Dismissed

Pawan Kumar Verma v. State of Chhattisgarh

Chhattisgarh HC2 May 2024CRA/328/2020

Case brief

AI extract

What is this about?

Conviction appeal for rape of a 14-year-old prosecutrix under IPC Sections 376(3), 376(2), 506 Part II and Section 6 POCSO. The High Court upheld the age finding based on school records and affirmed conviction relying on the prosecutrix's testimony corroborated by medical and FSL evidence; DNA test not essential.

What did the court decide?

None granted to the appellant; conviction and sentences imposed by the trial Court affirmed.

Pawan Kumar Verma Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 328 of 2020

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Judgment Reserved on 28.03.2024

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Judgment Delivered on 03.05.2024

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Pawan Kumar Verma, S/o Hemu Ram Verma, aged about 21 Years, R/o Kathiya No.1, Police Station Kharora, District Raipur, Chhattisgarh.

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----Appellant

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Versus

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State of Chhattisgarh, Through the District Magistrate, Raipur, District Raipur, Chhattisgarh.

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---- Respondent

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For Appellant Mr. Pranjal Agrawal with Ms. Vidhi Agrawal, Advocates and Ms. Indira Tripathi, Advocate, appointed through Legal Aid. For State Mr. Atanu Ghosh, Deputy Government Advocate.

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Hon'ble Shri Justice Goutam Bhaduri & Hon'ble Shri Justice Radhakishan Agrawal

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CAV Judgment

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Per Radhakishan Agrawal, J.

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In this appeal filed under Section 374(2) Cr.P.C., the appellant has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 03.02.2020 passed by the Additional Sessions Judge / Second Fast Track Special Court, Raipur, in Special Criminal (POCSO) Case No.29/2019, whereby and whereunder the appellant stands convicted for the offence under Sections 376(3), 376(2)(<) and 506-Part II of Indian Penal Code and Section 6 of POCSO Act and sentenced as under:-

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Conviction	Sentence
Under Section 376(3) of IPC	Rigorous Imprisonment for 20 years and fine of Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months with a direction to pay Rs.10,000/- to the prosecutrix

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Under Section 376(2)(<) of IPC. Rigorous Imprisonment for 10 Since there is heavier punishment years and fine of Rs.5,000/-, contained in Section 376(2)(<) of in default of payment of fine to IPC, therefore, considering the further undergo additional higher punishment in the said imprisonment for four months Section which is also equivalent to Section 6 of the POCSO Act, he has been convicted and sentenced under the above Section of IPC

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Under Section 506-Part II of IPC Rigorous Imprisonment for 2 years and fine of Rs.1,000/-, in default of payment of fine to further undergo additional imprisonment for three months

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(All sentences are directed to run concurrently)

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Case of the prosecution, in brief, is that mother of the prosecutrix (PW-2) lodged a written report at Police Station Kharora on 07.01.2019 alleging therein that when father of the prosecutrix met with an accident, then she and the appellant went to Government Hospital, Kharora and admitted the father of the prosecutrix therein. Thereafter, on 08.01.2019 at 8:00 am, the prosecutrix, aged about 14 years, has come to the Hospital and told her mother (PW-2) about the incident to the effect that on 07.01.2019 at about 8:30 pm, the appellant came to house and told her (prosecutrix / PW-1) that her parents called her, thereupon she along with the appellant came out of the house and proceeded with the appellant on his motorcycle and on

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way to Hospital at Pathrakundi Forest, appellant suddenly stopped his vehicle and committed forcible sexual intercourse with her. Thereafter, he threatened her to life. On the basis of the written report (Ex.P-4) lodged on 08.01.2019, FIR (Ex.P-5) was registered against the appellant on 09.01.2019 for the offence punishable under Sections 376, 506 of IPC and Sections 4 & 6 of POCSO Act at Mahila Police Station, Kharora, Raipur.

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During the course of investigation, spot map was prepared vide Ex.P-7. Vide Ex.P-8, permission was obtained from the mother of the prosecutrix (PW-2) to send the prosecutrix for medical examination and thereafter, the prosecutrix was medically examined by (PW-7) Dr. P.D., after conducting examination, gave her report vide Ex.P-15 by virtue of which she opined that there was sign of forceful act of sexual intercourse. After examination, she prepared two vaginal slides and handed over to lady constable for chemical examination. The accused/appellant was also sent for medical examination. Dr. Y.K. (PW-4) examined the appellant and found that appellant was able to perform sexual intercourse and gave his report vide Ex.P-10. Vide Ex.P-9, progress report of prosecutrix for the year 2014-2015 was seized wherein her date of birth is mentioned as 12.06.2004 (14 years and six months). Vide Exs.P-12 & P-14, Dakhil Kharij Register of prosecutrix was seized at the behest of Head Master, showing the date of birth of prosecutrix as 12.06.2004. Vide Ex.P-18, vaginal slides, underwear and leggies of prosecutrix were seized. Vide Ex.P19, motorcycle of the appellant was seized and vide Ex.P-20, underwear of the appellant was seized. Seized articles were sent to FSL for chemical examination vide Ex.P-26 and as per FSL report vide

