Vijay Kumar Chouhan Vs State of Chhattisgarh

Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 21.12.2018 passed by the learned Additional Sessions Judge (F.T.C.)/Special Judge, POCSO Act 2012, District-Korba (C.G.) in Special POCSO Case No. 33/2017 whereby the appellant has been convicted as under:-

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Conviction	Sentence & Fine
Under Section 376 (2) (N) of	Life Imprisonment and fine of Rs.
IPC read with Section 6 of	1,000/- and in default of fine
the POCSO Act	amount two months of R.I.
[However, in light of S.42 of
POCSO Act only punished
U/s. 376(2)(n)of IPC]
Under Section 450 of IPC	R.I. for 7 years and fine of Rs. 500/- and in default of payment of fine amount one month R.I.
Both the sent	ences shall run concurrently.

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The case of the prosecution, in a nutshell, is that on 21.11.2017, at about 08:00 PM, the accused-appellant firstly trespassed into the house of the complainant, namely, Sunita Chouhan (PW-02), situated at Village Kurudih, which comes within the ambit of Police Station Urga, District Korba (CG), and abused her and her minor daughter (victim) with filthily obscene words and, further, said to have committed aggravated penetrative sexual assault/sexual intercourse with minor victim (PW-01) time and again on different places without her will and consent and, thereby, said to have

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committed offences under Sections 450, 376(2)(n), 506 (PartII) (on two counts) & 294 (on two counts) of IPC and also under Section 5(l) read with Section 06 of the Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO Act”).

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It is further case of the prosecution that on the date and time of the offence, the appellant, under the influence of liquor, visited the house of the complainant (PW-02) and, seeing whom, the victim (PW-01), aged about 11 years, ran away and, thereafter, the appellant started abusing the complainant (PW-02) i.e. mother of the victim with filthily obscene words, but somehow, the brother of the victim, namely, Ajay (not examined) consoled the appellant and send him back to his house. Thereafter, the victim (PW-01) informed her family members that on the later part of the day, when nobody was in the house, the appellant under the influence of liquor has came to the house and committed sexual intercourse (rape) with her and also threatened her to kill her. The victim (PW01) further informed that in the evening, at about 07:00 PM, also the appellant has committed sexual intercourse with her near the pond against her will and consent.

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Thereafter, when the complainant (PW-02) reported the matter to the police by submitting written complaint (Ex.P/05), FIR (Ex.P/06) was registered against the appellant and wheels of investigation started running, in which, spot map (Ex.P/03) were prepared. After obtaining necessary consent for the purpose of medical examination of the victim (PW-01) vide Ex.P/02 & Ex.P/07, she was subjected to medical examination, which was conducted by Dr. Veena Agrawal (PW-07). According to her MLC report (Ex.P/13), victim’s hymen was found intact and it has been opined by the doctor

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that victim was attempted for intercourse within 07 days. Further, victim’s vaginal slides were prepared and handed over to the police for analysis, which were seized vide Ex.P/15. The accused-appellant was arrested vide Ex.P/19 and sent for medical examination. Appellant’s MLC report is Ex.P/16 and his slides were also prepared and handed to the police by analysis alongwith her undergarment, which were seized vide Ex.P/22. The aforesaid seized articles were sent for chemical analysis and, as per FSL report (Ex.P/27), it has been opined that stains of human sperm/semen were found on the slide of the victim as also on the slide and undergarment of the appellant. In order to ascertain the correct age of the victim (PW-01), copy of relevant page of Dakhila kharij register (Ex.P/10C) were obtained/seized, wherein victim’s date of birth has been recorded as 18.04.2006, meaning thereby, on the date of offence (i.e. 21.11.2017) the victim was minor aged about 11 years 07 months. After the statement of witnesses were recorded and investigation is completed, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 27 documents apart from Article-A/1 & Article-A/2, whereas the appellant in support of his defence, examined 03 witnesses and exhibited 01 document.

