Partly allowed

Hemant Mandal v. State Of Chhattisgarh

Chhattisgarh HC28 Nov 2023CRA/786/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal, quashing the rape conviction due to false implication and procedural lapses regarding FIRs and forensic evidence, while maintaining convictions for assault and abduction. The appellant was ordered released.

What did the court decide?

Conviction and sentence under Section 376(2)(i) IPC and POCSO set aside; conviction under Sections 341 and 354B IPC maintained; appellant released from jail.

Hemant Mandal Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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(Cr. A. No. 786 of 2016)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 786 OF 2016

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Hemant Mandal, S/o Kartik Mandal, aged about 25 years, R/o P.V. 94 Achinpur, Police Station Chhotebethiya, District North Bastar Kanker (C.G.)

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... Appellant(s) Versus State of Chhattisgarh, through: Police Station Chhotebethiya, District North Bastar Kanker (C.G.) ... Respondent(s)

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• State of Chhattisgarh, through: Police Station Chhotebethiya, District North Bastar Kanker (C.G.)

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_____________________________________________________ For Appellant :- Ms. Savita Tiwari, Advocate. For Respondent :- Mr. Afroz Khan, Panel Lawyer. _____________________________________________________

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board [28.11.2023]

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Sanjay K. Agrawal, J.

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This criminal appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 14.3.2016 passed by Additional Special Sessions Judge, Bhanupratappur, District North Bastar Kanker in Special Sessions Case No.5/2016, by which the

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(Cr. A. No. 786 of 2016)

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appellant herein has been convicted for the offence punishable under Section 341 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo S.I. for one month and fine of Rs.500/- and in default of payment of fine amount to undergo additional S.I. for 7 days. Further, the appellant has been convicted under Sections 354B & 376(2)(i) [clause (i) omitted by the Act 22 of 2018 w.r.e.f 21.4.2018] of IPC and Sections 3, 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). However, in view of Section 42 of POCSO Act as the same is higher in degree to that of Section 354B & 376 of IPC, no separate sentence has been awarded under Section 354B but he has been sentenced to undergo Imprisonment for Life, which shall mean imprisonment for the remainder of his natural life, and to pay fine of Rs.1,50,000/- in default whereof he would be required to undergo additional R.I. for 3 months under Section 376(2)(i) of IPC read with Section 3 & 4 of POCSO Act. Further direction was to run both the substantive sentences concurrently.

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(Cr. A. No. 786 of 2016)

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Case of the prosecution, in brief, is that on 8.10.2015 at about 6:00 a.m. in the morning, the minor victim (PW-1) had gone towards the field to bring fish from fishing net and while she was coming back, at around 7:00 a.m., the appellant is said to have wrongfully confined her and taken her towards the forest against her will and when she protested, the appellant is said to have tied her hands with his neck-towel, torn her underwear forcefully, slammed her down on the ground and committed sexual intercourse with her without her consent, after threatening to her life and assaulting her by slap. Thereafter, on seeing Ishwar Nareti (PW-11) coming towards the field, he absconded from the spot. She informed about the said incident to her mother Bedado Bai (PW-2). After the village meeting, on the same day, the victim’s uncle Maduram (PW-4) lodged FIR (Exhibit P-6) on which offence under Sections 341, 323, 506 & 354B was registered. Among other formalities, the victim was medically examined on 8.10.2015 itself vide Exhibit P-7 in which no internal or external injuries were found on her body. Vide Exhibit P-3, two vaginal

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(Cr. A. No. 786 of 2016)

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slides of the victim were seized and vide Exhibit P-10, her clothes were seized. Similarly, vide Exhibit P-17 the appellant was medically examined and vide Exhibit P-12, two slides of his semen and his clothes were seized.

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Subsequently, on 13.10.2015, the victim was again medically examined vide Exhibit P-15 by Dr. Nisha Navratan (PW-16) and in her opinion, the vaginal slide of the victim was sent for chemical analysis to the Forensic Science Laboratory. In FSL report (Exhibit P- 14), human sperms were found on the vaginal slide (B1) of the victim and semen slide (C1) of the appellant and on the underwear (A1) of the victim as well as on the underwear (D) of the appellant stains of semen and human sperms were found. Dakhil-Kharij register regarding the age of the victim is Exhibit P-2C proved by Lakhan Prasad Dubey (PW-5). Statements of the witnesses were recorded under Section 161 of CrPC and the appellant was arrested.

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After completion of the investigation, the appellant was charge-sheeted for the offence punishable under Sections 341, 354B, 506, 376(2)(i), 323 of IPC and

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(Cr. A. No. 786 of 2016)

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Sections 3 & 4 of POCSO Act and the matter was put to trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 17 witnesses and exhibited 17 documents. In defence, neither any witness has been examined nor any was document has been exhibited. Accused/appellant examined under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. After conclusion of the trial, the Trial Court, by impugned judgment dated 14.3.2016, on appreciation of the oral and documentary evidence available on record, convicted the appellant for the offences punishable under Sections 341, 354B, 376(2)(i) of IPC as well as under Sections 3, 4 of POCSO Act and sentenced him in the manner as mentioned in the opening paragraph of this judgment, against which the present appeal has been filed by the appellant

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(Cr. A. No. 786 of 2016)

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calling in question the legality, validity and correctness of the impugned judgment.

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Ms. Savita Tiwari, learned counsel appearing for the appellant would submit that the prosecution has failed to prove its case beyond all reasonable doubts as the victim is not firm and consistent in her statement and considering the variations in her statement, it seems to be a case of false implication of the appellant and therefore the appeal may be allowed.

