Girdhari Bhausare Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment reserved on 12.07.2024 Judgment delivered on 22.07.2024

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CRA No. 203 of 2022

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Girdhari Bhausare S/o Jharuram Bhausare Aged About 40 Years R/o Village Chikhli (Bandhabazar) Police Station Ambagarh Chowki, District Rajnandgaon Chhattisgarh.

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---- Appellant

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Versus

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State Of Chhattisgarh Through S.H.O. Chilhati, District Rajnandgaon, Chhattisgarh.

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---- Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Shri BP Singh, Advocate For Respondent/State : Dr Suresh Dewangan, PL

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Hon'ble Shri Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal CAV Judgment

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Per Ravindra Kumar Agrawal, J.

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Challenge in this appeal is to the judgment of conviction and sentence dated 20.01.2022 passed by the learned Additional Sessions Judge, FTSC (POCSO), Rajnandgaon, in Special Criminal Case - 29 of 2019, whereby the appellant has been convicted and sentenced

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as below :

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Conviction	Sentence
Under Section 450 of the IPC	RI for 10 years and to pay fine of Rs.2,000/-, in default of payment of fine, further RI for oneyear
Under Section 376(3) of the IPC	RI for 20 years and to pay fine of Rs.3,000/-, in default of payment of fine, further RI for one year (All the sentence shall run concurrently)

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Brief facts of the case are that on 29.05.2019, prosecutrix has lodged written report (Ex.P8) to the Police against the appellant alleging that on 28.05.2019, when she had gone to attend marriage function of her cousin sister, and in the night she came to her own house to change her clothes. At about 11.30 pm in the night, when she came out from her house to go to the place of marriage, appellant came there, gagged her mouth, dragged her towards the terrace of Pancham, and committed rape upon her. He gave threatening to her not to disclose the incident to anyone, or else, she will be done to death. When she was coming out from the terrace, her father saw them and then, she disclosed that the appellant committed rape upon her, and thereafter, on the next morning, she has lodged the report. Police registered the FIR Ex.P9 for the offence under Sections 450, 376, 506 of the IPC and Section 4 of the POCSO (Protection of Children from Sexual Offences Act), 2012, against the appellant.

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PW8 Prosecutrix was sent for her medical examination to the Government Hospital, Rajnandgaon, where, PW5 Dr Ekta Daniel has examined her and gave report vide Ex.P5. While examining the prosecutrix, no external or internal injuries were found on the body of prosecutrix and she opined that ‘no definite opinion could be given’. Further, prosecutrix was referred for her X-ray examination for determination of age. Two slides of vaginal swab of the prosecutrix were prepared for FSL examination and they were handed over to the Police. Spot Map (Ex.P11) was prepared by the Police and other Spot Map

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Ex.P4 was prepared by the Patwari. Clothes of the prosecutrix were seized vide seizure memo Ex.P12. With respect to the age and date of birth of the prosecutrix, Police has seized the School Admission and Discharge Register from the Government Primary School, Maharadih, district-Rajnandgaon and after retaining the attested true copy of the Register, Ex.P17C original Register was returned to the School. Copy of the Progress report of the prosecutrix of Class 5 has also been seized by the Police. As per the School Register Ex.P17C, date of birth of the prosecutrix is recorded as 26.05.2005. Appellant was arrested on 29.05.2019, and he too was sent for his medical examination to the Community health Centre, Ambagarh Chowki, where PW1 Dr Bhupendra Kumar Janghel examined him and gave his report Ex.P3, according to which, appellant found to be capable of performing sexual intercourse. The vaginal slides and underwear of the prosecutrix, as well as underwear of the appellant were sent for their FSL examination to the State FSL, Raipur, from where, report Ex.P31 was received and according to the report, the vaginal slide and underwear of the appellant were containing semen and sperms, however, no semen and sperms were found on the underwear of prosecutrix. Statement of the witnesses, and the prosecutrix were recorded under Section 161 and under Section 164 of the CrPC, and after completion of usual investigation, chargesheet was filed against the appellant before the learned trial Court for the offence punishable under Section 450, 376 and 506 of the IPC, and Section 4 of the POCSO Act, 2012.

