Dismissed

Ashwani Kumar @ Bablu Chouhan v. State of Chhattisgarh

Chhattisgarh HC14 Jun 2024CRA/839/2019

Case brief

AI extract

What is this about?

This appeal challenged a conviction for rape under POCSO and IPC. The High Court upheld the conviction, finding the prosecutrix was a minor based on medical and school evidence, the FIR delay was satisfactorily explained, and the trial's procedural irregularity regarding baparda did not vitiate the proceedings.

What did the court decide?

The appeal was dismissed. The judgment of conviction and sentence of the learned trial Court was upheld and sent back.

Ashwani Kumar @ Bablu Chouhan Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment reserved on :10-05-2024

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Judgment delivered on :15-06-2024

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CRA No. 839 of 2019

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Ashwani Kumar @ Bablu Chouhan S/o Tilakram Chouhan, Aged About 21 Years, R/o Vijay Nagar, Junadih Police Station Dipka, Tahsil Katghora, District Korba Chhattisgarh., District : Korba, Chhattisgarh

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---- Appellant

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Versus

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State of Chhattisgarh Through Station House Officer, Police Station Dipka, District Korba Chhattisgarh., District : Korba, Chhattisgarh

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---- Respondent

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(Cause-title taken from Case Information System)

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-----------------------------------------------------------------------------------------------------------------For Appellant : Mr. Govind Ram Miri, Senior Advocate with Mr. Basant Kaiwartya, Advocate For Respondent/State : Ms. Prabha Sharma, Panel Lawyer

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Hon'ble Shri Justice Ravindra Kumar Agrawal, J. CAV Judgment

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1 . This appeal arise out of the judgment of conviction and order of sentence dated 18-04-2019 passed by the Special Judge (POCSO Act), Katghora, in Special Criminal (POCSO) Case No.09/2018 whereby the appellant has been convicted and sentenced

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in the following manner with a direction to run all the substantive jail sentences concurrently :-

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Conviction	Sentence
U/s 450 of the IPC	R.I. for 10 years and fine of Rs.5,000/-, in default of payment of fine, additional R.I. for two months
Under Section 4 of POCSO Act	R.I. for 10 years and fine of Rs.5,000/-, in default of payment of fine, additional R.I. for two months

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Brief facts of the case are that, the prosecutrix (PW-1) has lodged a written report to the Police Station Dipka on 04-03-2018 against the appellant with the allegation that in the intervening night of 03-03-2018 and 04-03-2018 at about 1:00 a.m. when she had gone to bathroom situated at the courtyard, the appellant jumped inside from the boundary wall, caught her hold from backside, laid her down on the ground and committed rape upon her after removing her clothes. At that time she shouted, then her mother came there and then the appellant fled away by jumping out from the boundary wall. She received injuries on her left hand and right leg. When her father came from his duty in the morning, she informed him about the incident and then she came to lodge the report along with her family members. Based on her written report Ex.-P/1, FIR Ex.-P/2 was registered on 04-03-2018 for offence under Section 376 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’). The prosecutrix was sent for her medical examination to Community Health Center, Katghora, where Doctor Smt. Beratha Tigga (PW-9) has examined her and gave her report Ex.-P/4. While examining the prosecutrix, the doctor has found following injuries on the body of the prosecutrix:-

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(i ) multiple bruises present over right forearm

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(ii ) swelling present on right forearm below elbow joint 2 x 2 cm.

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(iii) multiple bruises present over left forearm

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(iv) bluish skin scratch present on right thigh backside

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(v) redness and swelling present on right thigh later side

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(vi) scratch present over chest over right region.

