Balesh Kumar Kuraiti Vs State Of Chhattisgarh

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Cr.A.No.872/2017

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.872 of 2017

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{Arising out of judgment dated 18-4-2017 in Special Sessions Trial No.19/2016 of the Additional Sessions Judge (FTC), Rajnandgaon}

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Balesh Kumar Kuraiti, S/o Kashiram @ Mangau @ Manglu Gond, aged about 21 years, R/o Village Butakasa, Police Station Ambagarh Chowki, District Rajnandgaon (C.G.)

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(In Jail) ----- Appellant

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Versus

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State of Chhatt i sgarh, Through Station House Off i cer, Police of Police Station Ambagarh Chowki, District Rajnandgaon (C.G.)

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----- Respondent

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For Appellant: Mr. B.P. Singh, Advocate. For Respondent/State: Mr. Ankur Kashyap, Deputy Govt. Advocate.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Sanjay Kumar Jaiswal, JJ.

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JUDGMENT ON BOARD (14/02/2024)

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 18-4-2017 passed by the Additional Sessions Judge (FTC), Rajnandgaon in Special Sessions Trial No.19/2016, whereby the appellant has been convicted and sentenced as under: -

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Conviction	Sen	tence
Sec. 376(2)(i) of the IPC	Imprisonment for	life and fine of₹
	10,000/-, in defaul	t, additional simple

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	imprisonment for one year
Sec. 6 of the Protection of Children from fi	Imprisonment for life and fine of₹ 10,000/-, in default, additional simple
Sexual Offiences Act,	imprisonment for one year
2012 (for short, ‘the
POCSO Act’)	(Both the sentences were directed to run concurrently)

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Case of the prosecution, in brief, is that on 17-2-2016 at 7.00 p.m., the appellant committied aggravated sexual assault with the minor victim (PW-6) and thereby committied the offience. The mattier was reported by Dinesh Topse (PW-2) – father of the victim, at Police Station Ambagarh Chowki to the effiect that on 17-2-2016 in the evening at about 7.00 p.m., while he was in the house of one Banshilal Sori (PW-5), he heard the cry of a child which was like the voice of two cats quarrelling with each other and at that time, Tejram (PW-4) came and informed him that when he went to attiend the call of nature near the garden of Ashok, he heard a voice on which he pelted a stone and the voice stopped and while he was returning, he heard the cry of a child. It is the further case of the prosecution that when Dinesh Topse (PW-2) – father of the victim, came back to his house along with witness Tejram (PW-4), Devki Bai (PW-1) – mother of the victim, informed him that the victim sustained injuries on both her cheeks, nose and lip and blood was oozing from her private part. It is also the case of the prosecution that the appellant came as guest in the house of Deshbai – aunt ( chachi ) of Devi Bai (PW-1),

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and he had taken the victim on his lap and thereaft e r, the victim was found crying and she suffiered bodily injury on her private part. On the basis of the report lodged by Dinesh Topse (PW-2) – father of the victim, on 17-2-2016 at 10.30 p.m., the wheels of investigation started running and offience was registered against the appellant under Sections 376 of the IPC and 4 & 6 of the POCSO Act vide FIR Ex.P-3 and spot map was prepared by the investigating off i cer vide Ex.P-4. Patwari also prepared spot map vide Ex.P-7. The victim (PW-6) was medically examined by Dr. V.P. Khute (PW-18) vide Ex.P-15 in which her secondary sexual characters were not found developed and three abrasions were found over the body and on gynaecological examination, whole of external genitalia in hammed and tendered; vaginal orifice and hymen injured at many places, small cut, abrasions present; labia majora and labia minora have multiple abrasions (small), all are reddish brown in colour and painful, however, internal examination was not possible due to minor and pain. In the opinion of Dr. V.P. Khute (PW-18) vide Ex.P-15, forceful sexual assault has been performed on the victim within 24 hours of duration. Dr. Subhadra Thakur (PW-21) has also examined the victim and found multiple abrasions, contusion and swelling on several parts of the body of the victim which are simple in nature and on genital examination, as many as four injuries (abrasion and lacerated wound) were found and on vaginal opening,

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redness and swelling around vagina was found. Vaginal slides were prepared and sent for chemical examination to the FSL, Raipur from where report Ex.P-24 was received according to which on vaginal slides, stains of human sperm were found. Similarly, on slides and undergarments of the accused/ appellant also, human sperm was found. The accused abjured the guilt and entered into defence that he has not committied the offience and he has been falsely implicated and claimed to be tried.

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Aft e r due investigation, charge-sheet was filed against the appellant for offiences under Sections 376(2)(i) of the IPC & 6 of the POCSO Act. The prosecution in order to bring home the offience, examined as many as 21 witnesses PW-1 to PW-21 in support of its case and exhibited 24 documents Exs.P-1 to P-24. Defence has neither examined any witness nor exhibited any document in support of its case. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication.

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The trial Court aft e r completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment against which he has preferred the instant appeal under Section 374(2) of the CrPC.

