Kamlesh Mandal Vs State of Chhattisgarh

This appeal is directed against the impugned judgment of conviction and order of sentence dated 29.06.2019 passed by learned Special Judge (under POCSO Act, 2012), Bhanupratappur, District North Bastar, Kanker (C.G.), in Special Criminal Case (POCSO Act) No. 30/2018, whereby and whereunder appellant Kamlesh Mandal has been held guilty for commission of offence and keeping in view the provision of Section 42 of the POCSO Act, sentenced as

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described below :-

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CONVICTION		SENTENCE
Under Section 366 IPC	R.I. for Rs.10,0 paymen further months.	07 years with fine of 00/- and in default of t of fine amount to undergo R.I. for 03
Under Section 376 (AB)	R.I. for	30 year with fine of
IPC., read with Section 6 of POCSO Act.	Rs.50,0 paymen further months.	00/- and in default of t of fine amount, to undergo R.I. for 06

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The prosecution story, leading to conviction of the appellant is that, mother of prosecutrix (PW-8) submitted a written report (Ex.P-1) in police station Pakhanjur to the effect that the accused/appellant after alluring the prosecutrix (PW-3) took her along with him to the field on the pretext of showing cartoon in his mobile and committed forceful sexual

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intercourse with her. Thereafter, the prosecutrix (PW-3) narrated the incident to her complaining pain. On the basis of this complaint, the police registered an FIR (Ex.P-2) being Crime No.136/2018 and the matter was taken into investigation. During investigation, panchanama (Ex.P-7) amd Nazri Naksha (Ex.P-6) was prepared by the police. Patwari prepared spot map under Ex.P-11. After obtaining consent from the Prosecutrix (PW-3) and her mother (PW-8) under Ex.P-4, prosecutrix was sent for medical examination to Community Health Center, Pakhanjur under Ex.P-14, where Dr. (Smt.) Sonali Vaishnav (PW-6) examined the prosecutrix and gave her report under Ex.P-25 opining that no definite opinion can be given regarding penetrative sex, and for age determination, the prosecutrix was referred to radiologist. Copy of school admission register of the prosecutrix was seized under Ex.P-09. The statement of the prosecutrix under Section 164 of Cr.P.C. was recorded before the CJM, Bhanupratappur under Ex.P-15. The accused/appellant was also sent for medical examination to Community Health Center, Pakhanjur under Ex.P-17, where Dr. Dilip Kumar Sinha (PW-7) medically examined the accused/appellant and gave his report under Ex.P-28

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opining that the accused/appellant is capable of performing sexual intercourse. Underwear of the accused/appellant was seized under Ex.P-18. The underwear of the prosecutrix wore at the time of incident was seized under Ex.P-5. The undergarment of the prosecutrix and the accused/appellant was sent to its chemical examination to FSL, Jagdalpur and report from FSL was also obtained under Ex.P-24, according to which, human spermatozoa was not found on the undergarment of the accused/appellant and the prosecutrix.

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After completing usual investigation, charge sheet was filed against the accused-appellant under Sections 363, 376 (AB) of IPC and 6 of POCSO Act, to which the accused-appellant abjured his guilt and pleaded for trial.

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So as to hold the accused-appellant guilty, the prosecution has examined as many as 08 witnesses. Statement of the accused-appellant was also recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

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The learned trial Court after hearing counsel for the respective parties and considering the material available on

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record, has convicted and sentenced the accused-appellant as mentioned in para 1 of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is contrary to law, facts and circumstances of the case, therefore, the same are liable to be set-aside. The learned trial Court erred in convicting the appellant only on the basis of assumption and presumption, however, there is no clinching evidence on record against the appellant, therefore, the impugned judgment of conviction is bad in eyes of law. Learned counsel further submits that the entire prosecution case is based on circumstantial evidence but none of the circumstances from which the inference of guilt of appellant can be drawn has been proved beyond reasonable doubt and, therefore, there can be no inference that it was the appellant who committed the crime. The learned trial Court has failed to observed that the prosecution has utterly failed to prove its case beyond reasonable doubt. Learned trial Court did not consider the medical report of the prosecutrix, which in respect of commission of sexual intercourse is nil. Learned counsel also submits that there are material contradiction and

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omission in the statement of prosecution witnesses. The learned trial Court did not consider this fact that in medical report no internal or external injury has been found in the private part of the prosecutrix and Dr. PW-6 who examined the prosecutrix did not give definite opinion regarding commission of rape with the prosecutrix. Therefore, the accused-appellant may be acquitted extending benefit of doubt.