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the doctor opined that sexual intercourse took place on the girl. The prosecutrix was referred for X-ray examination for determination of her age. Two slides of her vaginal swab were prepared and handed over to the police. The pubic hair of the

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prosecutrix was also taken, sealed and handed over to the police for FSL examination. The underwear of the prosecutrix was seized vide seizure memo Ex.-P/5. The spot map Ex.-P/7 was prepared. With respect to the age of the prosecutrix her achievment record of Class V th has been seized vide seizure memo Ex.-P/6 in which her date of birth is recorded as 22-08-2004. The certificate of school admission and discharge has been seized by the police from Beacon English Higher Secondary School, Shakti Nagar, Gevra which is Ex.-P/16, in which also the date of birth of the prosecutrix is recorded as 22-08-2004. The prosecutrix was sent for her X-ray examination for age determination to Indira Gandhi District Hospital, Korba where Doctor Dilish Singh (PW11) has examined her and gave his report Ex.-P/17. After examination of X-ray report the doctor has opined that age of examined person by X-ray is above 12 years, but below 14 years. The appellant was arrested on 05-03-2018 and he too was sent for his medical examination to Community Health Center Dipka where Doctor Kamlesh Singh Porte (PW-6) has examined him and gave his report Ex.-P/13. While examining the appellant the doctor has found him capable to perform sexual intercourse. The underwear of the appellant has also been seized vide seizure memo Ex.-P/11. The seized articles including slides of vaginal swab of the prosecutrix was sent for FSL examination to regional FSL Bilaspur. The statement under Section 161 of the Cr.P.C. of the witnesses have been recorded. The statement under Section 164 of the Cr.P.C. of the prosecutrix has also been recorded and after completion of usual investigation charge sheet was filed before the learned trial Court for offence under Sections 376, 450 of the IPC and Section 4 of POCSO Act.

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The learned trial Court has framed charges against the appellant under Section 450 and 376 of the IPC and Section 4 of POCSO Act. The appellant abjured his guilt, pleaded innocence and claimed trial.

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In order to establish the charges against the appellant, prosecution has examined as many as 14 witnesses. The statement of the appellant under Section 313 of the Cr.P.C. has also been recorded, in which he denied the circumstances

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appearing against him, pleaded innocence and has submitted that he has been falsely implicated in the offence.

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After appreciation of the oral as well as the documentary evidence led by the prosecutrion, the learned trial Court has convicted and sentenced the appellant as mentioned in para 1 of this judgment. Hence, this appeal.

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Learned counsel for the appellant would argue that the prosecution has failed to prove its case beyond reasonable doubt. There are material ommisions and contradictions in the evidence of prosecution witnesses. There is no legally admissible evidence with respect to age of the prosecutrix that on the date of incident she was minor. He would further submit that there is no explanation for lodging of report belatedly because the incident is said to have been occured on intervening night of 3 and 04-03-2018, whereas the FIR has been lodged on 04-03-2018 at about 21:20 hours in night which is almost after about 24 hours. Learned counsel for the appellant would further submit that the appellant was prosecuted under the POCSO Act, but the appellant was not kept baparda during trial which violates Section 36 of the POCSO Act and the entire trial is vitiated. He would also submit that there is no Patwari map produced by the prosecution to prove the place of incident which dehorse of Rule 747 of M.P./C.G. Police Regulations. Since the appellant has falsely been implicated and the evidence of the prosecutrix is not supported by the medical evidence that no injuries have been found on her private part, hence, the appellant is entitled for acquittal. There is no FSL report in the case which further proves that the appellant has falsely been implicated in the offene. He would lastly submit that the evidence of the prosecutrix itself is not sufficient in absence of any corroborative evidence and the appellant cannot be convicted for the alleged offence.

