Sukhnandan Banjare Vs State of Chhattisgarh

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(Cr. A. No. 383 of 2018)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRIMINAL APPEAL NO. 383 OF 2018

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(Arising out of Judgment dated 17.3.2017 passed by Fifth Additional Sessions Judge/Special Judge (F.T.C.), Durg, District Durg in Sessions Case No.135 of 2015)

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Sukhnandan Banjare, S/o Prahlad Banjare, aged about 38 years, R/o Kandai, P.S. Nandini Nagar, District Durg (C.G.)

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... Appellant(s)

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Versus

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State of Chhattisgarh, through: Police Station Nandini Nagar, District Durg (C.G.)

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... Respondent(s)

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_____________________________ For Appellant	______ :-	_______________________ Mr. Prasoon Agrawal, Advocate.
For Respondent/State	:-	Mr. Sharad Mishra, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board [26.07.2024]

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Sanjay K. Agrawal, J.

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1. The present criminal appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, CrPC), has been preferred by the appellant assailing the judgment dated 17.3.2017 passed by learned Fifth

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(Cr. A. No. 383 of 2018)

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Additional Sessions Judge/Special Judge (F.T.C.), Durg, District Durg (Trial Court) in Sessions Case No. 135 of 2015, by which he has been convicted for the offence punishable under Section 376 (2) (f) & (i) as well as Section 506 (Part-II) of the Indian Penal Code, 1860 (in short, IPC) and also under Section 5 (l) & (n) of the Protection of Children from Sexual Offences Act, 2012 (in short, POCSO Act) and sentenced thereunder in the manner as mentioned in the following chart:-

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Conviction	Sentence
Under Section 376 (2) (f) & (i) of IPC and Section 5 (l) & (n) of POCSO Act.	Imprisonment for Life with fine of Rs.1000/- and in default of payment of fine, to suffer
[Note:- Clause (i) of sub- section (2) of Section 376 of IPC stands omitted by the Act 22 of 2018 with effect from 21.4.2018]	additional Three months’ Rigorous Imprisonment.
Under Section 506 (Part- II) of IPC.	Imprisonment for Five years with fine of Rs.1000/- and in default of payment of fine, to suffer additional Three months’ Rigorous Imprisonment.
Both the sentences ha concu	ve been directed to run rrently.

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2. Case of the prosecution, in brief, is that the appellant, during the period between May, 2015 to 6.9.2015 in his house situated at Village Kandai under the jurisdiction of Police Station Nandini Nagar, District Durg, committed repeated sexual intercourse/ penetrative sexual assault with his own minor daughter (PW-1), aged about 14 years and also threatened her to cause her death in case she discloses the fact of his act to anyone else, thereby committed the alleged offences.

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3. Further case of the prosecution is that the appellant has committed repeated rape/penetrative sexual assault with the prosecutrix (PW-1) in May and also in June of 2015 and about which the prosecutrix had informed to her mother (PW-2) on 3.9.2015 and thereafter PW-4, maternal uncle of the prosecutrix, was also informed about the said incident and on 6.9.2015 she lodged a written report (Exhibit P-1) at Police Station Nandini Nagar. On the basis of the written report, FIR (Exhibit P-2) was registered against the appellant and investigation was started. During investigation, statement of the concerned witnesses

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was recorded, spot map was prepared by the Police as well as Patwari vide Exhibits P-3 & P-7 respectively and the seizure of underwear (panti) of the prosecutrix (PW-1) was made vide Exhibit P-4 and similarly the underwear of the appellant was seized vide Exhibit P-13 and the arrest of the appellant was made vide Exhibit P-21. After consent of the prosecutrix, she was subjected to her medico legal examination which was conducted by PW-5 Dr. Vinita Dhurve vide Exhibit P-8. Subsequently, vide Exhibit P-5, statement of the prosecutrix was recorded under Section 164 of CrPC. Dakhil-Kharij register in respect of the age of the prosecutrix was seized vide Exhibit P-10 and a copy of the relevant page of Dakhil-Kharij register has been brought on record vide Exhibit P-11C in which her date of birth has been recorded as 4.1.2004 thereby she was found to be minor on the date of incident and for which offence under the provisions of POCSO Act was also added against the appellant. The seized underwear of the prosecutrix and the appellant were subjected to chemical examination at Forensic Science

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Laboratory, Raipur, but the FSL report (Exhibit P-22) was found to be negative.

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4. On completion of due investigation, charge-sheet was filed against the appellant. The appellant appeared before the Trial Court where charges were framed against him under Sections 376 (2) (f) & (i) and 506 (Part-II) of IPC as well as Section 5 (l) & (n) of POCSO Act to which he denied and claimed to be tried.

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5. During the course of trial, in order to prove its case, the prosecution examined as many as 8 witnesses as PW-1 to PW-8 and exhibited 22 documents vide Exhibits P-1 to P-22. After closure of the prosecution evidence, statement of the accused appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence of the prosecution, pleaded innocence and false implication. In defence, one Narendra Kumar Jangde has been examined as DW-1.

