Dismissed

Jivanlal Mahara v. State Of Chhattisgarh

Chhattisgarh HC20 Jul 2022CRA/566/2015

Case brief

AI extract

What is this about?

The Chhattisgarh High Court dismissed the appellant's appeal against conviction and sentence for kidnapping and sexual offences, holding the trial court's finding on the prosecutrix's age and the nature of the abduction was correct based on evidence.

What did the court decide?

Appeal dismissed; conviction and sentence upheld.

What the court decided

Jivanlal Mahara Vs State Of Chhattisgarh — Child Custody and Guardianship | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 566 of 2015

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Jivanlal Mahara, S/o Tulsiram Mahara, Aged About 19 Years, R/o Village - Bondguda, Thana Kotega, District Navrangpur Orrisa, Revenue, Tahsil, Kondega, District- Navarangpur, Orrisa , Orissa.

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---- Appellant

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Versus

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State of Chhattisgarh, S/o Through The Police Station Jagadalpur, District- Bastar, Chhattisgarh, Chhattisgarh. ---- Respondent

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For Appellant : Ms. Minu Banerjee, Advocate For Respondent/State : Mr. RCS Deo, Panel Lawyer

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Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board

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20.07.2022

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This appeal arises out of the judgment of conviction and order of sentence dated 06.02.2015, passed by the Additional Sessions Judge (Fast Track Court), Bastar Place Jagdalpur (C.G.) in Special Sessions

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Case No.02/2015, convicting the accused/appellant as under:

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Convictions	Sentences
U/s. 363 of IPC	R.I. for 4 years and fine of Rs. 100/- in default of payment of fine amount further R.I. for 7 days.
	R.I. for 5 years and fine
U/s. 366 of IPC	of Rs. 200/- in default of payment of fine amount further R.I. for 15 days.
	R.I. for 10 years and
U/s. 376 (2) (n) of IPC	fine of Rs. 300/- in default of payment of fine amount further R.I. for 1 month.

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Case of the prosecution, in brief, is that (PW/3) lodged a report in P.S. Kotwali Jagdalpur on 06.11.2014 to the effect that her sister/prosecutrix studied up to class-8th and she is aged about 16 years & 7 months and she came to work in house situated near New Narendra Talkis in the month of September. On 25.09.2014 at about 4 pm the prosecutrix went somewhere without intimation to anyone. Based on the above information, Crime No. 453/2014 for the offence punishable under Section 363 of IPC has been registered against unknown person vide Ex.P/9.

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Spot map was prepared vide Ex.P/2 by Patwari & Vide Ex.P/6 by the Police. On prosecutrix’s coming back to home her brother/complainant brought her to Police Station on 13.11.2014 and recovery panchnama (Ex.P/3) and vide Ex.P/19 statement of the prosecutrix was recorded under Section 164 of CrPC in camera. Vide Ex.P/4 & Ex.P/7 consent of the prosecutrix & her mother was obtained for medical examination of private part of the prosecutrix and vide Ex.P/10 permission regarding the same was also obtained from the Executing Magistrate, Jagdalpur (C.G). Vide Ex.P/5 undergarment of the prosecutrix was seized by the lady constable Archana Dhurandhar. Two vaginal slides of the prosecutrix was prepared by Dr. Shobha Rani and the same were sealed being sent for chemical examination. Underwear of the appellant was also seized vide Ex.P/8. Vide Ex.P/20, the seized undergarments were sent for chemical examination. Vide Ex.P/22, as per FSL report human spermatozoa was found on the vaginal slide, however, the human sperm was not found on the panty of the prosecutrix and underwear of the appellant.

