Kopa Madkam Vs State of Chhattisgarh

1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellants-accused, is to the legality, validity and correctness of the judgment dated 22.12.2018 passed by the Additional Sessions Judge (F.T.C.), Dantewada, South Bastar, Dantewada, Chhattisgarh, in Special Sessions Trial No.02/2015 by

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which the appellants have been convicted for offence under Section 376-D of the IPC read with Sections 5(g), 6 of POCSO Act, however, they have been sentenced only for offence under Section 376-D of the IPC to undergo imprisonment for life (meaning thereby imprisonment for the rest of life of the appellants) with fine of Rs.100/- each, in default of payment of fine amount to further undergo additional rigorous imprisonment for one month each.

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2. Case of the prosecution, in short, is that on 03.02.2015 at about 7:00 PM, at village Jabbapara, Modakpal, Police Station Modakpal, District Bijapur, Chhattisgarh, the appellants-accused persons committed gang rape with the minor victim girl (PW-01) and thereby committed the offence.

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3. Further, case of the prosecution is that, mother of the victim (PW-02) along with her daughter (PW-01) reported the matter to the police and FIR (Ex.P/01) was registered by the police against the appellants and wheels of investigation started running, in which, spot map was prepared vide Ex.P/06. The appellants No.1 & 2 were arrested vide Ex.P/25 and Ex.P/26 respectively. After obtaining necessary consent vide Ex.P/05, the victim girl (PW-01) was subjected to medical examination, which was conducted by Dr. Smt. Arpita Lagoo (PW-07) and as per M.L.C. report (Ex.P/07) of the victim, it has been opined that no injury was present over her private part and definite opinion regarding recent

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sexual intercourse neither be confirmed nor reflected, as hymen is old torn. Further victim’s vaginal slides were prepared and handed over to the police for analysis. Further, as per the M.L.C. report (Ex.P/29), proved by Dr. Mariyam Vtasla (PW-12), Associate Professor, Department of Psychiatry, the victim (PW-01) is mentally retarded and is suffering from psychosis (mental illness). Vide seizure memo Ex.P/02, one orange colour salwar suit and undergarment of the victim (PW-01) were seized and vide seizure memo Ex.P/14 & Ex.P/16, undergarments of the appellants No.1 & 2 were also seized respectively, and the same were sent for chemical examination vide Ex.P/27 and as per F.S.L. report (Ex.P/28), stains of human semen were found on articles A1, B2, C and D. To ascertain the age of the victim (PW-01), photocopy of admission register vide Ex.P/09 and X-ray report vide Ex.P/12 were called and as per the radiologist report, age of the victim (PW-01) was reported to be above 13 years but less than 16 years.

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4. Thereafter, statements of the witnesses were recorded and after due investigation, the appellants herein were charge - sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellants / accused abjured their guilt and entered into defence.

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5. In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 29

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documents, whereas, defence, in support of its case, has not examined any witness but exhibited one document. The statements of the appellants / accused were recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication.

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6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence.

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7. Mr. Mirza Kaiser Baeg, learned counsel for the appellants submits that the trial Court is absolutely unjustified in convicting the appellants for the offence in question. He further submits that victim (PW-01) is a mentally retarded girl and is suffering from psychosis as the same is evident from M.L.C. report (Ex.P/29) proved by Dr. Mariyam Vtasla (PW-12). Furthermore, mother (PW-02) of the victim girl has clearly stated that appellant No.1 – Kopa Madkam has committed the alleged offence of sexual assault and appellant No.2 – Korsa Suresh has not committed the alleged offence. Further, in the absence of medical evidence and forensic science report, appellant No.1 cannot be

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convicted for the aforesaid offence. Hence, the present appellants are entitled for acquittal on the ground of benefit of doubt and their appeal is liable to be allowed.

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8. On the other hand, learned State counsel supports the impugned judgment and submits that prosecution has been able to bring home the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that as per the F.S.L. report (Ex.P/28), stains of human semen were found on the undergarments of the appellants and the victim girl (PW-01). Thus, the trial Court has rightly convicted the appellants for the offence mentioned hereinabove and, therefore, the appeal is liable to be dismissed.

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

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10. The trial Court has held the age of the victim girl (PW-01) to be 16 years 10 months and 17 days, and, therefore, it would be appropriate to consider the age of the victim girl whether she was minor on the date of offence.

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Age of the Victim:

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11. In this regard, radiologist report/X-ray report (Ex.P-12) proved by Dr. Govind Singh (PW-09), has stated the age of the victim girl (PW-01) to be above 13 years but less than 16 years. In this regard, the decision of Hon’ble Supreme Court in the matter of Jaya Mala Vs. Home Secretary,

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Government of Jammu and Kashmir1 would be relevant in

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1 AIR 1982 SC 1297

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which the Supreme Court held that the radiologist test with regard to the age of a person, the margin of error in age ascertained by radiologist examination is two years on either side. Accordingly, on the date of offence, the age of the victim was less than 18 years. Thus, we hereby affirm the finding recorded by the learned trial Court that on the date of offence, the victim girl (PW-01) was a minor.

