Mohit Kumar Sahu Vs State Of Chhattisgarh

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NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 750 of 2016

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Mohit Kumar Sahu S/o Mitthu Lal Sahu aged about 20 Years R/o Village Sahada, Chowki Gidhpuri, Post Office And Police Station Palari, District Balodabazar Bhatapara, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through The District Magistrate, Baloda Bazar, District Balodabazar Bhatapara, Chhattisgarh.

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---- Respondent

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_________________________________________ For Appellant : Mr. Pawan Shrivastava, Advocate For Respondent/State : Ms. Neeta Tulsani Thawani. P.L.

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Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board

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10.04.2024

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This criminal appeal has been preferred by the appellant under section 374(2) of the Criminal Procedure Code against the judgment of conviction and sentence dated 3004-2016 passed by learned Second Additional Sessions Judge, Balodabazar, in Special Session case No. 69/2015, whereby the appellant has been convicted and sentenced in the following manner :-

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CONVICTION	SENTENCE	PUNISHMENT IN DEFAULT OF PAYMENT OF FINE
Under Section 376 (1) and 4 of Protection of Children from /sexual Offences Act, 2012 (POCSO)	R.I for 7 years with fine of Rs. 1000/-	R.I. for 06 months

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The case of the prosecution in brief is that on 10.11.2015 the mother of the victim have lodged a report to the police with the effect that on 09.11.2015 at about 7:30 in the evening when she was sitting in her courtyard and her children were playing outside of the house, the appellant has taken her daughter aged about eight years and after some time her daughter returned back. She was crying and informed that the appellant has inserted his finger of left hand in her private part and when she crying he left her. The mother of the prosecutrix informed the incident to her family members and found the prosecutrix injured and blood was oozing out from her private part. The unnumbered FIR for the offence of Section 376 of IPC and Section 4 of POCSO Act have been registered against the appellant vide Ex.-P/8. The numbered FIR Ex.P-5 was registered on 10.11.2015. The prosecutrix was sent for her medical examination to Community Health Centre, Palari where PW-5 Dr. Anita Verma examined her and gave her report Ex.-P/6 whereby the injury have been found on the private part of the prosecutrix. It was opined by the doctor that she had

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gone act of intercourse, hymen lacerated. Two slides of her vaginal swab were prepared, sealed and handed over to the police for chemical analysis. The underwear of the prosecutrix was seized vide Ex.-P/1. The police has prepared the spot map Ex.-P/2. The appellant was arrested on 11.11.2015, after recording statements of the witnesses under Section 161 of Cr.P.C. and after completion of usual investigation charge-sheet was filed against the appellant before the learned trial Court for the offence under Section 376 of IPC and 4 of POCSO Act.

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The learned trial Court has framed charge against the appellant for the offence under Section 376 (1) of IPC and 4 of POCSO Act. The appellant denied the charge and claimed trial.

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In order to establish the charge against the appellant, the prosecution has examined as many as 10 witnesses. The statement under Section 313 of Cr.P.C of the appellant was also recorded, in which he denied the circumstances appears against him, plead innocence and have submitted that due to old enmity with Ashwani and Hemant he has been falsely implicated in the offence.

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After appreciation of oral as well as documentary

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evidence produced by the prosecution, 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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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. There are material, omissions and contradictions in the evidence of prosecution witnesses. The prosecutrix is a tutored witness and have not supported in material point. He would further submit that the FIR is also delayed. It is also submitted by him that the conduct of the prosecutirx as well as her family members are doubtful and only in view to rope in a false case of rape, they conspired and lodged the report against the appellant. In view of the evidence led by the prosecution, no offence under the IPC Act and under POCSO Act are made out against him Therefore, the appellant is entitle for acquittal.

