Hemant Kumar Mahilange Vs State of Chhattisgarh

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2024:CGHC:45571-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 33 of 2023

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Hemant Kumar Mahilange S/o Manglu Ram @ Kushu Mahilange, aged about 20 years R/o Mukta, Police Station - Jaijaipur, District Janjgir Champa Chhattisgarh

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... Appellant

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versus

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State of Chhattisgarh Through, District Magistrate Janjgir-Champa Chhattisgarh

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... Respondent

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(Cause Title taken from Case Information System)

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________________________________________________________ For Appellant : Mr. Wasim Miyan, Advocate For Respondent/State : Mr. Nitansh Jaiswal, Panel Lawyer For Objector : Mr. Gorelal Tandon, Advocate

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Digitally signed by ROHIT ROHIT KUMAR KUMAR CHANDRA CHANDRA Date: 2024.11.25 11:42:03 +0530

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________________________________________________________ Hon'ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Amitendra Kishore Prasad, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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21.11.2024

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1. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 15.11.2022 passed by the Special Judge (FTSC) Sakti, District – Janjgir-Champa (now Sakti) (C.G.) in Special Criminal Case No. 51/2020, whereby the trial Court has

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convicted and sentenced the appellant with a direction to run all

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the sentences concurrently in the following manner :

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CONVICTION	SENTENCE
U/s 450 of IPC	R.I. for 5 years and fine of Rs. 1,000/- in default of payment of fine amount, 3 months additional R.I.
U/s 6 of POCSO Act	R.I. for 20 years and fine of Rs.
	10,000/- in default of payment of fine
	amount, 1 year additional R.I.

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2. Case of the prosecution, in brief, is that complainant (PW-4), who is brother of the victim, had lodged a written complaint (Ex.P-4) at Police Station Jaijaipur, District – Janjgir-Champa (now Sakti) stating therein that on 19.11.2020 at 11.45 pm, his sister aged about 10 years was alone in the house, then Hemant Mahilange of the village, finding the his sister alone, entered the house and forcibly did wrong things with her. On the said report of the complainant, a crime was registered against the accused under Section 376, 450 IPC and Section 04 of the POCSO Act vide Ex.P-5 and investigation was taken up. During the investigation, the police statement of the victim and the statement under Section 164 Cr.P.C. from the Judicial Magistrate and the statement from the Child Welfare Committee Janjgir were recorded. After taking consent from the brother of victim vide Ex.P-6 and from her mother vide Ex.P-1, the private part of the victim was examined by Dr. Saroj Kachchhap (PW-7) and report was given vide Ex.P-2. Two vaginal slides of the victim and undergarment of the victim were seized vide Ex.P13. The

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accused was duly arrested after finding evidence of crime under the above sections vide Ex.P-16 and information of his arrest was given to his father vide Ex.P-17. During the investigation of the case, a site map of the crime scene was prepared by the police officer vide Ex.P-7 and also by the Patwari vide Ex.P-3. Seized articles were sent for chemical analysis to Regional Forensic Science Laboratory, Bilaspur vide Ex.P-18 and receipt was obtained vide Ex.P-19. The FSL report was received vide Ex.P-20 and as per the FSL report, semen spots and human sperm were found in the undergarment of the victim whereas in the vaginal slide of the victim, no human sperm was found. For ascertaining the age of the victim, a memo was sent to Headmaster of Government Primary School, Mukta, District – Janjgir-Champa (now Sakti) vide Ex.P-9 and dakhil kharij register of the concerned School was seized from Headmaster of the the said school, Harishchandra Gond (PW-6) vide Ex.P-14, wherein date of birth of the victim was mentioned as 16.04.2008 and after retaining photocopy of the same vide Ex.P-9C, original register was handed over to the concerned Headmaster.

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3. The statements of the witnesses were recorded as per their statements. After the complete investigation, the charge sheet was prepared and presented before the Court of Special Judge (F.T.S.C.) Sakti, District – Janjgir-Champa (now Sakti) (C.G.). Charges were framed against the accused under Section 450 of the Indian Penal Code and Section 6 of the POCSO Act and their contents were read out and explained to him under Sub-section 2 (j)

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of Section 376 of the Indian Penal Code. The accused denied the charges and claimed trial. The accused was examined and his statement was recorded under Section 313 of the Code of Criminal Procedure. He expressed his innocence and expressed his intention to give evidence in his defence, but no defence witness was called to testify.

