Shatrughan Satnami Vs State of Chhattisgarh

State of Chhattisgarh, Through the Station House Officer, Police Station Civil Lines, District Bilaspur, Chhattisgarh, Civil and Revenue ,District Bilaspur, Chhattisgarh.

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---- Respondent

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For Appellant Mr. Rishi Rahul Soni, Advocate. For State Ms. Anuradha Jain, Panel Lawyer.

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Hon'ble Shri Justice Goutam Bhaduri &

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Hon'ble Shri Justice Radhakishan Agrawal C A V 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 30.01.2020 passed by the Additional Sessions Judge / First F.T.S.C. (POCSO) Judge, Bilaspur, C.G. in Special Sessions Case No.401/2015, whereby and whereunder the appellant stands convicted for the offence under Section 376 of Indian Penal Code and Section 05(i) / 06 of Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act') and considering the provisions of Section 42 of the POCSO Act,

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he has been convicted and sentenced as under:-

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	Conviction		Sentence
Under Act	Section 6 of POCSO	Imprison of Rs.1, payment	ment for life and fine 000/-, in default of of fine amount to
		undergo	additional R.I. for one
		year.

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Case of the prosecution, in brief, is that one year prior to lodging of FIR (Ex.P-1) on 08.11.2015, the present appellant committed aggravated penetrative sexual assault many times with the prosecutrix, aged about 16 years and thereby committed the aforesaid offence. Further case of the prosecution is that when the prosecutrix did not have food and was vomiting, her mother (PW-1) asked her daughter (prosecutrix), upon which, she told that the appellant, after enticing her and on false pretext of marriage, committed forcible sexual intercourse with her on many occasions. Thereafter, on treatment being given, she came to know that her daughter (prosecutrix) is pregnant. Then, on 04.11.2015, she (PW-1) along with the prosecutrix (PW-4) went to the police station and lodged oral report against the appellant, on the basis of which, FIR (Ex.P-1) has been registered against the appellant for the offence under Section 376(t) of IPC and Sections 03 & 04 of POCSO Act under Crime No.694/2015.

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During course of investigation, spot map was prepared vide Ex.P-7. After obtaining permission from mother of the prosecutrix (PW-1) as well as prosecutrix (PW-4) v ide Exs.P-2 & 3, the prosecutrix was sent for medical examination where Dr. M.S. (PW-8) conducted her

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examination and found that the prosecutrix was carrying pregnancy of eight weeks and opined that she is habitual to intercourse, referred the prosecutrix to Ultra Sonography to confirm the pregnancy and thereafter, she was referred to X-ray to determine the age of the prosecutrix and gave her report vide Ex.P-4. The accused/appellant was also sent for medical examination where Dr. V.M. (PW-10) examined the appellant and found that appellant was able to perform sexual intercourse and gave his report vide Ex.P-14. Vide Ex.P-13, a medical report was obtained from Dr. S.T. (PW-6), Radiologist, who opined that the age of the prosecutrix was between 14-16 years. Vide Ex.P-5, sonography report of prosecutrix (Article A-2) and class 6 th progress report card (Article A-1) showing the date of birth of prosecutrix as 25.11.2002 were seized. Vide Ex.P-8 Dakhil Kharij Register of the prosecutrix was seized from Mission Higher Secondary School, Bilaspur and the copy of the same has been brought on record vide Ex.P-9C showing the date of birth of the prosecutrix as 25.11.2002. Vide Ex.P-15, appellant was arrested on 06.11.2015.

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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 13 witnesses and brought on record 16 documents. In his defence, the appellant has examined none and not exhibited any

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documents in support.

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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 the prosecution has failed to prove the exact date of birth of the prosecutrix as according to PW-6 Dr. S.T., Radiologist, the age of the prosecutrix was between 14 to 16 years and if the Radiologist report is considered to be taken, then there could be gap of two years, which could have been above 18 years. He would also contend that mother of the prosecutrix (PW-1) has admitted in his evidence that on the basis of guess work, she has deposed the age of the prosecutrix, therefore, her evidence does not inspire confidence. Thus, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the aforesaid charge.

