Mithlesh Singh Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 266 of 2021

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Mithlesh Singh S/o Bipat Singh, Caste Gond, Aged About 27 Years R/o. Village Dindo, Bansapara, Police Chowki Dindo, Police Station Trikunda, District Balrampur - Ramanujganj. (C.G.) ---- Appellant

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Versus

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State Of Chhattisgarh Through - Police Station Trikunda, District Balrampur - Ramanujganj. (C.G.) ---Respondent

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For Appellant Mr. Ram Narayan Sahu, Advocate along with Mr. Santosh Bharat, Advocate. For State Mr. Devesh G. Kela, P.L. for the State.

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Hon'ble Shri Goutam Bhaduri and

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Hon'ble Shri Radhakishan Agrawal, JJ. Judgment on Board

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(23.07.2024)

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Per, Goutam Bhaduri Judge

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The present appeal is against the judgment of conviction and order of

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sentence dated 27.01.2021 passed by the learned Additional Sessions

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Judge / Special Court (POCSO / FTC), Ramanujganj, District -

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Balrampur (C.G.) in Sessions Trial No.26/2018, whereby and whereunder the appellant stands convicted and sentenced as under:-

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Conviction	Sentence
Under Section 363 of Indian Penal Code	R.I. for 5 years and fine of Rs. 5,000/- in default of payment of fine amount 3 months Additional R.I.
Under Section 366 of Indian Penal Code	R.I. for 5 years and fine of Rs. 5,000/- in default of payment of fine amount 3 months Additional R.I.

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Under Section 6 of POCSO	R.I. for	Life and fine of Rs.
Act.	10,000/-	in default of payment
	of fine	amount 6 months
	Addition	al R.I.

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(All sentences are directed to run concurrently)

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Case of the prosecution, in brief, is that the mother of the prosecutrix (PW-1) made a written report that her daughter / prosecutrix is missing since 16.05.2018, then on a disclosure after an hour that the girl was seen in the company of the present appellant, the family members started searching for her. On a report of mother of victim, F.I.R. (Ex.P13) under Section 363 IPC was registered. Subsequently, on 15.06.2018, having came to know that victim is at Jaipur, Rajasthan, the seizure (Ex. P-1) was prepared and statement of the victim was recorded wherein she disclosed that she came in contact with the appellant and at his instance, she went along with the appellant to Rajasthan and they performed marriage there. She further stated that the appellant has committed sexual intercourse with her. The report narrates that she used to be kept in lock and when the appellant used to come back from the job, the lock was made to open. The statement of the other witnesses were also recorded and the undergarments of both the appellant and victim were seized and also both of them were subjected to medical examination and after that, the charge-sheet was filed.

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The accused-appellant abjured the guilt and claimed to be tried. The prosecution has examined as many as 11 witnesses and exhibited 23 documents. The learned Sessions Judge, after evaluating the facts and evidence available on record, convicted and sentenced the appellant as mentioned in paragraph 1of this judgment. Hence this appeal.

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Learned counsel for the appellant would submit that no case is made out either under Sections 363 or 366 of IPC and the offence under Section 6 of POCSO Act is completely negated by the evidence, which is adduced by the prosecution, therefore, because of the ambiguity of the facts, the benefit of doubt should have been given to the appellantaccused. Thus, the judgment of conviction and order of sentence is liable to be set aside.

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Per contra, learned State counsel would submit that the statement of the victim is clear on the fact that she was subjected to sexual intercourse. It is further submitted that the statement of the victim would be admissible and the age of the victim has been proved to be below 18 years. Consequently, no defence is there to show that the victim was more than 18 years and the evidence of mother of prosecutrix and the Dakhil Kharij register would go to show the date of birth of the victim was 16.10.2004 and the incident happened on 16.05.2018, therefore, it is clear that victim was below 18 years at the time of incident. Consequently, the impugned judgment of conviction is well merited, which do not call for any interference.

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

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The FIR is Ex.P-13 which was lodged by PW-1(B), mother of prosecutrix, according to her, on the date of incident, she along with husband and her daughter (victim) went for collection of Tendu leaves at the forest and when they came back in the afternoon, the victim was sleeping and at about 5:00 to 4:00 in the evening, she was not found and one of the villagers told that she was seen in the company of the

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appellant. Consequently, she made a report vide Ex.P13. In the crossexamination, the witnesses states that she does not know what was written in the F.I.R., but she has put her thumb impression on that. On a suggestion given to the mother PW-1 that the victim was admitted at the age of 10 to 12 to school and because she was little bit over age as such she was admitted directly in class II. In response to it, she volunteered that victim was admitted by her father, but father (M.S.) has not been examined by the prosecution. She further stated that the date of birth in the school register was written on assumption and no birth certificate was placed as it was not prepared. She further stated that she herself not seen the victim along with the appellant. The headmaster of the school PW-4 (S.S.P.) has proved the Dakhil Kharij Register, which is marked as Ex. P-5C, it shows that the date of birth of the victim was written as 16.10.2004 and it was of Class II. On a suggestion given to her mother that victim was directly admitted to class II, because of which, she was aged about 10 to 12 years, the witness denied the same and further gave his opinion that normally the at the age of 7 to 8, the children are being admitted to the school. The statement of the mother PW-1, she stated that she had denied the suggestion that victim was directly admitted to Class II. PW-4 Head Master stated that he only got the victim admitted in Class II. Therefore, the doubts creeps in as to when she was admitted to Class I, what was the date of birth which was recorded at the first instance of admission as the birth certificate admittedly was not produced. Mother PW-1 further says that the father got the victim admitted, but the father has not examined, therefore, with respect to the date of birth, no cogent evidence with certainty was brought by the prosecution on record to

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arrive at a conclusion that with certainty, the date of birth of the victim was 16.10.2004.

