Malti Rathore Vs State of Chhattisgarh

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2025:CGHC:1646-DB

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NAFR

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Digitally signed by INDRAJEET SAHU Date: 2025.01.20 17:05:35 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 110 of 2021

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1 - Malti Rathore Wife of Heeralal Aged About 38 Years Resident of Village Bazar Chouk Ke Paas Shivni, Police Station Champa, District- Janjgir Champa (Chhattisgarh).

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--- Appellant

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versus

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1 - State of Chhattisgarh Through Police Station Champa, District- Janjgir Champa (Chhattisgarh).

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--- Respondent(s)

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CRA No. 485 of 2021

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1 - Botti @ Khemlal Rathore S/o Shri Raghunath Prasad Aged About 35 Years R/o Amhapara Seoni, Ward No. 16, Police Station Champa, District Janjgir-Champa, Chhattisgarh.

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--- Appellant

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Versus

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1 - State of Chhattisgarh Through The Police Station Champa, District Janjgir-Champa, Chhattisgarh.

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--- Respondent(s) For Appellants : Shri Awadh Tripathi and Shri Palash Jha, Advocates. For State : Shri Shashank Thakur, Dy. Advocate General.

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Hon'ble Shri Justice Ramesh Sinha, CJ

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board

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10.01.2025

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Per, Ramesh Sinha, CJ.

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1. These two appeals arise out of same crime number and same sessions trial, therefore they are being heard and decided together by this common judgment.

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2. Both the appeals have been filed by the appellants against the judgment of conviction and order of sentence dated 01.12.2020 passed by the Special Judge (POCSO) Janjgir, District Janjgir Champa, in Sessions Case No. 5/2020, whereby the appellant-Botti @ Khemlal Rathore (in CRA No.485 of 2021) has been convicted and sentenced for the offence under Section 376(AB) IPC and Section 6 of POCSO Act and sentenced to undergo RI for 20 years with fine of Rs.1000/-, in default of payment of fine, additional RI for one year. Since the appellant Botti was sentenced under Section 6 of POCSO Act, no separate sentence was awarded for the offence under Section 376 (AB) IPC.

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3. The appellant Malti Rathore (in CRA No.110 of 2021) has also been convicted and sentenced for the offence under Section 376(AB) read with Section 109 IPC and Section 6 read with Section 17 of POCSO Act and sentenced to undergo RI for 20 years with fine of Rs.1000/-, in default of payment of fine, additional RI for one year. Since the appellant Malti Rathore was sentenced under Section 6 read with Section 17 of POCSO Act, no separate sentence was awarded for the offence under Section 376 (AB) read with Section 109 IPC.

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4. Brief facts of the case are that, on 17.12.2019 the father of victim PW2, gave a written complaint Ex.P/1 to the police alleging that on 17.12.2019 at about 8:30 PM when he returned from his work, his minor daughter informed him that the appellants dragged her towards backyard of the house of the appellant Botti @ Khemlal in which the appellant Malti also assisted him and appellant Botti @ Khemlal has committed rape upon her. On the basis of written complaint, an FIR Ex.P/2 was registered against the appellant Botti @ Khemlal for the

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offence under Section 376 IPC and Section 4&6 of POCSO Act. The victim was sent for her medical examination to BDM Hospital Champa where she was medically examined by PW-5 Dr. Sarita Nagarchi who gave her report Ex.P/14. While examining the victim, she has not noticed any external injuries on her body and opined that no forceful attempt of recent intercourse is found. Two slides of vaginal swab of the victim was prepared, sealed and handed it over to the police for chemical examination. With respect to age and date of birth of the victim, the police seized school admission and discharge register from Govt. Girls Primary School, Sivni vide seizure memo Ex.P/18 and after retaining attested true copy of the same vide Ex.P/17-C, the original was returned back. Spot Map Ex.P/3 was prepared by the police whereas Ex.P/6 was prepared by the Patwari. Semen like stained soil and plain soil was also seized from the spot vide seizure memo Ex.P/5.

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5. The accused persons were arrested on 18.12.2019. The appellant Botti @ Khemlal was sent for his medical examination at Community Health Centre, Champa where PW-6 Dr. Dr. Manish Shrivastava medically examined the appellant and gave report Ex.P/15 and found him capable to perform sexual intercourse. The co-accused Heera Lal Rathore was also sent for his medical examination to Community Health Centre, Champa and he was examined by Dr. Manish Shrivastava. The vaginal swab of the victim, her underwear, the handkerchief on which semen like stained soil was present and underwear of the appellant were sent for chemical examination to regional FSL Bilaspur from where FSL report Ex.P/30 was received, according to which, the underwear of the victim as well as appellant

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Khemlal were found to be stained with sperms and semen whereas no sperms or semen were found in the vaginal slides of the victim and handkerchief.

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6. The statement under Section 161 CrPC of the victim as well as other witnesses was recorded. The statement of victim under Section 164 CrPC was also recorded and after completion of usual investigation charge sheet was filed against three accused persons namely Botti @ Khemlal Rathore, Heera Lal Rathore and Smt. Malti Rathore Rathore for the offence under Section 376/34 (376(D)) IPC and Section 6 of POCSO Act before the trial court. The trial court has framed charge against the appellant Botti @ Khemlal for the offence under Section 376(AB) IPC and Section 6 of POCSO Act, and under Section 376(AB) read with Section 109 IPC and Section 6 read with Section 17 of POCSO Act against the co-accused Heera Lal Rathore and Smt. Malti Rathore. The accused persons denied the charge and claimed trial.

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7. To prove the guilt of accused persons, the prosecution has examined 11 witnesses. The statement of accused persons under Section 313 CrPC was recorded in which they denied the circumstances appears against them, plead innocence and submitted that they have been falsely implicated in the offence.

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8. After appreciation of oral as well as documentary evidence, the Trial Court has acquitted the co-accused Heera Lal Rathroe from all the offences, however, convicted and sentenced the appellants Botti @ Khemlal Rathroe and Smt. Malti Rathore, as mentioned in the earlier part of this judgment. Hence these appeals by the appellant Botti @ Khemlal and Malti Rathore.

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9. Shri Awadh Tripathi, learned counsel appearing for the appellant-Botti @ Khemlal (CRA No. 485 of 2021), would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses. There is no corroboration of the evidence of victim and only to settle the personal grudge, the father of victim have lodged a false report against the appellant. No injuries have been found on the body of the deceased. There is no cogent and clinching evidence with respect to age and date of birth of the victim. School register Ex.P/17-C has not been proved by its author in accordance with law. Therefore, the same cannot be taken into consideration for determination of the age of victim. Had the victim been subjected to rape by the appellant, she must have received certain injuries on her body and she must have tried to protest, but no injuries were found on her body. Bing tutored witness, her evidence is not reliable. He would also submit that the father of victim was having property dispute with the accused persons for which they have lodged a false case against them. Therefore, the evidence led by the prosecution against the appellant is not sufficient to hold him guilty and the appellant Botti @ Khemlal is entitled for acquittal.

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10. Shri Palash Jha, learned counsel appearing for the appellant Malti Rathore (in CRA No.110 of 2021) would also submit that there is no sufficient evidence against her for commission of alleged offence. She being relative of victim, could not serve her in such a situation as alleged in the present case. She was having land dispute with the father of the victim and only to settle his personal grievance, he lodged report and made statement against her. No injuries have been found

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on the body of the victim and no semen or sperms were also detected in her vaginal slide which clearly demonstrate that the victim was not subjected to rape. There are material omissions and contradictions in 161 and 164 CrPC statement with that of her evidence before the court which makes her evidence doubtful. The evidence produced by the prosecution is not sufficient to hold her guilty for abetment of commission of offence and therefore she is also entitled for acquittal.