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Ex.P-26, seminal spots and human spermatozoa have been found on the seized articles marked as “A2, C & D “. Vide Ex.P-24, appellant was arrested on 09.01.2019.

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Statements of the witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court, in which appellant abjured his guilt and entered into defence by stating that he has not committed the offence.

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In order to bring home the offence, prosecution has examined as many as 11 witnesses and brought on record 28 documents. However, the appellant in his defence has examined none, but exhibited two documents i.e. Exs.D-1 & D-2.

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The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned in para-1 of this judgment.

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Learned counsel for the appellant would submit that the trial Court has not properly appreciated the overall evidence available on record for holding the appellant guilty. He would further submit that conviction of the appellant is based on the statements of PW-1 prosecutrix, PW-2 mother of the prosecutrix and PW-5 one Smt. Krishna Yadav, but their statements do not inspire confidence and untrustworthy as different story has been hatched by them, therefore, their statements are contradictory in nature. He would also submit that as a matter of fact, no such incident has happened with the prosecutrix / PW-1 as it was fabricated by PW-2 mother of the prosecutrix on the ground that appellant did not give any money for expenses and treatment of her

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husband. He would also submit that there is no chance for the appellant to commit such act as the appellant himself got her father admitted in the hospital. Lastly, he would submit that in order to confirm the seminal spots and human spermatozoa, no DNA test was conducted to show that whatever seminal spots and human spermatozoa found on the alleged articles are of the appellant or not. Therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the aforesaid charges. In support of his contention, he placed his reliance upon the decisions of Hon'ble Supreme Court in the matters of Krishan Kumar Malik vs State of Haryana¹ , Tameezuddin allias Tammu vs State (NCT of Delhi)² , Manak Chand Alias Mani vs State of Haryana³ and the decision of this Court in the matter of Chandra Prakash Kuldeep @ Chandu Kuldeep passed in CRA No.513/2020 dated 01.03.2024.

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On the other hand, supporting the impugned judgment, learned counsel for the State submits that conviction and sentence of the accused/appellant are based on the statements of PW-1 prosecutrix, PW-2 mother of the prosecutrix and PW-5 Smt. Krishna Yadav whose evidence inspires confidence and reliable and their evidence also finds corroboration from the medical evidence of PW-7 Dr. P.D. as also from FSL report (Ex.P-28), which was found to be positive, the learned trial Court has rightly convicted and sentenced the appellant which needs no interference by this Court.

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Heard learned counsel for the parties and perused the material available on record.

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1 (2011) 7 SCC 130

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2 (2009) 15 SCC 566

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3 AIR 2023 SC 5600

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The first question which arises for consideration by this Court is whether the finding recorded by the trial Court holding the prosecutrix to be below 18 years on the date of incident is correct or not.

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In order to ascertain the age of the prosecutrix, PW-1 prosecutrix has stated in her deposition that her date of birth is 12.06.2004 and she was 14 years at the time of incident and in her cross-examination, she has stated that at the time of admission in school, her date of birth was written by her parents. PW-2 mother of the prosecutrix has stated in her deposition that she does not remember the date of birth of prosecutrix, but admitted that at the time of incident, her daughter/prosecutrix was approximately 15 years. Further, one Brijlal Banjare (PW-6), Head Master of Government Primary School Kathiya No.1, District Raipur, C.G., has stated in his deposition that he had brought along with him Dakhil Kharij Register, in which, there is entry for the year 2010-2011 and at serial No.2954, the name of prosecutrix was mentioned as also the date of birth of the prosecutrix was mentioned as 12.06.2004. A perusal of record would reveal that Dakhil Kharij Register and progress report of the prosecutrix were seized vide Exs.P-12 & P-8 respectively showing the date of birth of the prosecutrix as 12.06.2004, whereas the incident happened on 07.01.2019. The defence has cross-examined PW-1 prosecutrix, her mother (PW-2) and PW-6 Brijlal Banjare in detail, but could not elicit anything them, which would render their evidence untrustworthy and doubtful.

