Partly allowed

Jayant Sahu v. State of Chhattisgarh

Chhattisgarh HC2 Dec 2024CRA/558/2020

Case brief

AI extract

What is this about?

A criminal appeal against conviction of a juvenile for rape and aggravated penetrative sexual assault. High Court finds the conviction unsustainable due to negative FSL report and intact hymen, setting aside conviction under IPC/POCSO Sections 376/6, and convicting under Section 8 of POCSO Act for standing over the victim during assault.

What did the court decide?

Judgment convicted under IPC 376 and POCSO 6 set aside. Appellant convicted under POCSO Section 8 and sentenced to time already undergone in observation home.

Jayant Sahu Vs State of Chhattisgarh — Child Custody and Guardianship | Chhattisgarh HC (2024)

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2024:CGHC:47419-DB

RAHUL JHA

Digitally signed by RAHUL JHA Date: 2024.12.03 16:25:35 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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Judgment reserved on : 19/11/2024

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Judgment delivered on: 03/12/2024

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CRA No. 558 of 2020

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1 - Jayant Sahu S/o Laxminath Sahu Aged About 17 Years R/o Biranpur, Police Station Sihava, District Dhamtari, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Station House Officer, Police Station Sihava, District Dhamtari, Chhattisgarh

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... Respondent

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For Appellant : Mr. Pragalbha Sharma, Advocate For Respondent : Mr. Akhilesh Kumar, Govt. Advocate Hon’ble Smt. Rajani Dubey, Judge Hon’ble Mr. Bibhu Datta Guru, Judge

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CAV JUDGMENT

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Per Bibhu Datta Guru, J

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This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 28/08/2019 passed in Special Criminal Case No. 64/2018 by the learned Special Judge, Juvenile Court (FTC), Dhamtari, District- Dhamtari (C.G.), whereby the Child in conflict with law has been convicted under Sections 376 of the IPC & Sections 6 of the POCSO Act, however, the Child in conflict with law has been sentenced to undergo rigorous

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imprisonment for 20 years with fine of Rs. 1000/- under Section and 376 of the IPC, with default stipulation.

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The case of the prosecution in brief is that on 21/06/2018, ComplainantMamta Patel made a written report at Police Station Sihawa alleging therein that on 21/06/2018 at 11.00 am, Dhamini Sahu, elder sister of neighbor Child in conflict with law- Jayant Sahu, came to her house and told her daughter (the victim) that the Child in conflict with law calling her to play in the house, upon which the victim went to Dhamini Sahu's house. 15 minutes later at about 11.45 PM, when the Complainant went to appellant’s house to bring her daughter victim home for feeding, she saw that the Child in conflict with law had made the victim lie down on a cot in the shade of his house and had pulled down the victim's underwear up to her knees and then had climbed over the victim and inserted his penis into the victim's private parts. Seeing this she pulled her daughter off the cot and scolded the Child in conflict with law as to what he was doing such a wrong thing with the victim. She alleged that there was no one in the appellant’s house at the time of the incident, then she returned to her house with the victim. When her husband came at about 12.00 PM, she told him about the incident and also told the neighbours who advised her to report the incident.

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On the report of the Complainant, Crime No. 71/18 under Section 376 of the Indian Penal Code and Sections 4 & 6 of the POCSO Act was registered against the Child in conflict with law at Sihawa police station and the investigation was taken up. After investigation, the victim and

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the juvenile were medically examined. A visual map of the crime scene was prepared. Witnesses were examined. The undergarments of the victim and the delinquent boy were confiscated. Arrest was made and information was given to his family.

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After completion of investigation, a charge sheet was submitted before the Chief Magistrate Juvenile Justice Board Dhamtari, District Dhamtari. Thereafter, the case was received by the Special Judge, Juvenile Court for trial. Charges were framed against the child offender under Section 376 IPC and Section 6 POCSO Act.