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12. Now, so far as offence of committing gang rape with the victim girl (PW-01) is concerned, it would be appropriate to notice the M.L.C. report (Ex.P/29), proved by Dr. Mariyam Vtasla (PW-12), Associate Professor, Department of Psychiatry, who has examined the victim (PW-01) on 17.03.2015 and found that the victim (PW-01) is a mentally challenged girl and is suffering from psychosis, who was subjected to gang rape on 03.02.2015. However, the case of the victim (PW-01) is to be examined in the light of the aforesaid mental status recorded by Dr. Mariyam Vtasla (PW12). The victim (PW-01) in her statement has implicated the appellants by stating that in absence of her parents and sister (PW-4), the appellants entered into her house and committed forcible sexual intercourse with her against her wishes and she also remained firm in her cross-examination. But, mother of the victim i.e. (PW-2) in her statement has stated that when she reached to the place of incident, she saw appellant No.1- Kopa Madkam fleeing away from the place of incident and appellant No.2 - Korsa Suresh was

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standing there and when she inquired about the incident from her daughter (victim), she told her that appellant No.1 – Kopa Madkam has committed sexual intercourse with her and appellant No.2 – Korsa Suresh was standing there, and thereafter, she reported the matter to the police. In the report lodged by the victim (PW-01), she has clearly stated that immediately after the incident, her mother (PW-02) came to the house and she informed the matter to her parents. This apart, mother (PW-2) in her statement has clearly stated that appellant No.1 - Kopa Madkam has committed sexual intercourse with her daughter and appellant No.2 - Korsa Suresh was standing therein. Further, as per the medical report (Ex.P/7) of the victim (PW-01), proved by Dr. Smt. Arpita Lagoo, there is no external injury or internal injury found over the body of the victim (PW-01) except old healed tags of torn hymen. She has further opined that no definite opinion can be given regarding commission of rape with the victim (PW-01). Though, as per the F.S.L report vide Ex.P/28, stains of human sperm was found in the vaginal slide (A1) and undergarment (B2) of the victim (PW-1), however, in view of Section 53-A of CrPC and in the light of the decision of the Supreme Court in Krishan Kumar Malik vs. State of Haryana2 it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. It has also been held that the prosecution has to resort to the procedure

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2 (2011) 7 SCC 130

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of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the victim/prosecutrix to make it a foolproof case, but they did not do so, thus, they must face the consequences and it has been observed in Para 43 and 44 as under:

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“ 43. With regard to the matching of the semen, we find it from Taylor's Principles and Practice of Medical Jurisprudence, 2nd Edn. (1965) as under:-

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"Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after 12 months and once after a period of 5 years. Non- motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months."

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Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the appellants.

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44 . Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of Crl. A. @S.L.P. (Crl.) No.8021 of 2009 cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. the prosecution could have still

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resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus, they must face the consequences.”

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13. The principles of law laid down in Krishan Kumar Malik (supra) has been followed with approval in Veerendra v. State of Madhya Pradesh3 and Chotkau v. State of Uttar

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Pradesh⁴ . However, in the present case, neither the DNA test has been done nor the process for matching the semen found on the vaginal slides and undergarment of the victim (PW-01) has not been done to ascertain whether it is of the semen of appellant No.1 or appellant No.2. In absence of the above, one thing is quite clear that appellant No.2 could not have been convicted for the alleged offence as PW-02, mother of the victim girl has clearly stated that appellant No.1 has committed sexual intercourse with her daughter and appellant No.2 was standing there. This apart, in absence of the medical evidence and in absence of matching of semen, appellant No.2 could not have been prosecuted and convicted for offence under Section 376-D of the IPC.

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14. Thus, in view of the statements of victim (PW-1), her mother (PW-2) and F.S.L. report (Ex.P/28), appellant No.1 – Kopa Madkam is convicted for the offence under Section 376 of IPC read with Sections, 5(g), 6 of the POCSO Act, 2012 and he is sentenced to undergo rigorous imprisonment for 10 years by

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3 (2022) 8 SCC 668

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4 (2023) 6 SCC 742

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reducing it from imprisonment for life in light of decision in the matter of State of Uttar Pradesh vs. Sonu Kushwaha5 as in the present case the date of incident is 03.02.2015 and Section 6 of POCSO Act,2012 has been amended and is applicable from 16.08.2019 by which for offence under Section 6 of POCSO Act, minimum sentence has been enhanced from 10 years to 20 years, as such, on the date of offence, the minimum sentence was 10 years. However, the fine sentence and default stipulation, as imposed upon the appellant No.1 by the learned Trial Court, shall remain intact.

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15. Further, in view of the foregoing analysis, we are unable to uphold the conviction and sentence of appellant No.2 – Korsa Suresh, passed by the learned trial Court vide impugned judgment dated 22.12.2018 and he is liable to be acquitted for want of legal evidence against him, as prosecution has failed to bring home the evidence against appellant No. 2 to base his conviction for offence under Section 376 read with Section 6 of POCSO Act, accordingly, appellant No.2 is acquitted of the charges for offence in question on the basis of benefit of doubt. The appellant No.2 - Korsa Suresh is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other matter/case.

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16. Consequently, this criminal appeal is partly allowed.

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17. Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the

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5 (2023) 7 SCC 475

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Superintendent of Jail where the appellants are languishing

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for necessary information and action, if any.