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On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and has submitted that the alleged incident has occurred in the night, no one supposed to be support in the night, the villagers normally not come to help in such offences, yet the prosecutrix has explained

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the delay that her father had gone to his duty and in the morning when he came from his duty, she informed the incident and then lodged the report. Although there appears to be delay of few hours for lodging the report but in the offence of rape, delay of such a short period does not have any effect in the credibility of the report. He would further submit that the age of the prosecutrix has been proved by ossification report Ex.-P/17 in which the doctor has opined that the prosecutrix was aged about 12 to 14 years. When the age is further corroborated from the certificate of school admission and discharge Ex.-P/16 which has been proved by N.Singh (PW-10), the principal of the school who issued the certificate on the basis of the school register and achievement record (Article A) of Class V th of the prosecutrix. It is also submitted by the learned counsel for the State that although Section 36 of POCSO Act provides for keeping the accused baparda during trial, but the same is directory in nature. Even if there is some irregularity in keeping the accused baparda during the trial, the entire prosecution does not vitiate on this ground alone. The evidence of the prosecutrix and other witnesses have been recorded by the learned trial Court in its due manner and no objection has been raised at the time of the trial of the case. It is also submitted that the Investigating Officer has made his request to Nayab Tahsildar Dipka for submission of spot map from the concerned Patwari by his request letter vide Ex.-P/25 and the prosecution has proved the spot map prepared by the Investigating Officer Ex.-P/7 which has been proved by its witness, the prosecutrix (PW-1) and mother of the prosecutrix (PW-5) as also the Investigating Officer Shyam Kumar Sidar (PW-12). Even if Patwari map is not there in the case that itself is not sufficient to acquit the appellant from the alleged offence. Rule 747 of the Police Manual is also directory in nature and only lay down the procedure in which the investigation is to be carried out.

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Learned counsel for the State further submits that on the date of incident the minor prosecutrix was subjected to sexual intercourse by the appellant which corroborated by the medical evidence in which multiple injuries have been found on the body of the prosecutrix. Even if no injuries have been found on her private part the

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offence of forceful act of the appellant has been proved by the injuries on other part of her body including her chest and therefore, the appellant is not entitled for any benefit and the learned trial Court has rightly convicted and sentenced him for the alleged offence.

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

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The foremost question in the present case is the age of the prosecutrix. The prosecution case is that the prosecutrix is aged about 14 years, where the appellant has claimed that the age of the prosecutrix has not been proved by leading reliable and cogent evidence. The prosecution has relied upon the ossification test report of the prosecutrix Ex.-P/17, her certificate of school admission and discharge proved by Mr. N. Singh (PW-10), Principal of Beacon English Higher Secondary School Shakti Nagar, Gevara Ex.-P/13 and further piece of evidence is her achievement record of Class V th . Doctor Dilish Singh (PW-11) who gave the ossification test report Ex.-P/17 has stated in deposition that he was posted at District Hospital Korba from August 2016 on the post of Medical Officer (Radiologist). On 05-03-2018 the prosecutrix was brought before him for her ossification test and after examination of her X-ray of various bones he opined that the prosecutrix was more than 12 years but less than 14 years and his report is Ex.-P/17. In cross-examination general suggestions have been given to this witness, but the ossification test report has not been specifically challenged and therefore, the ossification report can be taken into consideration to determine the age of the prosecutrix. Although the ossification report is an opinion of a medical expert and there is every possibility of error of margin of 2 years in either side, yet even after giving benefit of error of margin of two years in positive side, the age of the prosecutrix does not cross from 18 years.

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Hon'ble Supreme Court in the case of Ramdeo Chauhan alias Raj Nath Vs. State of Assam , reported in (2001) 5 SCC 714 in para 51 and 52 of the judgment has dealt with relevancy of the ossification test report to determine age of the person which reads as under :-

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“ 51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr B.C. Roy is in consonance with the guidelines provided in the textbooks of medical jurisprudence (vide Modi's Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence). Ossification test is done for multiple joints, for wich the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Raju's Medical Jurisprudence (6^th Edn., p. 198):

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“If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side.”

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52. Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered. When the possibility of the petitioner having been a juvenile on the relevant date cannot be excluded from the conclusion by adopting such reasonable standards, .........”