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For determining the age, Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the JJ Act, 2015) is relevant which reads as under:-

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

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As per sub-section (i) of Section 94(2) of the JJ Act, for determination of age, date of birth certificate available from the school is an important piece of evidence in order to prove the age of the victim.

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Further, the Hon'ble Supreme Court in the matter of State of Chhattisgarh vs Lekhram reported in 2006 (5) SCC 736 has held in para 12 as under:-

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“12. A register maintained in a school is admissible evidence to prove the date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of birth are recorded in the school register by the authorities in discharge of their public duty....”

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Thus, in light of the aforesaid judgments of Hon’ble Supreme Court coupled with the evidence of PW-1 prosecutrix, PW-2 mother of the prosecutrix, PW-6 Brajlal Banjare and seized copies of Dhakil Kharij Register vide Ex.P-12C and progress report vide Ex.P-8, proved by PW-6 Brajlal Banjare, this Court is of the opinion that the trial Court, after detailed discussion of evidence available on record with respect to age of the prosecutrix, was fully justified in holding that on the date of incident, prosecutrix was aged 14 years, 6 months and 26 days i.e. below the age of 18 years.

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Now, the next question would be, whether the appellant is the author of the crime in question ?

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(PW-1) prosecutrix has stated in her deposition that she knows the appellant, her date of birth is 12.06.2004 and she was 14 years at the time of incident. She has further stated that her father met with an accident, her mother (PW-2) and brother got her father admitted in the hospital. On the date of incident, appellant came and told her that her parents cannot live without her presence and on this false pretext, he took her with him on his motorcycle. On the way at Pathrakudi village, appellant made her lie on the ground, removed her leggies and underwear and committed rape after mounting upon her. Thereafter, the accused took her again on his bike and at one place, he again committed same thing with her. She has further stated that the appellant took her again to a company where he had committed same thing, thus, the appellant had committed rape on her thrice and also threatened her to life. Thereafter, on the pretext of thirsty, she went to the house of her elder mother- Krishna Yadav (PW-5) and hid herself and told her elder mother (PW-5) about the incident. On the next day, she went to Kharora Police Station along with her elder mother and mother (PW-2) and lodged the written report against the appellant. She was subjected to cross-examination by the defence where she has specifically denied to compromise the matter. Further in para 22, she has categorically stated that whatever she has deposed in her examination-in-chief is true and correct and there is no compromise took place between them. Thus, the defence has not been able to elicit anything from her statement in order to rebut the commission of rape.

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Supporting the statement of (PW-1) prosecutrix, mother of the prosecutrix (PW-2) has stated in her deposition that on the date of incident, the accused-appellant came to the prosecutrix and took her

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along with him on his motorcycle on the pretext that her parents are calling her to the hospital and on the way to the hospital, the appellant committed rape on her and threatened as well. Thereafter, on the next day, the prosecutrix along with her elder mother had come to the hospital and apprised her about the incident. Then, they went to the police station, Kharora and lodged a written compliant against the appellant. She was subjected to cross-examination and in para 17, she has categorically stated that since incident of rape has happened with the prosecutrix (PW-1), therefore, she has lodged a written report on her free own will.

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PW-5 Krishna Yadav is the elder mother of the prosecutrix (PW-1) who has stated that on the date of incident, at about 12:00 midnight, prosecutrix came to her house and was nervous and on being asked, the prosecutrix (PW-1) told her that her father met with accident and her mother (PW-2) took him to Kharora, Hospital, at about 8:00 pm, the appellant came to her house and told her that her parents called her, then she alone accompanied with the appellant on his motorcycle to go to hospital, but on way via Pathrakundi forest, the appellant made her lie on the ground, forcibly removed her clothes and committed sexual intercourse with her and thereafter threatened her to life. She has further told that prosecutrix, on the pretext of thirsty, came to her house and asleep and on the next day, this witness (PW-5) accompanied by the prosecutrix went to the hospital and informed the incident to her mother (PW-2), then she along with PW-1 prosecutrix and PW-2 mother of the prosecutrix went to the police station and lodged the FIR against the appellant and on perusal of statement of this witness, we find that there is no reason to disbelieve her statement.

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Corroborating the evidence of above witnesses, PW-7 Dr. P.D., Senior Medical Officer, has stated that she examined the prosecutrix and during course of examination, the prosecutrix reported pain in breasts and internal organs, there were scratch marks of about 1” inch size on the prosecutrix back and waist which appeared to be around 12-24 hours. On internal examination, she found that there was redness in her vagina and there was vaginal discharge where she felt pain upon touched and her hymen were found to be torn and there was redness in edges. She opined that there was sign of forceful act of sexual intercourse which can be confirmed by the chemical test report and duly proved the MLC report vide Ex.P-15. Moreover, Dr. Yashpal Khanna (PW-4) examined the appellant and found that appellant was able to perform sexual intercourse and duly proved his report vide Ex.P-10.