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In support of his submission, learned counsel placed reliance on the decision dated 23.11.2023 passed in CRA No.82/2020 by the co-ordinate Bench of this Court in Jairam Kashyap Vs. State of Chhattisgarh .

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On the other hand, learned counsel for the State submits that the learned trial Court after appreciating oral and documentary evidence has rightly convicted the accusedappellant and no interference is called for by this Court. The appeal has no merit and the same deserves to be dismissed.

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

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It is apparent from the record of the learned trial Court that

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charges under Sections 363, 376 (AB) of IPC and 6 of POCSO Act were framed against the appellant and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant accordingly & sentenced him as described in para 01 of this judgment.

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The question which arises before this Court whether the prosecution has been successful in proving that the prosecutrix was minor and she was subjected to rape by the accused/appellant.

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After the incident, the prosecution produced the prosecutrix (PW-3) before the Judicial Magistrate First Class for recording her statement under Section 164 Cr.P.C., perusal of which shows that the age of the prosecutrix was written as 07 years, and the learned trial Court having considered overall evidence related to the age of the prosecutrix arrived at conclusion that the prosecutrix was aged around 7 years at the time of incident. That apart, mother and father of the prosecutrix (PW-1 and PW-2) have also categorically stated that their daughter was 07 years old & Dr. (PW-6) while medically examining the prosecutrix recorded her age to be 7 years in her report Ex.P-25 and the defence has not rebutted this fact in the cross-examination of PW-1 and PW-

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Thus, the prosecution has successfully proved the age of the prosecutrix to be 07 years at the time of incident. This Court affirms the finding of the learned trial Court with regard to the age of the prosecutrix to be minor.

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The learned trial Court after satisfying itself that the prosecutrix (PW-3) is able to answer the questions satisfactorily, examined her in the question and answer form. According to the evidence of the Prosecutrix (PW-3), the accused/appellant committed sexual intercourse with her.

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Learned counsel for the appellant strongly objected and raised question on the correctness and truthfulness of the evidence of the prosecutrix on the ground that when the statement of the Prosecutrix (PW3) under Section 164 of CrPC was recorded on 17.09.2018 before the Judicial Magistrate First Class, Bhanupratapur, wherein it was mentioned that the prosecutrix being a child witness, some questions were asked to her, the prosecutrix was not able to speak in Hindi, therefore, her evidence was got translated by translator Reena Mandal, W/o Aditya Mandal, R/o Kapsi 119, Police Station Pakhanjur, and after putting as many as 07 questions, a note was made that the witness is not able

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to answer the questions, therefore, her statement under Section 164 Cr.P.C. was not recorded, but in the Court statement of the prosecutrix (PW-3) which was recorded on 21.02.2019 after six months, multiple questions were asked by the prosecution and defence & the learned trial Court finds that the prosecutrix answered the questions rationally put to her, and in the statement recorded under Section 164 Cr.P.C., no signature of the prosecutrix was taken, and before the learned trial Court the signature of the prosecutrix was taken on every page of her deposition, which manifestly shows that the prosecutrix is a tutored witnesses, as such, her statement is not reliable. However, what transpires from the evidence of Prosecutrix (PW-3) is that she has categorically stated in answer Nos. 19, 20 and 21 that the accused/appellant committed rape with her.

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Mother of the prosecutrix (PW-1) has stated that on the date of incident, the accused/appellant came to her house at 07.00 pm and drank water. In the house, her in-laws and maternal uncle’s father-in-law were conversing. She was cooking meal in the kitchen and the prosecutrix was also there with her. The accused-appellant asked the prosecutrix to come with him, he will show her cartoon in the mobile.

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Thereafter, the accused/appellant was showing cartoon to prosecutrix beneath the tree. At the relevant time, she called her daughter by name then she replied ‘yes mummy I am here’. She has also stated that after some time when she came out of the kitchen and called her daughter, her daughter was not there. She went to the house next to her to see the prosecutrix but she was not there. She also went to see the prosecutrix in the village. She has also stated that her husband also went to see the prosecutrix and when she went to another road, she found the prosecutrix in the jungle under a Mahua tree and the the accused/appellant ran away after seeing her and she brought the prosecutrix home. This witness has also stated that when she asked her daughter as to what had happened then she narrated the incident that the accused/appellant gave 2-3 slaps, asked her to remove her undergarment, lay her down, inserted his private part into her private part and committed rape with her. When the prosecutrix screamed with pain, the accused/appellant extending threat said her to keep quiet & thereafter, she lodge the report against the accused/appellant.

