Partly allowed

Hemkumar @ Hora Kanwar v. State of Chhattisgarh

Chhattisgarh HC12 Sept 2024CRA/798/2019

Case brief

AI extract

What is this about?

Appeal against rape conviction where trial court held the victim a minor based on a school register entry. The High Court affirmed the rape finding but held the minority unproved for want of supporting material, altered the conviction from Section 376(3) IPC to Section 376 IPC and reduced the sentence from 20 years to 10 years' rigorous imprisonment.

What did the court decide?

Conviction altered from S.376(3) IPC to S.376 IPC; sentence reduced from 20 years RI to 10 years RI with fine maintained.

Hemkumar @ Hora Kanwar Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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CRA No. 798 of 2019

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Digitally signed by RAGHVENDRA JAT Date: 2024.09.18 12:11:37 +0530

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2024:CGHC:36002-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 798 of 2019

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Hemkumar @ Hora Kanwar S/o-Bheekham Kanwar, Aged about 20 years R/o-Village-Saargi, P.S.-Magarlod, District-Dhamtari (C.G.).

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... Appellant

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versus

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State of Chhattisgarh through Arakshi Centre, Magarlod, District-Dhamtari (C.G.)

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... Respondent

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For Appellant :- Mr. Basant Dewangan, Advocate /PL appointed through C.G. High Court Legal Committee.

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For Respondent-State :- Mr. H.A.P.S. Bhatia, Panel

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Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal &

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Hon'ble Shri Justice Amitendra Kishore Prasad Judgment On Board

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(13.09.2024)

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Amitendra Kishore Prasad, J

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The appellant is challenging the legality and proprietary

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of judgment of conviction and order of sentence dated

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CRA No. 798 of 2019

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25.02.2019 passed by the learned Special Judge POCSO (F.T.C.), District-Dhamtari (C.G.) in Special Criminal Case No. 129/2018 by the which the appellant has been convicted for the offence punishable under Section 376 (3) of the IPC and has been sentence to imprisonment for 20 years and fine of Rs. 5,000/- with default stipulation.

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That the case as projected by the prosecution is that on 05.09.2018 at about 16 hours (04:00 pm), at villageSaargi, P.S.-Magarlod, District-Dhamtari when the minor victim (PW-03) was coming back from her home, the appellant came on the way, caught hold the victim, gagged her mouth and took her to near by Rajeev Gandhi Seva Kendra, where the appellant has committed forcible intercourse with the victim. A written complaint vide Ex. P-07 lodged by the victim to the concerned SHO, P.S.Magarlod on the same day. On the basis of this FIR vide Ex.P-8 registered on 05.09.2018, the victim was medically examined by Dr. Pushpa Janbandhu (PW-10). The clothes including undergarment of the victim was seized vide Ex.P-02 on 05.09.2018 itself. MLC of appellant was conducted vide Ex.P-22 by Dr. K.K. Singh Kanwar(PW-12), the slides were sent to FSL upon which slides prepared by the Doctor regarding semens were

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CRA No. 798 of 2019

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found on the undergarment and vaginal slide as also in undergarments of the appellant.

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After due investigation, appellant was charge-sheeted for the offence punishable under Sections 363, 366 (a), 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act (in Short POCSO Act). Upon filing of charge sheet before the concerned Magistrate the matter was committed to the Court of Sessions for trial and in turn as the victim was minor it was tried by Special Judge under POCSO Act (FTC). The trial Court framed charges against the appellant under Sections 376 and 506 of the IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in Short POCSO Act) to which the appellant has denied and has prayed for trial.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 18 witnesses and exhibited 35 documents, whereas, the appellant in defence has neither examined any witness nor exhibited any document. S tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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CRA No. 798 of 2019

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant under Section 376 (3) of the IPC and Section 4 of the Protection of Children from Sexual Offences Act (in Short POCSO Act). The learned trial Court vide para 23 of his judgment has held that since the offence punishable under Section 376 (3) and Section 4 of the Protection of Children from Sexual Offences Act (in Short POCSO Act) are same in nature as such the sentence is required to be awarded under Section 376 (3) of the IPC. Accordingly, the appellant has been sentenced as mentioned above. The appellant being aggrieved by the judgment of conviction and order of sentenced dated 25.02.2019 has filed this appeal challenging the legality and correctness of judgment passed by the trial Court.

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Mr. Basant Dewangan, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. He further submits that the appellant has been falsely implicated in this case, the victim was not a minor girl, she was a major girl and no offence of rape was committed by the appellant, no sign of injuries were found over the body of the victim and according to Dr. Pushpa Janbandhu (PW-10) no injuries were found over

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CRA No. 798 of 2019

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the body of the victim the sexual organs were well developed there was no injury over the private part of the victim, the age of the victim being minor has not been proved by the prosecution. The admission registrar was not proved in accordance with law by the headmaster Mohanlal Sahu (PW-4) who has categorically stated that no birth certificate etc for proof of date of birth has been produced while recording the date of birth of the victim to be 05.10.2004. The FSL report vide Ex.-P/34 is not in accordance with law as the incident took place on 05.09.2018 where as the material were sent for FSL on 17.09.2018 as such the correctness of FSL report dated 23.10.2018 is doubtful. The appellant has been falsely implicated in this case and, therefore, he is required to be acquitted. In respect of date of birth, learned counsel for the appellant has placed reliance in the judgment of Supreme Court in the case of Babloo Pasi Vs. State of Jharkhand & Another reported in (2008) 13 SCC 133 .