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PW-8 Anwari Begum, Assistant Sub-Inspector, has stated that on the basis of written complaint (Ex.P-4) of (PW-2) mother of the prosecutrix, she lodged the FIR (Ex.P-5), sent the prosecutrix for medical examination, seized the undergarments and vaginal slides of the prosecutrix vide Exs.P-1 & P-18 respectively. Thus, she has fully supported the prosecution case.

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The Hon'ble Supreme Court in the matter of Somai vs State of Madhya Pradesh⁴ has held that once the Court believes the version of a survivor of sexual assault, that is sufficient to establish an offence punishable under Section 376 of IPC. Failure of the police to send seized articles to the forensic science laboratory would not affect the outcome in such a case.

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4 2022 LiveLaw (SC) 989

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Further, in the matter of Ganga Singh vs State of M.P.⁵ , it has been held by the Supreme Court that a victim of rape has to be given same weight as is given to an injured witness and her evidence needs no corroboration.

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Section 114-A, Evidence Act (as amended w.e.f. 03.02.2013): Presumption of absence of consent- In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d) or Clause (e) or Clause (g) of sub-section (2) of Section 376 of Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

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In the matter of Anurag Soni vs State of Chhattisgarh⁶ has observed that consent of prosecutrix obtained by the accused under Section 114A of the Evidence Act for having sexual relationship with her upon false promise of marriage does not absolve the accused of his liability of rape under Section 376 of IPC.

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From perusal of the above evidence and in light of the aforesaid judgments of Hon’ble Supreme Court, it is clear that the prosecutrix was subjected to penetrative sexual assault by the appellant and her statement has been duly corroborated by (PW-2) mother of the prosecutrix and PW-5 Krishna Yadav and there is no reason to discard their statements as there are no major contradictions or omissions in the statements of the aforesaid witnesses. This apart, from the contents of written report (Ex.P-4) & FIR (Ex.P-5) lodged by PW-1 mother of the prosecutrix, it is also evident that accused/appellant is a perpetrator of

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5 AIR 2013 SC 3008

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6 AIR 2019 SC 1857

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the crime. Perusal of medical reports of prosecutrix (Ex.P-15), proved by (PW-7) Dr. P.D., would show that there was sign of forceful act of sexual intercourse, which is a pivotal evidence and cannot be brushed aside. Further, as per FSL report vide Ex.P-26, seminal spots and human spermatozoa have been found on the seized articles marked as “A2, C & D, which shows that the prosecutrix was subjected to aggravated penetrative sexual assault by the appellant.

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As regards the contention of the appellant that no DNA report has been brought on record to confirm seminal spots and human spermatozoa found on the seized articles, are of the appellant, it is pertinent to mention here that since the law is well settled that in case of rape, the conviction can be based on sole testimony of the prosecutrix if her evidence inspires confidence. In this case, the statement of the prosecutrix inspires confidence and fully reliable. Even if it is accepted that DNA test may be a corroborative piece of evidence, then in the facts and circumstances of the case and the evidence available on record, case of the prosecution would not have become unreliable in case DNA test is not done, as the statement of the prosecutrix (PW-1) was fully supported by the PW-2 mother and PW-5 Krishna Yadav, which itself would be sufficient to infer that it was the appellant who has committed aggravated penetrative sexual assault on the prosecutrix. The medical evidence also fully supported the case of the prosecution. Thus, the trial Court, after appreciating the overall evidence and material available on record, held that it was the appellant, who committed aggravated penetrative sexual assault with the prosecutrix, which is a pure finding of fact based on the evidence available on record and the same is neither perverse nor contrary to the

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record. Being so, we hereby affirm the conviction and sentence of the

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appellant as recorded by the trial Court.

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Having gone through the judgments relied upon by learned counsel for the appellant and the principles of law laid down therein, in the given facts and circumstances of the present case, the aforesaid judgments being distinguishable on facts, are of no help to the appellant.

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In the result, the Appeal being without any substance is liable to be and is hereby dismissed.

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Sd/Sd/- (Goutam Bhaduri) (Radhakishan Agrawal) Judge Judge

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Anjani/Akhilesh

Pawan Kumar Verma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Pawan Kumar Verma v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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