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According to the victim PW-2, she stated that she was born in 2004 and in the cross-examination, she stated that she was admitted in the school at the age of 8 and the date of birth which was written is correct. It is not clear before us as to in which class victim was admitted as Dakhil Kharij register is only of class II. Even otherwise, if it is considered that she was admitted at the age of 8 in the school and the Dakhil Kharij Register of Ex.P5 is of 2011, then presumption would follow that she was admitted in the year 2010 at the age of 8 and date of of incident is 16.05.2018, which takes the age to around 16 years. It is a settled law that in case of any oscillating circumstances, the circumstance which favours the accused should have been accepted.

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Be that as it may, even if the age of the victim is taken to 16 years, then also she falls below 18 years, which takes us to the statement of the victim/PW-2. According to the statement of victim, she eloped with the appellant prior to 2 to 3 years. Her statement was recorded in Court in the year 2018. When her statement was recorded in December 2018 before the court and makes a statement that she eloped with appellant 2-3 years back how the document subsequent (F.I.R.) Ex. P-13 came to be lodged in 2018, comes under the cloud.

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The statement of the victim would show that the appellant called her on phone and she went thereafter along with the appellant to Jaipur, Rajasthan. She in her cross-examination stated that she had not disclosed any fact about the offence to anyone except the police. She denied her statement to be given under Section 164 of Cr.P.C., which is

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Ex.P-44. To test the veracity of the statement of the victim, we went through the statement of victim which was recorded under Section 164 Cr.P.C. before the Magistrate on 22.06.2018 wherein she stated that on the assurance of the appellant she went along with the appellant and she further stated that she wanted to marry him. At para 9, victim categorically stated that she went along with the appellant on account of love affairs. She further disclosed that she has not disclosed about sexual assault to anyone, but the mother of the victim has denied the same. After the F.I.R. was lodged, victim was recovered on 15.06.2018 vide Ex.P-1 Baramdi Panchnama . The date is written on 15.05.2017 and at the bottom, the signature is of 15.06.2018 and if we compare this document with the statement of Victim PW-2, Para 2 she stated that 2-3 years back, she went away with the appellant to Rajasthan and her statement was recorded in the month of December, 2018, this fact, therefore, creates a doubt about real happening of time.

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Apart from the said fact, subsequently on itself 18.06.2018 undergarments were recovered. PW-10 I.O. (N.P.) at paragraph 3 categorically stated that the recovery of the undergarments were made vide Ex. P-3 which she was wearing at the time of incident i.e. the time of sexual assault. The doctor who examined the victim is PW-9 Dr. K.R., she found no injury on her body or private part. The pregnancy test was found to be negative and no definite opinion was given about the rape vide Ex. P-11. The undergarments which were seized by the prosecution was sent for FSL and the FSL report is Ex. P-22. The FSL report is in negative both in respect of the undergarment seized that of the victim as also the accused has no spermatozoa was found. When according to PW-10, the undergarment was seized from victim to relate

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it to say, she was wearing at the time when the incident happened, then the FSL should been positive, but otherwise it did not support the prosecution.

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The Supreme Court in the matter of .Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61 : 2011 SCC On Line SC 869 at page 138 has held in paras 31 & 32 which read as under:-

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"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences.

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Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the appellant.

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The statement of the victim would show that she was in love affair and

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though the statement have been made that she was subjected to penetrative sexual assault, but it is not supported either by medical evidence or by FSL. The age of the victim also appears to be ambiguous and it has not been properly proved to ascertain the exact

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age. The fact that the victim was recovered at Rajasthan vide Ex. P-1 along with appellant, we are of the view that though the penetrative sexual assault was not proved beyond the doubt, but enticing away the girl from the lawful guardianship is proved. Consequently, in view of the above aforesaid discussion, we are of the view that the conviction of the appellant under Sections 363 and 366 of IPC are maintained, however, the conviction of the appellant made under Section 6 of the POCSO Act has not been proved beyond reasonable doubt.

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In the result, the appeal is allowed in part. The appellant is reported to be in jail since from last 6 years. Therefore we direct that he be released from jail forthwith, if not required in any other matter/case.

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Sd/- Sd/-

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(Goutam Bhaduri) (RadhakishanAgrawal) Judge Judge

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Vaibhav

Mithlesh Singh v. State of Chhattisgarh

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Mithlesh Singh v. State of Chhattisgarh

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