Dismissed¶58

Rajesh Poyam @ Vikki v. State of Chhattisgarh

Chhattisgarh HC1 Apr 2024CRA/251/2023

Case brief

AI extract

What is this about?

Chhattisgarh HC common judgment dismissing four appeals (Crl.A. Nos. 1632, 1656, 1700 of 2022 and 251 of 2023) against conviction for gang rape/attempted rape and related offences (Ss. 323, 354, 354-A, 506 Pt-II, 376-D IPC; S. 6 & 10 POCSO; S. 3(2)(v) & (v-a) SC/ST Act). Age-of-victim finding set aside for lack of cogent evidence (school register author not examined; no Anganwadi record). TIP evidence used only as corroboration owing to inconsistencies. Reliance placed on Supreme Court rulings Alamelu (2011) 2 SCC 385, Rishipal Singh Solanki (2022) 8 SCC 602 and P. Yuvaprakash 2023 SCC OnLine SC 846 on proving age. All convictions affirmed; sentences including life imprisonment upheld.

What did the court decide?

Appellants shall undergo remaining part of sentence. ¶58

Rajesh Poyam @ Vikki Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

Appellants shall undergo remaining part of sentence.

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Issue for consideration

Whether the school register relied upon by prosecution is sufficient proof of age/minority of victims A, B and C on the date of incident. +2 more

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Court's answer

There is no satisfactory evidence produced by prosecution regarding age and date of birth of victims; findings of Trial Court that victims were minors are perverse and are set aside.

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Ratio / Principle

Evidence of victims and PW-14 regarding TIP can be considered only for corroboration of involvement of appellants in offence; TIP itself cannot be held free from doubt due to inconsistencies.

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Key takeaways

Ingredients of Section 376-D IPC fully satisfied — all four accused acted in furtherance of common intention to commit rape upon victims; trial court rightly held them guilty of gang rape.ratio¶52
Convictions under Section 354/34 and 354-A/34 IPC proved — out of four accused, two guarded while others outraged modesty of victims A and B.ratio¶53
Convictions under Section 323 IPC (in alternative read with Section 34) and Section 506 Part-II IPC (five counts) rightly upheld.

Detailed headnote1 paragraphs

Four appellants (Ujjval De, Dopesh Kumar Sahu, Akash Rajak, Rajesh Poyam) appealed convictions dated 27.09.2022 by Additional Sessions Judge (POCSO), Kondagaon in POCSO Case No. 48/2021 for offences under Sections 323, 506 Part-II, 354, 376-D IPC, Section 10 POCSO Act and Sections 3(2)(v) and 3(2)(va) SC/ST Act arising from an alleged night-time gang rape/assault upon three minor girls returning from Narayanpur Mela on 28.12.2019 near a forest depot, Narayanpur. High Court (Chhattisgarh, Bench of Ramesh Sinha, CJ and Ravindra Kumar Agrawal, J; judgment authored by Ravindra Kumar Agrawal, J., dated 02.04.2024) held that prosecution failed to prove minority of victims — author of school register Ex. P/16-C and P/17-C not examined; basis of recording date of birth not produced; manipulation in date of birth of victim C unexplained; findings of Trial Court that victims were minors set aside as perverse. TIP memos and victim testimony corroborate presence and identification of appellants; ingredients of Section 376-D IPC satisfied as all four accused acted in furtherance of common intention (one raped victim A, Rajesh outraged modesty of victim B, two guarded); convictions under Sections 354/34, 354-A/34, 323, 506 Part-II IPC, Sections 6 & 10 POCSO Act and Sections 3(2)(v)/(v-a) SC/ST Act upheld. All four appeals dismissed; appellants to undergo remaining sentence.

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No.1632 of 2022

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Ujjval De @ Babu son of Rajkumar De, aged about 25 years, Resident of Bakharupara, Narayanpur, Thana, Narayanpur, District Narayanpur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Police Station Narayanpur, District Narayanpur, Chhattisgarh.

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---- Respondent

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Criminal Appeal No.1656 of 2022

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Dopesh Kumar Sahu @ Chhotu son of Hariprasad Sahu, aged about 18 years, resident of Amlidih, Police Station Chichola, District Rajnandgaon, at present R/o Bakhrupara, Narayanpur, Police Station, Narayanpur, District Narayanpur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Police Station Narayanpur, District Narayanpur, Chhattisgarh.

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---- Respondent

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Criminal Appeal No.1700 of 2022

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Akash Rajak alias Nanu S/o Kishore Rajak, aged about 20 years, R/o Nayapara Sai Chowk, Narayanpur, PS, Narayanpur, District Narayanpur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through the District Magistrate, Narayanpur, District Narayanpur, Chhattisgarh.

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---- Respondent &

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Criminal Appeal No.251 of 2023

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Rajesh Poyam @ Vikki Son of Sannuram, aged about 19 years, resident of Gudaripara, Narayanpur, Thana, Narayanpur, District Narayanpur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Police Station Narayanpur, District Narayanpur, Chhattisgarh.

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		---- Respondent
For Appellants	:	Shri M.P.S. Bhatia, Shri Vikas Pandey, Shri Gagan Tiwari, and Shri A.K. Yadav, Advocates.
For State	:	Shri VinayPandey, Dy. Advocate General.

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Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J

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Judgment on Board

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Per, Ravindra Kumar Agrawal, J 02.04.2024

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1 . All these criminal appeals are arising out of the same crime number and same sessions trial and therefore, all are being heard and decided together by this common judgment.

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2 . All these criminal appeals have been preferred by the respective appellants under section 374 (2) of the Criminal Procedure Code against the judgment of their conviction and sentence dated 27.09.2022, passed by learned Additional Sessions Judge (Fast Track Special Court) (POCSO), Kondagaon, District Kondagaon, Chhattisgarh in POCSO Case No. 48/2021, whereby all the appellants have been convicted and sentenced in the following manner:-

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Conviction	Sentence
U/s 323 of I.P.C.	R.I. for 06 months with fine of Rs. 500/-, in Default of payment of fine further R.I. for 01 month.
U/s 506 Part-II of I.P.C.	R.I. for 03 years with fine of Rs. 500/-, in Default of payment of fine further R.I. for 01 month.
U/s 354 of I.P.C.	R.I. for 05 years with fine of Rs.1,000/-, in Default of payment of fine further R.I. for 03 months.
U/s 376-D of I.P.C.	R.I. for Life (till his biological life) with fine of Rs.5,000, in default of payment of fine, further R.I. for 03 months.
U/s 10 of POCSO Act.	R.I. for 05 years with fine of Rs.1,000/-, in Default of payment of fine further R.I. for 03 months.
U/s 3(2)(v) of the SC/ST Act	R.I. for Life with fine of Rs. 1,000/-, in Default ofpayment of fine further R.I. for 03 months.