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Alternatively, he would submit that if this Court ultimately comes to the conclusion that the appellant is found guilty for the aforesaid offence, then considering the age of the appellant i.e. 25 years at the time of incident, he has no criminal antecedents and also considering the fact that appellant is in jail since 06.11.2015, the jail sentence of life imprisonment awarded to him by the learned trial Court may be reduced.

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On the other hand, supporting the impugned judgment, learned counsel for the State submits that the prosecution has been able to prove that the prosecutrix was below 18 years of age at the time of incident and from the evidence brought on record by the prosecution, the fact of committing rape by the appellant, is fully established. Therefore, the judgment of conviction and order of sentence of the accused/appellant passed by the trial Court, are strictly in accordance with law and there is no illegality or infirmity in the same warranting 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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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, the prosecution has brought on record progress report card of class 6 th (Article A-1) and copy of Dakhil Kharij Register of the prosecutrix (Ex.P-9C) showing the date of birth of the prosecutrix as 25.11.2002, which were duly proved by PW-3 V.K. Dewganan, A.G.-II, Mission Higher Secondary School, Bilaspur and PW-1 Mother of the prosecutrix respectively. Moreover, mother of the prosecutrix (PW-1) stated in examination-in-chief that at the time of incident, age of the prosecutrix was 14 years, however, in her cross-examination although admitted that she told the age of the prosecutrix approximately at the time of admission, but denied the fact that school teacher had made entry of date of birth of the prosecutrix as 25.11.2002 on his/her own mind and that prosecutrix (PW-4) herself

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stated in her statement that at the time of incident, her age was 14 years and their evidence remained unrebutted by the defence. According to statement of Dr. S.T, Radiologist, the age of the prosecutrix was between 14 to 16 years which was corroborated by the documents such as Dakhil Kharij Register of the prosecutrix (Exs.P-9C) and progress report card of class 6 th (Article A-1)} coupled with the oral evidence of prosecutrix (PW-4), her mother (PW-1) and PW-3 V.K. Dewganan, A.G.-II.

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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) mother of the prosecutrix and that of prosecutrix (PW-4) as well as V.K. Dewangan (PW-3) coupled with seized copies of Dhakil Kharij Register as also progress report card of class 6 th of prosecutrix and that appellant has also clearly admitted in his statement recorded under Section 313 of Cr.P.C. that at the time of incident, the age of the prosecutrix was 14 years , it is clear that the date of the birth of the prosecutrix is 25.11.2002 and her age was below 18 years at the time of incident and thus the prosecution has been able to fulfill the condition as mentioned in Section 94(2) of the JJ Act, 2015. Therefore, we are of the considered opinion that the trial Court, after detailed discussion of the evidence with respect to determination of age of the prosecutrix, was fully justified in holding that at the time of incident, the prosecutrix was below the age of 18 years.

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Now, the next question would be, whether or not the appellant is the author of the crime in question ?

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PW-1 mother of the prosecutrix has stated in her deposition that when prosecutrix was not feeling well and was vomiting, then she took her to hospital for treatment where she came to know that prosecutrix is pregnant and on being asked, prosecutrix (PW-4) told her that appellant, after enticing her and on the false pretext of marriage, committed forcible sexual intercourse with her on many times. Thereafter, she (PW-1) asked the appellant, but appellant told her that he did not have any information, then she along with prosecutrix (PW-4) went to the police station and lodged the FIR against the appellant. This witness was subjected to cross-examination and in cross-examination,

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she has admitted that prior to incident, she was aware of love affair between the prosecutrix and appellant. She has also admitted that before lodging the FIR, she asked the appellant to marry prosecutrix, but appellant refused to do so, then she lodged the FIR against the appellant. She has also admitted that, had the appellant agreed to marry her daughter (prosecutrix), then she would not have lodged the FIR against the appellant.