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Mr. B.P. Singh, learned counsel appearing for the appellant,

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would submit that the victim has not supported the case of the prosecution and therefore the trial Court could not have convicted the appellant for offiences under Sections 376(2)(i) of the IPC and 6 of the POCSO Act and separate punishment could not have been awarded. Even minimum sentence for offience under Section 6 of the POCSO Act was 10 years and it has been enhanced with effiect from 16-8-2019, therefore, minimum sentence of ten years in alternative be awarded.

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Mr. Ankur Kashyap, learned Deputy Government Advocate appearing for the State/respondent, would support the impugned judgment and submit that a minor victim girl of 3 years age has been sexually assaulted by the appellant and it is supported by medical evidence and the evidence of victim’s mother Devki Bai (PW-1) and that of victim's father Dinesh Topse (PW-2), as such, the appeal deserves to be dismissed. He would further submit that no leniency should be shown towards the accused/appellant, as he has sexually assaulted the minor victim girl of three years old.

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We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

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It is not in dispute that the victim was 3 years of age on the date of offience. Though she was examined, but on account of her

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minority, her statement could not be recorded as she was minor aged about 3 years on the said date. Devki Bai (PW-1) – mother of the victim has clearly stated that on the fateful day in the evening at 6 p.m., the appellant came and took her daughter (minor victim) on his lap and he has taken the victim out of her house and thereaft e r, her daughter came crying and blood was oozing from her private part and also from cheek and neck. Devki Bai (PW-1) informed to her husband i.e. father of the victim, about the incident and thereaft e r, the mattier was reported to the police and the minor victim was taken to the hospital and she was medically examined. Similar statement has been made by Dinesh Topse (PW-2) – father of the victim.

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Immediately aft e r the victim came running, she was medically examined in which there is clear evidence of sexual assault having made upon her. According to the medical report Ex.P-15 of Dr. V.P. Khute (PW-18) and Dr. Subhadra Thakur (PW-21), injury has been found on the private part of the minor victim and hymen was injured at many places and even on vaginal slides of the victim prepared, stains of human sperm were found and human sperm was also found on the undergarment of the accused/appellant as per FSL report Ex.P-24.

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Devki Bai (PW-1) & Dinesh Topse (PW-2) - mother & father of the victim, respectively, have been subjected to lengthy crossexamination, but nothing has been elicited from their evidence

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that they are telling lie. It is established that is the appellant who has taken the minor victim on his lap and immediately thereaft e r, she came crying having been injured on her private part and other parts of the body which the appellant has not explained in his statement under Section 313 of the CrPC. Aft e r appreciating oral and documentary evidence available on record, the trial Court has convicted the appellant. The finding recorded by the trial Court in this regard is a finding of fact which is neither perverse nor contrary to the record and we hereby aff i rm the said finding.

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Though the date of offience is 17-2-2016 which is prior to the amendment suffiered by Section 6 of the POCSO Act by which minimum punishment prescribed has been enhanced with effiect from 16-8-2019, but considering the fact that the minor victim was subjected to sexual assault in breach of trust which her mother & father have reposed on the appellant and he was allowed to take the minor victim on his lap on the pretext of loving her.

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Consequently, we find that the appellant’s conviction is well merited, however, as far as sentence part is concerned, we are of the considered opinion that twenty years RI would be appropriate sentence in both the offiences i.e. Section 376(2)(i) of the IPC & Section 6 of the POCSO Act by virtue of Section 42 of the POCSO Act. Accordingly, the appeal is partly allowed.

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Conviction of the appellant under Sections 376(2)(i) of the IPC & Section 6 of the POCSO Act is hereby maintained, however, sentence of imprisonment for life imposed upon the appellant on both counts is hereby reduced to RI for twenty years by further maintaining the fine amount imposed by the trial Court along with default stipulation.

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Before parting with record, the issue of victim compensation needs to be addressed by us. The learned Additional Sessions Judge (FTC) in paragraph 39 of his judgment had only recommended for compensation of 1₹ 8,000 to the victim, which is totally inadequate and contrary to Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018 formulated by the State of Chhatt i sgarh w.e.f. 2-10-2018 pursuant to the direction given by the Supreme Court in the mattier of Nipun Saxena and another v. Union of India and others 1.

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The Supreme Court in the mattier of Nipun Saxena (supra), in paragraph 9, held on 05.09.201 8 that till the Scheme is framed, the NALSA’s Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 of the POCSO Rules of 2012. Paragraphs 2, 9, 10 and 11 to 15 of the report state as under :-

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“2. It has been brought to our notice that as far as

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1 (2019) 13 SCC 715

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children are concerned, no Scheme of this nature has been framed with regard to the victims of sexual abuse under the provisions of the Protection of Children from Sexual Offiences Act, 2012 (for short “the POCSO Act”).

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Keeping this hiatus in mind, we are of the opinion, aft e r hearing learned counsel for the parties as well as learned Additional Solicitor General, that NALSA’s Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 until the Rules are finalised by the Central Government.