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Vide Ex.P/13 the original mark-sheet of the prosecutrix with regard to her date of birth was also seized where date of birth of the prosecutrix was mentioned as 18.04.1998. Vide Ex.P/23 the prosecutrix was medically examined by Dr.Shobha Rani but she found no injury on the external & internal part of the body of the prosecutrix and according to the doctor, no opinion could be given about recent intercourse. Vide Ex.P/12 the appellant was medically examined by Dr. B. Franklin, as per his opinion there is no such clinical evidence to suggest that the examined person cannot perform sexual intercourse in normal circumstances. As per Ex.P/17 accused/appellant was arrested on 20.11.2014 and vide Ex.P/18 intimation for his arrest was sent to his family. After completing entire investigation, charge-sheet under Sections 363, 366, 376 of IPC was filed against the appellant.

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Learned trial Court framed charges against the appellant under Sections 363, 366, 376 (2)(n) of IPC & Section 6 of POCSO Act and accused appellant denied the aforesaid charges and claimed for trial.

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To establish its case the prosecution examined as many as 7 witnesses i.e. PW/1 mother, PW/2 Prosecutrix, PW/3 brother, PW/4 Archana Dhurandhar (S.I.), PW/5 Anant Ram, PW/6 Dr. Shobha Rani & PW/7 Dr. B. Franklin.

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Thereafter, statement of the accused appellant was recorded under Section 313 of CrPC where he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, no witness was examined by the appellant in his defence.

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Trial Court considering material available on record by the impugned judgment, convicted and sentenced the appellant as mentioned in paragraph one of this judgment.

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Learned counsel for the appellant submits that the impugned judgment has been passed by the trial Court overlooking the material contradictions and omissions in the statements of the witnesses. Even the prosecution has failed to prove that the prosecutrix was minor at the time of incident. No cogent evidence has been adduced by the prosecution to prove that the prosecutrix was minor. She further submits that the medical evidence does not corroborate the statement of the prosecutrix to prove that the appellant has committed forcible sexual intercouse with her. Thus, the prosecution has failed to prove its case against the appellant beyond all reasonable doubt and as such the appellant deserves to be acquitted of the charges levelled against him.

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In support of the above submissions, she relied upon the judgments of Hon’ble Supreme Court in matters of Lalta Prasad V State of M.P. reported in SCC(1979)4 193 & Lallirram & Anr. Vs. State of M.P. reported in (2008)10 SCC 69 . She again relied upon the judgment of Hon’ble High Court:Indore Bench in the matter of Bapulal and Anr. Vs. State of M.P. passed in CRA No. 71/1993 on 14.12.2001 where it was held that prosecutrix was in the company of the appellant Bapulal for a long period and visited several places, during this period, she did not complain about her forcible abduction to anyone and the prosecution was unable to adduce positive, cogent and reliable evidence about her age, hence, the appellants were given benefit of doubt and acquitted from the aforesaid offences.

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On the other hand learned State counsel supports the impugned judgment and submits that the prosecution was able to establish the age of the prosecutrix to be below 18 years by adducing elaborate evidence. Finding recorded by the trial Court does not suffer from any illegality and that the testimony of the prosecutrix (PW/2) inspires confidence as she remained firm during cross-examination. The trial Court after due appreciation of the entire oral and documentary evidence on record has rightly convicted and sentenced the appellant by the impugned judgment which needs no interference by this Court.

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Heard learned counsel for the parties and perused the material available on record.

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It is not disputed by both the parties that the accused/appellant was medically examined by PW/7 Dr. B. Franklin and he found him capable to perform sexual intercourse. Dr. Shobha Rani (PW/6) examined the prosecutrix and found prosecutrix’s hymen ruptured but healed up and no any injury was found on the body of the prosecutrix.

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The first question comes for consideration by this Court is that on the date of incident i.e. 25.09.2014 whether the appellant abducted the prosecutrix who was below 18 years of age. The second question comes for consideration is whether the appellant has committed forcible sexual intercourse against her will and without consent of the prosecutrix or on the pretext of marriage. Third question which comes for consideration is that on whether on the date of incident, after abducting the prosecutrix the appellant took her to village Bondguda, District- Navrangpur (Odisa) and committed repeated sexual

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intercourse/penetrative sexual assault or not. All these questions are being considered and discussed herein below.

