Bhathapara, Chhattisgarh v. State Of Chhattisgarh Through Station House Officer, Police Stati
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR Date: 2025.07.01 14:37:27 +0530 2025:CGHC:27185-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1694 of 2019 Mukesh Vishwkarma S/o Sumran Vishwkarma Aged About 19 Years R/o Village Jora Village, Permanent Address Village Dotepar, Police Station Kotwali, District Baloda Bazar Chhattisgarh., District : Balodabazar- Bhathapara, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Telibandha Raipur, District Raipur Chhattisgarh., District : Raipur, Chhattisgarh For Appellant For : : Respondent/State ... Respondent Mr. Anand Mohan Tiwari, Advocate
Legal Reasoning
Mr. Ajay Pandey, G.A. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. Order on Board 24.06.2025 2 Per, Amitendra Kishore Prasad, J. 1. In this appeal filed under Section 374(2) Cr.P.C., the appellant has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 02.04.2019 passed by the 7th Additional Sessions Judge, District Raipur, C.G. in Special Criminal Case No.30/2019, whereby and whereunder the appellant stands convicted for the offence under Sections 342 and 376 AB of Indian Penal Code (for short, 'IPC') and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short, 'the POCSO Act') and considering the provisions of Section 42 of the POCSO Act, he has been sentenced as under:- Conviction Sentence Under Section 342 of IPC Rigorous Imprisonment for six months and fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for 15 days Under Section 376 AB of IPC Rigorous Imprisonment for 20 years and fine of Rs.50,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year (Both sentences are directed to run concurrently) 2. Case of the prosecution, in brief, is that on 25.02.2019, appellant took the minor victim / prosecutrix, aged about 1 ½ years to his 3 house, confined her there and after locking the door from inside, committed aggravated penetrative sexual assault and after committing the sexual assault, in order to conceal the evidence, he removed his clothes and burnt them and thereby committed the aforesaid offences. 3. Further case of the prosecution is that on 25.02.2019, the complainant (PW-3), mother of the prosecutrix, lodged a written report (Ex.P-3) stating therein that on 25.02.2019, at about 10:00 a.m., she was going to throw garbage. At that time, the appellant, who was residing in the neighbourhood, came there and told her to do her work and that he would take care of her minor child/prosecutrix. After completing her work, when she came back, she did not find the victim. She started searching for her but could not trace her in the nearby area. Thereafter, she went to the house of the appellant and found that the door was locked from inside. She knocked on the door repeatedly, but there was no response. She again searched for the victim in the vicinity, but was still unable to trace her. After some time, she again went to the house of the appellant and found the appellant and her daughter/prosecutrix there. On being asked, the appellant brought the prosecutrix out of his house. At that time, the prosecutrix was crying. On suspicion, the complainant checked the clothes of the victim and noticed that blood was oozing from her private parts. Upon raising an alarm, the accused/appellant fled from the spot. On the basis of the written report (Ex.P-3), an 4 FIR (Ex.P-4) was registered against the appellant for the offence punishable under Section 376 of the IPC and Section 4 of the POCSO Act. 4. During the course of investigation, a spot map was prepared vide Ex. P-02. Vide Ex. P-6, permission was obtained from the mother of the prosecutrix to send the prosecutrix for medical examination. Thereafter, the prosecutrix was medically examined by PW-4, Dr. Smt. Rajani Chourasiya Upon physical examination, it was found that blood was present on the inner aspects of the victim's thighs. Active bleeding was also observed from the labia majora and labia minora. Due to pain, the victim was not cooperating; as a result, only the external genital injuries could be examined, which revealed profuse bleeding. Considering the condition of the victim, Dr. Smt. Rajani Chourasiya referred her to a gynecologist for further evaluation and necessary treatment and gave her MLC report vide Ex. P-11. Thereafter, PW-5, Dr. Smt. Chandrakala Chandravanshi, Gynecologist, conducted an internal examination and gave her MLC report vide Ex. P-14. According to the report, on internal examination, she found that the perineal region of the vagina and the labia majora (2½ cm) were torn, and the hymen was torn at the center. After examination, she prepared two vaginal slides and handed them