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4. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 12 witnesses and exhibited 20 documents in support of its case.

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5. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 15.11.2022 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment.

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6. Learned counsel for the appellant vehemently argued that the learned trial Court has failed to properly appreciate the evidence led by the prosecution and has wrongly convicted the appellant. The prosecution failed to prove the case against the appellant beyond reasonable doubt. He further stated that the incident has been alleged to take place in day boarded light in a place where the persons have easy access, but the victim did not raise any alarm at the time of incident and when she was examined before the learned trial Court, she has not supported the case of prosecution, therefore, the conviction of the appellant is not

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proper. He also submitted that the Doctor (PW-7), who has medically examined the victim had deposed in her deposition that there was no sign of forceful sexual intercourse and also there was no internal or external injuries over the body of the victim and as per FSL report, there was no any human sperm was found on the vaginal slides of the victim, the age of the victim has also not been proved and no ossification test for determining the age has been done which makes the whole case of prosecution doubtful. Hence, the conviction is liable to be set aside.

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7. On the other hand, learned State counsel for the State/respondent submitted that the appellant has committed a heinous crime of rape against minor girl, aged about 12 years and 07 months, who is slightly mentally retarded and the same has been duly proved by the prosecution beyond reasonable doubt. He further stated that though the MLC is negative, but as per FSL report, in the undergarment of the victim, semen spots and human sperms were found. He also submitted that when the victim was shown the photograph of the accused, she had identified the accused and had specifically stated that on the date of incident, the accused had come to her house she was alone and had done wrongful act with her. As such, the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference.

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8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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9. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victims were minor?

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10. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years.

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11. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263 , the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows :

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“22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :

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“ 12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the

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Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

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(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

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(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining –

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(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

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(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

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

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(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

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and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

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(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

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(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

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(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in subrule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

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23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is

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expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.”

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12. In the present case, the prosecution has presented attested copy

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of dakhil kharij register of Government Primary School, Mukta, District – Janjgir-Champa (Ex.P-9C), in which the date of birth of the victim is mentioned as 16.04.2008. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, hence, we are of the considered opinion that the trial Court has rightly held that the date of birth of the victim is

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16.04.2008 and her age on the date of incident i.e. 19.11.2020 was 12 years 07 months.

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13. The next question for consideration before us is whether the appellant has committed rape on minor victim?

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14. In this regard, brother of the victim (PW-4) , who is also the complainant of the instant case, has stated that at the time of the incident, it was paddy harvesting season. Victim was at home and all of them had gone to the field to get paddy. When they returned home at about 11.45 in the afternoon, he saw that the accused had entered their house and when he came, the accused pushed him and ran away. When he went inside the house, he saw that the victim was not wearing any clothes and was lying on a cot. He further stated that the victim is mentally weak. He further stated that when the victim was questioned, she told that she was taking a bath and the accused forcefully took her to the room and after removing all her clothes, the accused was having sex with her. This witness further stated that when they went out to search for the accused, he was not found there. Then went to Jaijaipur police station and registered a written report of the incident vide Ex.P.-4. This witness has stated that his signature is not there on parts A to A of Ex.P.-4, on which when the first information letter Ex.P.-5 was shown to the witness, he said that his signature is there and on the contents of Ex.P.-4 being read out to him, after carefully looking at Ex.P.-4 and Ex.P.-5, he said that his signature is there on the A to A parts of the written report Ex.P.-4.

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15. In cross-examination, brother of the victim (PW-4) has admitted that he has studied upto class 10th and does not write crookedly. He has also admitted that in Ex.P.-4 and Ex.P.-5, Om Prakash is written in different handwriting. But this witness' statement is undeniable in cross-examination that his signature is there in both Ex.P.4 and Ex.P.-5. This shows that the written report Ex.P.-4 bears the signature of this witness. This witness has also admitted in cross-examination that her sister victim cannot talk properly and is also not able to understand things properly. She has also admitted that she understands a little bit only after a lot of effort is made to explain anything to her and has also stated that whenever her sister victim has to go out of the house, she does not go out without their help because she does not understand what other people say and has also admitted that victim has to take the help of her mother and another sister to take a bath. On this admission, he has stated in his own statement that as the victim was alone on the date of the incident and so was trying to take a bath herself. Thus, it is clear from the above crossexamination that the victim is not able to talk properly and has to make a lot of effort to explain anything and she is not even capable of taking a bath alone.