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Learned trial Court has framed charge for the offence under Sections 450, 376(3), 506 Part-II of the IPC, and Section 4 of the POCSO Act. The appellant abjured his guilt and claimed trial.

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In order to bring home the charge against the appellant, prosecution has examined as many as 12 witnesses. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and pleaded innocence and has submitted that he has been falsely implicated in the offence, and claimed trial.

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After appreciation of oral as well as documentary evidence led by the prosecution, learned trial Court has convicted and sentenced the appellant as mentioned in para-1 of this judgment. Hence this appeal.

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Learned counsel for the appellant would submit that appellant is innocent, and has been falsely implicated in the offence. Prosecution has failed to prove its case beyond any reasonable doubt. There is no legally admissible piece of evidence with respect to age of the prosecutrix, that on the date of incident, she was minor. The School Register is not proved in accordance with law, and therefore, the entry of her date of birth in it cannot be considered to be sufficient piece of evidence to determine the age of the prosecutrix. He would further submit that prosecutrix was consenting party in the act of making physical relation with the appellant, which reflects from her conduct, and also from the evidence of her father, PW9. Since her age has not been proved and she

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was the consenting party in making physical relation with the appellant, no offence of rape is made out against the appellant. Hence, he is entitled for acquittal. He would further submit that there is no injury found on the body of the prosecutrix when she was medically examined by the doctor. Had she been subjected to forceful sexual intercourse by the appellant, she would definitely have received certain injuries on her body. Therefore, appellant is entitled for acquittal.

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On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submitted that prosecution has proved its case beyond any reasonable doubt. But for minor omissions and contradictions, prosecutrix evidence is reliable to hold conviction of the appellant in the case. In the FSL report Ex.P31, semen and sperms were found in the vaginal swabs of the prosecutrix. He would also submit that the incident is said to have taken place in the night of 28.05.2019 and the appellant was also arrested on 29.05.2019, within 24 hours. Appellant was also medically examined by Dr Bhupendra Kumar Janghel, PW1. While examining him, the doctor has found that Smegma was absent on the genital organ of the appellant, which proved that he made sexual intercourse with the prosecutrix on the alleged date and time. Had she been the consenting party, she would not have lodged any report to the Police. The age of the prosecutrix is proved by the School Register Ex.P17C, which corroborates with the evidence of prosecutrix, as well as her father, and also her progress report card of Class 5. Further, age disclosed by prosecutrix before the

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doctor at the time of her medical examination has not been challenged by the appellant in her cross-examination. As per the School Register, and also from other evidence, prosecutrix was found to be about 14 years of age, minor, on the date of incident, not competent to give her consent in the alleged act of physical relation with the appellant, and thus, learned trial Court has rightly came into conclusion that the appellant is guilty for the alleged offence of rape, which is absolutely justified and needs no interference by this Court.

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We have heard learned counsel for the parties and perused the record.

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The first and foremost question for consideration would be, age of the prosecutrix, which has been disputed by learned counsel for the appellant. The prosecution has relied upon the School Admission and Discharge Register, Ex.P17C, and the progress report card of Class 5 of the prosecutrix. The School Register is sought to be proved by PW-11, Sanjay Kumar Dewangan, Head Master of the Government Primary School, Mahradih. He stated in his deposition that he was posted as Head Master of that School in the year 2009. The Police seized the School Admission and Discharge Register with respect to the date of birth of the prosecutrix. After retaining the attested true copy of the same (Ex.P17C), the original Register has been returned. In the said School Register, date of birth of the prosecutrix has been mentioned as 26.05.2005, at Sl.No.103. She was admitted to the School in Class-1.

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Though in his cross-examination he admitted that when the parents of students could not inform about date of birth of their children, the Teacher used to make entry in the register on assumption. There is no suggestion from this witness that date of birth of the prosecutrix is wrongly recorded in the said School Register, or he has not recorded her date of birth in the register. He stated that the relevant entry in the said School Register is in ‘A’ to ‘A’ part, and his signature is there in ‘B’ to ‘B’ part of the said School Register. This witness was posted in the School since 2009 and the prosecutrix was admitted in the School on 18.06.2010. It has not been challenged by the defence that this witness is not the author of the said School Register.