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On the other hand, learned State counsel vehemently opposed the submissions made by the appellant, it was argued that the minor victim was victimized for commission of rape and according to doctor who has examined the victim stated that she was forcibly subjected to intercourse as her hymen was recently torn

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CRA No. 798 of 2019

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and as such in the FSL report vide Ex.P-34 it was found positive as such the judgment passed by the trial Court is correct which is not required to be interfered with. Thus, the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely.

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From the perusal of record, it seems that on the date of incident the appellant has forcibly took the victim near by Rajeev Gandhi Seva Kendra, where the appellant has committed the forcible intercourse with the victim. The victim in her statement stated that she has promptly lodged written report vide Ex.P-07 as well as FIR vide Ex.P-08 on 05.09.2018 itself and based on written report FIR has been lodged on the same date in categorically terms the victim has submitted that she has been subjected to rape forcibly by the appellant. The same version was made by the father (PW-02) and mother (PW01) of the victim. The version of the victim was further corroborated by evidence of Dr. Pushpa Janbandhu (PW10) who has categorically stated that the victim was subjected to rape and her hymen was recently torned, the vaginal slides were prepared and it was sent for chemical

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CRA No. 798 of 2019

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examination. The FSL report vide Ex.P-34 in which the FSL report was found to be positive and the semen were found in the undergarments of victim, vaginal slide, undergarments and undergarments of the appellant which supports the case of the prosecution and there is no infirmity while recording finding by the trial Court in commission of rape upon the victim by the appellant.

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The finding of the trial Court is based upon material evidence which is correct and it does not call for any interference as such we affirm the finding of the trial Court that the appellant has committed rape upon the victim.

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So far as victim be minor is concerned and the punishment imposed upon the appellant holding the victim to be minor is concerned we have further gone through the evidence in respect of date of birth of the victim said to have been 05.10.2004, we carefully considered the date of birth recorded in the admission register vide Ex. P-12C in which the date of birth of the victim is recorded as 05.10.2004 by the headmaster of Government New P.S., Nawadih, Rajpur. The witness of the admission register vide Ex.P-12C was examined by the trial Court as Mohanlal Sahu (PW-4) headmaster of

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CRA No. 798 of 2019

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Government New P. S., Nawadih, Rajpur, the said witness has come with original register which was perused by the trial Court. However it has been stated by the headmaster that the date of birth mentioned in the school register is without any basis. No birth certificate has been produced by the parents of victim there is no any evidence to show that on what basis the date of birth of the victim was mentioned in the school register. It has also not been mentioned in the admission register that who has brought the victim in the school at the time of admission.

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In the matter of Babloo Pasi vs. State of Jharkhand & Another (supra), the Hon’ble Supreme Court has categorically relied upon Birad Mal Singhvi Vs. Anand Purohit reported in 1988 supplemantry SCC 604 in which it has been held has under:-

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"28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in

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CRA No. 798 of 2019

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performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded".

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In light of aforesaid victim of the Supreme Court and in light of evidence produced in respect of date of birth of the victim, it is quite clear that so far as date of birth of the victim is concerned it has not been proved in accordance with law and no date of birth recorded in Kotwari Panji has been produced in support of date of birth recorded in the admission register as such what basis the date of birth is mentioned in the school register is not clear, accordingly we are unable to hold that the victim was minor at the time of commission of offence.

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In the aforesaid premises, when the victim is not a minor then the conviction of appellant for the offence punishable under Section 376 (3) of the IPC is not in accordance with law. In the preceding paragraph we have hold that the appellant has committed rape upon the victim as such the appellant can be held guilty for the

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CRA No. 798 of 2019

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commission of offence under Section 376 (3) of the IPC but it cannot be held that as the victim was minor as such offence under Section 376 (3) of the IPC would be made out. Since the victim was not minor and the appellant was found to be guilty of offence under Section 376 (3) of the IPC, as such the sentence awarded to him by the trial Court for a period of 20 years is also not in accordance with law. As such, the appellant is sentenced to 10 years of R.I. instead of 20 years of R.I.

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Accordingly, the conviction of the appellant is altered from Section 376 (3) of IPC to Section 376 of IPC and the sentence is reduced from 20 years to 10 years of IPC.

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Accordingly, the Criminal Appeal is filed by the appellant is partly allowed as indicated above.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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Sd/-

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Sd/-

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(Sanjay K. Agrawal)

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(Sanjay K. Agrawal) (Amitendra Kishore Prasad) Judge Judge

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Raghu Jat

Hemkumar @ Hora Kanwar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Hemkumar @ Hora Kanwar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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