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Supporting the statement of PW-1 mother of the prosecutrix, PW-4 prosecutrix has stated in her deposition that appellant asked her to have a physical relation with him on showing false pretext of marriage, but she refused and even then, the appellant took her to godown and then near the ground situated behind ration shop, he committed sexual intercourse with her 5 – 6 times. He has also stated that after the incident, her menstruation had stopped and she did not know that stoppage of menstruation leads to pregnancy and when she told the accused/appellant about her pregnancy, the accused/appellant, upon hearing the same, told her that he does not know anything. It is also stated by her that while she was vomiting at home, at that time, her mother (PW-1) asked her, then she told her about the incident. Thereafter, she along with her mother (PW-1) went to the Doctor where she came to know that she is pregnant. In cross-examination, she admitted that she has been in love with the accused/appellant for the last one year. She also admitted that firstly appellant had established physical relations with her in the month of January or February, 2015, at that time, she had refused and even then, till 10^th June, 2015, she was subjected to continuously physical relations by the appellant. In

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para 4, she admitted that for the first time, appellant made physical relations with her behind the ration shop and again on 06.03.2015, 27.04.2015 and 10.06.2016 respectively. In this way, appellant established physical relations with her many times. She also admitted that the appellant eloped her to his aunt's house where she remained for 5 days. On 15^th June, 2015, she had gone to house of sister of appellant situated at Masturi where at the behest of family members of appellant, police took her. The defence has cross-examined this witness in detail, but could not elicit anything from this witness, which could render her evidence untrustworthy or doubtful.

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Moreover, PW-8 Dr. M.S. conducted the medical examination of prosecutrix and found that she was carrying pregnancy of eight weeks and opined that she is habitual to intercourse and referred the prosecutrix to Ultra Sonography to confirm the pregnancy and duly proved the MLC report vide Ex.P-4. Further, PW-13 Dr. A.N., Radiologist Sonographer also found that the prosecutrix was carrying pregnancy of 10 weeks, however, the evidence of these witnesses remained unrebutted by the defence during cross-examination. Furthermore, Dr. V.M. (PW-10) examined the appellant and found that appellant was able to perform sexual intercourse and duly proved his report vide Ex.P-14.

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Thus, from perusal of the above evidence coupled with the medical evidence, it is clear that the prosecutrix was subjected to penetrative sexual assault by the appellant continously and when she got pregnant, appellant refused and deserted her. The statement of prosecutrix has duly been corroborated by the statement of (PW-4) mother of the

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prosecutrix and that there is no major contradictions or omissions in the statements of the aforesaid witnesses. This apart, appellant in his statement recorded under Section 313 Cr.P.C. has admitted that there was love affair between them and they used to meet each other and when prosecutrix told him to be pregnant, appellant deserted her, which also shows that the prosecutrix was subjected to aggravated penetrative sexual assault by the appellant on many occasions. 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 record. Being so, we hereby affirm the conviction of the appellant as recorded by the trial Court.

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As regards the sentence part of appellant, considering the facts and circumstances of the case and further considering the fact that there was a love affair between the appellant and the prosecutrix for a long time and that prosecutrix did not make any complaint to any of the nearby persons while staying and travelling with the appellant and also considering the fact that FIR (Ex.P-1) has been lodged by the mother of the prosecutrix (PW-1) after delay of one year of the incident and for that no plausible explanation has been offered by the prosecution and that appellant is in jail since 6.11.2015, therefore, we are of the opinion that ends of justice would be served, if appellant is sentenced to undergo 10 years rigorous imprisonment instead of life imprisonment. Accordingly, his jail sentence is reduced to 10 years R.I. from life imprisonment for the offence punishable under Section 6 of POCSO

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Act. However, the fine sentence imposed thereunder by the trial Court

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is hereby affirmed.

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In the result, the appeal is allowed in part.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.

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

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Akhilesh / Anjani

Shatrughan Satnami v. State of Chhattisgarh

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Shatrughan Satnami v. State of Chhattisgarh

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