Dismissed

Gokul Patel @ Billa Dan v. State of Chhattisgarh

Chhattisgarh HC11 Jul 2024CRA/692/2022

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed the criminal appeal filed by an appellant convicted under Section 6 of POCSO. The court upheld the trial court's judgment, emphasizing that the reliable sole testimony of a child victim suffices for conviction even without medical injuries. This view is supported by binding Supreme Court precedents mandating stringent punishment and rejecting leniency in ca

What did the court decide?

The criminal appeal was dismissed and the conviction and sentence awarded by the Special Judge were upheld. The appellant is directed to serve the sentence as ordered by the trial Court.

Gokul Patel @ Billa Dan Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 692 of 2022

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Gokul Patel @ Billa Dan S/o Late Jhumuk Patel aged about 35 years R/o Lavkush Nagar-Jamul, P.S.-Jamul, Distt-Durg (CG)

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---- Appellant (in jail)

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Versus

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State of Chhattisgarh Through the Station House Officer, P.S.Jamul, Distt-Durg (CG)

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---- Respondent

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Cause title taken from Case Information System

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For Appellant : Mr.A.N.Pandey, Advocate For State/Respondent : Dr.Surendra Dewangan, Panel Lawyer

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Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board

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Per Ramesh Sinha, CJ

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12/07/2024

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1. This appeal arises out of the judgment of conviction and order of sentence dated 16.03.2022 passed by the Additional Sessions Judge, Fourth F.T.C., Durg in Special Sessions Case (POCSO) No.141/2020, whereby the appellant has been convicted for offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter called as ‘POSCO’) and sentenced to undergo life imprisonment (means till the balance life of appellant) and fine of Rs.5000/-, in default of payment of fine to further undergo SI for one month.

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2. The prosecution story, in brief, is that on 20.07.2020 at about 5 P.M. the prosecutrix (PW-1) after returning from tuition to her house had kept the bag at home and had gone to play near Shiv Mandir with his friends, the appellant came near the pond and said that he will give her guava and took her to the temple and removed her leggings and underwear and inserted his finger in vagina of the prosecutrix and started licking it with his tongue. At the same time, Neelu and Ishwar came and seeing that, the accused fled away from there. After some time, the prosecutrix narrated the incident to her mother, then mother of the prosecutrix made written complaint to the Police Station Jamul vide Ex.P-4 and on that basis, FIR (Ex.P-5) was registered by the police of Police Station Jamul for offence under Section 376AB of the IPC and Section 6 of the POCSO Act. Spot map was prepared by the investigating officer vide Ex.P-1. Statement of the prosecutrix was recorded by the Judicial Magistrate First Class, Durg under Section 164 CrPC vide Ex.P-2. Birth certificate of the prosecutrix was seized vide Ex.P-7. Vaginal slides of the prosecutrix were seized vide Ex.P-9. Underwear of the appellant was seized vide Ex.P-10. Patwari also prepared spot map vide Ex.P-11. Dakhil-kharij register of the prosecutrix was seized vide Ex.P-15 in which date of birth of the prosecutrix has been mentioned as 11.04.2014. The prosecutrix was sent for MLC to District Hospital, Durg vide Ex.P-20 where Dr.Rimpal Bhatia (PW-11) examined her and no any external injury

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seen over body, secondary sexual characters have not appeared, hymen absent, no tear, no bleeding, no any injury seen over private parts. No any redness seen. 2 slide made from vagina for chemical analysis. She opined that no definite opinion can be given. Adhar card available for age confirmation. The appellant was arrested on 27.07.2020 vide arrest memo Ex.-21.

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3. After completion of investigation, the charge-sheet was filed before the Additional Sessions Judge Fourth F.T.C., Durg for trial in accordance with law.

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4. The trial court has framed charges against the appellant under Section 376AB of the IPC and Section 6 of POCSO Act. The appellant abjured his guilt and pleaded innocence.