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The Special Judge will, of course, take the provisions of the POCSO Act into consideration as well as any circumstances that are special to the victim while passing an appropriate order.

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We need not emphasise that the legislation is gender neutral and, therefore, the guidelines will be applicable to all children.

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The Special Judge will also pass appropriate orders regarding actual physical payment of the compensation or the interim compensation so that it is not misused or misutilised and is actually available for the benefit of the child victim. If the Special Judge deems it appropriate, an order of depositing the amount in an interest-bearing account may be passed.

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A copy of NALSA’s Compensation Scheme as well as a copy of this order should be sent by the Registry to the Registrar General of every High Court with a direction that the Registrar General will circulate them to all the District Judges concerned for circulation to the Special Judges and the State, District and Taluka Legal Services Committiees.

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A copy of the Scheme and a copy of the order passed by this Court will also be sent by the Registry to all the Judicial Academies for information.

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We also direct that the publicity should be given to the Scheme as well as the order passed by us on regular basis until the Rules re finalized by the Central Government. The learned Additional Solicitor General assures us that the needful will be done on a regular basis through all forms of media. Needless to say that the Scheme and the Guidelines will be operational from 02.10.201 8 .”

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It would be appropriate to mention here that the National Legal Services Authority (NALSA) setup a committiee and finalised the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes and submittied before the Supreme Court on 24-4-2018 and on 21-5-2018, the said Scheme was accepted by the Supreme Court and called as “the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes”. In the said Scheme, minimum limit of compensation provided to rape victim is 4 lakhs and upper limit of compensation is 7₹ ₹ lakhs and thereaft e r in exercise of the powers conferred by Section 357A of the Code, the State of Chhatt i sgarh has framed a scheme known as the “Compensation Scheme for Women victims/Survivors of Sexual Assault/other Crimes, 2018” with effiect from 2-10-2018, explanation appended to the Scheme provides that in case of Minor Victims under POCSO, it would be applicable. The Schedule attiached to the said Scheme provides that in case of rape, minimum limit of compensation would be ₹ 4 lakhs and upper limit of compensation would be ₹ 7 lakhs. Serial No.3 of the said Schedule reads as under: -

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SCHEDULE APPLICABLE TO WOMEN VICTIM OF CRIMES

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S.No.	Particulars of loss	Minimum Limit	Upper Limit of
	or injury	of Compensation	Compensation
3.	Rape	Rs. 4 Lakh	Rs. 7 Lakh

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Now, the question is, whether the rape victims are entitled for compensation as per the Scheme of 2018 framed by the State Government which came into force with effiect from 2^nd October, 2018 as per the notification dated 4^th February, 2019 by which date the Scheme has been brought into force or under the old scheme which was in force with effiect from 3-8-2011 as offience in present case is said to have been committied 3-4 days prior to 192-2013.

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Reverting to the facts of the present case in the light of the above-stated statutory provisions and in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in aforesaid judgment, it is quite vivid that since the victim was minor and the appellant has been convicted for offience under Section 376(2)(i) of the IPC and Section 6 of the POCSO Act, the rape victim and her family members were required to be rehabilitated/protected. Consequently, recommendation ought to have been made by the Additional Sessions Judge to the DLSA or the SLSA under Section 357A(2) of the Code, but that has not been done despite the clear cut mandate in that regard. Taking into consideration that the rape victim was minor aged about 3

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years only on the date of offience and she has been sexually assaulted when the offience took place and she has suffiered not only physically but mentally also, and considering the gravity of offience and that she is required to be rehabilitated and further taking into consideration the provisions contained in the Scheme of 2018 and victim has been traumatized heavily, particularly taking into consideration her age i.e. 3 years, the victim is entitled for total compensation of 7 lakhs under the Scheme of₹ 2018 and not under the Scheme of 2011.

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Accordingly, it is held that the rape victims (PW-6) will be entitled for compensation of 7 lakhs ₹ minus ₹ 18/- (if already paid) from the State Government along with 6% interest from today till the date of payment. The District Magistrate, Rajnandgaon shall deposit the above-stated amount before the concerned Special Court within 30 days from today. The concerned Special Judge shall disburse the said amount to the victims in accordance with the directions given by the Supreme Court in the mattier of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and others 2 (paragraph 17) read with paragraph 12 in Nipun Saxena (supra).

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Consequently, the criminal appeal is partly allowed with modification of directions regarding the victim compensation as

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2 AIR 1994 SC 1631

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contained in paragraph 18 of this judgment.

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Let a certified copy of this judgment along with the original record be transmittied to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffiering the jail sentence.

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Copy of this judgment be also sent to the District Collector, Rajnandgaon for compliance and needful and also to the victim’s parents by registered post.

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Sd/Sd/(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Soma

Balesh Kumar Kuraiti v. State Of Chhattisgarh

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Balesh Kumar Kuraiti v. State Of Chhattisgarh

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