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16. The statement of the brother of the victim in his examination-inchief is unrefutable that on the date of the incident when they came home with paddy, the accused saw him and pushed him and ran out of the house and when this witness went inside the

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house, he saw that the victim did not have a single piece of clothing on her body and a cot was laid and on asking the victim, she told him that the accused was having sex with her after removing her clothes. Although this witness has admitted in crossexamination that he has not written in the written report Ex. P-4 that the accused was having sex and he has also admitted that the accused has done some wrong thing in the said report but what wrong thing he did is not written. But this witness has clearly stated in the main trial that the accused was having sex and has written in the written report that the accused has physical relations with the victim and this shows that the accused had physical relations with the victim on the date of the incident.

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17. Similarly, the mother of the complainant (PW-1) has also stated that on the day of the incident, the victim was alone in the house, all of them had gone to work in the field. Then the accused went to their house and forcefully raped the victim. Her daughter did not have a single piece of clothing on her body. When they returned home after work, the accused saw them and ran away. When she questioned her daughter, she told that the accused had forcefully raped her, then they reported the incident to Jaijaipur Police Station. This witness has also admitted in cross-examination that her daughter cannot go to Jaijaipur alone from the village. She needs their help to go to other villages outside the house. But she has denied the suggestion that her daughter is not able to understand if she is asked any question and has also said that her

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daughter suffers from epilepsy and is mentally a little weak. Thus, from the evidence of this witness, it appears that the victim is mentally weak and she needs the help of her family members for any work. Similarly, in cross-examination, she has also accepted that her son was the first to come from the field and that her son saw the incident. She did not see the accused running away. She has also accepted that they have two houses and behind one of the houses, there is a fence belonging to the accused's father, which is surrounded by wire and brick, on which the accused's family uses the Kolabadi and also admitted that they do not have a Kolabadi, but denied the suggestion that they asked the accused's father to leave the Kolabadi and he is not leaving it, hence filed a report.

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18. Thus, the above cross-examination of this witness proves the statement of his son (PW-4) that when they brought paddy from the field, his son came first and on seeing him, the accused pushed him and ran away. Similarly, the statement of this witness in the main examination is also uncontroversial that when he questioned her daughter, she told her that the accused had raped her forcefully. This shows that the victim had told her about the rape by the accused. Although in the police statement of this witness Ex.D.-8, it is not written that the accused had raped the victim forcefully, but there is a mention of the accused forcefully entering the house and doing wrong things with the victim. This shows that when asked by this witness, the victim told that the

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accused had raped her. It is also noteworthy that the statement of this witness is being supported by the statement of his son i.e. brother of the victim (PW-4), who has clearly stated that when they came back from work in the field, the accused pushed him and ran away and when he went inside the house, the victim told him that the accused has physical relationship with her and the mother of the victim has termed this physical relationship as rape.

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19. The father of the victim (PW-3) has stated that the incident took place last year. It was the paddy harvesting season. He was tying paddy in the field and his wife and his children were carrying it home when his younger son came to him in the field and said that his mother was calling him. Then he came home from the field and asked his wife but his wife did not tell him anything. Then he asked his son and he told that the accused had laid the bed in the room and did not tell anything. On this, this witness was declared hostile by the prosecution and when questioned, he accepted the suggestion that when he came home, he came to know that Kushu's son Hemant of Basti had entered their house and done wrong with the victim, then his wife and he reported the incident. This witness has stated in cross-examination that he does not know who went home first from the field. He has also stated that he does not know what happened with his daughter, the victim. He has also accepted that his daughter did not tell him anything and has also accepted that his wife went home first from the field, after that his son went home. Thus, it is evident from the cross-

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examination of this witness that he does not know anything about the incident and his daughter did not tell him anything. But the above suggestion given by the prosecution to this witness is unrefuted in cross-examination that when he went home, he came to know that the accused had entered their house and had done wrong with the victim. This shows that on the date of the incident, the accused entered the house of the victim and did wrong to her. It is also clear from the statement of this witness that he was tying bundles of rice in the field, which his wife and children were taking home and according to the cross-examination of this witness, his wife went home first, after that his son went home, but his son i.e., the brother of the victim (PW-4) has told that he went home first, after that his mother came and the mother of the victim (PW-1) has also told that her son went home first, after that she came home. This shows that the brother of the victim was the first to go home from the field and after that her mother came home and after that when this witness was called from the field and brought home, then he also came to know that the accused entered their house and did wrong i.e. had physical relations with the victim.