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11. On the other hand, the counsel for the State opposes the submissions of respective appellants and have submitted that but for minor omission or contradiction, the evidence of prosecution witnesses are fully reliable. The victim has duly supported the prosecution case narrating the manner in which she was subjected to rape by the appellant Botti @ Khemlal Rathore who was facilitated and abetted by the appellant Malti Rathore. Being Grandmother of the victim, it was not expected from her to serve the victim for the alleged commission of rape, yet she did same which has been clearly deposed by the victim. The allegation against the appellants could not be rebutted by the defence in their cross examination and they remain firmed in the alleged act of appellants in the commission of offence. School record has been proved by the prosecution by which the age of the victim comes about 10 years on the date of incident. Even if certain discrepancy is found in the school record, that itself does not make any difference that victim had attained the age of 18 years. In all other documents and evidences, the age of the victim comes 10 years at the time of incident which has not been specifically challenged by the appellants. He would also submit that the evidence of victim is not required to be corroborated with other evidence and her evidence is

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fully reliable to convict the appellants in the offence in question. Therefore, both the appeals have no merit and are liable to be dismissed.

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12. We have heard the counsel for the parties and perused the records of the case.

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13. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident she was less than 12 years of age or not.

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14. The prosecution has mainly relied upon school register Ex.P/17-C which is sought to be proved by PW-8, Shivnandan Sahu, who is the incharge Headmaster of school. He has stated in his evidence that he was posted as incharge Headmaster at Govt. Primary School, Sivni since, 2005. He brought the original school register with him, according to which date of birth of victim is 20.10.2009. Attested true copy of register was retained as Ex.P/17-C. In cross examination, he admits that entries made in the school register is not in his handwriting. The date of birth of the children are recorded in the school register on the basis of Tatima Form. He denied that date of birth of children were recorded in the school register on assumption.

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15. When PW-1, the victim appeared before the trial court for recording her evidence, the trial court observed her age about 10 years. The defence neither cross examined her nor extracted any material from her that she was not 10 years of age. Even not a single question was asked about her age.

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16. PW-2, the father of victim, have stated in his evidence that the age of victim is 10 years and her date of birth is 21.10.2010. In his cross examination also the age and date of birth, as disclosed by him, has

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not been challenged and not a single question was asked from him also challenging age or date of birth of the victim.

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17. PW-4, the mother of victim, have also disclosed the age of her daughter as 10 years and she too have not been cross examined on this point that she disclosed the incorrect age of her daughter.

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18. PW-5, Dr. Sarita Nagarchi, who medically examined the victim, have also disclosed that victim was produced before her for her medical examination who was aged about 10 years. Although, in her cross examination a suggestion was given that age of victim was more than 18 years, but she denied this suggestion of defence.

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19. From the aforesaid evidences, once the age of victim has not been challenged specifically in cross examination of the witnesses PW-1, PW-2 and PW-4, the submission of the counsel for the appellants cannot be accepted that prosecution could not prove the age of the victim that she was minor and less than 12 years of age on the date of incident. In absence of any challenge to the age of victim and also from the evidence brought by the prosecution, the trial court relying upon the judgment of Supreme Court in case of Jernail Singh Vs. State of Haryana, 2013 (7) SCC 263 comes into conclusion that the victim was about 10 years of age on the date of incident, which is neither perverse nor contrary to the evidence available on record.

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20. So far as the offence of rape against the appellant and abetment of offence of rape against appellant Malti are concerned, we again examine the evidence of witnesses.

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21. PW-1, the victim, have stated in her evidence that appellant Malti is her grandmother and co-accused Heera Lal Rathore is grandfather. She had seen the appellant Khemlal once in the house of her

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grandmother. On the date of incident when she was returning from grocery shop, the appellant Malti called her by alluring that she will give her snacks. At that time, co-accused Heera Lal and appellant Khemlal were consuming liquor in their house. After consuming liquor, Heera Lal went to bed. The victim further states that appellant Malti took her towards backyard. Malti left her in the kitchen garden with the appellant Khemlal and closed the door and also switched off the light. The appellant Malti removed her lower and laid her down on the kitchen garden despite her protest. Thereafter, the appellant Khemlal committed her rape. When she started shouting, the appellant Malti slapped her and asked to keep quiet and thereafter she went back to her house. After sometime, she came back and asked her to go her house and not to disclose about incident to anyone. She came back to her house and informed her parents and then her father lodged a police report.