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The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 376(2)(n) of IPC read with Section 06 of the POCSO Act and also under Section 450 of IPC and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellantaccused questioning the impugned judgment of conviction and order of sentence.

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Learned counsel for the appellant submits that the learned trial Court without properly appreciating the evidence available on record, only on the basis of some suspicious and untrust worthy evidence of the victim as well as her mother wrongly held guilt of the appellant. He further submits that the evidence of the victim/prosecutrix nowhere prove that the appellant has committed rape with the victim/prosecutrix infact she is tutored witness and according to advise of her mother she has stated against the appellant though here evidence has not been corroborated by the medical evidence and so far as the defence of the appellant is concerned i.e. more probably rather than the prosecution story which has been brought as after thought of the mother of the victim. There is three days unexplained delay for lodging the report and looking to the fact that the appellant has duly proved that on 21.11.2017 he has caught the mother of the prosecutrix in a objectionable position along with one Gopi @ Sandhu and for that between them some quarrel has been took place but at the time of the said quarrel she has not stated anything about the commission of rape with her daughter and subsequently she has implicated the appellant in the aforesaid commission of offence that creates serious doubt in

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the prosecution case and on the basis of the said evidence conviction of the appellant is not sustainable. He further submits that the Judgment of learned trial Court is erroneous and contrary to the legal evidence available on record and looking to the fact that the prosecution has failed to prove their case beyond reasonable doubt and further there is ample material which indicates the complainant for the very purpose to save her skin, has implicated him in a false case. He further submits that the evidence of the prosecutrix as well as her mother (complainant) nowhere prove the case against the appellant beyond reasonable doubt, even the Doctor is not in position to say that the appellant has committed forciable sexual intercourse with the proseuctrix. He further submits that the learned trial Court has also not considered the evidence of independent witnesses who has not supported the prosecution case. The case of defecne is more probable. For the very reason that there is three days delay, concocted report and on the basis of said evidence conviction of the appellant cannot be justified and whole judgment and conviction passed by the learned trial Court is erroneous and against the rule of prudence. Hence, the present appeal deserves to be allowed and the appellant it liable to be acquitted of the said charges on the basis of benefit of doubt.

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On the other hand, the learned counsel for the State submits that the conclusion given by the trial Court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which dose not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed.

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Learned counsel appearing on behalf of the objector also supported the submissions advanced by learned State counsel and prays for dismissal of this appeal.

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Heard learned counsel for the parties and perused the record with utmost circumspection.

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The entire case is based upon the evidence of victim (PW-01) who vide Para-9 of her statement stated that on the date of incident at about 08:00 pm the appellant has seen her mother along with one Gopi @ Sundu in her house and a quarrel took place between them, however, no report was lodged for the same. On 24.11.2017 they went to lodge a report in respect of quarrel between her mother and the appellant, however, the report has been lodged as tutored by her mother.(PW-02) mother of the victim has also admitted this fact vide para 6 of her deposition is that she came to know about the incident with her daughter on 21.11.2017 and a meeting was also held for lodging FIR but they have not lodged FIR on that day and the report was lodged on 24.11.2017 before the concerned police station. She has admitted this fact she went to lodge a report in respect of marpeet between her and the appellant.

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In the instant case, the FIR was lodged by the complainant after an inordinate and unexplained delay of three days at Police Station, which renders the FIR in this case wholly unreliable. The delay in lodging the FIR corrodes the credibility of the prosecution story. The Hon'ble Supreme Court in several cases held that delay in loading the FIR creates a doubt, if the said delay is not properly explained.