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11. The another piece of evidence on which the prosecution has relied is certificate of school admission and discharge of the prosecutrix which has been proved by N. Singh (PW-10) who is Principal of Beacon English Higher Secondary School Shakti Nagar, Korba who stated in his deposition that he is posted as Principal in the school since 2012 and has brought with him the original school register. The police has seized the certificate of school admission and discharge of the prosecutrix which has

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been issued by him and the same is Ex.-P/16. He has issued the said certificate on the basis of school admission and discharge register in which the date of birth of the prosecutrix is recorded as 22-08-2004. In cross-examination he admitted that at the time of admission of the prosecutrix in the school her father has not submitted her birth certificate in the school. He voluntarily stated that earlier the prosecutrix was the student of Indus Public School Krishna Nagar, Gevara and her date of birth is recorded by him on the basis of her transfer certificate. It is not challenged that this witness is not the author of the school admission and discharge register or her date of birth is incorrectly recorded in the school register.

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12. PW-1, the prosecutrix has stated in her evidence that her date of birth is 22-092004. The date of birth has stated by the prosecutrix has not been challenged by the appellant in her cross-examination and in absence of challenge in the crossexamination the date of birth of the prosecutrix can be taken as corroborative evidence with the other evidence available on record.

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13. The father of the prosecutrix (PW-2) has stated in his deposition that his daughter is aged about 14 years and her date of birth is 23-07-2004. When this witness has been declared hostile he denied that the date of birth of the prosecutrix is 22-08-2004, but he voluntarily stated that the prosecutrix has born in 7 th month of 2004, he may be wrong in the date. In cross-examination he too has not been crossexamined on the point of date of birth and age of the prosecutrix.

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14. PW-5 is mother of the prosecutrix, she has stated in her deposition that age of the prosecutrix was 14 years, but could not know her date of birth because she is illiterate. In cross-examination she denied that she disclosed age of the prosecutrix as 14 years on assumption.

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15. From these evidence it can safely be held that on the date of incident the prosecutrix was minor and below 18 years of age which has rightly been considered

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by the learned trial Court which is neither perverse nor contrary to the evidence available on record.

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16. The another point for determination is whether the prosecutrix was subjected to rape by the appellant or not?

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17. The prosecutrix (PW-1) has stated in her deposition that in the night of 03-032018 at about 10:30 – 11 O’clock when she had gone to bathroom towards backside of her house, the appellant laid her down on the ground, dragged her and committed forceful sexual intercourse with her. When she shouted, her mother came there and her mother slapped him and when her mother asked him as to from where he came inside the house, he replied that he came in by jumping the boundary wall. She further stated that after removing her clothes the appellant committed rape upon her. When her mother left him, he had gone to the house of a lady. Her father was in his night duty who has returned from his duty in the next morning at about 06:00 a.m. She has lodged the written report Ex.-P/1 and police has registered the FIR Ex.-P/2. She proved the various documents prepared by the police in which her signature is also there including the spot map Ex.-P/7. She further proved her 164 Cr.P.C. statement Ex.-P/8. In cross-examination she denied the suggestion of the appellant that on the alleged night she had called the appellant in her house. She reiterated that when the appellant caught her hold from backside and tried to commit rape upon her, she raised alarm and called her mother, then her mother came there. She admitted the suggestion given by the appellant that on the date of incident the appellant has committed sexual intercourse with her first time. She further stated that she had tried to protest, but she could not succeed. She further stated that when the appellant committed rape upon her she caught hold his hand. She also admitted that when her mother scolded the appellant and slapped him he admitted that he came to her house to see her. The prosecutrix remained firm in her cross-examination that on the date of incident the appellant came to her house and committed rape upon her, which

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strengthened by the suggestion given in her cross-examination by defence itself that on the date of incident the appellant has made sexual intercourse with the prosecutrix.

