High Court of Chhattisgarh dismissed an appeal challenging the conviction and sentence of an appellant, father of the prosecutrix, for raping his minor daughter and abducting her. The court upheld the trial court's findings.
Conviction and sentence of the appellant were upheld; criminal appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 255 of 2024
X (Father of the prosecutrix)
---- Appellant (in jail)
Versus
State of Chhattisgarh Through Chowki-Hardi Bazar, ThanaKusmunda, District-Korba (CG)
---- Respondent
For Appellant : Mr.Saurabh Dangi, Advocate For State/Respondent : Mr.Nitansh Jaiswal, Panel Lawyer
Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, CJ
05/07/2024
1. This appeal arises out of the judgment of conviction and order of sentence dated 31.10.2023 passed by the Additional Sessions Judge, FTSC (POCSO), Katghora, District Korba in Special Criminal Case No.35/2021, whereby the appellant has been convicted and
| Sl. No. |
Co | nviction | Sentence |
|---|---|---|---|
| 1. | Under 506 Par Indian Code. |
Section t II of the Penal |
RI for 2 years and fine of Rs.1000/-, in default of payment of fine to further undergo RI for 2 months |
| 2. | Under 376(3) Indian Code. |
Section of the Penal |
RI for life which shall mean imprisonment for remainder of natural life and fine of Rs.10,000/-, in default of payment of fine to further undergo RI for 6 months |
| Under 323 of t |
Section he Indian |
RI for 1 year and fine of Rs.1000/-, in default ofpayment of fine to further |
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Penal Code. undergo RI for 2 months
2. The prosecution story, in brief, is that the prosecutrix had lodged the written report (Ex.P-1) stating that the prosecutrix is eldest among her three sisters. Her father “X” is trailer driver in GTP Company. Since year 2012 the present appellant used to have forceful physical relationship with her and when she refused, he used to beat her and threatened to kill her if she will inform about the incident to anyone. In May, 2021, the prosecutrix got married and started living with her husband in Raipur, in July, 2021 the appellant brought her to his house for treatment and started pressurizing her to have physical relationship and when she refused, she twisted her right leg and assaulted her. On the basis of written complaint, FIR was registered against the present appellant for offence under Sections 376, 506 and 323 of the IPC. Spot map was prepared by the investigating officer vide Ex.P-3. Consent was obtained for medical examination from the prosecutrix and her husband vide Exs.P-4 and P-5. Class 10th marksheet of the prosecutrix was seized vide Ex.P-6. The accused was examined by the doctor vide Ex.P-7 where he was found capable to commit sexual intercourse. The appellant was arrested on 26.7.2021 vide arrest memo Ex.P-8. Dakhil kharij register of the prosecutrix was obtained vide Ex.P-10C in which date of birth of the prosecutrix has been mentioned as 4.6.2000 which was seized vide Ex.P-11. Patwari also prepared spot map vide Ex.P-13. The prosecutrix was examined by Dr.Divya
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Yadav (PW-8) vide Ex.P-14 and as per history given by her, her father (accused) 10 yrs had sexual harassment with her. He beaten her on 23.7.21. There is swelling in right foot (ankle). The doctor has opined that she is lab tested for sexual harassment. She is about 3 months pregnant. The statement of the prosecutrix under Section 164 CrPC was recorded by the JMFC, Katghora vide Ex.P20. Slides were sent to FSL for chemical examination and as per FSL report (Ex.P-23), human sperm was found in Ex.A i.e. slides seized from the prosecutrix.
3. After completion of investigation, charge-sheet was filed before the jurisdictional Court under Sections 506, 376, 323 of the IPC and Sections 4 and 6 of the POCSO Act.
4. The trial Court has framed the charges under Sections 376(2)(f)(n), 376(3), 506 Part-II and 323 of the IPC and Section 6 of the POCSO Act against the appellant.
5. In order to establish the charge against the appellant, the prosecution examined as many as 12 witnesses and exhibited 24 documents. The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.
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6. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence passed by the learned trial Court is bad in law. There is no evidence against the appellant and the case of the prosecution is based on surmises, so the appeal be allowed and the appellant be acquitted. He further submits that the learned trial Court has erred in believing the statement of the prosecutrix because there is large large number of contradictions amongst the statement of the prosecution witnesses. There is no legally admissible evidence in support of age of the prosecutrix showing her to be minor on the date of incident. Even the document i.e. birth certificate has not been taken on record which can prove the prosecutrix to be minor on the date of inciden. He also submits that no ossification test of the prosecutrix was conducted to ascertain her exact age. Thus, there is no authentic proof of age of the prosecutrix. There is delay in lodging the FIR and no plausible explanation was offered by the prosecutrix for delay in lodging the FIR. As such, the appeal deserves to be allowed and the impugned judgment deserves to be set aside.
7. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the trial Court has rightly convicted and sentenced the appellant, in which no interference is called for by this Court.
8. We have heard the learned counsel for the parties and perused the record with utmost circumspection.
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9. The prosecutrix in her 164 CrPC statement (Ex.P-20) has stated that her father drives a trailer in GTP since 2012 when the victim was a minor. On 30.05.2021 at 11 P.M. the accused had physical relationship with the victim and from time to time, when the victim was alone, he used to have physical relationship with the victim. When she refused, he used to beat her and used to threaten to kill the victim. The victim got married on May 2021. The victim started living with her husband in Raipur. The accused brought her from Raipur to Hardibazar saying that he would get her treated on 20th July, 2021 and had pressurized her to have physical relationship again as has been previously committed with her. When the victim refused to have physical relationship, he caught hold of the victim’s leg and twisted it. The accused / father of the victim girl beats her and puts pressure on her to have physical relationship.