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5. In order to establish the charge against the appellant, the prosecution examined as many as 11 witnesses and exhibited the documents (Exs.P-1 to P-28) . The statement of the appellant under Section 313 of CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal.

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6. Learned counsel for the appellant submits that the learned trial Court has failed to consider the evidence of the prosecutrix (PW-1) in which there are several omissions and contradictions in her police

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statement and Court statement, therefore, prima facie the appellant has been falsely implicated in this case. The prosecutrix has stated the incident to her mother (PW-2) after 5 days of the incident and thereafter FIR was lodged by the mother of the prosecutrix. Therefore, there was delay in lodging the FIR and no plausible explanation was given by mother of the prosecutrix for delay in lodging the FIR. He further submits that the learned trial Court has failed to consider the evidence of mother of the prosecutrix (PW-2) in which there are several omissions and contradictions in the police statement and Court statement. Therefore, the evidence of PW-2 is not reliable. The learned trial Court has also failed to consider the evidence of Nilesh Patel (PW-9) and Ishwar Sahu (PW-10) as both are the eyewitnesses of the incident, but they have not supported the case of the prosecution and turned hostile. Looking to the entire evidence adduced by the prosecution, the alleged offence is not made out against the appellant and he has been falsely implicated in the present case. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside.

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7. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt and the prosecutrix (PW-1) has clearly deposed the conduct of the appellant in her statement and the learned trial Court after

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considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for.

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8. We have heard the learned counsel for the parties and perused the record with utmost circumspection.

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9. The issue that arises for consideration in the present appeal is whether the testimony of the victim/prosecutrix deserves acceptance and whether the prosecution has established the case of the appellant beyond reasonable doubt.

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10. It is pertinent to observe that the question whether conviction of the accused can be based on the sole testimony of the victim in cases of sexual assault/rape is no longer res integra. The Hon’ble Supreme Court has dealt with the issue in a catena of judgments and has held that the sole testimony of the prosecutrix if found reliable can be the sole ground for convicting the accused and that the creditworthy testimony of the victim in cases of such nature deserves acceptance.

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11. Insofar as, age of the victim on the date of the commission of the offence is concerned, she was admittedly 6 years old at the time of the unsavory incident. Smt.Rupeshwari (PW-4) is Headmistress of Saraswati Vidya Niketan where the prosecutrix was studying. In para 2 of her statement, she has stated that she had given dakhil kharij register of the victim to the Station House Officer, Police Station Jamul in which the names of the victim and the victim’s parents are mentioned on admission No.754 in which the date of

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birth of the victim is mentioned as 11.04.2014. Seizure memo of dakhil kharij register is Ex.P-15 in which her signature is on part A and the signature of witness Kashiram Verma is on part B to B. True copy of dakhil kharij register is Ex.P-15C. The original register was returned on delivery note on the same date after matching it with the dakhil kharij register.

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12. Further, upon perusal of the testimony made by the victim in her statement recorded under Section 164 Cr.P.C it is observed that she has stated that incident happened about a week ago today. Around 5.00 in the evening, she was going to play with her friends Vidya, Nidhi and Chhoti, when she met a person named Billa Don on the way, Billa Don took her saying he will give her guava and on the way he bought nadda and khavva (other food items) from the shop for her and took her behind Shiv Temple, she said she do not want food, still Billa Don took khavva for her and took her behind Shiv Temple, Billa Don took off her clothes and also took off his clothes. After this, he inserted his finger on her vaginal area and asked her as to whether she was feeling good and she said no, she was not feeling good. Billa Don started licking her vagina and inserted his penis into her vagina. When she was trying to run away from there, he slapped her cheek hard. She was forbidden to tell anyone him. At that very moment, Neelu, Ishwar and Trishika came near Shiva Temple and when they saw it, Billa Don ran away from there. She had told her mother and Shalu didi about the incident at

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night. In para 2 she has stated that Billa Don did wrong things to her by calling her like this for three days. She told her father, mother, sister and aunt about the said incident.

