ex.P.-04) against the accused. On giving the said written report at the police station, the police registered the first information report (Ex.P.-06) of the incident. After registering the report, the police took consent from her to get the private parts of her daughter (the victim) examined. Similarly, the father of the complainant (PW-05) has also made a statement to the above effect. 22. Independent witnesses Samsay Komra (PW-02), Kotwar Tularam (PW-03) and Jagdish Koreti (PW-06) have also supported holding a meeting in the village as told by the parents of the victim and going to Police Station Bhanu Pratappur along with the parents of the victim to lodge a report of the incident when the accused and no member of his family was present in the meeting. 23. In this way, the victim has stated that on the date of the incident, while taking her to his house to get oil for making futu, the accused took her to Gudra pond on the pretext of showing her fish and put his urine spot in the urine spot of the victim near the pond. The victim has stated that she told the above things to her mother also. Similarly, the mother of the victim also stated that after being told the above things by the victim, she told her husband and held a meeting in the village in this regard. It is stated that in the absence of the accused and any member of his family in the meeting, a written report (Ex.P-04) was given in the police station 15 Bhanupratappur. This has also been supported by the father of the victim, PW-05. 24. In this case, independent witnesses of the village Samsay Komra (PW-02), Kotwar Tularam (PW-03) and Jagdish Koreti (PW-06) have also supported the statement given to them by the parents of the victim about the incident. In this regard, the said witnesses have been cross examined by the defence, but the above statements of the witnesses were not refuted by the cross examination of the defence, but remains intact. 25. Investigating Officer of the case, Tej Verma (PW-13) has also stated in the main examination that while he was posted as SHO at Police Station Bhanupratappur, on 17.07.2022, mother of the victim presented herself at Police Station Bhanupratappur and submitted a written application for taking action in connection with rape of her daughter victim by accused Dhanraj Shori, on the basis of which FIR No. 139/2022 under Section 376 (AB), 506 IPC and Section 4, 6 POCSO Act was registered at Police Station Bhanupratappur, Ex.P.-05. This witness has further stated in his main examination that after filing the report, on the same date, he had gone to village Ghota on the directions of the mother of the victim and prepared the scene map (Ex.P-07) of the incident. This is also supported by the statements of the mother of the victim (PW-04) and the father of the victim (PW-05). 26. Medical witness Dr. Akanksha Dariyo (PW-07), who conducted the genital examination of the victim (PW-01), while being posted as 16 Medical Officer in CHC Bhanupratappur, has stated that on 17.07.2022 at 06:30 pm, when the woman constable Pawan Rekha brought the victim before her for genital examination, she examined her and gave the genital examination report of Ex.P-10. According to which she has given the opinion of having sexual intercourse with the victim. Similarly, another medical witness Dr.Anjali Nareti (PW-10), who conducted the genital examination of the victim, has also stated to have given the genital examination report of Ex.P.-14 after examining the genitals of the victim, who has also given the opinion of the presence of symptoms of sexual intercourse with the victim. 27. Dr. Vivek Deshmukh (PW-11), the doctor who conducted the genital examination of the accused, has stated that during the examination of accused Dhanraj Shori, he had prepared and dried two semen slides of the accused and sealed an underwear worn by the accused and handed it over to the police constable, advising him to get it FSL done. Constable Mithlesh Markam (PW- 12) also handed over the semen of the accused in a sealed packet by the doctor after the genital examination. When the slide and underwear were brought to the police station, the investigating officer Tej Verma has stated that they were seized as per seizure memo Ex.P.-17. Similarly, the investigating officer Tej Verma (PW-13) has also confirmed the seizure of the accused's semen slide and an underwear as per seizure memo Ex.P.-17. 17 28. As per the FSL report (Ex.P-27), though human sperm was found in the semen slide of the accused, but no semen spots and human sperms were found in the vaginal slide of the victim, undergarment of the victim and underwear of the accused. 29. As far as the opinion given in the FSL report Ex.P.-27, no semen stains and human sperm were found on the vaginal slide of the victim and her underwear in concerned. In this regard, it is worth mentioning here that the incident happened with the victim on 15.07.2022 between 05:00 and 06:00 pm. Two days after this, the victim’s genital examination was done. In such a situation, it is natural that human sperm was not found on the victim’s body or her clothes or on the vaginal slide because the victim must have been doing her daily activities as well as bathing and washing before the genital examination after the incident. Therefore, the absence of semen stains and human sperm on the victim’s vaginal slide and underwear in the said confession of the medical witnesses and the chemical test report does not make any difference. 30. In the case of Ganesan v. State, reported in (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. 31. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, reported in (2019) 11 SCC 575, it was observed and held that as 18 a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. 32. In the case of Sham Singh v. State of Haryana, reported in (2018) 18 SCC 34, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. 33. Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the victim that too when opinion regarding sexual intercourse has been given by doctor, who has medically examined the victim, supported by MLC report, wherein it has stated that sign of sexual intercourse present, though no external injury was present, but, there was injury present over labia minora & congestion present over labia minora, thus, it is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole 19 testimony of the victim can be sustained. As such, we are of the considered opinion that the prosecution has established its case beyond reasonable doubt that the appellant has committed rape on minor victim. 34. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and as such, we are of the opinion that in the present case, the only view possible was the one taken by the learned trial Court. 35. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 36. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 37. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 05.09.2023. 38. 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 20 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/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice Chandra