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Mr. Afroz Khan, learned State Counsel, opposing the appeal, would submit that a prompt FIR has been lodged in the instant case and the victim has duly supported the prosecution case and further considering the fact that the victim is a minor girl and she also being a rustic villager, minor contradictions, if any, in her statement are required to be ignored and the appeal is liable to be dismissed.

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We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

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(Cr. A. No. 786 of 2016)

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The first and foremost submission placed on behalf of the appellant is that he has been falsely implicated as there is no evidence available on record to establish the offence under Section 376(2)(i) of IPC for the reason that though FIR (Exhibit P-6) was promptly lodged on the same day by the victim’s uncle Maduram (PW-4), elder brother of her father Mankuram (PW-3), but there was no mention of the allegation of the offence under Section 376(2)(i) of IPC in the FIR and that only offences under Sections 341, 323, 506 & 354B were mentioned in the FIR. Even the Investigating Officer (PW-13) has admitted that Bedado Bai (PW-2), mother of the victim, Maduram (PW-4), uncle of the victim, and Ishwar Nareti (PW-11), in their statements recorded under Section 161 of CrPC, have not narrated of the appellant committing sexual intercourse with the victim. Similarly, S.I. Sunita Nag (PW-12) has also stated that there is no mention of the allegation of rape in the FIR. The victim was medically examined on 8.10.2015 itself vide Exhibit P-7 in which no internal or external injuries were found on her body. Subsequently, on a

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(Cr. A. No. 786 of 2016)

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supplementary statement being made by the victim, after the delay of five days from recording of her statement under Section 161 of CrPC, the offence under Section 376(2)(i) of IPC was added and she was again subjected to medical examination on 13.10.2015 vide Exhibit P-15 and her vaginal slide was sent for chemical analysis to the FSL on 14.10.2015. Victim (PW-1) in her statement has clearly stated that police personnel had told her about the term of ‘rape’ and she had accordingly deposed before the Court. The first informant Maduram (PW-4), who is the victim’s uncle, has also clearly stated that there was a land dispute between them and the appellant.

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As such, from the aforesaid evidence available, it is quite established that though FIR (Exhibit P-6) was lodged promptly on the same day by the victim’s uncle Maduram (PW-4) but there was no mention of the offence punishable under Section 376(2)(i) of IPC by him and as per the statement of the Investigating Officer (PW-13), the victim was also present at the time of lodging of the FIR and despite all efforts she

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(Cr. A. No. 786 of 2016)

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did not inform about the fact of commission of offence of rape and it was disclosed only after five days in the written complaint made to the Superintendent of Police. The Investigating Officer (PW-13) has also stated that Bedado Bai (PW-2), mother of the victim, Maduram (PW-4), the first informant and the uncle of the victim, and Ishwar Nareti (PW-11), the villager who has turned hostile, in their statements recorded under Section 161 of CrPC have not mentioned the incident of rape alleged to have been committed by the appellant on the victim.

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Now, the only evidence which is available is the FSL report (Exhibit P-14). In the FSL report, on the underwear (A1) of the victim which was seized on 9.10.2015, stains of semen and human sperms were found and on the vaginal slide (B1) of the victim seized on 14.10.2015 as well as on the semen slide (C1) of the appellant seized on 23.10.2015, human sperms were found. It is apposite to mention here that the underwear of the victim was seized on 9.10.2015 and her vaginal slide was seized on 14.10.2015, after the delay of five days from the date of incident, i.e.,

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(Cr. A. No. 786 of 2016)

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8.10.2015, and were sent by the Office of the Superintendent of Police for chemical analysis to the FSL and, as per the FSL report (Exhibit P-14), the said articles were received by the Office of the Forensic Science Laboratory, Jagdalpur only on 9.11.2015. Dr. Nisha Navratan (PW-16) in her statement has categorically stated that the life of human sperm is only five days. In that view of the matter, taking into consideration the delay in seizure of the said articles as also in dispatching the same to the FSL, there seems to be no conclusive evidence at all in the instant case so as to attract Section 376(2)(i) of IPC read with Section 3, 4 of POCSO Act.

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Under these circumstances, taking into consideration the fact that there is a delay in disclosing the fact of commission of rape and further considering the fact that the incident of rape was not mentioned by the victim’s uncle Maduram (PW-4) in the FIR (Exhibit P-6) lodged by him and even in the 161 CrPC statements of the witnesses, there was no mention of said fact and as stated by the first informant Maduram (PW-4) that there was a land dispute

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(Cr. A. No. 786 of 2016)

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between them and the appellant, the chances of false implication of the appellant cannot be ruled out. Therefore, the appellant is entitled to be acquitted from the offence punishable under Section 376(2)(i) of IPC read with Sections 3, 4 of POCSO Act. However, his conviction under Sections 341, 354B of IPC is liable to be maintained.

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Accordingly, the conviction and sentence of the appellant under Section 376(2)(i) of IPC read with Sections 3, 4 of POCSO Act is set-aside. However, his conviction under Sections 341, 354B of IPC is maintained. As the appellant is in jail since 21.10.2015, the maximum punishment for the offence punishable under Section 341 of IPC already stands completed by him. Therefore, he be released from jail forthwith, if his detention is not required in connection with any other offence.

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This criminal appeal, accordingly, stands allowed.

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Let a certified copy of this judgment along with the original record be transmitted to the concerned Trial Court and the Superintendent of Jail where the

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(Cr. A. No. 786 of 2016)

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appellant is presently lodged and suffering his jail sentence, for information and necessary action.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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sharad

Hemant Mandal v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Hemant Mandal v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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