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As far as age of the prosecutrix is concerned the prosecution has examined the prosecutrix PW/1. She has categorically stated in her deposition that she was aged 16 years old she remained firm in the cross-examination as well.

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PW/4, Archana Dhurandhar, Sub Inspector stated that class-8th marksheet of the prosecutrix was seized from her brother (PW/3) vide Ex.P/13 and the same is also proved by PW/5 Anant Ram, who has stated that in his presence marksheet was seized that he had seen the original & photocopy of the marksheet but he did not know about date of birth of the prosecutrix. However, he has stated that prosecutrix’s age was 16 years & 4 months at the time of lodging of the report. This witness did not remain firm during his cross-examination, however, he proved his signature in Ex.P/13. Therefore, seizure of the marksheet (Ex.P/13) of the prosecutrix is proved beyond all reasonable doubt. Learned Trial Court in paragraph-17 discussed this issue with regard to age of the prosecutrix and categorically found that date of birth of the prosecutrix is mentioned as 18.04.1998. In this context, the trial Court has relied upon the judgment of Hon’ble High Court of Chhattisgarh in the matter of Pankaj Lakra Vs. State of Chhattisgarh, 2006 (3) C.G. L.J. 488. , Thus in the considered opinion of this Court the prosecutution was able to proved that the age of the prosecutrix was below 18 years at the time of incident.

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Now as regards the Second & Third questions which have been formulated above, the statement of the prosecutrix is very relevant. In

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paragraph-3 of her cross-examination she has categorically stated that the appellant used to make physical relations with her daily on the pretext of marriage. In paragraph No. 15, she stated that by her own will she went to Odisa for work alongwith the appellant. PW/1 mother of the prosecutrix stated that she did not know the age of the prosecutrix but she admitted that menstrual cycle of the prosecutrix had started. She also proved the fact that the prosecutrix used to go out for doing labour work with permission of the family members and she stayed at her work place for 1-2 weeks. PW/3 brother of the prosecutrix, aged about 24 years was also unable to proved date of birth of the prosecutrix, however, he stated that she is his younger sister and the age gap between them is of about 7 years. In paragraph 12 he has proved the fact that prosecutrix used to stay at working place for 1-2 weeks and he admitted that the prosecutrix by her own will went to Odisa for laboured work and the appellant did not make any physical relation with her but in police station she narrated that the appellant made physical relation with her. From the statements of mother & brother of the prosecutrix it stands proved that she was not abducted by the appellant but it is proved that he made sexual intercourse number of times with her on the pretext of marriage when she was below 18 years of age.

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PW/4 Archana Dhurandhar, Investigating Officer, proved this fact that Ex.P/9 FIR was lodged by the (PW/3) brother of the prosecutrix after she returned from Odisa by herself. She also proved the documents Ex.P/3, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 & 18. There is no reason to disbelieve the statement of I.O. PW/3 Rameshwar Sahu.

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Thus, considering the facts & circumstances of the case, that the evidence of PW/1, PW/2, PW/3, PW/4 and the medical evidence of PW/

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6 & PW/7, it stands proved beyond all reasonable doubt that it is the appellant who kidnapped the prosecutrix, a minor girl below the age of 18 years on 25.09.2014 on the pretext of marriage, he took her to Odisa and subjected her to forcible sexual intercourse during her stay there.

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On the basis of aforesaid discussions, this Court is of the opinion that the prosecution has been successful in proving the guilt of the appellant beyond all reasonable doubt and therefore, the impugned judgment of the trial Court convicting the appellant under Sections 363, 366, 376 (2) of IPC and sentencing thereunder being just and proper needs no interference by this Court.

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In the result, the appeal being without any substance is liable to be and is hereby dismissed.

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Sd/-

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Judge

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Nadim

Jivanlal Mahara v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

Jivanlal Mahara v. State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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