over to the lady constable for chemical examination. According to her opinion, there were signs of sexual intercourse with the victim. Vide Ex. P-28, the appellant was arrested, and his memorandum statement was recorded vide Ex. P-7. Thereafter, 5 the accused/appellant was also sent for medical examination. Dr. P.K.G. (PW-1) examined the appellant, found him capable of performing sexual intercourse, and gave his report vide Ex. P-1. Vide Ex. P-15, one piece of brown-coloured cloth, with which the prosecutrix was covered, and one saree belonging to the grandmother of the prosecutrix, bearing blood stains of the prosecutrix, were seized. Vide Ex. P-16, the vaccination certificate of the prosecutrix was seized, which showed her date of birth as 30.07.2017. Vide Ex. P-22, the vaginal slides of the prosecutrix, her clothes, and other articles were seized, and vide Ex. P-23, the undergarment of the appellant was also seized. The seized articles were sent to the FSL for chemical examination. As per the FSL report vide Ex. P-32, seminal spots and human spermatozoa were found on the seized article marked as “A” (saree of the grandmother of the prosecutrix), “B” (slides of the prosecutrix), and “D” (undergarment of the appellant). 5. Statements of the witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court, in which appellant abjured his guilt and entered into defence by stating that he has not committed the offence. 6. In order to bring home the offence, prosecution has examined as many as 08 witnesses and brought on record 32 documents and 6 Article A-1. However, the appellant in his defence has examined none and not exhibited any document. 7. The trial Court, after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned in para-1 of this judgment. 8. Learned counsel for the appellant submitted that the trial Court has not properly appreciated the overall evidence available on record while holding the appellant guilty. He further submitted that the conviction of the appellant is based primarily on the statements of PW-3 (mother of the prosecutrix) and PW-6 (grandmother of the prosecutrix), but their statements are not trustworthy and do not inspire confidence, as they are closely related and their testimonies are contradictory in nature. He also submitted that no independent witness has supported the prosecution's case. Further submission was to the effect that the provisions of Section 30 of the Protection of Children from Sexual Offences Act has not been complied. Therefore, the impugned judgment of conviction and order of sentence deserve to be set aside, and the appellant be acquitted of the aforesaid charges. 9. On the other hand, supporting the impugned judgment, learned counsel for the State submitted that the conviction and sentence of the accused/appellant are based on the statements of PW-3 (mother of the prosecutrix) and PW-6 (grandmother of the 7 prosecutrix), whose evidence is reliable and inspires confidence. Their testimonies are also corroborated by the medical evidence of PW-4, Dr. Smt. Rajani Chourasiya., and PW-5, Dr. Smt. Chandrakala Chandravanshi, as well as by the FSL report (Ex. P- 32), which was found to be positive. It was further submitted that the learned trial Court, after minutely appreciating the evidence and material available on record, has rightly convicted and sentenced the appellant, and therefore, no interference is warranted by this Court. 10. Heard learned counsel for the parties and perused the material available on record. 11. The first question that arises for consideration before this Court is whether the finding recorded by the trial Court, holding the prosecutrix to be a minor and below the age of 18 years on the date of the incident, is correct or not. 12. In order to ascertain the age of the prosecutrix, PW-3, the mother of the prosecutrix, stated that at the time of the incident, the prosecutrix was 1½ years old and her date of birth was 30.07.2017. Similarly, PW-6, the grandmother of the prosecutrix, also stated that the victim was 1½ years old at the time of the incident. Furthermore, vide Ex. P-16, a copy of the vaccination certificate of the prosecutrix, issued by the National Health Mission (Integrated Child Development Services), was seized, in which the date of birth of the prosecutrix is mentioned as 8 30.07.2017. The incident occurred on 25.02.2019. The evidence of the above witnesses has not been rebutted by the defence during cross-examination with respect to the age of the prosecutrix. Thus, based on the evidence of PW-3 (mother of the prosecutrix), PW-6 (grandmother of the prosecutrix), and the seized copy of the vaccination certificate (Ex. P-16), this Court is of the opinion that the learned trial Court, after a detailed discussion of the evidence available on record, was fully justified in holding that the prosecutrix was a minor, aged about 1½ years, on the date of the incident. 