Allowed

Rajesh Kumar v. State of Chhattisgarh

Chhattisgarh HC14 Jun 2024CRA/341/2018

Case brief

AI extract

What is this about?

Appeal against conviction of father for raping his minor daughter under Section 376 IPC and Sections 5 & 6 POCSO Act. Complainant grandmother turned hostile; victim admitted in cross-examination she falsely implicated her father at grandmother's instance; MLC found no injuries and no FSL report was produced. Conviction set aside on benefit of doubt.

What did the court decide?

Conviction and sentence under Section 376 IPC and Sections 5 & 6 POCSO Act set aside; appellant acquitted on benefit of doubt and directed to be released from jail forthwith.

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

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Page No. 1 of 8 IN Criminal Appeal No. 341 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 341 of 20 18

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[Arising out of judgment dated 29.01.2018, passed in Special Sessions Case No.18 of 2017 (State of Chhattisgarh v. Rajesh Kumar), by the Additional Sessions Judge/Special Judge (POCSO Act), Mungeli (C.G.)]

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Rajesh Kumar, Son of Basant Lal Chaturvedi, aged about 30 years, Resident of Village Majgaon, Police Station City Kotwali, Mungeli, District Mungeli (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through the District Magistrate Mungeli, District Mungeli (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Dheerendra Pandey, Advocate For Respondent : Mr. HAPS Bhatia, Panel Lawyer

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay S. Agrawal

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Judgment on Board (15.06.2024)

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Sanjay K. Agrawal, J

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(1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 29.01.2018, passed by the Additional Sessions Judge (FTC)/Special Judge, constituted under the provision of the Protection of Children from Sexual Offences Act, 2012 (fort short “POCSO Act”), Mungeli (CG) in Special Sessions Case No.18 of 2017, whereby he has been convicted and sentenced as under:

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Page No. 2 of 8 IN Criminal Appeal No. 341 of 2018

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Conviction		Sentence
U/s. 376 of IPC	Imprisonment Rs.1,000/- and, fine, additional months.	for life in default impriso	with fine of of payment of nment for 03
U/s. 05 & 06 of POCSO	Imprisonment	for life	with fine of
Act, 2012	Rs.1,000/- and, fine, additional for 03 months.	in default rigorous	of payment of imprisonment
[Both the sentence	s are directed to	run concu	rrently]

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(2) The case of the prosecution, in short, is that on 15.04.2017, in the night at about 10:00 PM, the accused-appellant herein has committed sexual intercourse with his daughter [victim (PW-02)], who was minor aged about less than 06 years at that time and, thereby, said to have committed offences under Section 376(2)(i) of IPC and also under Sections 05 & 06 of the POCSO Act.

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(3) The further case of the prosecution is that on 16.04.2017, grand-mother of the victim, namely, Smt. Sahbin Bai (PW-01) lodged report at Police Station Mungeli to the effect that 15 days’ prior to the date of incident, the appellant quarreled with his wifeSmt. Saraswati Bai (PW-04) and had also committed ‘marpeet’ with her, on account of which, Saraswati Bai (PW-04) alongwith her three children started residing in her paternal house at Bilaspur. On the date of offence (i.e. 15.04.2017) at about 06-07 PM in the evening, the appellant came to her (Smt. Sahbin Bai) house under the influence of liquor and quarreled with them in filthily language and, thereafter, went inside his room alongwith

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Page No. 3 of 8 IN Criminal Appeal No. 341 of 2018

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his son- Kabish (not examined). In the night, at about 10:00 PM, the appellant also took her daughter (victim) into his room and, after about one hour, she (Smt. Sahbin Bai) heard cries of the victim (PW-02), upon which, she (Smt. Sahbin Bai) tried to enquired and looked into the room of the appellant and saw that the appellant was committing sexual intercourse with the victim (PW-02), however, on account of fear of the appellant, she (Smt. Sahbin Bai) did not raise any alarm at that time, but informed about the said incident to his husband. Thereafter, in the morning at about 06-07 AM, when she asked about the same from the victim (PW-02), she also informed her (Smt. Sahbin Bai) that in the night her father (appellant herein) has committed forcible sexual intercourse with her.

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(4) On the basis of aforesaid report lodged by Smt. Sahbin Bai (PW-01), the police registered FIR (Ex.P/02) against the appellant and wheels of investigation started running, in which, nazari naksha was prepared vide Ex.P/42 and, after obtaining consent from Smt. Sahbin Bai (PW-01) vide Ex.P/01, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Pramila Dau (PW-06). As per her MLC report Ex.P/14, it has clearly been opined that no internal and external injuries were found on the body of the victim (PW-02) and it is a case of attempt of rape and further victim’s vaginal slides were also prepared and handed over to the police constable, which was seized vide

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Page No. 4 of 8 IN Criminal Appeal No. 341 of 2018

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Ex.P/09. The accused-appellant was arrested vide Ex.P/10 and sent for medical examination. MLC report of the appellant is (Ex.P/15 & P/16) and further his underwear was also seized vide Ex.P/08. Further, though the seized articles were sent for chemical examination vide Ex.P/20, but no FSL report has been brought on record for the reasons best known to the prosecution. Thereafter, statement of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 20 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offences punishable under Section 376 of IPC as also under Sections 05 & 06 of the POCSO Act, 2012 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of

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Page No. 5 of 8 IN Criminal Appeal No. 341 of 2018

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conviction and order of sentence.