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In cross examination, she remain firm in the act of appellants and stuck in saying that appellant Malti took her to the kitchen garden, laid her down after removing her lower and in her presence the appellant Botti @ Khemlal committed rape upon her. Nothing could be extracted to disbelieve the evidence of this witness. She has not deviated from chief examination and stuck whatever stated in her chief examination about the role of present appellants which they have done with her.

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22. In the facts and circumstances of the case and also in view of 161 and 164 CrPC statement of the victim, she can be treated as sterling witness who gave every details of offence committed by the appellants upon her. The role of appellant Malti has also been described by the

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victim that she abetted appellant Botti @ Khemlal for committing rape upon her (victim).

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23. In the case of Ganesan Vs. State, (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality.

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24. In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575} , it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises.

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25. In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

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26. PW-2, the father of victim, have stated that on the date of incident when he came back from his work, his daughter/victim informed him about the incident and then he lodged the report. In cross examination, though defence gave him suggestion about property dispute between him and the co-accused Heera Lal and Malti, but he denied the same

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and he too remain firmed in his cross examination that his daughter has informed about the incident that she was subjected to rape by the appellant Botti and appellant Malti has abetted Botti to commit rape upon the victim.

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27. Likewise, PW-4, the mother of victim, have stated that when her daughter returned back from the grocery shop, she informed her that she was being called by the appellant Malti and thereafter she took her towards kitchen garden where appellant Botti has committed rape upon her. Although, the mother of victim, PW-4, have been declared hostile, but she remain firm in saying that her daughter informed her about the incident.

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28. Although PW-5 Dr. Sarita Nagarchi, while medically examining the victim did not find any external injuries on her body, but she prepared two vaginal swab of the victim and examined her underwear and referred for its chemical examination. As per FSL report Ex.P/30, the underwear of victim as well as appellant Botti were found to be stained with semen and sperms. Presence of semen and sperms on the underwear of victim corroborates her evidence that she was subjected to rape by the appellant Botti. The underwear of victim was seized vide seizure memo Ex.P/11 when it was taken by the doctor at the time of her medical examination which has been duly proved by the doctor PW-5 that she has taken the underwear of victim and sealed it and given it to the Constable for its chemical examination. The doctor has denied the suggestion that said underwear was given by her mother after bringing it from the house. The said underwear of the victim has also been seized on 17.12.2019 i.e. on the date of incident itself.

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Therefore, it cannot be said that semen were planted in the underwear of the victim to implicate the appellants in the offence in question.

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29. Penetrative sexual assault has been defined under Section 3 of the POCSO Act which states that a person is said to commit penetrative sexual assault if (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child todo so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child makes the child to do so to such person or any other person.

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30. Section 5(m) of the POCSO Act reads as under :

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“Section 5 - Aggravated penetrative sexual assault (m) whoever commits penetrative sexual assault on a child below twelve years”

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31. Section 6 of the POCSO Act reads as under:

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“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 life, which shall mean 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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32. Section 376AB of the IPC reads as under:

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“376AB. Punishment for rape on woman under twelve years of age.-- Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend

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to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death:

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Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.”

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33. In the case in hand, the victim was minor below the age of 12 years on the date of incident which has been found proved from the evidence available on record. The appellant has also not stated anything concrete in his defence except that he does not know and that he has been falsely implicated in the offence. In our opinion, the above chain of circumstances is complete and leads only to one conclusion that it was the appellants/accused persons who have committed the aforesaid crime. The view taken by the trial Court that the appellants are perpetrator of crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case the only view possible was the one taken by the trial court. Since the victim was below the age of 12 years on the date of incident, offence under Section 6 of POCSO Act is fully proved against the appellants.

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34. Section 42 of the POCSO Act, 2012 reads as under:

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"42. Alternate punishment.- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.