13. Now, the next question would be, whether the appellant is the author of the crime in question ? 14. PW-2, the mother of the prosecutrix, stated in her deposition that on the date of the incident, i.e., 25.02.2019, at about 10:00 a.m., the appellant told her to go and throw the garbage and assured her that he would keep her daughter/prosecutrix with him. Accordingly, she went to dispose of the garbage, and when she returned, she could not find the victim. Thereafter, she went to the house of the appellant and found the door locked from inside. She again searched for the victim in the vicinity but was unable to trace her. After some time, she again went to the house of the appellant and found both the appellant and her daughter/prosecutrix there. On being asked, the appellant brought the prosecutrix out of the house. At that time, the prosecutrix was crying. On suspicion, she checked the 9 victim’s clothes and noticed that blood was oozing from her private parts. Upon raising an alarm, the accused/appellant fled from the spot. Thereafter, she informed her relatives about the incident. Moreover, PW-6, the grandmother of the prosecutrix, also deposed similarly about the incident and the manner in which it occurred. Upon perusal of the statements of these witnesses, we find no reason to disbelieve their testimonies. 15. Corroborating the evidence of the above witnesses, PW-4, Dr. Smt. Rajani Chourasiya, stated that on physical examination, she found blood present on the inner aspects of the victim's thighs. Active bleeding was also observed from the labia majora and labia minora. Due to pain, the victim was not cooperating; as a result, only the external genital injuries could be examined, which revealed profuse bleeding. Considering the condition of the victim, she referred the victim to a gynecologist for further evaluation and necessary treatment, and duly proved her MLC report vide Ex. P-11. Further, PW-5, Dr. Smt. Chandrakala Chandravanshi, Gynecologist, stated that on internal examination, she found that the vagina (perineum region) and labia majora (2½ cm) were torn. The hymen was torn at the center. After the examination, she prepared two vaginal slides and handed them over to a lady constable for chemical examination. According to her opinion, there were signs of sexual intercourse with the victim, and she duly proved her MLC report vide Ex. P-14. 16. Thus, from perusal of the above evidence, it is clear that the 10 prosecutrix was subjected to aggravated penetrative sexual assault by the appellant and that the statements of PW-3 mother of the prosecutrix and PW-6 grand-mother of the prosecutrix also find corroboration with each other and there is no reason to discard their statements for the reason that there are no major contradictions or omissions in their statements. This apart, from the contents of promptly lodged written report (Ex.P-3) and FIR (Ex.P-4) by PW-3 mother of the prosecutrix, it is also evident that accused/appellant is perpetrator of the crime in question. Perusal of medical reports of prosecutrix (Exs.P-11 & P-14), proved by (PW-4) Dr. Smt. Rajani Chourasiya and (PW-5) Dr. Smt. Chandrakala Chandravanshi, would show that there was evidence of sexual assault, which is a pivotal evidence and cannot be brushed aside. Further, as per FSL report vide Ex.P- 32, seminal spots and human spermatozoa has been found on the seized article marked as “A, C & D”, which shows that the prosecutrix was subjected to aggravated penetrative sexual assault by the appellant. Moreover, no evidence has been adduced by the defence with regard to the false implication of the appellant. So far as benefit of Section 30 of the POCSO Act 2012 is concerned, no such defence was taken before the Special Court as such the same cannot be considered in the appeal. The trial Court, after appreciating the overall material evidence available on record, held that it was the appellant, who took the 11 victim/prosecutrix to his house, confined her there and committed aggravated penetrative sexual assault with the minor victim/prosecutrix, which, in the considered opinion of this Court, is a pure finding of fact based on the evidence available on record and the same is neither perverse nor contrary to the record. Being so, we hereby affirm the conviction and sentence of the appellant as recorded by the trial Court by its well merited judgment. 17.
Decision
In the result, the appeal, being without any substance, is liable to be and is hereby dismissed. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha