Dismissed

Raju Sahu v. State of Chhattisgarh

Chhattisgarh HC21 Jul 2024CRA/588/2024

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal by an appellant convicted of kidnapping and raping a minor. The court upheld the conviction, accepting the High School Certificate mark-sheet as proof of the minor's age and finding the prosecutrix's testimony credible despite the absence of forensic evidence. Appeal dismissed.

What did the court decide?

Appeal dismissed; appellant shall undergo remaining part of the sentence.

Raju Sahu Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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2024:CGHC:26586-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 588 of 2024

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Raju Sahu Aged About 24 Years S/o Late Shri Gautam Sahu R/o Tahsilpara, Bijapur, Police Station And District- Bijapur, C.G.

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... Appellant

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versus

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State Of Chhattisgarh Through Station House Officer, Police Station Bijapur, DistrictBijapur, C.G.

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... Respondent

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(Cause-title taken from the Case Information System)

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For Appellant : Ms Nirupama Bajpai, Advocate For Respondent/State : Shri Shakib Ahmed, Panel Lawyer

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Hon'ble Shri Ramesh Sinha, Chief Justice

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& Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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Per Ravindra Kumar Agrawal, J. 22.07.2024

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1. This Criminal Appeal has been preferred by the appellant under Section 374 (2) of the Criminal Procedure Code against the judgment of conviction and order of sentence dated 01-02-2024 passed by the learned Additional Sessions Judge, (Fast Track Court), South Bastar, Dantewada, in Special Sessions Case (POCSO) No. 39/2023, whereby the appellant has been convicted and sentenced in the following manner :-

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Conviction	Sentence
Under Section 363 of the IPC	RI for 3 years and to pay fine of Rs.500/- with default stipulation
Under Section 366 of the IPC	RI for 3 years and to pay fine of Rs.500/- with default stipulation
Under Section 4(2) of the Protection of the Children from Sexual Offences Act, 2012	RI for 20 years and to pay fine of Rs.1,000/- with default stipulation All the sentences to run concurrently

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2. The case of the prosecution in brief is that on 31-05-2023, the mother of the prosecutrix lodged a written report (Ex. P-1) to the Police that she is employed as Asstt. Constable and has posted at New Police Line, Bijapur. On 30-05-2023 at about 7.00 pm, when she returned after her duty, she could not find her minor daughter in the house. Her younger son has informed her that she has not returned from hospital. At about 9.00 in the night, she(victim) returned and went for a sleep. On the next day at about 7.00 am she went on her duty and at about 12.00 noon, when she returned back to her house, her daughter informed about the incident that the appellant has taken her to village-Naimed and thereafter, to village-Mingachal Mela. When they reached Mingachal, no Mela was running there and thereafter he took her to Tumnar Pendrapara Jungle and committed rape upon her, and thereafter, left her at Bijapur hospital chowk. On the basis of written report of mother of the prosecutrix, the FIR Ex. P-2 was registered against the appellant for the offence under

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Section 363, 376 of I.P.C. and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter, called as ‘POCSO Act’).

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3. The prosecutrix was sent for her medical examination to the District Hospital, Bijapur, where Dr. Gitendra Nag, P.W. 4 has examined her and gave her report Ex. P-8 and P-9. During her medical examination, one abrasion was found on her back which was in irregular shape. After her examination, the doctor has opined that definite opinion regarding sexual assault can’t be given. Two slides from her vaginal swab were prepared, sealed, and handed over to the Police for FSL examination. The vaginal slides were seized by the Police vide Ex. P-10. The spot map Ex. P-15 has been prepared by the Police and Ex. P-25 was prepared by the Patwari. Mark-sheet of the prosecutrix of the High School Certificate Examination was seized by the Police vide seizure memo Ex. P-4, in which her date of birth is mentioned as 01-07-2007. The mark sheet of High School Certificate Examination is Ex. P-5(C). One motorcycle and its RTO documents have been seized vide seizure memo Ex. P-12. The appellant has been arrested on 01-06-2023 and he too was sent for his medical examination to the District hospital, Bijapur, where Dr. Komal, P.W. 3 has examined him and gave his report Ex. P-7. After examining the appellant, the doctor has opined that he could not suggest that person can not perform sexual intercourse in ordinary course of life. The vaginal slides of the prosecutrix, her undergarments, semen slides of the appellant and his underwear were sent for FSL examination to the Regional FSL, Ambikapur, from where report Ex. P-24 was received.