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13. The prosecutrix has been examined as (PW-1). The Court after satisfying that the prosecutrix was able to give the answer rationally has recorded her statement. In para 1 of her statement, this witness accepted identification after being shown the photo posted on arrest memo attached in the case. After seeing photo, the witness revealed the name of the accused as Gokul Patel. She do not remember the incident date. After returning from tuition she kept a bag at home and had gone to play near Shiv Temple with her friends, then Billa Don came near the pond and said that he will give her guava and took her to the temple and removed her leggings and underwear and inserted his finger in her vagina and started licking it with his tongue. At the same time, Neelu and Ishwar came and seeking that, Billa Don fled away from there. She came home and asked Ishwar Bhaiya where Billa had gone, then she informed her mother and father about the incident, then her mother and father took her to Jamul Police Station.

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14. Mother of the prosecutrix (PW-2) has stated in para 1 of her evidence that the date of birth of the victim is 11.04.2014. The incident is of 20.07.2020. The victim did not tell her clearly about the date of the incident. Five days later, when the victim saw Billa Don, she told that accused Billa Don called her to give her guava and

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nadda and took her behind Shiv Temple, then removed her underwear and inserted a finger in private part of the victim and licked it with his tongue. She, her husband and the victim’s aunt went to Jamul Police Station and lodged a report. She had given application / complaint in the police station, the application / complaint was Ex.P-4, part A of which bears her signature.

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15. Now coming to the medical evidence adduced; the medical opinion contained in the MLC report dated 25.7.2020, it was opined that no any external injury seen over body, secondary sexual characters have not appeared, hymen absent, no tear, no bleeding, no any injury seen over private parts. No any redness seen. Two slide made from vagina for chemical analysis. The doctor opined that no definite opinion can be given. Adhar card available for age confirmation. The aforesaid statement is invalid because penetrative sexual assault has been defined in Section 3 of the POCO Act, which states that a person is said to commit "penetrative sexual assault" if -

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(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

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(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

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any part of the body of the child or makes the child to do so with him or any other person; or

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(d) he applies his mouth to the penis, vagina, anus, urethra of the child makes the child to do so to such person or any other person.

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16. In the commission of crime defined under Section 3(b) above, the accused has committed the act of forcibly removing his clothes and the victim's clothes and inserted his finger in her vagina and started licking it with his tongue, which was stated by the victim in her Court examination, in the police statement and Section 164 CrPC statement.

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17. The Supreme Court in B.C.Deva v. State of Karnataka, (2007) 12 SCC 122 , in spite of the fact that no injuries were found on the person of the prosecutrix, yet finding her version to be reliable and trustworthy, the Supreme Court upheld the conviction of the accused. The Court observed that:

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"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."

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18. In the matter of Alakh Alok Srivastava v. Union of India & Ors.,

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(2018) 17 SCC 291 , in paras 14 and 20, it is observed as under:

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“14. At the very outset, it has to be stated with authority that the Pocso Act is a gender legislation. This Act has been divided into various chapters and parts therein. Chapter II of the Act titled “Sexual Offences Against Children” is segregated into five parts. Part A of the said Chapter contains two sections, namely, Section 3 and Section 4. Section 3 defines the offence of “Penetrative Sexual Assault” whereas Section 4 lays down the punishment for the said offence. Likewise, Part B of the said Chapter titled “Aggravated Penetrative Sexual Assault and Punishment therefor” contains two sections, namely, Section 5 and Section 6. The various subsections of Section 5 copiously deal with various situations, circumstances and categories of persons where the offence of penetrative sexual assault would take the character of the offence of aggravated penetrative sexual assault. Section 5(k), in particular, while laying emphasis on the mental stability of a child stipulates that where an offender commits penetrative sexual assault on a child, by taking advantage of the child's mental or physical disability, it shall amount to an offence of aggravated penetrative sexual assault.”