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18. The mother of the prosecutrix (PW-5) has state in her deposition that on 03-032018 at about 12 in the night her daughter had gone to bathroom. The bathroom is situated inside the boundary wall of her house. When her daughter shouted loudly and called her she came out from her room and saw that the appellant committing rape upon her daughter. She also saw that the prosecutrix was laid on the ground and the appellant was also laid upon her. She slapped twice and thrice to the appellant and then the appellant fled away from that place. In the morning at about 07:00 a.m. her husband came from his duty and then she informed him about the incident. She called her sister-in-law also and then report has been lodged by them. She also proved the spot map Ex.-P/7. In cross-examination she has stated that the boundary wall of her house was not so much of its height. She further stated that after the incident she had gone to the house of the appellant to inform the act of the appellant, but his mother has threatened her with its consequences. In cross-examination she also remained firm in saying that when the prosecutrix raised her alarm and called her she came to the spot and saw that the appellant committing rape upon her daughter, she slapped him twice and thrice and then the appellant fled away. The father of the prosecutrix (PW-2) and Aunt of the prosecutrix (PW-3) though they were informed by the prosecutrix and her mother, yet they have supported that the prosecutrix and her mother has informed the incident to them and then they have lodged the report. The defence could not extract anything from evidence of these witnesses so that their evidence can be disbelieved.

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19. Doctor Smt. Beratha Tigga (PW-9) who medically examined the prosecutrix has stated in her deposition that she examined the prosecutrix and found the injuries on her body and gave her report Ex.-P/4. The injuries found on body of the prosecutrix have been corroborated by the evidence of the prosecutrix that she received injuries while she was subjected to rape by the appellant. The injuries are abrasions,

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swellings, redness on her hand and legs which proves the fact that the prosecutrix was subjected to forceful sexual intercourse and when she tried to protest she received injuries.

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20. So far as the argument advanced by the learned counsel for the appellant with respect to delayed lodging of the report is concerned, the incident is said to have been occurred on intervening night of 03 and 04-03-2018 at about 01:00 a.m. and the FIR has been registered on 04-03-2018 at about 21:20 hours. The prosecutrix has explained in para 3 of her evidence that on the date of incident her father had gone to his night duty and came in the next morning at about 06:00 a.m. She in para 15 has stated that she made a written complaint to the police station at about 07:00 p.m. on the next day. The mother of the prosecutrix (PW-5) has stated the same version that on the date of incident her husband had gone to his night duty and when he returned in the morning at about 07:00 a.m. she and her daughter informed him about the incident. Thereafter, they called her sister-in-law (PW-3) and then after informing her about the incident they lodged the report in the evening. The father of the prosecutrix (PW-2) too has stated that when he returned to his house in the morning at about 07:30 a.m. he was informed by her wife and daughter about the incident and they were in confusion what to do and what not to do and then they called his elder sister (PW-3) and when she came to his house they informed the incident to her also. In para 3 of his evidence he stated that in view of reputation of the prosecutrix in the society they were confused as to whether they should lodge the report or not and ultimately they have lodged the report in the evening at about 08 – 08:30. His wife and his sister was also there with them at the time of lodging of the report.

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21. PW-3, aunt of the prosecutirs has also stated that when she was informed by the prosecutrix and her parents about the incident she has taken the prosecutrix to her house and from where she was taken to the police station. In cross-examination she has stated that first she and the mother of the prosecutrix had gone to the police station and when the police persons asked them to come along with the prosecutrix

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then they sent the father of the prosecutrix and her son to brought the prosecutrix at police station and then they have taken the prosecutrix to the police station.

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22. Considering the entire state of affairs in between alleged time of incident upto the lodging of the report, it cannot be said that there is inordinate delay in lodging the report or there is a chance to build frame of story of false implication of the appellant. Delay of such a short period in lodging of the report cannot be said to be delayed report. In the offence of rape one can think about the reputation and prestige of his family if he would have lodged the report and then the impact of lodging of report upon his family and branding of his family of rape victim by the persons of the vicinity and the community which normally happens in the society in which the prosecutrix and her family belongs.