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U/s 3(2)(va) of SC/ST Act	the R.I. for 03 years with fine of Rs.500/-, in default of payment of fine further R.I. for 01 month.
	All the sentences to all the accused persons/appellants have been directed to run concurrently.

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3 . There are three victims in the case, and they are being named as victim “A”, victim “B” and victim “C”.

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4 . Brief facts of the case are that on 28.12.2019, the complainant P.W. 3, gave a written report to the police in which it was alleged that he was working as a forest guard in the forest department, his niece who is a minor, aged about 15 years, had come along with her two friends to Narayanpur to see Mela and stayed in the house of her relative. At about 9.00 p.m. they had gone to see Mela along with her brothers Krishna and Santu Gota at Bakhrupara. In the night, at about 2.30 a.m., when they were returning from Mela through Forest Depot Road, en-route, four persons came from their backside, caught hold of his niece and her friends and got their brothers beat off by assaulting and threatening them. One of her friends somehow escaped from their clutches. Thereafter, all four persons dragged his niece and her friends towards the field. Out of four persons, when one of them was committing rape upon his niece then she shouted and raised an alarm for her help. At the same time, the other accused person was also trying to commit rape upon her friend and throw her down on the ground and removed her clothes. She also shouted for her help. All four persons were helping each other in

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committing the offence of rape upon them and calling each other by their names as Akash, Rajesh, Dost, and Chacha. They threatened them that they are police persons and let them have physical relations with them or else they will kill them, and they tried to commit rape upon both of them, one after one. After hearing the hue and cry, the other police persons came there. After seeing the other police persons, the accused persons fled away, and the victims were taken to Bal Kalyan Samiti. On 28.02.2019, his niece (victim “A”) and her friend (victim “B”) disclosed the entire incident to him in the office of Bal Kalyan Samiti and then he came to lodge the report.

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5 .

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Based on written complaint Ex. P/9, the police registered the FIR, Ex. P/10, on 28.02.2019 against the accused persons Akash, Rajesh and two other co-accused persons for the offence under Sections 376-D read with Section 511, 354-A, 506, 323, 376(3), 376-DA of IPC and Section 6 and 10 of Protection of Children from Sexual Offences Act, 2012 (hereinafter called as POCSO Act). The victims were sent for their medical examination to District Hospital, Narayanpur, where Dr. Gitika Sahu, P.W-15, examined her and gave her report Ex. P/45 (for victim “A”) and Ex. P/46 (for victim “B”). During their examination, the doctor did not find any external injuries over the body of victim “A” and found her hymen torn, pain, redness and swelling on the private part of victim “B”. The slides of vaginal swabs of both victims were prepared, sealed, and handed over to the Police for FSL examination. After examination, they were referred for their HIV, VDRL, HbsAg, UPT test and x-ray examination

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for their age determination. The vaginal slides of the victim “A” and “B” was seized by the police vide seizure memo Ex. P/30. The victim “C” was also sent for her medical examination to District Hospital, Narayanpur, where she was also examined by Dr Praveer Chand Bhandari, P.W./8, who, after her examination, did not found any external injuries and gave his report Ex. P/20.

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6 . During the investigation, the police seized the underwear of victim “A” having blood-like stains, plastic chappal, and another chappal of victim “B”. The Hair belt of victim “B” was seized from the spot on 0103-2019 vide seizure memo Ex. P-3. The social status certificate of the victim “A” was seized vide seizure memo Ex. P-12 and the copy of the social status certificate is Ex. P-11(C), the social status certificate of victim “B” was also seized vide seizure memo Ex. P/7 and the copy of the same is Ex. P-8(C). According to the social status certificates of victims “A” and “B”, both belonged to the Scheduled Tribes community. The spot map Ex. P/11 was prepared by the police. With respect to the age and date of birth of the victims, the police have seized the school admission and discharge register from Balak Ashram, Hikpad, District Narayanpur vide seizure memo Ex. P/18. After retaining the attested true copies of the school register, the original register was returned to the school and the attested true copies of the school register with respect to victim “A” and “B” is Ex. P/16(C) and attested true copy of the school register with respect to victim (C) is Ex. P-17(C). According to the school

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7 . During the investigation, the accused Akash Rajak and Rajesh Poyam were arrested on 01-03-2019 and they were sent for their medical examination to the District hospital, Narayanpur, where Dr Rupesh Ravate examined them and gave his report that the accused persons Akash Rajak and Rajesh Poyam are capable to perform sexual intercourse. His medical reports are given in reverse side of Ex. P-23 and P-24. The underwear of accused persons Akash Rajak and Rajesh Poyam has been seized vide seizure memo Ex. P-29. The accused Ujjval De was arrested on 09-03-2019 and he too was sent for his medical examination to the District hospital, Narayanpur, where he also has been examined by Dr. M.L. Neti, P.W. 6. As per his medical report Ex. P-14, the accused Ujjval De was also found to be capable to perform sexual intercourse. The underwear of the accused Ujjval De was seized vide seizure memo Ex. P-33. The accused Dopesh Kumar Sahu was arrested on 11-03-2019 and he was also medically examined by Dr M.L. Neti, who gave his report Ex. P-15 and found him capable of performing sexual intercourse. The progress report card of Class-7^th of the accused Dopesh Kumar Sahu was also seized vide seizure memo Ex. P-37 in which his date of birth is shown as 26-02-2001.

