High Court rejected appeal against conviction under POCSO and IPC for rape and abduction of a minor. Court upheld prosecution case based on school records proving victim's age, medical evidence of pregnancy, and trustworthy sole testimony of prosecutrix.
Appeal dismissed; conviction and sentence confirmed.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on : 26/08/2020
Judgment delivered on : 18/ 09/ 2020
CRA No. 602 of 2014
---- Appellant
Versus
---- Respondent
For Appellant : Shri DK Gwalre, Advocate on behalf of Shri Pritam Tiwari, Advocate. For Respondent/State : Shri Sameer Sharma, Dy. G.A.
Hon’ble Shri Gautam Chourdiya, J
C A V Judgment
| Conviction | Sentence | |
|---|---|---|
| Section Children |
4 of Protection of from Sexual Offences |
R.I. for 7 year, pay a fine of Rs.4,000/-, in default thereof |
| Act, 2012 | . | to undergo additional R.I. for 6 months. |
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| Section 363 Code. |
of | Indian Penal R.I. for 3 years, pay a fine of Rs.1,000/-, in default thereof to undergo additional R.I. for 2 months. |
|---|---|---|
| Section 366 Code. |
of | Indian Penal R.I. for 5 years, pay a fine of Rs.500/-, in default thereof to undergo additional R.I. for 1 month. |
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him at Sihava Chowk where she went by bicycle. At about 10.30 am the appellant reached there on motorcycle with his friend Kirtan. The appellant told her to go to District Hospital for treatment. After getting medical treatment, on being asked by the appellant, she along with the appellant and his friend proceeded towards Gangrel by motorcycle. However, instead of going to Gangrel, the appellant took her to Rigirishi Ashram, Sihava and sent away his friend Kirtan to some other place. Thereafter, the appellant took her to an isolated place, told her to be in love with her and wanted to marry her. On such persuasions, the appellant removed her clothes and did sexual intercourse with her. After that she returned to her home by bicycle but did not narrate the incident to anyone. When she was carrying pregnancy of about three months, she informed about the same to the appellant on which the appellant told that she need not worry and he would marry her. After about 6-7 months when she again talked with the appellant on mobile, he called her on 12.12.2013 at Ghadi Chowk, Raipur. When she met the appellant there, he refused to marry her and asked her to go to her parents’ house and live there after getting ½ acre of land. Thereafter, she returned to her home and informed about the entire incident to her parents, on which her father informed about the same to the villagers on 14.12.2013.
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Act, 2012 (in short “the Act, 2012”).
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for trial.
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unexplained delay of about 7 months in lodging the FIR which makes the whole prosecution case doubtful. He further submits that the prosecutrix had once informed the appellant about having relation with one Harish Kumar, on which the appellant stopped talking to her and it appears that since the appellant was a teacher, he has been falsely implicated in this case. He also submits that the FSL report (Ex.P/20) is of no help to the prosecution because no human spermatozoa was found on the vaginal slides of the prosecutrix.
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impugned judgment submits that as per oral and documentary evidence in the form of Ex.P/5C, P/6C and P/7 it is clear that the prosecutrix was below 16 years of age on the date of incident. As per medical report (Ex.P/14) of the prosecutrix and evidence of PW-9 Dr. Smt. Madhuri Wankhede, the prosecutrix was carrying pregnancy of 26-28 weeks at the time of her examination which was conducted on 15.12.2013. In view of the fact that the incident is said to have taken place on 8.5.2013 and as per medical evidence, the prosecutrix was carrying pregnancy of 2628 weeks on 15.12.2013, the evidence of the prosecutrix appears to be trustworthy and needs no corroboration from the independent witness.
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2012 deals with presumption as to certain offences under this Act unless the contrary is proved. In view of the above provisions and there being no evidence in rebuttal of the said presumption, the trial Court was fully justified in convicting and sentencing the appellant by the impugned judgment, which calls for no interference by this Court.
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electronic record made in performance of duty – An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
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June, 1972. No other date was mentioned or explained by him because as per his own admission, he did not remember any date and therefore, the entry made in the documents of Ex.P/5C and P/6C at his instance becomes doubtful.
