Allowed

Jaspal Singh @ Jashna Singh v. State of Chhattisgarh

Chhattisgarh HC18 Jun 2024CRA/1135/2019

Case brief

AI extract

What is this about?

Criminal appeal challenging conviction for rape and unlawful confinement. High Court acquitted appellants due to uncorroborated victim testimony, lack of medical/forensic evidence, unexplained 7-day delay in FIR, and absence of initial assault allegations in related proceedings.

What did the court decide?

Appellants acquitted of rape and unlawful confinement offences. A-1 released on liberty; A-2 released forthwith from jail. Bail bonds for A-1 remain for six months.

Jaspal Singh @ Jashna Singh Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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(Cr. A. No. 1135 of 2019)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 1135 OF 2019

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{Arising out of Judgment & Order dated 11.7.2019 passed by 7^th Additional Sessions Judge, Raipur in Special Criminal Case No.247 of 2016}

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1. Jaspal Singh @ Jashna Singh, S/o Raswal Singh, Permanent R/o Village Boodchand, P.S. Vhicky Bhind, District Taran Taaran (Punjab), presently R/o Vir Savarkar Nagar, House No. CH 194, P.S. Kabir Nagar, District Raipur, Chhattisgarh.

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2. Pavan Singh @ Pamma Singh, S/o Mukhtiar Singh, R/o Village Gugobuha, P.S. Chubahal, District Taran Taaran (Punjab), currently residing at Vir Savarkar Nagar, House No. LIG 213, P.S. Kabir Nagar, District Raipur, Chhattisgarh.

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Police Station Kabir Nagar, District Raipur (C.G.)

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... Respondent(s)

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For Appellants	:-	Ms. Astha Shukla, Advocate.
For Respondent/State	:-	Mr. Vivek Mishra,
___________________________	______	Panel Lawyer. ________________________

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Division Bench

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

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Judgment on Board [19.06.2024]

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(Cr. A. No. 1135 of 2019)

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Sanjay K. Agrawal, J.

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1. Invoking criminal appellate jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, CrPC), the present criminal appeal has been preferred calling in question the legality, validity and correctness of the judgment & order dated 11.7.2019 passed by learned 7^th Additional Sessions Judge, Raipur in Special Criminal Case No.247/2016, by which each of the two appellants herein, i.e., A-1 Jaspal Singh and A-2 Pavan Singh, has been convicted for the offence punishable under Sections 342 & 376(D) of the Indian Penal Code, 1860 (in short, IPC) as well as under Section 6 of the Protection of Children from Sexual

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Offences Act, 2012 (in short, POCSO Act) and sentenced in the following manner:-

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Conviction	Sentence
1.Under Section 342 of IPC.	1.Rigorous Imprisonment for 02 months.
	2.Fine of Rs.100/-.
	3.RigorousImprisonment
	for 15 days in default of
	payment of fine amount.

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(Cr. A. No. 1135 of 2019)

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2.Under Section 376(D) of IPC.	1.Rigorous Imprisonment for 20 years. 2.Fine of Rs.25,000/-. 3.RigorousImprisonment for 06 months in default of payment of fine amount.
3.UnderSection 6ofPOCSO Act.	In view of Section 42 of POCSO Act, both the appellants have been sentenced under Section
	376(D) of IPC as
	mentioned above and not under Section 6 of POCSO Act.

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The substantive sentences have been directed to run concurrently.

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2. Case of the prosecution, in a nutshell, is that on 27.5.2016 between 12:00pm to 2:00pm at Veer Sawarkar Nagar under the jurisdiction of Police Station Kabir Nagar, District Raipur, the two appellants herein wrongfully confined the minor victim (PW-1) in their room on the pretext of providing them food by victim and thereafter committed sexual intercourse/aggravated penetrative sexual assault with her against her will and consent, thereby committed the aforesaid offences.

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(Cr. A. No. 1135 of 2019)

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3. On 4.6.2016, a written report (Exhibit P-1) was lodged

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by the victim (PW-1) regarding the aforesaid incident said to have occurred on 27.5.2016, on the basis of which, FIR (Exhibit P-2) was registered against the two appellants herein. On the same day, medical examination (Exhibit P-15) of the victim was conducted by Dr. Vidyashri (PW-21) who could not give any definite opinion regarding commission of sexual intercourse with the victim. Accused appellants were also medically examined vide Exhibits P-16 & P-32. Statement of the victim was recorded under Section 164 of CrPC. Seizure of her vaginal slide, clothes and school certificate etc., were made. In the report of the Forensic Science Laboratory (in short, FSL), which is Exhibit P-30, no human sperms were found on the vaginal slide (A) and salwar (B) and sameej (C) of the victim. However, in serology report, human blood of ‘O’ group was found in her salwar (B). On the basis of her Primary Certificate Examination – 2010 and Mark-sheet (Articles A & B) as well as from the admission register of the school (Exhibit P-18C), age of the victim was proved to be less than 18 years.