10. The prosecutrix has been examined as PW-1. In para 1 of her statement, she has stated that she know the accused present in the Court, he is her father. Her date of birth is 04.06.2000. She has passed class 12th in the year 2017. When she was studying in class 6th , her father / accused, used to do dirty things with her and used to touch her body. They are three sisters and her mother and her father used to sleep together in one room, even at that time, her father used to do obscene acts with her at night. At that time, she was unaware of those things. When she was studying in class 6th , he used to have physical relationship with her when she was alone
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11. In para 4 the prosecutrix has stated that when she was in class 6th , she had told her mother about the accused touching her body here and there while sleeping at night. After that, when her mother was not there, the accused had physical relationship with her. At that time, when her mother came, she told her about the incident, then while scolding the accused, her mother said that you behave like this with your own daughter, do not you feel ashamed. Then the accused used to say that he is not ashamed but loves her. She had also told her maternal grandparents about the incident but they did not pay any attention. The accused used to have physical relationship with her whenever he got a chance for about 15 years.
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12. Sister of the prosecutrix (PW-7) has stated that they are three sisters in which the prosecutrix is her elder sister. Her elder sister / prosecutrix got married in May 2021. Three-four months before her sister’s marriage, her father (accused) tried to molest her, then she told her sister, then her sister / prosecutrix told that since she was 14-15 years old, her father had been having physical relationship with her. Four months after marriage of her elder sister, the accused had called the prosecutrix asking her to come home and stay here at her parents house. After the prosecutrix came to the house in the name of having physical relationship, the accused starting fighting with them and was pressurizing her to have physical relationship with her sister. Then they lodged a complaint in the police station. She had given the prosecutrix’ marksheet Article A1 to the police, which was seized by the police and seizure memo (Ex.P-6) was prepared.
13. Dr.Divya Yadav (PW-8) has stated in para 2 of her statement that after doing medical examination of the prosecutrix she found that her hymen was old torn, two fingers were entering her vagina. She had prepared two vaginal slab slides of the prosecutrix and sealed and signed the UPT kit and handed it over to the lady constable for chemical examination. In para 3, she has stated that the prosecutrix had told that she was being physically abused by her father for last 10 years and on 23.07.2021 the accused had beaten the prosecutrix, due to which there was swelling in the ankle of his right
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leg. According to her opinion, the prosecutrix was three months pregnant. She advised the prosecutrix for sonography and DNA test. The examination report prepared by her is Ex.P-14.
14. In the Indian society refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. The State of Rajasthan (AIR 1952 SC 54) were:
“The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where
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the circumstances make it safe to dispense with it, must be present to the mind of the judge...”.
15. Crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated
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in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in State of Punjab v. Gurmeet Singh (1996 (2) SCC 384) .
16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of
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the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
17. The Supreme Court in the matter of Ranjit Hazarika v. State of Assam reported in AIR 1998 SC 635 has held that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.
18. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:-
“In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be
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immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the crossexamination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in
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order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”
19. As per the statement of the prosecutrix (PW-1), In para 1 of her statement, she has stated that she know the accused present in the Court, he is her father. Her date of birth is 04.06.2000. She has passed class 12th in the year 2017. When she was studying in class 6th , her father / accused, used to do dirty things with her and used to touch her body. They are three sisters and her mother and her father used to sleep together in one room, even at that time, her father used to do obscene acts with her at night. At that time, she was unaware of those things. When she was studying in class 6th , he used to have physical relationship with her when she was alone at home and her mother was sleeping. She used to deny her father and say that you are my father, you have given birth to her, don’t do such wrong thing with her and used to scream and shout but he did not agree. The pain of the incident that happened to her at that time is still in her mind. In para 2, she has stated that she used to tell her father that you have got her mother married, do whatever you want with her, she is a daughter, why he is doing this to her. He used to have physical relationship with her in an intoxicated state and even without intoxication, he used to tie her hands and legs, used to beat her and used to say that if she do not give then who will give. The accused used to tell her that he is not satisfied with her mother, rather he is more satisfied with her.
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20. Considering the evidence of the prosecutrix (PW-1) who has specifically stated the act of the appellant, evidence of her sister (PW-7), evidence of Dr. Divya Yadav (PW-8), further considering the examination report of the prosecutrix (Ex.P-14), the material available on record and the law laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the learned Special Judge has rightly convicted the appellant for offence under Sections 506 Part II, 376 (3) and 323 of the IPC. We do not find any illegality and irregularity in the findings recorded by the trial Court.
21. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction and sentence as awarded by the Special Judge to the appellant is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed .
22. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court.
23. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha ) Judge Chief Justice
Bablu
3 issues framed by the court
Whether conviction of the appellant for sexual assault and abduction of a minor daughter is sustainable in view of prosecution evidence.
Whether the testimony of the prosecutrix requires corroboration for conviction in a rape case.
Whether the trial court committed any error in convicting and sentencing the appellant.
Colour shows how this judgement treated each authority
Rameshwar v. The State of RajasthanExplained¶40
Rameshwar v. The State of Rajasthan (AIR 1952 SC 54) · Who else cites this
State of Punjab v. Gurmeet SinghExplained¶46
State of Punjab v. Gurmeet Singh (1996 (2) SCC 384) · Who else cites this
Ranjit Hazarika v. State of AssamExplained¶50
Ranjit Hazarika v. State of Assam reported in AIR 1998 SC 635 · Who else cites this
Rai Sandeep @ Deenu v. State of NCT of DelhiExplained¶51
Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 · Who else cites this
3 provisions across 1 enactments
X
State of Chhattisgarh Through Chowki-Hardi Bazar
Ramesh Sinha
Ravindra Kumar Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