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According to the FSL report, no sperms or Semen were found on the sent articles. During the investigation, statement of the prosecutrix was recorded under Section 164 of the Cr.P.C. The statement of the witnesses under Section 161 of the Cr.P.C. have also been recorded and after completion of investigation, the Police have filed charge-sheet against the appellant before the learned Trial Court for the offences under Sections 363, 376 of the I.P.C. and Section 4 of the POCSO Act, 2012.

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4. On 21-07-2023, the learned Trial Court has framed charges against the appellant under Sections 363, 366, 376(3) of the I.P.C., and Section 4(2) of the POCSO Act. The appellant abjured his guilt and claimed trial.

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5. In order to prove the charges against the appellant, the prosecution has examined as many as 7 witnesses. Statement of the appellant under Section 313 of Cr.P.C was also recorded in which he denied the material appearing against him and pleaded innocence and has submitted that he has been falsely implicated in the offence.

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6. After considering and appreciating the evidence available on record, the learned Trial Court has convicted the appellant and sentenced him as mentioned in para-1 of this judgment. Hence, this appeal.

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7. Learned counsel for the appellant would argue that the appellant is innocent and has falsely been implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove its case beyond any reasonable doubt. There is no legally

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admissible evidence regarding the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of the author of the School Admission and Discharge Register, the same cannot be taken into consideration for determination of the age of the prosecutrix. No Kotwari Register or ossification report is produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having love affair and she herself accompanied the appellant and had gone to visit the places. She herself, with her own intent, has made physical relation with the appellant and has made no complaint to anyone. She left her house on her own will and made physical relation with the appellant with her own consent. Prosecutrix was fully grown-up girl and was a consenting party on the date of incident. No complaint has been made by her to anyone regarding forceful sexual intercourse, or any misrepresentation. Hence, the offence of the I.P.C. and POCSO Act,2012, are not made out against the appellant, and he is entitled for acquittal.

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8. On the other hand, the learned counsel for the state opposes the argument advanced by the learned counsel for the appellant and submitted that the prosecutrix was minor, and below 18 years of age at the time of incident, which is proved by her High School Certificate examination mark-sheet, which is the authentic document of her date of birth, containing date of birth of the prosecutrix as 01-07-2007. Since the

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prosecutrix was found to be minor, her consent, if any, would not absolve the appellant from his liability. Therefore, there is no illegality or infirmity in the finding of the learned trial court. Minor prosecutrix was abducted by the appellant and kept her away from the lawful guardianship of her parents, and committed rape upon her. Therefore, the impugned judgment of conviction and sentence needs no interference.

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9. We have heard the learned counsel for the parties and perused the record carefully.

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10. Regarding age of the prosecutrix, prosecution has mainly relied upon the High School Certificate examination mark-sheet. The prosecutrix (P.W. 2) has stated in her evidence that her date of birth is 0107-2007. In her cross-examination, defence could only put the question that except her mark-sheet, she has not produced any other document with respect to her date of birth. She denied that at the time of incident, she was major.

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11. P.W. 1, mother of the prosecutrix has also stated that date of birth of her daughter is 01-07-2007. She has produced her daughter’s mark sheet of High School Certificate examination before the Police, which is Ex. P-5(C). She also has been cross examined, in which she stated that except the mark sheet, no other document has been produced by her with respect to date of birth of the prosecutrix.

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12. P.W. 5, the Investigating Officer has also stated that she has seized the mark-sheet of the prosecutrix of her High School Certificate examination, which has been produced by the mother of the prosecutrix. She further stated that she has not seized her school record, Patwari Panji or birth certificate.

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13. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police , reported in 2023 (SCC Online) SC 846, Hon’ble Supreme Court has held in para 14 to 16 as under :

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“14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon

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the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

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In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

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“20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in

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the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.”