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8 . The Test Identification Parade (in short, TIP) was conducted by the Naib Tahsildar, Narayanpur. On 01-03-2019, the accused persons Akash Rajak and Rajesh Poyam were identified by victim “B” which

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was conducted at Tahsil Office, Narayanpur, and their identification memo is Ex. P-5. On 09-03-2019, in the TIP conducted at Tahsil Office, Narayanpur, the victim “A” has duly identified the accused Ujjval De and his identification memo is Ex. P-1. Another identification memo by which the victim “B” has identified the accused Ujjval De is Ex. P-4. On 11-03-2019, the TIP of accused Dopesh Kumar Sahu was conducted at Tahsil Office, Narayanpur, and the victim “A” has also identified the accused Domesh Kumar Sahu, the identification memo is Ex. P-2. Another identification memo by which the victim “B” has identified the accused Domesh Kumar Sahu is Ex. P-6. Further, the accused Domesh was also identified by victim “C” and the identification memo is Ex. P-45.

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9 .

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The seized articles i.e. vaginal slides of the victim “A” and “B”, the underwear of victim “A”, the underwears of accused persons Akash, Rajesh Poyam, Ujjval De and Dopesh Kumar Sahu were sent for FSL examination to Regional FSL, Jagdalpur. In the FSL report Ex.P/48, the vaginal smear and swab were found contained with human semen and sperm i.e. Article-A, C & D which are the vaginal slides of victim “A”. Further human sperm and semen were also found in Article-I which is the underwear of victim “A”.

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10. During the investigation, the persons who accompanied the victims were also medically examined by the doctor who had not found any external injuries over their body and gave the report Ex. P-31 and P- 32. The statements under Section 161 of Cr.P.C. of the witnesses have been recorded. Statements under Section 164 of the Cr.P.C. of

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the victim “A”, “B” and “C” have also been recorded. After completion of the usual investigation, the charge sheet was filed before the learned Trial Court for the offence under Sections 376(3), 376-DA read with Section 511, 354-A, 506, 323 of I.P.C. and Section 6, 10 of POCSO Act, and Section 3(2)(v) of SC/ST Act, against all the four accused persons.

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11. The learned Trial court has framed charges against all the accused persons as below:-

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Section 376-D, 354 of I.P.C. in alternative 354 read with Section 34 of I.P.C. (in two counts with respect to victim “B” and “C”).

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Section 354-A of I.P.C. in alternative 354-A read with Section 34 of I.P.C. (in two counts with respect to victims “B” and “C”).

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Section 323 of I.P.C. in alternative 323 read with Section 34 of I.P.C. (in two counts for causing simple hurt to Krishna and Santu Gota).

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Section 506 Part-II of I.P.C. (on five counts).

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Section 6 of POCSO Act in alternative 6 of POCSO Act read with Section 34 of I.P.C. (with respect to the victim “A”).

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Section 10 of POCSO Act in alternative 10 of POCSO Act read with Section 34 of I.P.C. (in two counts with respect to victims “B” and “C”).

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Section 3(2)(v) of SC/ST Act (with respect to victim “A”).

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Section 3(2)(va) of the SC/ST Act.

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12. To bring home the charge, the prosecution has examined as many as 15 witnesses. Statements under Section 313 of Cr.P.C. of the accused persons have also been recorded in which they denied the circumstances that appear against them, pleaded innocence, and submitted that they have been falsely implicated in the offence. Two

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defence witnesses have been examined by the accused persons namely D.W. 1 Jageshwar Gandharv and D.W. 2 Jagdish Chandra Nag.

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13. After appreciation of the oral as well as documentary evidence produced by the parties, the learned trial court has convicted the accused persons and sentenced them as mentioned in the earlier part of this judgement. Hence, this appeal.

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14. Learned counsel for the respective appellants has submitted that the prosecution has failed to prove their case beyond reasonable doubt. There is material omission and contradiction in the evidence of prosecution witnesses. The evidence of the victims is selfcontradictory from their evidence and that of their case diary statement. There are no injuries over the body of the victims as alleged by them. Their evidence is not supported by any independent witness. A concocted story has been developed by the victims to rope the accused persons in a false case. The source of light on which the victims have identified the accused persons is also doubtful and inconsistent. The identification of the accused persons is also doubtful as the same is conducted in violation of its procedure and before conducting TIP the accused persons were shown to the victims thus, the identification of the accused persons has no significance. They have also submitted that there are no corresponding injuries found on the bodies of victims and therefore, their evidence is not believable. No sufficient evidence is available

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on record to hold the accused persons guilty of the alleged offences and therefore, they are entitled to their acquittal.

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15. Per contra, learned counsel for the State while opposing the submissions of the appellants, has submitted that the prosecution has proved their case beyond reasonable doubt. The accused persons have been duly identified by the victims. They have deposed against them before the court and there are no inconsistencies in their evidence. But for minor omission or contradiction, they remain firm in material evidence and the defence could not be extracted from them so that their evidence could be disbelieved. The victims were gang raped by the accused persons. The manner in which they have ravished the victims, the accused persons are not entitled to any leniency. He would also submit that their identification has been duly proved by the Naib Tahsildar who conducted the TIP in which the victims have duly identified the accused persons. TIP was conducted strictly in accordance with the law. The evidence of rape victims does not require any corroboration and in the present case, they have deposed against the accused persons. Therefore, the judgement of their conviction and sentences are justified and their appeals are liable to be dismissed.

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16. We have heard learned counsel for the parties and perused the records with utmost circumspection.

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17. The foremost question in the case is the age of the victims. On the date of the incident, the victims claimed themselves to be minors.

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The prosecution has mainly relied upon the school register of the victims to prove their age.

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18. The school register Ex. P/16-C seized from Balak Ashram Hikpad, District Narayanpur contains the date of birth of victim “A” as 02.07.2003 whereas, in the same school register the date of birth of victim “B” is recorded as 28.06.2003. In the school register Ex.P/17-“C”, the date of birth of victim “C” is recorded as 05.01.2004. All these dates of birth of victims are sought to be proved by PW-7, Ram Singh Nureti, who was the Headmaster of Balak Ashram Hikpad and has stated in his deposition that he was posted as Headmaster in the said Balak Ashram from August 2014. The police have seized the school register of victims “A”, “B” & “C” with respect to their date of birth and attested true copies of the school register are Ex. P/16-C and P/17-C. After retaining an attested true copy of the school register, the original was returned to the school. According to the school register Ex. P/16-C & P/17-C, the date of birth of victim “A” is 02.07.2003, Victim “B” is 28.06.2003 and victim “C” is 05.01.2004. In cross-examination, he admitted that in the year 2009 he was not posted at Balak Ashram Hikpad. He admits that it is not mentioned in the register that on what basis the date of birth of the victims has been recorded. He has voluntarily stated that it might have been recorded based on the Angan Badi register. It is not mentioned in the school register that the date of birth of the victims is recorded on the basis of the Angan Badi register. He further admits

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that there is a manipulation in the date of birth of victim “C” in the school register.