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In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 22 documents. Statement of the Child in conflict with law was recorded under Section 313 of the CrPC in which he has pleaded his innocence and stated that he has been falsely implicated in the present case.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 28/08/2019 convicted and sentenced the Child in conflict with law as mentioned in paragraph one of this judgment. Hence, this appeal.

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Mr. Pragalbha Sharma, learned counsel for the Child in conflict with law submits that the Child in conflict with law has been falsely implicated in the present case. He further submits that there are major contradiction and omission in the statement of the prosecution witnesses. He was juvenile and he has been convicted for a period of 20 years, so looking to the reformative form of theory, the punishment is excessive and the same

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is liable to be reduced. He also submits that the medical report of the Victim does not support the case of the prosecution, therefore, the conviction of the Child in conflict with law is not sustainable.

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Mr. Akhilesh Kumar, Govt. Advocate appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the Child in conflict with law is well merited which does not call for any interference and, therefore, this appeal deserves to be dismissed.

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

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It is not dispute that the age of the Victim was about 2 ½ years on the date of incident. It is also not in dispute that the Child in conflict with law was juvenile on the date of incident.

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Since, the Child in conflict with law has been convicted under Section 376 of the IPC and Section 6 of the POCSO Act by the Trial Court, therefore, the first and foremost question arose for consideration as to whether he committed rape or aggravated penetrative sexual assault with the Victim.

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Section 376 of the IPC and Section 6 of the POCSO Act, 2012 are reproduced hereunder:-

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“Section 376.- Punishment for rape.-

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(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of

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either description for a term shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to file.

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AND

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“Section 6.- Punishment for aggravated penetrative sexual assault.-

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(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

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(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

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Admittedly, Mother (PW1) of the Victim is alleged to be only eyewitness to the incident. She has deposed in her examination-in-chief that on the date of incident, the Victim was present in the house. At around 11, Dhamini Bai (sister of the Child in conflict with law) came to her house and told that Jayant was asking the Victim to play along with her. Subsequently, Dhamini Bai took the Victim with her at her house. At about 11:45, she went to her house for feeding the Victim, where she saw that child in conflict with law, after lying the Victim on a cot and after put off his paint and underwear, was penetrating his penis inside the private part of the Victim. Seeing this, this witness dragged the Victim from the cot and came back to her house. When her husband returned from the work, she narrated the entire incident to him. She also narrated the incident to Shobhit Dhruw, Hemlal, Rambai and villagers of the village and subsequently, the matter was reported in the police station. In cross-examination at para 4, this witness admitted that the Victim

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usually went to the house of Child in conflict with law for play and during such act, when she used to pee, then Child in conflict with law and her sister used to change the clothes of the Victim. She further deposed in cross-examination that she saw that Child in conflict with law was inserting his penis inside the private part of the Victim.

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Father (PW3) of the Victim has deposed that on the date of incident, he had gone to his work. After his return, his wife told that Jayant Kumar Sahu committed rape with her. He deposed that at about 11:45, when his wife had gone to the house of Child in conflict with law for bringing the Victim, she saw that he after lying the Victim on a cot and after putting his clothes, was inserting his penis in the private part of the Victim. In cross-examination, this witness has admitted that his house is nearby to the house of Child in conflict with law. He admitted that generally the Victim plays at their house when they go to work. He denied that when the Victim used to pee there, Child in conflict with law, his sister and mother used to change her clothes, however, he admitted that sometime the Victim used to have food at their house too.

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Ramabai (PW5) has deposed in his examination-in-chief that on the date of incident, she had gone to Ward for filling the form where, Tulsibai, Premlata and many other were present there. At that time, Mamta Patel came asked them to come at the side of home. She told them that Jayant committed rape with her daughter. In cross-examination, she admitted that while Mamta patel and her husband used to go on work, then the Victim was take care of by the mother of the Child in conflict with law.