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(7) Mr. Dheerendra Pandey, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences. He further submits that the appellant is innocent and has been falsely implicated in the present case. He has not committed any offence of rape with his daughter (victim) and there is no evidence available on record to connect him with the said offence. Even, the complainant, namely, Smt. Sahbin Bai (PW-01), who is grandmother of the victim (PW-02) and has lodged report in the instant case, has turned hostile in her statement before the Court and, further, view of the statement of victim (PW-02), it is quite clear that she is a tutored witness. Learned counsel also submits that though vaginal slides of the victim and underwear of the appellant were seized and sent for chemical examination, but no FSL report has been brought on record. The medical evidence is also negative in the present case for the reason that as per MLC report of the victim (Ex.P/14) no internal and external injuries were found on the body of the victim and it is a case of attempt to commit rape on her. Hence, the appellant is liable to be acquitted of the said charges/offences in question and the present appeal deserves to the allowed.

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(8) Per-contra , Mr. HAPS Bhatia, learned State counsel would submit that prosecution has been able to prove the offences

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Page No. 6 of 8 IN Criminal Appeal No. 341 of 2018

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beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statements of prosecution witnesses coupled with other evidence available on record, the trial Court has rightly convicted the appellant for the offences mentioned herein-above and, therefore, the appeal is liable to be dismissed.

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(9) 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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(10) In the instant case, it is the case of the prosecution that grand-mother of the victim, namely, Smt. Sahbin Bai (PW-01) lodged complaint/report against the appellant herein alleging that 15 days’ prior to the date of incident, the appellant quarreled with her daughter (wife of the appellant), namely, Smt. Saraswati Bai (PW-04) and also committed ‘marpeet’ with her, pursuant to which, Smt. Saraswati Bai (PW-04) alongwith her three children started residing in her parental house at Bilaspur (i.e. house of the complainant- Smt. Sahbin Bai) and, on the date of offence, in the evening at about 06-07 PM, the appellant under the influence of liquor came into her house and started quarreling in filthily language and, thereafter, went inside his room alongwith his sonKabish (no examined) and, further, in the night between 10-11 PM, the incident of sexual assault/intercourse with the victim (PW-02) at the instance of the appellant occurred. However, Smt.

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Page No. 7 of 8 IN Criminal Appeal No. 341 of 2018

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Sahbin Bai (PW-01) in her statement before the Court has clearly turned hostile and did not support the above-stated case of the prosecution at all. Even otherwise, a bare perusal of the statement of the victim (PW-02) would show that in Para-05 of her crossexamination, she has clearly admitted that her father (appellant herein) has not committed sexual intercourse with her, indeed, she stated that at the instance of her grand-mother [Smt. Sahbin Bai (PW-01)], she has falsely implicated her father (appellant herein) in the present case. As such, it can safely be held that the appellant herein has been falsely implicated in the present crime and that he has not committed any of the offences alleged against him, more particularly, when the medical evidence is also negative in the present case. As per MLC report of the victim (Ex.P/14), it has clearly been opined that no internal and external injuries were found on the body of the victim (PW-02) and it is a case of attempt to commit rape, which is duly proved by the statement of Dr. Pramila Dau (PW-06), who has medically examined the victim (PW02). Further, in the instant case, though vaginal slides of the victim and underwear of the appellant were seized vide Ex.P/09 & Ex.P/08 respectively and sent for chemical examination vide Ex.P/20, but no FSL report has been brought on record for the reasons best known to the prosecution and it is not clear whether any stains of human sperm/semen are present on the said seized articles. In absence of which, the appellant herein cannot be held

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Page No. 8 of 8 IN

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Criminal Appeal No. 341 of 2018

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guilty for having committed offence of rape with the victim (PW02).

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(11) In that view of the matter, we are unable to hold that the appellant herein is guilty for the offences under Section 376 of IPC as also under Sections 05 & 06 of the POCSO Act and the learned trial Court is absolutely unjustified in convicting him for the said offences. Accordingly, the conviction and sentence of the appellant for offences under Section 376 of IPC as also under Sections 05 & 06 of the POCSO Act, awarded to him by the learned trial Court, are hereby set aside. He is acquitted of the said charges on the basis of benefit of doubt. He is reported to be in jail, therefore, we direct that he be released from jail forthwith, if not required in any other matter/crime.

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(12) Consequently, this criminal appeal is allowed. No cost.

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(13) Let a certified copy of this judgment alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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s@if

Rajesh Kumar v. State of Chhattisgarh

Case brief

What is this about?

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Rajesh Kumar v. State of Chhattisgarh

Case brief

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