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6. After conclusion of trial, the Trial Court, by impugned judgment dated 17.3.2017, on appreciation of evidence available on record, held the appellant guilty of the offence punishable under Sections 376 (2) (f) &

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(Cr. A. No. 383 of 2018)

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(i) and 506 (Part-II) of IPC as well as Section 5 (l) & (n) of POCSO Act and accordingly convicted and sentenced him in the manner as mentioned at the chart given in paragraph-1 of this judgment, which led to filing of the present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by the Trial Court.

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7. Mr. Prasoon Agrawal, learned counsel appearing for the appellant, would submit that the relationship between the appellant and his wife (PW-2) was strained as is also evident from the statement of the prosecution witnesses including the defence witness DW-1 Narendra Kumar Jangde and therefore the appellant has been falsely implicated for the alleged offences. He would further submit that the prosecutrix (PW-1) has refused to undergo her medical examination and therefore the alleged offence of sexual intercourse is not at all established and the testimony of the prosecutrix thereby cannot be said to be reliable and trustworthy and even otherwise the FSL report has also been found negative. For these

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reasons, he would pray for acquittal of the appellant of the alleged offences on the ground of benefit of doubt.

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8. Mr. Sharad Mishra, learned Panel Lawyer appearing for the State, would however support the impugned judgment and submit that the prosecution has been able to prove the offence against the appellant beyond reasonable doubt and therefore the Trial Court is absolutely justified in convicting the appellant for the said offences on the basis of the statement of the prosecutrix (PW-1) who is a minor daughter of the appellant himself and therefore her testimony cannot be doubted as unreliable and untrustworthy. He would thus submit that the appellant does not deserve for acquittal even on the basis of benefit of doubt and the appeal is liable to be dismissed.

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9. We have heard learned counsel for parties, considered their rival submissions made herein-above and also perused the record carefully and thoroughly.

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10. First of all, so far as the age of the prosecutrix (PW-1), the fact that she was minor on the date of offence has been duly found established by the Trial Court in view of Dakhil-Kharij register (Exhibit P-11C), proved by

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PW-6 Madhuri Rajput who was In-charge Headmistress of the concerned government school, which stands undisputed. Therefore, we are of the considered opinion that the finding of the Trial Court that the prosecutrix (PW-1) was a minor girl aged about 14 years at the time of incident is correct finding of fact based on evidence available on record and the same is hereby affirmed.

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11. So far as conviction of the appellant is concerned, it is quite apparent on the face of record that conviction of the appellant for the alleged offences has been made only on the basis of the sole testimony of the prosecutrix (PW-1) as the medical examination of the prosecutrix could not be done because of her unwillingness on account of suffering from pain during her medical examination. She was subjected to her medico legal examination by PW-5 Dr. Vinita Dhurve vide Exhibit P-8 wherein though the prosecutrix was externally examined on which no external injury was found on her body, but she refused to undergo internal examination on the ground of pain during the examination and therefore

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no definite opinion could be given by the doctor in respect of the alleged sexual intercourse committed with the prosecutrix. Similarly, as per FSL report (Exhibit P-22), on forensic examination, no stain of semen and human sperm were found on seized panti (Article ‘A’) of the prosecutrix and underwear (Article ‘B’) of the appellant. Likewise, it is also the case of the prosecution that the relationship between the appellant and his wife (PW-2) was not cordial and therefore the appellant has been falsely implicated for the alleged offences.

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12. Now the question is, as to whether the Trial Court is justified in convicting the appellant only on the basis of sole testimony of the prosecutrix (PW-1).

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13. Before we dig into the said issue, it would be apposite first to take note of the fact that the relationship between the appellant and his wife (PW-2) was not a cordial one but it was strained, which finds support from the statement of almost all the prosecution witnesses including the defence witness (DW-1) as well. In this regard, the testimony of the prosecutrix (PW-1) is also worth mentioning where in paragraph-6

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of her cross-examination she has clearly admitted that the relationship between her father and mother was not good. The said fact is also found proved from the statement of PW-2, wife of the appellant, who herself has admitted in paragraph-5 of her cross-examination that there used to be frequent dispute erupted so many times between her and her husband and after the dispute she used to go and stay in her paternal home and further she has admitted that at the time of incident there were no talking terms between her and her husband. Likewise, PW-3, sister of PW-2, has also admitted that on account of dispute between her sister and the appellant, her sister (PW-2) was staying in her parental home. PW-4, brother of PW-2, also has stated in similar terms. The defence witness, DW-1 Narendra Kumar Jangde, has also corroborated the said fact stating that there used to be frequent fights between the appellant and his wife after consuming liquor and that several times he had gone to resolve the dispute between the appellant and his wife (PW-2). Thus, from the statement of the prosecution witnesses itself it is quite established that the relationship between the