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“20. Speaking about the child, a three Judge Bench in M.C. Mehta v. State of T.N. (1996) 6 SCC 756 “1. … “child is the father of man”. To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.”

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19. The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of NCT of Delhi, 2012 (8) SCC 21 held as under:-

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“22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever

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strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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20. The Supreme Court in the matter of Nawabuddin v. State of Uttarakhand (CRIMINAL APPEAL NO.144 OF 2022), decided on 8.2.2022 has held as under:-

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“10. Keeping in mind the aforesaid objects and to achieve what has been provided under Article 15 and 39 of the Constitution to protect children from the offences of sexual assault, sexual harassment, the POCSO Act, 2012 has been enacted. Any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act. By awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them. Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.

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Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas. As observed and held by this Court in the case of State of

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Rajasthan v. Om Prakash, (2002) 5 SCC 745 , children need special care and protection and, in such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. In the case of Nipun Saxena v. Union of India, (2019) 2 SCC 703 , it is observed by this Court that a minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracization and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Therefore, the child needs extra protection. Therefore, no leniency can be shown to an accused who has committed the offences under the POCSO Act, 2012 and particularly when the same is proved by adequate evidence before a court of law.”

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21. When considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident. Instead, the emphasis is on allowing the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. In State of H.P. v. Shree Kant Shekar (2004) 8 SCC 153 the Hon‟ble Supreme Court held as follows:“

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“21. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice.”

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22. On these lines, the Hon’ble Supreme Court in Shivasharanappa and Others v. State of Karnataka , (2013) 5 SCC 705 observed as follows:

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“17. Thus, it is well settled in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction if the same is credible, truthful and is corroborated by other evidence brought on record. Needless to say as a rule of prudence, the court thinks it desirable to see the corroboration from other reliable evidence placed on record. The principles that apply for

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placing reliance on the solitary statement of the witness, namely, that the statement is true and correct and is of quality and cannot be discarded solely on the ground of lack of corroboration, apply to a child witness who is competent and whose version is reliable.”

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23. The Supreme court in the matter of State of UP v. Sonu Kushwaha, (2023) 7 SCC 475 has held as under :

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“12. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6,on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology “shall not be less than….”, the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court,

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there is no question of showing any leniency to him. Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim/child will be lifelong. The impact is bound to adversely affect the healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.”

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24. As per statement of the prosecutrix (PW-1), she came from tuition and kept a bag at home and had gone to play near Shiv Temple with her friends, then Billa Don came near the pond and said that he will give her guava and took her to the temple and removed her leggings and underwear and inserted his finger in her vagina and started licking it with his tongue. At the same time, Neelu and Ishwar came and seeking that, Billa Don fled away from there. She came home and asked Ishwar Bhaiya where Billa had gone, then she informed her mother and father about the incident, then her mother and father took her to Jamul Police Station.

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25. Considering the statement of the prosecutrix (PW-1) who has specifically stated the conduct of the present appellant, statement of her mother (PW-12), statement of Headmistress Smt.Rupeshwari

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Verma (PW-4), further considering the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-2), the material available on record and the principle of law laid down by the Supreme Court in the above-stated judgments, we are of the considered opinion that the learned Special Judge has rightly convicted the appellant for offence under Section 6 of the POCSO Act. We do not find any illegality and irregularity in the findings recorded by the trial Court.

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26. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellants. The conviction and sentence as awarded by the Special Judge to the appellants is hereby upheld. The present criminal appeal lacks merit and is accordingly dismissed .

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27. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court.

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28. The Registry is directed to transmit the certified copy of this judgment along with the record to the trial Court concerned for necessary information and compliance.

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Sd/- Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha ) Judge Chief Justice

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Bablu

Gokul Patel @ Billa Dan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Gokul Patel @ Billa Dan v. State of Chhattisgarh

Case brief

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