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19. From the evidence of this witness, it appears that he is not the author of the school register. Manipulation of the date of birth of victim “C” has not been explained by the prosecution. There is no basis on which the date of birth of victims has been recorded in the school register.

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20. The victim “A” stated in her deposition para 11 that she could not know her date of birth. Although she got admitted to the school, she has not studied there. Victim “B” stated in her deposition para 7 that she could not know her date of birth, but she is aged about 16 years. She studied up to Class-III whereas, Victim “C” did not state anything about her date of birth or her age.

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21. PW-3, who is the uncle of victim “A”, has also not stated anything about the date of birth of victim “A” or her age.

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22. PW-13, the father of victim “A”, stated in his deposition para 5 that at the time of the incident, his daughter was aged about 16 years. He does not know her date of birth, but after three days of her birth, he went to Angan Badi Centre of village Hikpad along with his wife to get her date of birth registered with Angan Badi Centre. One Jaini madam recorded her date of birth in the Angan Badi Centre. His daughter has studied at Balak Ashram Hikpad. He had gone to school for her admission and at the time of her admission she was aged about six years. In cross-examination, he denied the

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suggestion given by the defence that the age of victim “A” is 19-20 years.

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23. The relevancy of school admission and discharge register came for hearing before Hon’ble Supreme Court in Alamelu & Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded.

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24. In paragraphs 38 and 40 of its judgment in Alamelu (Supra), the Supreme Court has observed as under:

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“38. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex. P/16 and the certificate issued by PW-8 Dr. Gunasekaran, Radiologist, Ex. P/4 and Ex. P/5. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.....

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In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer

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certificate can not be relied upon to definitely fix the age of the girl.”

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25. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

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Others , 2022 (8) SCC 602, while considering various judgments, the

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Hon'ble Supreme Court has observed in para 33 as under:

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"33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with subsection (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

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33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

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33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

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33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

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33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

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33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

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33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not

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conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

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26. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police , 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held as under :

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"14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.”

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27. Reverting to the facts of the present case, there is no satisfactory evidence collected and produced by the prosecution with respect to the age and date of birth of the victims. The author of the school register Ex. P/16-C and P/17-C have not been examined. The basis on which the date of birth of victims has been recorded also has not been produced. Victims “A”, “B” & “C” have not disclosed their date of birth. Victim “B” only states that she is about 16 years old. Even

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the father of victim “A” has not stated any date of her birth. Although he has stated that he knows that his daughter is about 16 years old as he is her father, he could not state her date of birth. Further, though he registered her birth with the Angan Badi Centre, there is no record of the Angan Badi Centre with respect to any registration of birth of victim “A”. There is a lack of clinching and cogent evidence regarding the age and date of birth of the victims. Merely based on oral statement it cannot be safe to hold the victims minor, yet the Trial Court has considered them minor on the date of the incident holding that the defence has failed to prove that victims are more than 18 years of age on the date of incident. The burden to prove that victims were minors was upon the prosecution and not upon the accused persons. Therefore, the findings recorded by the Trial Court that the victims were minors on the date of the incident are perverse and are set aside.

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28. So far as the involvement of appellants/accused persons in the offence in question is concerned, the accused persons were put to TIP. The accused Ujjval De was put to TIP on 09.03.2019. The accused Dopesh Kumar was put on TIP on 11.03.2019. In the TIP conducted by Mukesh Kumar Thakur, an Executive Magistrate, the victim “A” has identified the appellant Ujjval De and the appellant Ujjval De has signed the identification memo Ex.P/1. The victim “A” has further identified accused Dopesh Kumar which was conducted on 11.03.2019 by Ketan Kumar Bhoyar, Executive Magistrate, PW14 and signed the identification memo Ex.P/2. The victim “B” has

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identified the appellant Ujjval De, Akash Rajak and Rajesh Poyam and signed the identification memo Ex. P/4 & P/5 respectively in the TIP conducted by Mukesh Kumar Thakur. Further, victim “B” have also identified the accused Dopesh Kumar which was conducted on 11.03.2019 by PW-14 and signed the identification memo Ex.P/6. The victim “C” has also identified the accused Dopesh in the TIP conducted by PW-14 on 11.03.2019 and signed the identification memo Ex. P/45.

¶116

29. The victim “A” stated in her deposition that at the time of the commission of the offence, the accused persons were calling each other by their names. There was sufficient light in the place where the incident occurred due to which she identified the accused Akash. She further states that TIP was conducted at the Tehsil office on four different dates. The Tehsildar conducted TIP. The victims “B” & “C” have also identified the accused persons. She (victim “A”) too has identified all the four accused persons and signed the identification memo. In cross-examination, she states about the light fixed in the wall of the depot and states that in her police statement, she has disclosed that she identified the accused persons in the light of Torch. She denied complete darkness and voluntarily stated that there was sufficient light. The accused Akash was caught on the spot. In the first TIP, she identified the accused Rajesh and Akash. In the second TIP, two other accused persons were identified. Although no other persons were mixed with the accused persons, she

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identified the accused persons. She states that she along with victims “B” & “C” had identified the accused persons.

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30. The victim “B” stated in her evidence that the accused Rajesh was caught by the police on the spot. TIP was conducted twice at the Tehsil office Narayanpur, but she could not know who conducted the TIP. She identified all the accused persons and signed the documents Ex. P/4, P/5 and P/6. She states that there was sufficient light in the depot as a result of which she identified all the accused persons. In cross-examination, she stated that TIP was conducted twice. On the first occasion, the accused Rajesh and another were mixed with five other persons. On the second occasion, the accused Akash and another accused were mixed with four other persons. On the first occasion of TIP, she was alone and victims “A” & “C” were not present with her. She denied that the police persons had informed her about the accused persons, she voluntarily stated that she had identified the accused persons.