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Prosecutrix, PW8 has stated in para-1 of her deposition that her date of birth is 25.06.2005. In para-5, she stated that as per the progress report card, Ex.P13, her date of birth is recorded as 20.05.2006. Further in para-6 of her cross-examination, she stated that her date of birth was recorded on assumption and she could not know as to which one is her actual/correct date of birth. Even after it is taken into consideration date of birth of prosecutrix as 20.05.2006, she does not cross the age limit of 18 years on the date of incident. She comes about 13 years of age as per the progress report card, and 14 years as per the School Register. The prosecution has relied upon the School Register, and stated that she is about 14 years on the date of incident, which is on the upper side.

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PW-9, father of the prosecutrix has also stated that date of birth of prosecutrix is on 26.05.2005. In his cross-examination, he stated that he has got recorded her date of birth in the Kotwari Register but the Police has not seized the Kotwari Register. He also not brought her Birth Certificate, or Kotwari Register with him. He denied the suggestion given by the defence that at the time of admission in the School, he got her date of birth recorded on assumption.

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PW5, Dr Ekta Daniel, who has medically examined the prosecutrix, has stated in her deposition that on 29.05.2019, prosecutrix, who was aged about 14 years was brought before her for medical examination. Age of the prosecutrix disclosed by the doctor in her MLC report has not been challenged by the defence.

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In view of the aforesaid discussion, and the evidence available on record with respect to the date of birth and age of the prosecutrix, it can safely be held that prosecutrix was 14 years of age on the date of incident. Even if we relax the margin of two years on either side, then also, prosecutrix does not cross the age limit of 18 years, though relaxation of age would be given in case of prosecutrix was radiologically examined and her age was determined on the basis of her ossification test report, or any other medical report.

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Relying upon the judgment passed by the Hon’ble Supreme Court in the matter of Jarnail Singh Vs State of Haryana¹ , and State of MP

1 AIR 2013 SC 3467

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Vs Anoop Singh² , the learned trial Court came into conclusion that on the date of incident, prosecutrix was aged about 14 years, two days, and was less than 16 years of age, which is neither perverse, nor contrary to the record. Therefore, we confirm the finding recorded by the learned trial Court that the ‘prosecutrix was minor on the date of incident’.

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So far as the offence of rape is concerned, we again examined the evidence of prosecutrix (PW8). She stated in her deposition that on the date of incident, marriage function was going on in her maternal uncle’s house. She came to her house for changing her dress in the night, at about 11 pm. At that time, appellant entered into her house at about 11-12 in the same night, gagged her mouth by towel, took her to the terrace, where he was working, and committed rape upon her. He gave threatening to her with dire consequences, if she disclose the incident to anyone. When she came out from the terrace, her father has slapped her twice/thrice, he took her to the old house, where she disclosed the incident to her family members, and thereafter, they lodged the report.

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In her cross-examination, she admitted that there was a bamboo stair case to go to the terrace. By the said time, she went up and came down. She further admitted that at the time of incident, she had not raised any alarm, and not protested in any way, she neither had tried to push him away, because of the reason that she was afraid of, and her father said that why she was there alone on stair case, when all her family members are there at the place where the marriage function is

2 (2015) 7 SCC 773

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going on. She further admitted that the Police has recorded her statement on the same day, and the appellant was also taken to the Police Station by her family members.

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PW9, father of the prosecutrix has also stated in his deposition that on the date of incident, she was coming down from the stairs of the terrace, she tried to get out from her father but his nephew got hold of her. When he asked from her then, she disclosed about the incident that the appellant committed rape upon her, and there was threatening to kill her, if she disclosed the incident to anyone. Thereafter, they had gone to the Police Station for lodging the report. In his cross-examination, he admitted that when he saw his daughter coming down from the staircase, she was normal. By this line of evidence of the father, the defence has taken a plea that the prosecutrix was consenting party because, she herself went up from the stairs to the terrace, and she seemed in normal mental status when she was coming down from the stairs, after the incident. Her behavior was normal even after the alleged incident of rape committed upon her, which confirms that she was the consenting party.