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23. In the matter of Deepak Vs. State of Haryana , reported in 2015(4) SCC 762 the Hon’ble Supreme Court has considered the delay in lodging the report in rape cases, which is as under:-

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“ 16. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab v. Gumit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316]”

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24, In the matter of State of H.P. Vs. Gian Chand , reported in (2001) 6 SCC 71, the Hon’ble Supreme Court has held in para 12 of the judgment as under:-

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“ 12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the present case, PW1, the mother of the prosecutrix is a widow. The accused is a close relation of brother of late husband of PW1. PW 1 obviously needed her family members consisting of her in-laws to accompany her or at least help her in lodging the first information report at the police station. The incident having occurred in a village, the approach of the in-laws of PW 1 displayed rusticity in first calling upon the father of the accused and complaining to him of what his son had done. It remained an unpleasant family affair on the next day of the incident which was tried to be settled, if it could be, within the walls of family. That failed. It is thereafter only that the complainant, the widow woman, left all by herself and having no male family member willing to accompany her, proceeded alone to police station. She was lent moral support by Ruldu Ram, the village Panch, whereupon the report of the incident was lodged. The sequence of events soon following the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explanation for the delay. It was found to be so by the learned Sessions Judge. The High Court has not looked into the explanation offered and very superficially recorded a finding of the delay having remained “unexplained” and hence fatal to the prosecution case. It is common knowledge and also judicially noted fact that incidents like rape, more so when the perpetrator of the crime happens to be a member of the family or related therewith, involve

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the honour of the family and therefore there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the court. A cool thought may precede lodging of the FIR. Such are the observations found to have been made by this Court in State of Punjab Vs. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] and also in the case of Harpal Singh [Harpal Singh v. State of H.P., (1981) 1 SCC 560 : 1981 SCC (Cri) 208]. We are satisfied that the delay in making the FIR has been satisfactorily explained and therefore does not cause any dent in the prosecution case.”

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25. Therefore, there is no delay in lodging of the report and the period has already been explained by the prosecution witnesses which is acceptable in the nature of the offence committed by the appellant.

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26. The judgment Thulia Kali Vs. the State of Tamil Nadu , (1972) 3 SCC 393 cited by the learned Senior Counsel for the appellant regarding delay in lodging the report is on different footing and therefore, not applicable to the facts of the present case.

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27. Next argument of the learned Senior Counsel for the appellant that Section 36 of POCSO Act provides that accused should be kept baparda at the time of trial, but in the instant case he has not been kept as baparda and therefore, the entire trial vitiates. Before considering the submissions, Section 36 of POCSO Act is reproduced hereinbelow:-

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“36. Child not to see accused at the time of testifying - (1) The Special Court shall ensure that the child is not exposed in any way to the accused at the time of recording of the evidence, while at the same time ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.

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(2) For the purposes of sub-section (1), the Special Court may record the statement of a child through video conferencing or by utilising single visibility mirrors or curtains or any other device.”

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28. Section 33(4) of POCSO Act enjoins on the special court to ensure a child friendly atmosphere in court. Section 36 of the Act lays down that the child should not see the accused at the time of testifying. This is to ensure that the child does not get scared on seeing the alleged perpetrator of the crime. Children and women, especially those who have been subjected to sexual assault are virtually overwhelmed by the atmosphere in the courts. They are scared. They are so nervous that they are sometimes unable to describe the nature of the crime accurately. When they are cross-examined in a hostile and intimidatory manner, the nervousness increases, and the truth does not come out. It is, therefore, imperative that the courts should have child friendly. Though some progress has been made in this regard, a lot still requires to be done.