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She further admitted in cross-examination that when she had gone to the house of Mamta (Mother of the Victim) she told her that while searching the Victim, she had gone to the house of Child in conflict with law, at that time, the Victim had done pee and her underwear was being changed by the Child in conflict with law.

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Since, the mother of the Victim has categorically stated that child in conflict with law was inserting his penis into the vaginal of the Victim, who was 2 ½ years, the MLC and the observation of the Doctor is very crucial to find out the correctness of the statement.

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Dr. Smt. Asha Tripathi (PW7) has deposed in her examination-in-chief that the Victim was brought before her for medical examination. While examination, she found that the Victim was conscious and complaining of pain in perineal region. Mother of the Victim said, the Victim has passed urine 2-3 times following the said act of assault. The area around Urethra and hymen was red, swollen mild-up and pain was there on touch. Hymen was not ruptured. Two slides of Vulva were prepared for chemical examination. There was no mark of injury over the body. There was marks of Chickenpox over the body of the Victim. She opined that as Vulva was red and inflamed and there was pain on touch, it appears he has rubbed that area with firm area of his body. The MLC report of the Victim is Ex.P-10. In cross-examination, this witness has deposed that due to infection in urine, there is possibility of redness around the private part. She admitted that redness and swelling around the private part may occur due to itching also. She admitted that the

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Victim had Chickenpox marks. She admitted that if a child had chickenpox, it causes itching.

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The statement of Mother (PW1) of the Victim who stated that while she had gone to the house of Child in conflict with law in search of the Victim, he was inserting his penis into the private part of the Victim does not corroborate the MLC report because as per the MLC report of the Victim, it comes out that there was no injury over the private part of the Victim. Further, the doctor has only find redness and swelling over the private part of the Victim, which in the opinion of the Doctor, can also appear from itching too, as the Victim was suffering from Chicken Pox, therefore, there was possibility of that too. Apart from this, the Doctor (PW5) found her hymen was intact.

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Thus, the MLC report, though, shows that there was redness on the private part of the Victim, but the fact cannot be ignored that her hymen was intact and no injury was found over the private part of the body.

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The FSL report in this case is Ex.P/22. As per the report, Article-A i.e. underwear of the Victim, Article-B i.e. underwear of Child in conflict with law and Article-C i.e. Vaginal slides of the Victim do not contain human sperm. The FSL report is negative.

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From perusal of the above evidence, the statement of the mother of the Victim and MLC report of the Victim, it does not prove that the penetration was done with the Victim because the Victim was aged about 2 ½ years, if there would have penetration to some extent, then there would have definitely some injury on the private part. The hymen was

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also intact too. Therefore, the conviction of the Child in conflict with law under Section 376 of the IPC and Section 6 of the POCSO cannot be sustained. However, statement of mother of the Victim cannot be totally ignored as she had seen Child in conflict with law lying over the Victim, therefore, the conviction of Child in conflict with law, in the opinion of this Court, would fall under Section 8 of the POCSO Act and he should be convicted under Section 8 of the POCSO instead of Section 376 of the IPC and Section 6 of the POCSO Act.

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Accordingly, the judgment of conviction and order of sentence dated 28/08/2019 passed by the trial Court convicting the child in conflict with law under Section 376 of the IPC and Section 6 of the POCSO Act, 2012 is set-aside. Instead thereof, Child in conflict with law is convicted under Section 8 of the POCSO Act, 2012. The maximum sentenced has been mentioned under Section 8 of the POCSO Act, 2012 is 5 years. Child in conflict with law has already remained in observation home since 28/08/2019, therefore, he is sentenced to the period already undergone by him. He be released, forthwith, if not required in any other case.

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The appeal is accordingly, partly allowed.

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Let a copy of this judgment be sent to the trial Court concerned forthwith for compliance and further necessary action.

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Sd/Sd/(Rajani Dubey) (Bibhu Datta Guru) JUDGE JUDGE

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Rahul

Jayant Sahu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jayant Sahu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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