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(Cr. A. No. 1135 of 2019)

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After interrogating the witnesses, preparing the site plan and fulfilling the entire formalities, the appellants were charge-sheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. Accused appellants appeared before the Trial Court where charges were framed against them under the aforesaid offences to which they denied and claimed to be tried.

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4. In order to prove its case, the prosecution examined as many as 24 witnesses as PW-1 to PW-24 and exhibited 32 documents vide Exhibits P-1 to P-32, including Articles A & B. After closure of the prosecution evidence, statement of the accused appellants was recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication.

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5. In support of its case, the defence also relied on 10 documents vide Exhibits D-1 to D-10 and examined two witnesses i.e., R.C. Sahu as DW-1 and Rajesh

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(Cr. A. No. 1135 of 2019)

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Verma as DW-2, who were posted as A.S.I. and Constable respectively at the relevant point of time at P.S. Kabir Nagar, Raipur.

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6. After conclusion of the trial, the Trial Court, by impugned judgment & order dated 11.7.2019, on appreciation of oral and documentary evidence available on record, held the two appellants herein guilty of the offence punishable under Sections 342 & 376(D) of IPC as well as under Section 6 of POCSO Act and accordingly convicted and sentenced them in the manner as mentioned at the table shown in paragraph-1 of this judgment, which led to filing of the present appeal by the appellants.

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7. Ms. Astha Shukla learned counsel appearing for the appellants, submits that the Trial Court has failed to consider the documents (Exhibits D-1 to D-9) relied on by the defence which clearly reveal that Ishtgasha (Exhibit D-1) was registered against A-1 Jashpal Singh at the instance of the victim (PW-1) and her brother (PW-6) for his abusing and misbehaving with them on 28.5.2016 and a proceeding was initiated against him under Sections 151, 107, 116(3) of CrPC in which

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(Cr. A. No. 1135 of 2019)

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preventive orders were passed against him by the concerned Sub Divisional Magistrate subject to his furnishing a personal bond for a sum of Rs.25000/-. However, there was no complaint whatsoever made by the victim or her brother in respect of the offence under Section 376(D) of IPC said to have been committed with the victim on 27.5.2016. Though the victim/complainant was also examined in the said proceeding on 28.5.2016 vide Exhibit D-5, but she did not make any allegation in respect of the aforesaid offence against the accused appellants and, subsequently, after a delay of more than seven days, i.e., on 4.6.2016, the victim went in to lodge a written report (Exhibit P-1) against the appellants for the offence under Section 376(D) of IPC at the instance of her parents. The documents relied on by the defence have duly been proved. Even otherwise, case of the prosecution is also not supported by medical and forensic evidence available on record. Both the appellants as such are entitled to be acquitted of the said offences and the appeal deserves to be allowed.

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(Cr. A. No. 1135 of 2019)

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8. Mr. Vivek Mishra, learned counsel appearing for the State, ex adverso, argued that the delay occurred in lodging of the FIR has been explained by sufficient cause and there is no reason to disbelieve the statement of the victim (PW-1) as well as her brother (PW-6). The prosecution has been able to bring home the offence beyond reasonable doubt by producing ample evidence on record against the appellants of their committing the aforesaid offences with the victim on 27.5.2016. Therefore, the appellants are not entitled to be acquitted of the said offences and the appeal is liable to be dismissed.

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

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10. Conviction of the two appellants herein is primarily based on the testimony of the victim (PW-1) and her mother (PW-2), father (PW-3) as well as brother (PW-6), as the medical witness, Dr. Vidyashri (PW-21), who had conducted the MLC of the victim vide Exhibit P-15, could not find any external or internal injury on the body of the victim, except an old scratch on her

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(Cr. A. No. 1135 of 2019)

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left leg. She also could not find any sign of commission of sexual intercourse with the victim. Similarly, in the FSL report (Exhibit P-30) also, no human sperms were found on the vaginal slide (A) and salwar (B) and sameej (C) of the victim. Though human blood of ‘O’ group was found in her salwar (B), but the prosecution has not been able to prove as to whether the said blood group belongs to the victim or any of the two appellants herein. Thus, since neither the medical evidence nor forensic evidence supported the case of the prosecution, the Trial Court based the conviction of the two appellants herein on the basis of testimony of the victim (PW-1) as well as her mother (PW-2), father (PW-3) and brother (PW-6).