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42A. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."

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35. The Hon’ble Supreme Court in Arjun Singh Vs. State of Himachal Pradesh, 2009 (4)SCC 18 has considered and held that under Section 109 IPC, the abetter is also liable for same punishment which may be imposed on the principal offender, and observed in para 14 as under:

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“14. Under Section 109 the abettor is liable to the same punishment which may be inflicted on the principal offender; (1) if the act of the latter is committed in consequence of the abetment and (2) no express provision is made in the IPC for punishment for such an abetment. This section lays down nothing more than that if the IPC has not separately provided for the punishment of abetment as such then it is punishable with the punishment provided for the original offence. Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to Section 109. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of (1) instigation (b) conspiracy or (c) with the aid constituting abetment. Instigation may be in any form and the extent of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case. The offence of conspiracy created under Section 120A is bare agreement to commit an offence. It has been made punishable under Section 120B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by Section 107 (secondly), "engages in any conspiracy....for the doing of that thing, if an act or omission took place in pursuance of that conspiracy". The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with the punishment of abetment for which no express provision has been made in the IPC. The charge under Section 109 should, therefore, be along with charge for murder which is the offence committed in consequence of abetment. An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120B for which a charge under Section 109 is unnecessary and inappropriate. {See Kehar Singh and Ors. v. The State (Delhi Admn.) AIR 1988 SC 1883]. Intentional aiding and active complicity is the gist of offence of abetment.”

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36. Further, in case of Om Prakash Vs. State of Haryana, 2015(2)SCC

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84, the Hon’ble Supreme Court has observed in para 15 to 17 as under:

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“15. Section 109 IPC provides that whoever abets any offence, shall, if the act abetted is committed in consequence of the abetment, and no express provision is made for the punishment of such abetment, be punished with the punishment provided for the main offence.

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16 Section 107 IPC defines “abetment of a thing” as under:

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“107. Abetment of a thing.—A person abets the doing of a thing, who — First— Instigates any person to do that thing; or

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Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly— Intentionally aids, by any act or illegal omission, the doing of that thing.

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Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.”

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In the light of above provisions of law, we have carefully gone through the record and considered the cases referred as above. We find that in the present case, there is positive evidence adduced by the prosecution that accused Chhoti has aided the commission of offence by asking the victim to go to her house to take ‘lassi’ where accused Om Prakash and Kartar Singh bolted the room and subjected the victim to rape. From the record, it appears that for about an hour, the victim was not allowed to go out from the house where she was subjected to rape. It was the house of accused Chhoti and her husband where the incident is said to have taken place. As such, both the courts below have rightly concluded that it cannot be said that accused Chhoti has not abetted the crime in the manner suggested by prosecution. We concur with the view taken by the courts below. Intentional aiding of the offence is covered by the third clause mentioned in Section 107 IPC.”

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37. In the present case also there is a positive evidence adduced by the prosecution against the appellant Malti Rathore that she aided commission of offence by asking the victim and took her to the appellant by alluring. She removed the clothes of victim and assisted the appellant Botti in commission of rape. When she started shouting, the appellant Malti slapped and asked her to keep quiet. Thereafter, she left the place and after sometime again came back and asked the victim to go her house and not to disclose about the incident to

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anyone. The active participation of appellant Malti Rathore, as stated by the victim, clearly suggest that she was an abetter of the crime in question and the manner in which she acted at the time of incident makes her liable for conviction in the alleged offence.

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38. From the above analysis, we are of the considered opinion that the prosecution has successfully proved its case beyond reasonable doubt and the trial court has not committed any illegality or factual error in arriving at a finding with regard to guilt of the appellants. Accordingly, both the appeals being devoid of merit deserve to be and are hereby dismissed .

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39. The appellants are stated to be in jail. They shall serve out the sentence awarded by the trial court by means of impugned judgment of conviction and order of sentenced passed by the trial court.

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40. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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41. The records of the case 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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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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inder

Malti Rathore v. State of Chhattisgarh

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Malti Rathore v. State of Chhattisgarh

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