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appellant and his wife (PW-2) was not healthy but strained and they were not in talking terms on the date of offence. In this regard, the decision of the Supreme Court rendered in the matter of Radhu v. State of Madhya Pradesh 1 may be noticed herein profitably wherein it has been held by their Lordships that false charges of rape are not uncommon and further it has also been held that on account of strained relationship of the victim’s mother with the accused, possibility of the accused to be involved in a false case cannot be ruled out. It was held in paragraph-6 as under:-

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“6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a “rape”, if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the

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1 (2007) 12 SCC 57

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opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, wrists, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case. ”

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14. It is not the duty of the defence to explain as to how and why in a case of sexual violation, the victim falsely implicated the accused. Prosecution case has to stand on its own legs. However great the suspicion against the accused and however strong the moral principle and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and materials on record, he cannot be convicted for an offence. The decision of the Supreme Court rendered in the matters of Tukaram

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2

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and Other v. State of Maharastra and Uday v. State

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of Karnataka 3 may be relied on in support of the above observation.

2 AIR 1979 SC 185

3 AIR 2003 SC 1639

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v. 15. Similarly, in the matter of State of HP Sanjay

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Kumar 4, the Supreme Court has held that whenever charge of rape is made, where the victim is a child, by no means it has to be treated as a gospel truth and accused person has to be convicted. Testimony of prosecutrix is to be examined and analysed in order to find out the truth and to ensure that deposition of victim is trustworthy. The law relating to appreciation of evidence of a victim of rape is too well settled to admit any denial that the evidence of victim girl stands on higher pedestal than any other witnesses. Victim is not expected to make a false allegation at the cost of her dignity, self-respect and fear of social stigma. It is, however, needless to say that the above principle of appreciation of evidence of a convict in a case of rape will apply under the facts and circumstances of each case. It is equally true that the accused must also be protected against the possibility of false implication. After taking all due precautions which are necessary, when it is found that prosecution version is worth believing, the court can rely on the evidence of victim.

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4 (2017) 2 SCC 51

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16. In the instant case, from the statement of the prosecution witnesses, it is quite established that the relationship between the appellant and his wife (PW-2) was strained and on the date of incident they were not in talking terms. Further, the incident is said to have first occurred in May, 2015 and thereafter in the month of June, 2015 as well but the prosecutrix had informed her mother (PW-2) about the incident for the first time on 3.9.2015 and thereafter FIR (Exhibit P-2) was lodged on 6.9.2015. Furthermore, the prosecutrix (PW-1) herself has refused to undergo her medical examination as per the statement of PW-5 Dr. Vinita Dhurve and which is also on record qua medico legal report (Exhibit P-8) proved by PW-8 Dr. Dhurve.

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17. In the matter of Kamal Krishna Banik @ Kamal Banik v. State of West Bengal 5, the Division Bench of Calcutta High Court has held that where the victim has refused to get herself medically examined, her refusal would surely go against the prosecution and in such a case, it would be open for the court to draw an adverse presumption to the effect that had the victim been examined medically at the earliest, there would 5 C.R.A. no. 591 of 2015, decided on 11.1.2019.

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have been no evidence of forceful sexual violation of the minor victim girl.

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18. The aforesaid principle of law laid down in Kamal Krishna Banik (supra) squarely applies to the facts of present case. In the instant case, the victim has refused to medically examined herself immediately after the FIR was lodged by her, as is evident from the medico legal report (Exhibit P-8) proved by PW-5 Dr. Vinita Dhurve. Apart from this, the strained relationship between the appellant and his wife (PW-2) has been duly proved by the prosecution witnesses. Moreover, the alleged offence is said to have first committed by the appellant in the month of May and thereafter in June of 2015 but the prosecutrix has informed her mother (PW-2) about the incident for the first time on 3.9.2016 with a delay of three months and thereafter the FIR was lodged in the matter. The forensic evidence in the instant case qua FSL report (Exhibit P-22) also does not corroborate the alleged offence. In that view of the matter, chances of the appellant has falsely been implicated for the alleged offence because of his strained relationship with his

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wife (PW-2) cannot be ruled out. The appellant as such deserves to be and is hereby acquitted of the alleged offences on the basis of benefit of doubt and it is accordingly held so.

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19. In the result, this criminal appeal is allowed . The conviction and sentence of the appellant for the offence punishable under Sections 376 (2) (f) & (i) and 506 (Part-II) of IPC as well as Section 5 (l) & (n) of POCSO Act is hereby set-aside and he is acquitted of the said charges extending him the benefit of doubt. Since he is reported to be in jail since 7.9.2015, he be released from jail at once, if his detention is not required in connection with any other offence.

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20. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and compliance, if any, at the earliest.

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Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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sharad

Sukhnandan Banjare v. State of Chhattisgarh

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Sukhnandan Banjare v. State of Chhattisgarh

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