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31. The victim “C” stated in her evidence that she was being taken to the Tehsil office on three different dates for identification of the accused persons. On the first occasion, she identified the accused Akash. On the second occasion, she identified the accused Rajesh and on the third occasion, she identified another accused as having tall personality. The name of a third person who was identified as ‘tall’ is noted as Ujjaval De. After TIP she came to know about their names. Before that, she was unaware of their names. In cross-examination, she denied that on the first occasion, she identified the accused

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Ujjval De. She admits that on the second occasion of TIP, she identified the accused Dopesh Sahu. She further states that there was sufficient light at the place of the incident. She had gone to the Tehsil office for TIP after about two days. At the time of TIP, victim “A” & “B” were also there and all of them were taken together for TIP. At the time of the first TIP approximately 10 persons were present. She denied that she had not identified the accused Akash & Dopesh. She also denied that police persons had shown her accused Akash & Rajesh before TIP.

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32. PW-14, Ketan Bhoyar, Naib Tehsildar, who conducted TIP have stated in his deposition that the accused Dopesh Kumar Sahu was brought before him for his identification. He conducted the TIP on 11.03.2019 at the Tehsil office. The accused Dopesh Kumar was brought at 12:00 noon and was kept in a room at the Tehsil office, Narayanpur. Thereafter, all three victims were also brought before him by the police who were kept in another room for test identification of accused Dopesh Kumar. Five other persons of the same age group were mixed with them whose bodies were covered up to their Neck. The sequence of their standing has also been stated by the Tehsildar. On 11.03.2019 at about 01:05 pm, victim “A” identified the accused Dopesh Kumar and he prepared the TIP memo Ex.P/2. On the same day at about 01:45 pm the accused Dopesh Kumar was identified by victim “B” and he prepared TIP memo Ex.P/6. Further at 01:45 pm the victim “C” also identified the accused Gopesh and he prepared the TIP memo Ex.P/45. In cross-

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examination, he has admitted that it has not been mentioned in the TIP memos Ex.P/2, P/6 and P/45 that who had brought the other persons who were mixed with the accused. Their physic and colour have also not been mentioned in the TIP memos. It was also not mentioned as to whether the persons who were mixed with the accused persons and also the accused person were brought to the Tehsil office in an open condition, or their faces were covered. Their sequence of standing has also not been changed while conducting TIP by victims “A”, “B” and “C”.

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33. The other Naib Tehsildar, Mukesh Kumar Thakur, who conducted TIP of accused Ujjval De vide Ex. P/1 and Ex. P/4, accused Akash Rajak and Rajesh Poyam vide Ex.P/5 have not been examined by the prosecution. The TIP memo Ex.P/1 is proved by PW-1, victim “A”, Ex.P/4 is proved by victim “B” and TIP memo Ex.P/5 have been proved by victim “B”.

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34. There are contradictions in the evidence of victims “A”, “B” & “C” as to whether they have jointly identified the accused persons on one occasion or they identified the accused persons separately and on different occasions. The evidence of victims “A”, “B” & “C” i.e. PW-1, PW-2 and PW-4 as also the evidence of PW-14, Ketan Bhoyar, Naib Tehsildar, does not inspire confidence in the court about the purity of TIP conducted by the Naib Tehsildar. Because of inconsistencies in the evidence of victims, it cannot be safe to hold that the TIP conducted by the Tehsildar is free from any doubt, yet the evidence

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of victims and PW-14 with regard to TIP can be considered for corroboration of involvement of the appellants in offence in question. 35. The main issue involved in the case is whether the appellants are guilty of the commission of gang rape of victims or not?

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36. PW-1, victim “A”, stated in her deposition that she knows the accused persons who are present before the court. At the time of Narayanpur Mela she along with victims “B” & “C” had gone to see Mela in the night. After seeing Mela , when they were returning to their house along with Krishna and Santu Gota at about 2:30 in the night, near the forest depot, four persons including Akash and Rajesh came there from the back side and committed Marpeet with Krishna and Santu Gota by which they fled away from the place. The accused Akash caught hold of her and took her inside the depot. Accused Rajesh caught hold of victim “B” and he also took Victim “B” inside the depot. One of the four persons caught holding victim “C”, however, she could not know his name. She made a gesture towards the accused persons, and he disclosed his name as Dopesh Kumar Sahu @ Chhotu, who caught hold of victim “C”. Victim “C”, somehow got out from the clutches of the accused and fled away. The accused Akash took her inside the depot and stating himself to be police personnel, asked her to have sex or else she would be sent to Jail. She was scared and tried to get out of his clutches but could not succeed. The appellant Akash removed her legging and committed forcible sexual intercourse with her after threatening her with dire consequences. At the time when the accused Akash had taken her

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towards the depot, the accused Rajesh had taken victim “B” towards the water tank of the said depot and instructed his two other friends to guard the situation. She could not know the names of the other two persons who were also there along with Akash and Rajesh, but they are present in the court. She further states that when the accused Akash had committed sexual intercourse with her, she raised her voice and shouted for help. On hearing her voice and shout, the police persons came to the spot and caught hold of Akash. At the same time, victim “B” came there and informed that accused Rajesh had tried to open her clothes and outrage her modesty but could not succeed. She informed the incident to victim B and police persons gave her a Chunri. Her leggings and underwear were lying on the spot and thereby the police persons have taken them to Sakhi Centre Narayanpur. In the Torch light which was in the hand of Victim “C”, they have identified the accused persons. The accused persons were calling each other by their names Akash and Rajesh. At the place where the accused Akash has committed rape upon her, there was a light in the depot in which she identified the accused Akash. The next morning her uncle came to Sakhi Centre then she informed him about the incident and thereafter they were taken to Narayanpur Police Station.

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37. In cross-examination, she reiterated that there was light in the depot. Although she has stated that she identified the accused persons by Torch which was having with victim “C” and in the court statement she has stated that she identified the accused in the light of depot.

