Ashok Kumar Dewangan Vs State of Chhattisgarh

The present appeal is directed against the judgment of conviction and order of sentence dated 28.11.2020 passed by the learned Additional Session Judge, Dongargarh, District

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Rajnandgaon in Special Criminal Case No.11/2019, whereby the appellant has been convicted under Sections 376AB of IPC and Section 6 of POCSO Act and sentenced to undergo RI for 20 years with default stipulations.

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The prosecution case, in brief, is that on 13.06.2019 the mother of victim A and big mother of victim B lodged the complaint before the P.S. Dongargarh by alleging that the appellant (her brother-inlaw) in between 17.05.2019 to 04.06.2019 committed rape upon her daughter victim A and also committed rape between 06.06.2019 to 13.06.2019 upon her sister-in-law’s (Devrani) daughter victim B, as on 13.06.2019 itself when Victim- A returned to her home, she narrated the entire story to her mother (PW/1) and thereafter Victim B also narrated the about the same. After receiving the said complaint, the concerned police station registered an FIR (Ex-P/2) against the appellant under Section 376 of IPC and Section 6 of POCSO Act and during investigation arrested the appellant. After completion of investigation, charge sheet was filed under Section 376AB two times of IPC and Section 6 of POCSO Act (two times) before the learned Special Court. After appreciating the oral and documentary evidence available on record, the learned trial court convicted the appellant and sentenced him, as mentioned in para 1 of the judgment.

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Learned counsel for the appellant submits that the judgment of conviction and order of sentence passed by learned trial court is

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bad in law as well as facts available on record. The learned trial court failed to consider that only on the basis of the evidence adduce by the victims’ parents the learned trial court convicted the appellant. The learned trial court further failed to consider that as per evidence adduced by the mother of the victim-A (PW/1) on the date of incident the other family members were also present in the house of the appellant. She also stated that when the victim A residing in the house of the appellant fallen from the bicycle, due to which she caused injuries in her body parts. Victim A also stated that her sister victim B did not tell about the incident. The learned trial court further failed to consider that the other witnesses are relative witnesses and due to previous enmity the false case was registered against the present appellant. The learned trial court further failed to consider that Dr. Suchita Shrivastava (PW/14) has specifically stated that no any injuries were found in the private part of the victims and no signed of the aggravated penetrative sexual assault in the body of victims was found. The learned Trial Court failed to consider that to bring home the charges U/S 6 of the Protection of Children from Sexual Offences Act, 2012, prosecution is under an obligation to prove the 'aggravated penetrative assault as defined U/S 5 of the Act of 2012. The learned trial court failed to consider that the date of incident is 17.05.2019 whereas the case has been registered on 13.06.2019 without explaining delay which makes the story of the prosecution suspicious. Therefore,

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the appeal deserves to be allowed.

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Per contra, learned State counsel supports the impugned judgment and submits that both the victims categorically stated against the appellant and they remained firm in their crossexamination, medical report as well as FSL report and also supported the prosecution case, as such the learned Trial Court has rightly convicted the appellant and thus the appeal is liable to be dismissed.

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

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It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 376 AB (two times) of IPC and Section 6 of the POCSO (two times) against the appellant on this ground that he committed sexual assault on the minor children (girls) victim A & B, who are aged about 4 years and 8 years. Victim-A (PW-2) stated in her court statement that the accused is her uncle (Phoophaji) and she went to her aunt’s home in summer holidays and for 4 days, sexual intercourse was committed with her. When it was suggested by defence that if she has narrated the whole incident upon his mother’s saying, to which she denied. Victim-B (PW-3) also stated that when she went to her uncle’s home, her uncle the appellant used to commit sexual intercourse with her and she also remained firm in her cross-examination. PW-1 mother of

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victim-A stated that victim-A is her daughter and she had gone to her sister-in-law’s home on 06.06.2019 and appellant is the husband of her sister-in-law. When the appellant had come to drop her daughter Victim-A, she was crying and stated that when uncle will go, she will tell and thereafter she narrated the whole incident to her mother, then he assaulted 2 blows by club (danda) to the accused and lodged FIR in the police station vide Ex-P/2. Dr. Suchita Shrivastava (PW-14) examined the victim -A on 13.06.2019 and found that there is redness and swelling in her private part but her hymen was intact and gave her report vide Ex-P/11 and also prepared vaginal slide and referred the same for chemical examination, but she did not find any injury on the private part of Victim -B and gave her report vide Ex-P/16. It is clear from statement of the victim-B (PW-3) that she is aged about 4 years but she narrated the incident prior to 15 days. As per PW-1 Victim-B was went to appellant’s home from 23.04.2019 to 17.05.2019 and victim-A went there from 04.06.2019 to 13.06.2019 and same day i.e. on 13.06.2019 when victim -A narrated the whole incident to her mother, then she immediately lodged FIR and Dr. Suchita Shrivastava also found redness and swelling in private part of Victim-A. It is also clear from FSL (Ex-P/22) that sperm was found in garments of victimA.

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It is clear from birth certificates of both the victim’s reports A-1 & A-2 that victim A was aged about 8 years and Victim-B was aged

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about 4 years at the time of incident and defence also not objected about the same. The prosecution has proved this fact that both the victims are below 10 years of age, but looking to the medical reports of Victim-A & B and statement of doctor, it is clear that hymen was intact and Dr. Suchita Shrivastava (PW-14) admitted this suggestion of defence that it is true that hymen can be ruptured by intercourse. It is clear from statement of Victims-A & B that they remained firm in their cross-examination and defence suggested this question to Victims and mother of victims that is there any dispute between the appellant and their family, but they denied this suggestion, as such the prosecution has proved this fact beyond reasonable doubt that sexual assault was done by the appellant upon the victims.

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Section 376 of IPC and Sections 6 & 8 of POCSO Act, 2012 are reproduced hereunder:-

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“Section 376.- Punishment for rape.- (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to file.

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AND

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“Section 6.- Punishment for aggravated penetrative sexual assault.-

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(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

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(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

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Section 8 - Punishment for sexual assault - Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.”

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From perusal of the above evidence, it is clear that no injury was found on the body of the Victim B. Dr. Suchita Shrivastava found redness and swelling in private part of Victim-A and FSL also supported the prosecution case so the prosecution has proved beyond reasonable doubt that the accused/appellant sexually assaulted Victim-A & B. Therefore, the conviction of the appellant under Section 376AB of the IPC and Section 6 of the POCSO Act cannot be sustained. Therefore, the conviction of the appellant in the opinion of this Court would fall under Section 376 (Two times) read with Section 511 of IPC and Section 8 (Two times) of the POCSO Act read with Section 511 of IPC and the appellant should be convicted under Section 8 (Two times) of the POCSO Act read with Section 511 of IPC instead of Section 376AB of the IPC and Section 6 of the POCSO Act.

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Accordingly, the judgment of conviction and order of sentence is modified and the appellant is convicted under Section 8 (Two times) of the POCSO Act, 2012 read with Section 511 of IPC. The maximum sentenced has been mentioned under Section 8 of the POCSO Act, 2012 is 5 years. The appellant has remained in

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jail since 14.06.2019 i.e. for more than 5 years, therefore, he is sentenced to the period already undergone by him. He be released, forthwith, if he is not required to be detained in any other case.

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The appeal is partly allowed.

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

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Sd/Sd/-

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Rajani Dubey Bibhu Datta Guru Judge Judge

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Nirala

Ashok Kumar Dewangan v. State of Chhattisgarh

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Ashok Kumar Dewangan v. State of Chhattisgarh

Case brief

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