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In Thulia Kali v. The State of Tamil Nadu, (1972) 3 SCC 393 , the Supreme Court, emphasizing the necessity of explaining the delay in lodging FIR, has held as follows:

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"12... First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.…"

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14. In Meharaj Singh &Ors. v. State of U. P. &Ors, (1994) 5SCC

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188 the Supreme Court has observed:

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"12. ... The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR

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not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante

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timed to give it the colour of a promptly lodged FIR…"

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In Satpal Singh v. State of Haryana, (2010) 8 SCC 714 the Supreme Court has observed:

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"15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [Vide: State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582]"

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The Hon'ble Supreme Court in Kishan Singh Vs. Gurpal Singh, (2010) 8 SCC 775 with regard to the effect of delay in lodging FIR has held as under:

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"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely

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that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide :Chandrapal Singh &Ors. Vs. Maharaj Singh &Anr., AIR 1982 SC 1238; State of Haryana &Ors. Vs. Ch. Bhajan Lal &Ors., AIR 1992 SC 604; G. Sagar Suri &Anr. Vs. State of U.P. &Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. &Ors., (2008) 12 SCC 531).

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In Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC 379 , Hon'ble Supreme Court has held that extraordinary delay in lodging of FIR raises grave doubt regarding the truthfulness of allegations. The Hon'ble Court held as under:

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"12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye- witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

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Relying upon the judgment of Jai Prakash Singh (supra), in Manoj Kumar Sharma and others Vs. State of Chhattisgarh and another, (2016) 9 SCC 1, Hon'ble Supreme Court has held that delay in lodging FIR often results in embellishment, which is a creature of an afterthought and on account of delay, FIR not only gets bereft of advantage of spontaneity, danger of coloured version or exaggerated story being introduced in FIR, creeps in. It further held that extraordinary delay in lodging FIR raises grave doubt about the truthfulness of allegations made therein.

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Furthermore, there is delay of about three days in lodging FIR. In the present case, incident is said to have taken place on 21.11.2017, however, the FIR has been lodged on

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24.11.2017 i.e. after 03 days. As such, the same caste suspicion on the prosecution story, as from the statement of the victim (PW-01) she has narrated the incident of rape to her mother on the same day, but for the reasons best known to the complainant, she lodged the report on 24.11.2017.

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Furthermore, victim’s vaginal slide were seized on 24.11.2017 as per seizure memo (Ex.P/19), however, the same were sent to FSL on 19.12.2017 i.e. after a delay of 25 days from the date of incidenct and there is no evidence on record to show that the said articles were kept in safe custody for the said period, as such, chances of manipulation and tempering with the said seized articles is on higher side and, consequently, it cretes a doubt on the credibility and authenticity of the FSL report (Ex. P/27). Therefore, in the light of the decision of the Supreme Court in the matter of Santa Singh v. State of Punjab1, wherein it has been held that if there exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated, the opinion of the FSL report (Ex. P/27) pales into insginificance and cannot be relied upon to convict the appellant herein for the offence in question. Hence, for such a long time how and where the FSL material was kept is not clear and the same is doubtful.

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That the medical evidence in respect of offence of rape is not corroborated by the Dr. Veena Agrawal (PW-7) and she has stated that there is no sign of forceful intercourse. According to the opinion of Dr. attempt was made to commit the offence of rape. The oral evidence of victim PW-1 is to this effect that a quarrel took place between the appellant and the mother of the victim and thereafter the appellant went to his house; after three days FIR has been lodged they went to lodge FIR

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1 AIR 1956 SC 526

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regarding quarrel and she has lodged a report on the instance of her mother, creates a serious doubt regarding case of prosecution.

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Neither FIR was lodged promptly and not for rape as stated by PW-1 and PW-2 nor the offence of rape was not corroborated by any other evidence like medical evidence as well as FSL as such in such circumstances the conviction cannot be sustained.

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Accordingly, the appellant is acquitted from all the charges on the basis of benefit of doubt. Since the appellant is in jail, we direct that he be released from jail forthwith, if not required in any other matter/crime.This criminal appeal is allowed .

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Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure for a sum of Rs. 25,000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon’ble Supreme Court.

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The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/-

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Sd/-

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

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Raghu Jat

Vijay Kumar Chouhan v. State of Chhattisgarh

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Vijay Kumar Chouhan v. State of Chhattisgarh

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