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However, the same would not make any difference as victim “A” has duly identified the accused persons at the time of the incident which she stated in her 161 CrPC statement, Ex. D/1 also which was also recorded on the same day i.e. on 28.02.2019. In her crossexamination, she remains firm in saying that at the time of the incident, the accused persons were calling each other by their names, and she could identify the accused who committed rape upon her. There is no material discrepancy in her evidence before the court with that of her 161 CrPC statement. She proves the incident of rape with her by accused Akash. The defence could not extract any material facts in her cross-examination to disbelieve her evidence. She further reiterates the presence of all four accused persons at the place of the incident. Out of four accused persons, one has committed rape upon her, another one was trying to commit rape upon victim “B” and the remaining two were guarding them under the instructions of accused Akash and Rajesh.

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38. PW-2, victim “B”, stated in her evidence that she knew the appellants. At the time of Narayanpur Mela she along with victims “A” & “C” had gone to see Narayanpur Mela from village Hikpad at about 9 pm. After seeing Mela when she was returning to their house along with the other two victims, Krishna and Santu Gota, at about 2:30 in the night when they reached near forest depot, the accused Rajesh caught hold of her. Victim “A” was caught on hold by accused Akash and both the accused persons assaulted Krishna and Santu and sent them away from the place. Out of four accused persons, one

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was trying to hold victim “C”. During her examination, she made a gesture to an accused who was pulling victim “C”, he disclosed his name as Dopesh Kumar Sahu. Victim “C” somehow came out from the clutches and fled away. The accused Rajesh took her inside the depot whereas the accused Akash took victim “A” inside the depot. The rest of the two accused persons were guarding the situation. The accused Rajesh tried to remove her clothes. She started shouting for help. Accused Rajesh removed her Chunri and pressured her to have sex. She refused and protested, but the accused Rajesh was insisting on sex and outraging her modesty by touching her waist and trying to remove her leggings. While outraging her modesty, Rajesh threatened her to be roped into a false case projecting himself as a policeman.

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She further stated that when she raised her alarm and shouted for help, accused Rajesh gagged her mouth and tried to forcefully lay her down and asked for sex. At that time, the police persons came there, caught hold accused Rajesh and the other three fled away. She was being taken to victim “A” and then victim “A” informed her that accused Akash has committed rape upon her. She too has narrated the incident which she suffered by the act of accused Rajesh. At that time, victim “A” did not have any clothes below her waist and the police had given Chunri to wear. Thereafter, the police took the accused Rajesh to the police Station and she along with victim “A” were sent to Sakhi Centre, Narayanpur. In the next morning, their family members came there. The police seized her

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Sleepers, Hairband, sleeper of the victim “A”, underwear and leggings from the spot. She is the witness of seizure memo Ex. P/3. In the TIP conducted at Tehsil office Narayanpur, she identified the accused persons and signed the identification memos Ex. P/4, P/5 and P/6. The police seized her social status certificate which is Ex. P/8 and its photocopy is Ex. P/8-C. She further states that the day of the incident was moonlighted in which she identified the accused persons. The depot was having sufficient light in which she identified all the four accused persons. Before the incident she was not known to the accused persons.

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In cross-examination, she stated that at the time when they were returning from Mela , the Mela was continued. Accused Rajesh was caught and held on the spot at the time of the commission of the offence by the police persons. She further states that she identified the accused Rajesh on the first occasion who was mixed with five other persons. On the second occasion, Akash and another accused were mixed with four other persons. At the time of identification, she was alone and victims “A” & “C” were not with her. She denied that the police had informed her about the accused persons. She voluntarily stated that she and her friends had identified the accused persons. She denied the suggestion that she had not identified any of the accused persons. She further reiterates that accused persons were calling each other by their names. Therefore, she knew the names of the accused persons.

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39. From the evidence of this witness, the involvement and identification of all four accused persons have duly been established that her modesty was being outraged by the accused Rajesh. At that time, two of the accused persons were guarding the situation and one accused Akash had committed rape upon victim “A”. The appellant Rajesh was caught hold by police on the spot.

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40. PW-4, Victim “C”, was also there along with Victim “A” & “B”. She also had gone with them to see the Mela . She has stated in her deposition that she identified accused persons by their faces. Out of them, she knew the appellant Akash and Rajesh by their names. Before the court, she identified Akash and Rajesh physically also. She states that 2-3 months back she along with victims “A” & “B”, Krishna and Santu had gone to see Mela at 9.00 pm. After seeing Mela at about 2:30 in the night when they were returning to their houses, near Forest Depot all the four accused persons came there, one of them caught hold of victim “A” and one other caught hold of victim “B”. The other two persons have committed Marpeet with Krishna and Santu by which Krishna and Santu fled away. The accused Akash caught hold of her hand, but somehow she could save herself and she too fled away from the spot. From the spot, she rushed to Shanti Nagar Narayanpur and informed the incident to Jailal. Jailal came to the place of the incident. At that time, Krishna and Santu also went there. In the night she took shelter in the house of Jailal and the next morning she was informed that victims “A” & “B” were kept in Sakhi Centre. When she met with victims “A” & “B”

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at Sakhi Centre, they proceeded towards police station Narayanpur. She identified accused persons in TIP conducted on three different occasions. On the first occasion, she identified Akash, on the second she identified Rajesh and on the third occasion she identified a tall person, Ujjval De. At this stage, she was declared hostile with respect to the incident of rape with victims “A” & “B” and thereafter she stated that she had not come into knowledge about the incident with victim-A & B. She had seen the incident that victims “A” & “B” were dragged towards the depot by the accused persons. In crossexamination, she admits that after coming out from the clutches of the accused, she ran towards her house. After 2-3 days after the date of the incident, she went to the Teshil office for TIP. At the time of TIP victims “A” & “B” were also there with her. About 10 persons were there in the TIP. She further admits that at the time when she was caught hold by the accused, she could not know his name as well as the other accused persons. She denied proceeding of the TIP.

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41. From the evidence of this witness also the involvement of the accused persons and their presence on the spot along with their identification has been proved, but for minor omission and contradiction, she remained firm in saying that on the date of the incident, all the four accused persons were engaged in committing offence with them.