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11. The date of offence as per the FIR (Exhibit P-2) is 27.5.2016 which is based on the written report (Exhibit P-1) lodged by the victim, according to which, the incident had occurred on 27.5.2016 between 12:00 pm to 2:00 pm in the afternoon. Immediately thereafter, on the next day, i.e., on 28.5.2016, also an incident took place at 2:00pm where A-1 Jaspal Singh, after consuming liquor, had abused and misbehaved

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(Cr. A. No. 1135 of 2019)

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with the victim in front of her house and for which, at the instance of the victim (PW-1) and her brother (PW-6), he was booked under Sections 151, 107, 116(3) of CrPC as per Ishtgasha (Exhibit D-1) which is proved by PW-18 Dhanwant Sahay Dehari, the Investigating Officer in the instant case. Regarding the said incident that had occurred on 28.5.2016, statement of the victim (PW-1) and her brother (PW-6) was also recorded on the same date vide Exhibit D-5 proved by DW-1 R.C. Sahu, the then A.S.I. of Police Station Kabir Nagar, Raipur. Exhibits D-7 to D-9, also proved by PW-18 Dhanwant Sahay Dehari, are the orders of the Sub Divisional Magistrate (City), Raipur on the said Ishtgasha proceeding initiated against A-1 Jaspal Singh under Sections 151, 107, 116(3) of CrPC, by which preventive orders were passed against him on his furnishing personal bond of Rs.25000/-. Thus, from the documents relied on by the defence vide Exhibits D-1 to D-9, it is quite vivid that on the report of the victim (PW-1) and her brother (PW-6), the aforesaid proceeding under Sections 151, 107, 116(3) of CrPC was drawn against A-1 Jaspal Singh and in

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(Cr. A. No. 1135 of 2019)

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the said proceeding, statement of the victim and her brother was also recorded vide Exhibit D-5 and where they had only complained of A-1 Jaspal Singh’s abusing and misbehaving with the victim in front of her house after consuming liquor, on 28.5.2016. No such complaint of the appellants or for that matter A-1 Jaspal Singh having committed the offence of rape with the victim was lodged by either the victim (PW-1) or by her brother (PW-6). DW-1 R.C. Sahu has proved Exhibits D-1, D-3, D-4, D-5 & D-6 relied on by the defence. The said witness (DW-1) had prepared the Ishtgasha (Exhibit D-1) against A-1 Jaspal Singh at the instance of the victim (PW-1) and her brother (PW6), which clearly establishes the fact that the allegation was made only against A-1 Jaspal Singh and that too for abusing and misbehaving with the victim. There was no allegation made either against A-1 Jaspal Singh or A-2 Pavan Singh of committing sexual intercourse with the victim on 27.5.2016.

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12. However, subsequently, on 4.6.2016, after a delay of more than 7 days, the victim (PW-1), by her written report (Exhibit P-1), reported the matter at Police

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(Cr. A. No. 1135 of 2019)

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Station Kabir Nagar, Raipur alleging that the two appellants herein had committed sexual intercourse with her on 27.5.2016, on the basis of which FIR (Exhibit P-2) was registered against the appellants for the offence punishable under Section 376(D) & 342 of IPC. The said delay occurred in lodging of the written report/FIR has been sought to be explained on the ground that as soon as father (PW-3) and mother (PW2) of the victim (PW-1) returned Raipur from Punjab on 3.6.2016, the matter was immediately reported to the police. If that be so, the said important fact needs to be taken into consideration in light of the statement of PW-6, brother of the victim, who was also present at the police station on 28.5.2016 and had recorded his statement in respect of the aforesaid Ishtgasha proceeding (Exhibit D-1). The said witness in his statement recorded as PW-6 before the Court in the instant case, has clearly stated that regarding the said incident he had informed on phone to his parents, who were in Punjab, at the time of the incident. PW-6 has also admitted of recording of his statement on 28.5.2016 by the police. However, not only the victim

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(Cr. A. No. 1135 of 2019)