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We do not approve the above argument of the defence, because of the reason that she was minor, and aged about 14 years on the date of incident, and she was not competent to give her consent, even if she had not raised any alarm at the time of alleged incident, or she herself went up to the terrace, it cannot be said that she was a consenting party in the alleged act of physical relation with the appellant. Further, the appellant

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was also caught on the spot by the family members of the prosecutrix and he was taken to the Police Station.

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The appellant was also medically examined on 25.09.2019 by PW-1 Dr Bhupendra Kumar Janghel while examining the appellant, the doctor found him capable to perform sexual intercourse, but on examination of his genital organ, the doctor has found that Smegma was absent. He was medically examined within 24 hours of the alleged date and time of the incident. No question has been asked from PW1 and the statement of his examination-in-chief has not been challenged.

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In rape cases, the presence or absence of smegma on the corona glandis is a strong circumstance in establishing the innocence or guilt of the accused especially if the accused had been medically examined within 24 hours of the alleged incident.

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In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, 1990 (1) SCC 550 , it has been held by Hon’ble Supreme Court in para 26 of the judgment that :

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“26. …........ But the evidence of PW 12 Dr. More who examined the respondent on the 22nd at 8.45 p.m. reveals that he had noticed (i) absence of smegma around the glans penis and (ii) the frenum tortuous and edematous, indicative of the respondent having had sexual intercourse within the preceding 24 hours. However, absence of marks of violence and absence of matting of pubic hair led the witness to state

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that no definite opinion could be given whether or not the respondent had sexual intercourse in the last 24 hours. In cross-examination an attempt was made to show that smegma may be absent in a man with clean habits; that the frenum may be edematous if there is friction with rough cloth and tortuousness of the frenum could be due to anything that causes swelling of the skin. The witness, however, said that he had not seen marks of itching thereby negativing the suggestion. Be that as it may, the evidence of this witness does show that there was evidence suggesting the possibility of the respondent having had sexual intercourse within the preceding 24 hours although the witness could not hazard a definite opinion. Therefore, the non-committal opinion of this witness cannot be said to run counter to the evidence of the prosecutrix. It may be that the evidence as to resistance may have been overstated, a tendency which is generally noticed in such cases arising out a fear of being misunderstood by the society. That is not to say that she was in any way a consenting party. She was the victim of brute force and the lust of the respondent.”

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The FSL report Ex.P31 further corroborates the evidence of prosecutrix in support of the alleged commission of offence, that semen and sperms were found on the vaginal swabs of prosecutrix, she too was medically examined on 25.09.2019, ie within 24 hours of the incident, and presence of semen and sperms further confirm that she was subjected to

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sexual intercourse and the evidence available on record strongly suggest that it is the appellant, who has committed sexual intercourse with prosecutrix on the alleged date and and time.

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In the present case, without any delay, FIR has been lodged by the prosecutrix; the appellant was caught on the spot; he was medically examined and found ‘smegma’ was absent on his genital organ, thereby it is found that he performed sexual intercourse withing 24 hours prior to his examination. The semen and sperms were found on the vaginal swab of the prosecutrix, and it is alleged that the appellant has committed rape upon prosecutrix on the terrace. All these evidences are connected with each other, which unerringly, pointing towards guilty of the appellant for the alleged commission of offence.

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From the aforesaid discussion, we do not find any reason to disbelieve the evidence of the prosecutrix, as well as the other evidences produced by the prosecution, and to hold that the learned trial Court has absolutely justified in convicting and sentencing the appellant for the alleged offence.

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In the result, the appeal fails and it is hereby dismissed.

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Sd/-	Sd/-
(Ravindra Kumar Agrawal)	(Ramesh Sinha)
Judge	Chief Justice

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padma

Girdhari Bhausare v. State of Chhattisgarh

Case brief

What is this about?

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Girdhari Bhausare v. State of Chhattisgarh

Case brief

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