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42. The other witness Krishna, PW-5 who was there along with the victims and returning after seeing Mela , stated in his deposition that

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she could identify one accused who snatched his mobile and held his collar and the other two were seen by him at the police station. At the time of the incident, there were four accused persons. The person who snatched his mobile is identified as Akash. He further states that 4-5 months back when he was returning from Mela along with victims “A”, “B” & “C” and Santu, at about 2:30 in the night when they reached near forest depot, all four persons came from their backside, one of them snatched his mobile and throw a torch light on his face, hold his collar and assaulted him and then he (PW-5) fled away from the spot. He informed his uncle Jailal about the incident and he along with his uncle came to the spot on his motorcycle. On the way victim “C” along with Santu met them and Santu informed them that he too was being assaulted by the accused persons. They searched the accused persons and victims, but they could not found and returned back to their house. In the next morning, he had gone to Dalli along with his father and when he returned at about 3-4 pm from Dalli to Narayanpur, the police called him and recorded his statement. 2-3 days thereafter he met with victims “A”, “B” & “C” at the police station but they did not disclose any incident. At this stage, this witness also turned hostile and thereafter he supported the case of the prosecution.

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In cross-examination, he admitted that at the time of the incident, he was having torch and mobile with him. Since there was darkness on the road, he enlightened his mobile torch. He identified

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one of the accused, but he could not identify the other three. He was unknown to the accused persons before the date of the incident.

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43. From the evidence of this witness, it has been proved that when he along with three victims and Santu Gota were returning to their houses at 2:30 in the night, all four accused persons came near the depot and committed Marpeet with him by which he fled away. He could identify one of the accused namely Akash who snatched his mobile phone. Therefore, the accused persons came together and the presence of all four accused persons at the place of the incident was proved by this witness also. Although after the assault made upon him, he fled away from the spot and could not see the further incident, but he proved the presence of all four accused persons on the spot at the time of the incident.

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44. PW-15, Dr. Geetika Sahu, who medically examined victims “A” & “B” stated in her evidence that on 28.02.2019 the victims “A” & “B” were brought before her for their medical examination. While examining victim “A”, she found that there were no external injuries on her private part, but ruptured freshly soft margin @ 6 o’clock position reddish margin. She opined that the patient (victim) had gone a recent type of sexual intercourse. No, tear found, fornical tenderness present, hymen ruptured at 6 o’clock position, fresh reddish margin found. 2 slides of her vaginal smear were prepared, sealed and handed over to the police for FSL examination and her report is Ex. P/46. On the same day, she also examined victim “B” and while examining her she could not find any external injuries on her body.

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No sign of any recent sexual intercourse was found by the doctor and her report is Ex. P/45. 2 slides of her vaginal smear were also prepared, sealed and handed over to the police for FSL examination. In cross-examination, she admits that she could not notice any external injuries on the body of victims “A” & “B”. She admits that her hymen could be ruptured by cycling. She also admits that redness on the private part could have been caused by the use of clothes during periods. At the end of the deposition of Doctor PW-15, a note has been made in reference to the order sheet dated 10.05.2022 that the reference of victim “A” in the deposition of Doctor PW-15 be treated as victim “B” and the reference of victim “B” be treated as victim “A” in the evidence of the doctor.

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45. The allegations raised by the victim “A” that she was being raped by accused Akash are corroborated by the evidence of doctor, PW-15 as injuries were found on her private part including fresh rupture of the hymen of the victim “A”.

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46. Further, in the FSL report Ex. P/48, the vaginal smear and swab were found contained with human semen and sperm i.e. Article-A, C & D which are the vaginal slides of victim-A. Further human sperm and semen were also found in Article-I which is the underwear of victim-A, which further confirms the allegation of rape by accused Akash upon her.

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47. Two defence witnesses have also been examined by the accused persons with respect to certain documents which has been issued by the incharge of the forest depot. By examining these witnesses the

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defence has tried to bring the fact on record that depot was not surrounded by any boundary wall and it was an open place accessible to common people. Even if it is so, it would not be benefited for the accused persons because it does not affect the allegations made by the victims upon the accused persons.

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48. From all this evidence, it has been proved by the prosecution that on the date of the incident at about 2:30 in the night when victims “A”, “B” & “C” along with Krishna and Santu were returning from Mela and reached near forest depot, all the accused persons came together from their backside and assaulted Krishna and Santu due to which they fled away from the spot. Accused Akash caught hold of the hand of victim “C”, but somehow, she came out from his clutches and fled away. Thereafter, the accused Akash took victim “A” inside the depot and accused Rajesh also took victim “B” inside the depot where accused Akash committee rape upon victim “A”. Accused Rajesh also tried to commit rape upon victim “B” but he could not succeed and outraged the modesty of victim “B”. The other two accused persons were guarding the situation. The accused persons were identified by the victims.

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49. The act of the appellants has been confirmed by the medical evidence in which the injuries have been found on the body of victim “A”.

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50. Section 376-D of IPC defines gang rape which reads as under:

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“Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence

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of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine”

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51. From a bare perusal of the definition of Section 376-D IPC it is quite clear that if a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished. In the present case, all four accused persons came together on the spot, one of them committed rape upon victim “A”. The other accused Rajesh outraged the modesty of victim “B” and two other accused persons namely Ujjval De and Dopesh Kumar Sahu were guarding the situation which proves their act in furtherance of the common intention to commit rape upon the victims. The ingredients of Section 376-D IPC are fully satisfied by the act of the accused persons and therefore the trial court has rightly considered the evidence available on record to hold them guilty for the commission of the offence of gang rape upon the victims.