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(PW-1) but her brother (PW-6) also did not make any statement before the police or the Magistrate either on 28.5.2016 or immediately thereafter, though PW-6 was aged about 19 years of age and a major on the date of offence, which creates suspicion on the prosecution story and makes it doubtful. Thus, the delay of more than 7 days occurred in lodging of the written report/ FIR weakens the prosecution case, as the mother (PW-2) and father (PW-3) of the victim (PW-1) even after receiving the information from PW-6 regarding the said incident, did not care to return Raipur immediately or at-least tried to make a report on telephone to the police authorities. So also, the victim (PW-1) and her brother (PW-6) also did not report to the police though they were present at Kabir Nagar police station on 28.5.2016 for lodging complaint and recording their statement against A-1 Jaspal Singh in respect of the aforesid Ishtgasha proceeding (Exhibit D-1). Even otherwise, according to their own statement, the mother (PW-2) and father (PW-3) of the victim (PW-1) had returned Raipur from Punjab on 3.6.2016, but the written report (Exhibit P-1)

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(Cr. A. No. 1135 of 2019)

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regarding the incident that had occurred on 27.5.2016 was lodged on the next date i.e., on 4.6.2016, which seems to be a well thought of.

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13. In view of the aforesaid discussion of evidence, the following facts are quite apparent on the facts on record, which are as under:-

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13.1 Though the incident had occurred on 27.5.2016, but the victim (PW-1) and her brother (PW-6) did not care to report the matter to the police on 28.5.2016 when they were recording their statement vide Exhibit D-5 in respect of the aforesaid Ishtgasha proceeding (Exhibit D-1) wherein they had only stated of the abusing and demeaning behavior shown up by A-1 Jaspal Singh towards the victim (PW-1) in front of her house after consuming liquor and not the offence of rape allegedly committed with the victim by the appellants on 27.5.2016. Even otherwise, before the Sub Divisional Magistrate also, where the said Ishtgasha proceeding was conducted against A-1 Jaspal Singh, the victim (PW-1) and her brother (PW-6) chose to keep mum and did not inform to the

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(Cr. A. No. 1135 of 2019)

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Magistrate regarding the alleged incident that had occurred on 27.5.2016.

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13.2 Though the mother (PW-2) and father (PW-3) of the victim (PW-1) had returned Raipur from Punjab on 3.6.2016, but the written report (Exhibit P-1), on the basis of which FIR (Exhibit P-2) was registered against the two appellants herein, was not filed immediately but it was filed on the next day, i.e., 4.6.2016. The said written report (Exhibit P-1) was filed after a delay of more than 7 days from the alleged incident that took place on 27.5.2016 and the said delay occurred in lodging of the same also does not seems to be rational to establish sufficient cause in that view of the matter.

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13.3 Medical evidence of Dr. Vidyashri (PW-21) in form of MLC report (Exhibit P-15) of the victim as well as the forensic evidence in shape of FSL report (Exhibit P-30) also does not support the case of the prosecution at all.

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13.4 The relationship of the victim (PW-1) with A-1 Jaspal Singh appears to be cordial as she used to visit his house to provide tiffin and that probably may be the

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(Cr. A. No. 1135 of 2019)

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reason of not reporting the matter to the police for 7-8 days after the incident.

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14. In view of the aforesaid finding of fact, considering the statement of the victim (PW-1) and her brother (PW-6) which does not inspire confidence and also does not receive corroboration from the medical and forensic evidence which have come on record, it is hard to hold the two appellants herein guilty of the offence punishable under Sections 342 & 376(D) of IPC and Section 6 of POCSO Act and the finding of guilt recorded by the Trial Court to that effect, in our considered opinion, is not justified and the same is liable to set-aside, which we hereby set-aside acquitting both the appellants of the aforesaid offences on the basis of benefit of doubt.

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15. Since A-1 Jaspal Singh @ Jashna Singh is already on short term bail granted to him by this Court on 3.5.2024, he need not surrender and he stands set at liberty in respect of the present offence. However, his bail-bonds, if any, shall remain in operation for a period of six months in view of the provisions contained in Section 437-A of CrPC.

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(Cr. A. No. 1135 of 2019)

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16. So far as A-2 Pavan Singh @ Pamma Singh is concerned, he is still reported to be in jail. He be released forthwith from jail, if not required in connection with any other offence.

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17. This criminal appeal, accordingly, stands allowed .

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

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sharad

Jaspal Singh @ Jashna Singh v. State of Chhattisgarh

Case brief

What is this about?

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Jaspal Singh @ Jashna Singh v. State of Chhattisgarh

Case brief

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What did the court decide?

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