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20. Now it has to be seen whether the victim has supported the above statements of her parents and brother. In this regard, the victim (PW-2) first appeared before the trial Court on 26.08.2021 for evidence. During the main examination, when asked by the prosecution, she was answering haltingly. She was giving

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answers a little stammeringly and seemed weak in understanding. On the said date, the victim had told that she was alone in the house. Her parents, brothers and sisters had all gone to the fields, then the accused came and did something to her. Again she told that the accused did not do anything to her. On being asked repeatedly whether the accused had committed any incident with her, the witness was unable to answer and was saying that he did not do anything. On being asked again, the witness said that the accused opened her panties and inserted his penis inside her. When this witness was asked in cross-examination that how many brothers and sisters they had, she was unable to give a clear answer. Sometimes she was saying two brothers and sometimes three brothers. She was also unable to answer about the police statement, due to which she appeared mentally weak in understanding the questions. When the defense lawyer showed the photo of the accused and asked her that he did not do anything to her, she said that he did not do anything to her. On the said date, this court felt by looking at the body language of this witness that the witness was saying whatever was suggested to her and she was unable to answer properly and as per the above, she was saying in cross-examination that the accused did not do anything to her. But the statement given in the main examination of this witness remained undisputed in cross-examination that the accused had opened her panties and inserted his penis inside her.

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21. On the appearance of the victim being mentally and physically weak, the prosecution presented an application under Section-311 Cr.P.C. before the trial Court on 16.05.2022 and requested for the re-evidence of the accused in the presence of Mrs. Maria Ekka, an expert posted in the Mental Retardation/Deaf Project Office. The trial Court allowed the application and the evidence of the victim was re-recorded in the presence of Mrs. Maria Ekka, Expert Block Resource Person. On 05.08.2022, when the evidence of victim was taken in the presence of the expert, she had stated in the main examination that she knew the accused and on the date of the incident, her parents and brother had gone to the field and she was at home. Then the accused came to her house and removed her chaddi and forcibly had physical relations with her. In cross-examination, when this witness was asked that when he did force on you, did you get hurt on your back, the witness was not able to tell clearly and was saying that there was an injury on the back. Similarly, when asked in cross-examination that do you know what is Doctor, Patwari and what is called private parts, the witness was not saying anything. When asked that the accused has not done anything to you, the witness was silent and on that day also, by looking at her body language by trial Court, it seemed that she was speaking as per the suggestion being given to her and would become silent. But, her statement given in the main examination remained intact in the cross examination that the accused came to her house and after removing her panties

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forcefully raped her. Thus, looking at the body language of the victim during the evidence taken on the above mentioned two dates, the victim appeared to be mentally and physically weak. She was speaking as per the suggestion. Even in the presence of expert Mrs. Maria Ekka, the victim gave evidence as per the above mentioned suggestion. This shows that she knows the accused and the accused came to her house on the date of the incident. Although the victim was a little unable to speak and appeared to be weak in understanding, she has stated in her main examination on both the days that the accused came to her house and opened her chaddi and inserted his penis inside her. This shows that the accused had physical relations with the victim on the date of the incident.

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22. It is noteworthy that on the day of the incident when the brother of the prosecutrix (PW-4) when he came home from the field, the accused pushed him and ran away from the house and when the brother of the victim went inside the house, he saw that the victim did not have a single piece of clothing on her body. There was a bed spread on the cot and on asking, she told that the accused was having sex with her. From this, one thing is completely clear that on the date of the incident, the accused had entered the house of the victim. The victim too, on being asked repeatedly in the ourt, has told that the accused had inserted his penis inside her. The brother and mother of the victim have also stated that on being asked at home, the victim told that the accused had done

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wrong things with her. Since the victim is not able to take off her clothes, is not able to do any work by herself and on the date of the incident, there was not a single piece of clothing on her body and when the brother of the victim came home, at the same time, the accused pushed him and went out of the house of the victim. From this, it can be concluded that the accused himself had taken off the clothes of the victim and had physical relations with her.