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Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that:

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“Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3) (a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of

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birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

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14. In the present case, the High School Certificate examination mark-sheet issued by the recognized Board is a primary document which is issued in discharge of official duty, and therefore, the learned trial court has considered the same as an admissible document to determine age of the prosecutrix and we also in agreement with the finding of the learned trial court that on the date of incident, prosecutrix was less than 18 years of age, which is proved by the prosecutrix P.W. 2 and her mother P.W.1.

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15. So far as allegation of rape is concerned, prosecutrix (P.W.2) has stated in her deposition that on the date of incident she had gone to meet her cousin brother. While she was returning, the appellant met her on the way and asked her to go with him to enjoy cold drink and then she went along with him. After having the cold drink, he took her to visit Mela, since Mela was not running there and therefore, he took her towards jungle and has committed rape upon her. Despite her protest, he did not stop. In the night, he dropped her at her house and went away. On the next day, when her mother returned from her duty, prosecutrix informed about the incident, and then report has been lodged. In cross examination she stated that she had gone with the appellant to drink cold drink from where the appellant took her to visit Mela. In her cross examination, she stated about the efforts made by her to save herself and said that she received injuries over her back. From the evidence of

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the prosecutrix, nothing has come on record so as to disbelieve her evidence that she was not kidnapped and subjected to rape by the appellant. Even if she did not object while going with the appellant on his motorcycle, that itself would not suggest her consent because of the reason that she was found to be minor on the date of incident and below 18 years of age. The defence could able to extract nothing from this witness to disbelieve her evidence.

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16. The P.W. 1, mother of the prosecutrix, has stated in her deposition that on the date of incident, when she returned from her duty, she asked about her daughter and when she was about to proceed for her search, she returned back in tiresome condition and after having her bath, she went for sleep. On the next day, she informed her mother about the incident of rape upon her by the appellant, then she lodged the report. She also supports that the prosecutrix has informed about the incident to her.

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17. P.W. 4, Dr. Gitendra Nag, who medically examined the prosecutrix, has stated in her deposition that she examined the prosecutrix on 31-052023 and after her examination, she found abrasion on her back. At the time of her examination, she disclosed about the incident that appellantRaju Sahu has committed rape upon her in the jungle. Two slides of her vaginal swab have been prepared and given it to the Police for FSL examination. In her cross-examination, she admitted that during the forceful sexual intercourse, the victim may have received

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redness/swelling/abrasion on her body and there must be visible signs of protest but she has not found any such sign on the body of the prosecutrix while her examination.

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18. The prosecutrix P.W. 2 has stated in her evidence that while she was subjected to rape by the appellant, she received injury on her back which is supported by medical evidence of the doctor, who medically examined her and found abrasion on her back. She remained firm in saying that the appellant took her to drink cold drink, from where she was being taken towards Mela and then towards jungle and has committed rape upon her at jungle. Doctor Komal, P.W. 3, who medically examined the appellant has not found any abnormality in him that he is unable to perform sexual intercourse.

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19. Further, absence of the semen or sperms in the vaginal swab of the prosecutrix as reported in FSL report Ex. P-24, does not affect the credibility of the prosecution case because of the reason that the mother of the prosecutrix P.W. 1 has stated in her deposition that in the night, when the prosecutrix returned back to house, she took bath and went for sleep. That might be the reason that sperms and semen are not found on her vaginal swab.

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20. In the matter of Santosh Prasad Vs. State of Bihar , reported in 2020 (3) SCC 443, the Hon’ble Supreme Court has held that conviction can be made on the sole testimony of the prosecutrix. In para- 5.4.3, the Hon’ble Supreme Court has held that :

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“5.4.3 In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.”

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21. Considering the entire evidence available on record, this court is of the opinion that the learned trial court has rightly assessed the evidence available on record, and found the appellant guilty of the alleged offence of kidnapping and committing rape of a minor girl i.e. the prosecutrix. We do not find any infirmity in the impugned judgment to interfere with the same. The evidence of the prosecutrix inspire confidence upon the court and the conviction of the appellant can be based on it.

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22. For the forgoing reasons, the appeal is dismissed. The appellant shall undergo his remaining part of the sentence.

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23. The trial court record along with copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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padma

Raju Sahu v. State of Chhattisgarh

Case brief

What is this about?

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Raju Sahu v. State of Chhattisgarh

Case brief

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