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Smt. Sonali Vaishnav (PW-6) is the Doctor who medically

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examined the prosecutrix on 07.09.2018 and gave her report under Ex.P-25 noticing the following injuries/symptoms :-

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External examination :-

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No injury marks was present. No general violence sign seen. Secondary sexual character not developed. No axillary hairs present. Breast and areola were not developed. Nipple areola were small.

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Internal examination :-

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No pubic hair seen. No struggling and violence mark were present on labia majora and minora. Redness over vulva not present. No fresh bleeding was seen. No discharge from vagina. No inflammation over vagina seen. No sign of resistance was seen. Hymen was intact deeply placed.

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The doctor has opined that no explanation can be given regarding penetrative sex and for age determination, the doctor advised for radiology and dentistry test.

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The doctor has also examined the undergarment of the prosecutrix and gave her report under Ex.P-26 that confirmation regarding presence of human sperm is not possible and advice for FSL, and in the FSL report (Ex.P-

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24), no semen and sperm were found in the undergarment of the prosecutrix (PW-3) and the accused/appellant.

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Dr. (Smt.) Sonali Vaishnav (PW-6) has admitted in her cross-examination that since the prosecutrix was minor, insertion of the instrument could have caused injury to the genitals, bleeding or rupture of the hymen. She has also admitted that the hymen was intact.

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According to the FIR (Ex.P-2), the date of incident is 05.09.2018, the date of lodging of FIR is 07.09.2018 & the doctor (PW-6) examined the prosecutrix on 07.09.2018 i.e. after two days of the incident and the doctor has stated that the prosecutrix had taken bath, and therefore, she did not prepare vaginal slides of the prosecutrix.

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Sections 3 and 7 of the POCSO Act deals with penetrative sexual assault and aggravated penetrative sexual assault, respectively. For ready reference, Sections 3 and 7 are reproduced here as under :-

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“3. Penetrative sexual assault - A person is

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said to commit “penetrative sexual assault’ if -

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(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

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(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

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(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 body of the child or makes the child to do so with him or any other person; or

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(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

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xxxx

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xxxx

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Sexual Assault. – Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

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Close scrutiny of the evidence of prosecutrix (PW-3), her mother (PW-8) and Dr. (Smt.) Sonali Vaishnav (PW-6) as also FSL report (Ex.P-24) makes it clear that no sign of penetration or insertion or manipulation as contemplated

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under Sections 3 of the POCSO ACt has been found with the prosecutrix (PW-3). The Doctor (PW-6) after examining the prosecutrix found her hymen intact and no external or internal injury was found on the body of prosecutrix. Further, there is admission of the Doctor (PW-6) that since the prosecutrix was minor, insertion of instrument could have caused injury to the genital, bleeding or rupture of the hymen. So, the basic ingredient to attract the offence under Section 3 of the POCSO Act is completely missing in the instant case. We are of the opinion that the conviction recorded by the learned trial Court is liable to be interfered with.

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Consequently, the conviction recorded under Section 376 (AB) cannot be sustained and the same is altered to that of conviction under Section 7 of the POCSO Act, which is punishable under Section 8 of the POCSO Act and the appellant is sentenced to undergo R.I. for 07 years. Conviction and sentence under Section 366 of IPC shall remain intact.

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So far as the fine sentence is concerned, we are not inclined to interfere with the sentence imposed by the learned trial Court and the fine amount of Rs.10,000/- and 50,000/- along

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with default stipulation imposed by the trial Court shall remain intact and the same shall be treated to have been passed under Section 8 of the POCSO Act.

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In the result, the appeal is partly allowed.

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

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Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing his jail term, 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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Sd/Sd/(Rajani Dubey) (Sachin Singh Rajput) Judge Judge

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Digitally signedpekde by VIJAY BHARATRAO PEKDE

Kamlesh Mandal v. State of Chhattisgarh

Case brief

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Kamlesh Mandal v. State of Chhattisgarh

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