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52. So far as the offence of Section 354 in alternative 354/34 IPC and 354-A in alternative 354-A/34 IPC is concerned, it has been charged that the accused persons have tried to outrage the modesty of victims “B” & “C”. From the evidence of victim “B” it is clear that the accused Rajesh caught hold of her; took her inside the depot, tried to remove her leggings and touched her waist and asking sex. The intention of accused Rajesh was very clear and in furtherance

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thereof, he took victim “B” inside the depot. In cross-examination, nothing could be extracted from the defence that he had not committed any offence. Likewise, victim “C” also very clearly stated that while they were returned from Mela , the accused persons came near the forest depot, the accused Akash caught hold of her hand, however, somehow she got out from his clutches and fled away. The intention of all the accused persons was clear from the evidence of Victim “C” as also from the evidence of Victims “A” & “B”. Further, in the execution of their intention the accused Akash was caught hold Victim “C”. The entire evidence led by the prosecution unerringly proved the offence of outraging the modesty of victims “A” & “B” by the accused persons either in person or with sharing common intention because out of four accused persons, two were guarding the situation in support of other two. Thus, the conviction of accused persons of the offence under Section 354 in alternative 354/34 IPC and 354-A in alternative 354-A/34 IPC are also found proved in the case.

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53. Now the other offence of Section 323 IPC is concerned, from the evidence of victims “A”, “B” & “C” as also from PW-5, Krishna, it has been proved that Krishna and Santu Gota were also present along with the victims and after being assault made by the accused persons they fled away. The assault made by the accused persons on Krishna and Santu Gota could not be rebutted in crossexamination of the witnesses and that was the reason both these persons fled away from the spot therefore the trial court has rightly

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convicted the accused persons for the offence under Sections 323 in alternative 323 read with Section 34 IPC. Likewise, for the offence under Section 506 Part-II of IPC (five counts) are concerned, from the evidence of victims “A”, “B” & “C” as also PW-5, Krishna, the offence of criminal intimidation with dire consequences has been proved by the prosecution that the accused persons asked for having sex with the victims and when they refused for the same, the accused persons have threatened them with dire consequences with the threat of their lives. Thus, the offence under Section 506 Part-II of IPC in five counts is also found proved.

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54. Since the appellants/accused persons have been found guilty of the commission of the offence of gang rape and the offence of outraging the modesty of the victims, the offence of committing aggravated penetrative sexual assault under Sections 6 and 10 of the POCSO Act are also made out against the accused persons. Further, since the accused persons have been convicted for the offence under Sections 376-D, 323, 354, 354-A, and 506 part-II IPC, the conviction of the accused persons made them liable to convict for the offence under Sections 3(2)(v) and 3(2)(v-a) of SC/ST Act for which the trial court has rightly convicted the accused persons.

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55. PW-1&2, Victim-A & B respectively, have stated in their deposition para 12 & 10 that they belong to Madia caste which comes under Scheduled Tribe community. The police seized their social status certificate vide Ex.P/8-C. The caste of victims have not been

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specifically challenged by the accused persons and defence also could not be able to rebut social status certificate of victims.

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56. From the evidence led by the prosecution as well as perusal of the police statement of the victims, and other materials produced by the prosecution, it appears that the accused persons were having knowledge that the victims belong to Scheduled Tribe community and Madia caste at the time of incident. Therefore, they have been rightly convicted for the offence under Sections 3(2)(v) 3(2)(v-a) of SC/ST Act also.

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57. The primary concern of the court is about the devastating increase in rape cases and cases relating to crime against women. Although the statutory provisions provide strict penal action against such offenders, it is for the courts to ultimately decide whether such an incident has occurred or not. The courts should be more cautious in appreciating the evidence and the accused should not be left scotfree merely on flimsy grounds. In the present case, there is sufficient evidence to hold guilty of the accused persons/appellant for the alleged commission of the offence.

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58. Thus, there is no illegality or irregularity committed by the trial court in marshalling the evidence or convicting the appellants for the alleged offences. In the result, all the appeals fail and are hereby dismissed . The appellants shall undergo the remaining part of their sentence.

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59. Let a certified copy of this order along with the original record be transmitted to the trial Court concerned forthwith for necessary information and action, if any.

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

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inder

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment of conviction and sentence dated 27.09.2022 passed by learned Additional Sessions Judge (Fast Track Special Court) (POCSO), Kondagaon in POCSO Case No. 48/2021 convicting and sentencing the appellants under various sections of IPC, POCSO Act and SC/ST Act.¶2
learned Additional Sessions Judge (Fast Track Special Court) (POCSO), Kondagaon, District Kondagaon, Chhattisgarh in POCSO Case No. 48/2021 · 27.09.2022
Prior proceeding
Written complaint lodged by complainant P.W.3 on 28.02.2019 alleging gang rape attempt upon his niece and her friends near forest depot, Narayanpur during Mela return.¶4
Prior proceeding
FIR registered by police on 28.02.2019 against accused persons for offences under Sections 376-D read with Section 511, 354-A, 506, 323, 376(3), 376-DA of IPC and Sections 6 and 10 of POCSO Act based on written complaint Ex. P/9.¶5
Prior proceeding
Medical examination of victims 'A' & 'B' conducted at District Hospital, Narayanpur by Dr. Gitika Sahu, P.W-15; vaginal slides prepared, sealed and handed over to police for FSL examination.¶5
Prior proceeding
Arrests: Akash Rajak and Rajesh Poyam arrested on 01-03-2019; Ujjval De arrested on 09-03-2019; Dopesh Kumar Sahu arrested on 11-03-2019; all medically examined.¶7
Prior proceeding
Test Identification Parade conducted by Naib Tahsildar at Tahsil Office, Narayanpur on multiple dates; victims identified accused persons vide identification memos Ex. P/1, P/2, P/4, P/5, P/6 and P/45.¶8
Prior proceeding
Charge sheet filed before Trial Court after completion of investigation against all four accused persons under Sections 376(3), 376-DA read with Section 511, 354-A, 506, 323 IPC, Sections 6 and 10 POCSO Act, and Section 3(2)(v) SC/ST Act.¶11
Prior proceeding
Trial Court framed charges against all accused persons covering IPC offences, POCSO Act offences and SC/ST Act offences as listed in para 12.¶12
Prior proceeding
Prosecution examined 15 witnesses; statements under Section 313 CrPC recorded; two defence witnesses D.W.1 Jageshwar Gandharv and D.W.2 Jagdish Chandra Nag examined.¶13
Prior proceeding
After appreciation of evidence, trial court convicted and sentenced the appellants as detailed earlier; hence these appeals were filed under section 374(2) CrPC.¶14

Rajesh Poyam @ Vikki v. State of Chhattisgarh

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Rajesh Poyam @ Vikki v. State of Chhattisgarh

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