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On the other hand learned counsel for the state opposes the argument advanced by the learned counsel for the appellant and have submitted that form the evidence of prosecution witnesses the guilt of the appellant is clearly established. PW-7 the prosecutrix who is aged about seven

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years has duly supported the case of the prosecution and the manner in which she was being taken by the appellant in his house, the act of rape and the evidence of the prosecutrix is supported by her mother PW-6 as also the medical evidence in which the injuries have been found on the private part of the prosecutrix. She would further submitted that incident was occurred on 09.11.2015 and the FIR has been lodged on 10.11.2015 that is very next day of the incident which can not to said to be delayed FIR. Therefore the appellant does not entitle for any leniency and his appeal is liable to be dismissed.

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

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There is no dispute with respect to the age of the prosecutrix that she is aged about eight years on date of incident even the appellant has not challenge her age . The doctor PW-5 has medically examined her have also noticed that the prosecutrix was aged about eight years who was brought before her for medical examination. The appellant has no where challenge her age and therefore it has been found that the prosecutrix is minor aged about eight years.

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So far as the act of rape is concerned section 375 of

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IPC provides the definition of rape which reads as under:-

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375 Rape - A man is said to commit “rape” if he-

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

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

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(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.

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In the light of definition of rape, I have examined the evidence of prosecution witnesses. The PW-7 prosecutrix have stated in her deposition that she identified the appellant. On the date of incident in the night she was playing in-front of her house, the appellant caught hold her and taken to his house, switched off the light of his house and after lying her down on the caught insert his finger in her private part. She came out of the house of the appellant and informed the incident to her mother. By the act of the appellant, blood was coming out from the private part and thereafter she went to police station to lodged the report alongwith her parents. In cross examination she remained firmed on saying that it is the appellant who have committed rape upon her by inserting his finger in her

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private part. Although from a girl of eight years old, it can not be expected that she could explain each and every minute detail of commission of rape but in the present case she described the details as to the manner in which the appellant has committed the sexual act with her which definitely comes under the offence of rape has defined under Section 375 of the IPC.

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PW-5 who has medically examined the prosecutrix have stated in her deposition that the prosecutrix was brought before her for medical examination. She found redness in her private part and hymen was lacerated, opined that she had gone act of intercourse. In cross examination she denied the suggestion given by the defence that she might have received the injuries by falling on the wooden log or falling down while playing. The evidence of PW-5 doctor clearly established that the minor prosecutrix was subjected to the offence of rape by which she received injuries on her private part and nothing could be extracted from the evidence of the doctor so as to disbelieve their evidence .

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PW-6 the mother of the prosecutrix have stated in her deposition that on the date of incident at about 7:30 in the

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evening when she was working in the house, her daughter was paying outside of the house, the appellant came there and taken her daughter by lifting her and after some time when her daughter return back by crying and informed the incident to her, she saw her private part that blood was oozing out from there and then she was in search of the appellant but he could not found then she informed the incident of her family members and ultimately lodged the report. Even after the detailed cross examination of this witness, she remained firm in saying that the appellant has taken her daughter alongwith him and after some time she return back in injured condition having injury in her private part.

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From these sequence of evidence i.e. the prosecutrix have stated that the appellant has committed rape upon her, which has been established by her medical evidence, the mother of the proscutrix have stated that it is the appellant who has taken her daughter with him and after some time she was return back in injured condition, clearly established that the appellant is guilty of the offence of rape and the learned trial Court rightly comes into conclusion that the appellant has committed rape upon the minor prosecutrix who is aged about eight years.

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Therefore the learned trial Court has rightly convicted the appellant under Section 376(1) of IPC and Section 4 of POCSO Act and sentenced him for R.I for seven years with fine fo Rs. 1,000/- in default of payment of fine further R.I. for six months in which no infirmity or illegality in passing of the judgment and sentence by the learned trial Court. The finding recorded by the learned trial Court is based on evidence which is neither perverse nor illegal.

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In the result the appeal fail and hereby dismissed .

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Sd/-

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( Ravindra Kumar Agrawal ) Judge

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Vaishali

Mohit Kumar Sahu v. State Of Chhattisgarh

Case brief

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Mohit Kumar Sahu v. State Of Chhattisgarh

Case brief

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