However, in the present case, as observed in the preceding paragraphs, when the prosecutrix was admitted in Class-1 on 10.4.2003 in Govt. Primary School, Baliyara, her date of birth was mentioned by her father as 21.9.1997. The above
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fact is mentioned in Dakhil-Kharij Register (Ex.P/6C) which has been duly proved by PW-4 Vinod Kumar Sahu and he has also proved her date of birth as 21.9.1997 as per Date of Birth Halafnama Register (Ex.P/5C). This register bears signature of father of the prosecutrix PW-3 Krishna Kumar and he has proved his signature on the said document. This apart, Dakhil-Kharij Certificate was issued by the Headmaster of the said school in favour of the prosecutrix which also records her date of birth as 21.9.1997. Even otherwise, when the prosecutrix was admitted in Class-1 on 10th April, 2003, there was no reason or occasion for her father to record her incorrect or false date of birth. Therefore, in view of provisions of Section 35 of the Evidence Act, the above documents recording her date of birth as 21.9.1997 appear to be relevant and reliable documents. The trial Court in its judgment from paras 6 to 9 has elaborately discussed regarding date of birth of the prosecutrix in light of the evidence available on record. This Court is also of the opinion that the findings given by the trial Court regarding date of birth of the prosecutrix as 21.9.1997 are based on proper appreciation of the entire evidence available on record. Therefore, this Court has no hesitation in holding that on the date of incident i.e. 8.5.2013 the prosecutrix was below 16 years of age. The judgment relied upon by learned counsel for the appellant being distinguishable on facts is of no help to him.
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under Section 2 (d) of the Act of 2012, "child" means any person below the age of eighteen years. Therefore, it stands proved from the above that the prosecutrix being below the age of 18 years was a child.
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However, after 6-7 months when the prosecutrix informed the appellant about her pregnancy and the appellant refused to marry her and told her to live at her parents’ house after getting ½ acre of land, then she returned to her home and informed about the entire incident to her parents. Thereafter, the FIR (Ex.P/2) was lodged on the basis of her written complaint Ex.P/1. There is no major contradiction or omission in her statement. She remained firm during her examination and nothing could be elicited from her to render her evidence doubtful or untrustworthy.
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reason for false implication of the appellant by the prosecutrix. From the sequence of events, it appears that the prosecutrix was afraid after the incident due to her pregnancy and did not inform about the same to anyone as the appellant had promised her of marriage.
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considering the quality of evidence of the prosecutrix which was shaky and suffering from exaggerations, contradictions and omissions, her conduct as well as many procedural lacunae in the prosecution case, acquitted the accused. However, in the present case, there is no such lacuna and the evidence of the prosecutrix, as discussed above, inspires confidence of the Court and duly corroborated by the medical evidence. The delay in lodging the FIR has also been satisfactorily explained by her. Therefore, the above judgment is also of no help to the appellant.
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commit the offence, as the case may be unless the contrary is proved. However, in this case, the defence has utterly failed to adduce any evidence to the contrary or in rebuttal. Though the defence has alleged that the prosecutrix was having relation with one Harish Kumar but no any relation of the prosecutrix with that person is established by the defence through any evidence. Hence, this defence also being without any substance is hereby rejected.
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Superintendent, District Jail-Dhamtari (CG). As such, there is no need to pass any order regarding his arrest, surrender etc.
Sd/
(Gautam Chourdiya)
Judge
Khan
3 issues framed by the court
Whether documents recording the date of birth of the prosecutrix are relevant facts under Section 35 of the Evidence Act establishing she was below 16 years.
Whether the solitary testimony of the prosecutrix is trustworthy and sufficient to sustain conviction for rape and abduction of a minor without independent corroboration.
Whether the delay in lodging the FIR is explained satisfactorily given the assurance of marriage by the accused.
Colour shows how this judgement treated each authority
Alamelu and another Vs. StateDistinguished¶33
Alamelu and another Vs. State, (2011) 2 SCC 385 · Who else cites this
Krishan Kumar Malik Vs. State of HaryanaDistinguished¶32
Krishan Kumar Malik Vs. State of Haryana, (2011) 7 SCC 130 · Who else cites this
Murugan Vs. State of Tamil NaduRelied on¶21
Murugan Vs. State of Tamil Nadu, (2011) 6 SCC 111 · Who else cites this
5 provisions across 4 enactments
Bhikham Diwan
State Of Chhattisgarh
Gautam Chourdiya
As recorded by the court registry
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