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29. The trial should be a search for the truth and not a boat over technicalities. On perusal of the deposition of P.W. 1, it is noticed that the trial was held in camera. On a perusal of the proceeding, on recording the evidence, it is clear that the procedure adopted is quite transparent and the procedure were conducted in the presence of the learned counsel for the accused. The grievance of the appellant/accused is that the accused was not kept in Baparda and therefore, the entire trial vitiates, is not supported by any materials and the allegations that the evidence was not properly recorded, is clearly untenable. No objection was raised by the accused before the learned trial court. The other pleas, which have been stated by the learned Senior Counsel for the appellant/petitioner, do not in any way affect the credibility or acceptability of the evidence of P.W. 1 victim girl. It has to be evolved by the trial court at the time of conclusion of trial. Above being the position, the arguments raised by the learned Senior Counsel for the appellant is not helpful and there is no reason to eschew/discard the evidence of P.W. 1 child victim.

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30. The accused was put to trial before the trial Court and purity of the trial can be presumed because it continued in the judicial proceeding in presence of judicial officer if any objection was there about the proceeding of the trial Court, the accused should have raised objection at that time only so that his objection can be decided and the default can be cured, but in the present case the accused has not raised any objection. The object of keeping the accused in baparda is to protect the prosecutrix from her mental trauma and to avoid any possibility of further threatening or fear and also avoid any agony from the accused. Therefore, the trial has not affected and the appellant cannot be benefited for the same.

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31. One another submission made by learned counsel for the appellant that Rule 747 of the M.P./C.G. Police Regulations (Manual) provides for obtaining patwari map during the investigation of any offence and in the present case no patwari map was obtained by the prosecution and therefore, there is serious lacuna in the prosecution case and the appellant may be benefited for the same. The submission of learned counsel for the appellant is also not having any much force because Rule 747 of the M.P/C.G. Police Regulations provides the method of investigation carried out by police persons while investigation in a murder case, which is not mandatory in the present case. However, in the present case the investigating officer has written letter to the Tahsildar for submission of patwari map vide Ex.-P/25. Even if the patwari map is not available in the case, the map prepared by the police Ex.-P/7 has been proved by the Investigating Officer Shyam Kumar Sidar (PW-12) and the prosecutrix (PW-1) and her mother (PW-5) in whose presence the map Ex.-P/7 was prepared. The identification of the place of incident is not in dispute that the place of incident is inside the house of the prosecutrix. The only dispute which is raised by the appellant that the boundary wall of the house of the prosecutrix was of such height by which the appellant cannot jump. In view of the evidence led by the prosecution and suggestion given by the defene in the evidence of the prosecutrix (PW-1), father of the prosecutrix (PW-2) and aunt of the prosecutrix (PW-3) and mother of the prosecutrix (PW-5), absence of

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patwari map does not affect the case of the prosecution and does not help the defence in creating any doubt upon the case of the prosecution.

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32. The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has sufficiently bring home the charges levelled against the appellant beyond any reasonable doubt, as required in the instant case.

¶91

33. It is relevant to reiterate herein the para 17 and 18 of the judgment passed by Hon’ble Supreme Court in Prahlad Versus State of Haryana , 2015 (8) SCC 688:-

¶92

“17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the Indian Penal Code but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of

¶93

¶94

every citizen flows from the fundamental precepts of the equality clause engrafted Under Articles 14 and right to life Under Article 21 of the Constitution, for they are the "fon juris" of our Constitution. The said rights are constitutionally secured.

¶95

18. Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution.”

¶96

From the aforesaid discussion, this Court is of the opinion that the appellant is guilty for commission of the offences under Section 450 of the IPC and Section 4 of POCSO Act and he has rightly been convicted and sentenced by the learned trial Court. Therefore, the judgment of conviction and sentence passed by the learned trial Court is well reasoned and justified.

¶97

In the result, the appeal filed by the appellant fails and is hereby dismissed.

¶98

The trial Court record along with copy of this judgment be sent back to the learned trial Court concerned.

¶99

Sd/- (Ravindra Kumar Agrawal) Judge

¶100

Aadil

Ashwani Kumar @ Bablu Chouhan v. State of Chhattisgarh

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Ashwani Kumar @ Bablu Chouhan v. State of Chhattisgarh

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