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23. Inspector, Tej Kumar Yadav (PW-9) has also stated that on 19.11.2020, he had sent the victim to the lady doctor after filling up the examination form regarding the examination of her private parts and panties.

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24. Supporting the statement of this witness, Dr. Saroj Kachhap, Medical Officer (PW-7) has stated in her examination-in-chief that on 19.11.2020 at 8.30 p.m., female constable No. 266 Rekha Rathore of Police Station Jaijaipur brought the victim aged 10 years before her for examination. Before the examination, consent was taken from the mother, brother and the victim. In the external examination, the victim appeared healthy from the outside, her mental state was normal, her gait was normal. The denture was 7x7/7x7, her menstruation started from the age of 10 years. She told that her last menstruation was on 28.10.2020. There were no marks of injury on the external body of the victim. In internal examination, pubic hair was present, labia majora were separate, labia minora were visible, hymen was old and torn, which was in 6 o-clock position, no swelling and congestion (redness) was found.

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Abdomen was soft. Cervix and vagina were healthy. Two slides of vaginal discharge were prepared, sealed and handed over to the same lady constable, advising for chemical examination. This witness has stated in her opinion that the victim was used to having sexual intercourse. No clear opinion could be given regarding forceful rape of the victim. To confirm the rape, she prepared two vaginal smear slides and handed them over to the same lady constable for chemical test and semen test. The test report given by her in this regard is Ex.P.-2. This witness has further stated that on 19.11.2020 at 9.50 p.m., the underwear worn by the prosecutrix was brought before her for examination by lady constable Rekha Rathore (266). A cream colour stain was found on the underwear, which was circled with a blue pen. To check whether the underwear contains human semen or not, it was sealed and handed over to the same lady constable for chemical examination. This witness has admitted in crossexamination that the victim was illiterate. She has also admitted that she did not find any redness or swelling on the genitals of the victim. Similarly, she has denied the suggestion that the age of the victim must have been 18-19 years according to the denture. Thus, it is shown from the evidence of this witness that the victim was used to physical relations and there were no signs of forced rape on her body and genitals at that time and to confirm the rape, two vaginal smear slides were prepared and handed over to the lady constable for chemical test and semen test and the

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underwear worn by the victim, on which a cream colour stain was found, was circled with a blue pen and sealed for chemical test to check whether it was human semen or not, and was handed over to the same woman constable.

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25. Similarly, Inspector Tej Kumar Yadav (PW-9) has stated that during the investigation, on 04.12.2020, the seized material related to the victim was sent to the Regional Forensic Science Laboratory, Bilaspur through the Superintendent of Police, Janjgir, which is Ex.P.-18 and its acknowledgement is Ex.P.-19 and the test report received is Ex.P.-20. From the observation of the test report Ex.P.-20, it is shown that semen stains and human sperms have been found in the underwear of the victim, Exhibit-B. Thus, it is clear that semen stains and human sperms have been found in the underwear which the victim was wearing on the day of the incident. It is noteworthy that on the date of the incident, when the victim was in a naked state and her brother came home, at the same time, the accused ran away from the victim's house pushing the victim's brother and on the same day, semen stains and human sperms have been found on the underwear which the victim was wearing. This confirms the statement of the victim, the victim's brother and the victim's mother that the accused had physical relations with the prosecutrix.

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26. Thus, we are of the considered opinion that the view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and we

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are of the opinion that in the present case, the only view possible was the one taken by the learned trial Court.

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27. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict.

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28. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.

¶100

29. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 15.11.2022.

¶101

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

¶102

31. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistant of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

¶103

Sd/Sd/- (Amitendra Kishore Prasad) (Ramesh Sinha) Judge Chief Justice

¶104

Chandra

Hemant Kumar Mahilange v. State of Chhattisgarh

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Hemant Kumar Mahilange v. State of Chhattisgarh

Case brief

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