Temna @ Karamsai Majhwar Vs State of Chhattisgarh

Temna @ Karamsai Majhwar S/o Shri Dharamsai Majhwar Aged About 27 Years R/o Badegaon, Mudadand, Chowki Kedma, Police Station Udaipur, District Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh

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Appellant(s)

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versus

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State Of Chhattisgarh Through Police Of Police Chowki Kedma, Police Station Udaipur, District Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh

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Respondent(s) (Cause title is taken from Case Information System) For Appellants : Mr. Rajeev Kumar Dubey, Advocate For Respondent/State : Mr. Shaqib Ahmed, PL Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board

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Per, Bibhu Datta Guru, Judge

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18/06/2025

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Heard.

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This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 05/01/2022 passed in Special Sessions Case (POCSO) No. 12/2018 by the learned Additional Sessions Judge (FTC) (POCSO Act),

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Ambikapur, District Surguja (C.G.), whereby the appellant has been

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convicted and sentenced as under:-

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Conviction	Sentence
U/s 363 of the IPC	R.I. for 03 years and fine amount of Rs. 500/-.
U/s 366 of the IPC	R.I. for 05 years and fine amount of Rs. 500/-
U/s 376(2)(N) of the IPC	RI for Life imprisonment till natural death with fine of Rs. 2000/-.
U/s 05(ञ)(ii)/06 of POCSO Act	R.I. for life imprisonment with fine of Rs. 2000/-

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All the sentences were directed to run concurrently.

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Case of the prosecution in brief is that on 13.12.2017, the victim lodged a report at the police post Kedma, police station Udaipur to the effect that she lives with her parents in village Badegaon and the accused, a resident of her village, used to visit her house and used to ask the prosecutrix to do wrong things by saying that he will keep her with him. The parents of the prosecutrix had gone to Vishrampur to plant saplings in the month of Ashadh and the prosecutrix and her elder brother were at home. On 07.08.2017, at night, she and her brother slept in separate rooms after having dinner and the prosecutrix had forgotten to put the latch/lock on the door. At around 10:00 pm, the accused came and opened the door and took the prosecutrix with him. He took her to his house saying that he will keep her and forcibly

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had sexual intercourse with her. After that he forcibly did sexual intercourse with the prosecutrix two-three times due to which she

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became pregnant. When the prosecutrix told the accused that she was pregnant, he refused to keep her. Due to fear, she did not tell her family about her pregnancy. When her parents asked her after seeing the shape of her body, she told about the incident to her parents and villagers.

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On the basis of the above report, First Information Report (Ex.P/18) was registered at Police Station-Kedma, Udaipur under Section-376 (2) (N) IPC and Section-5 (ढ), 5 (ञ) (ii) 6 Protection of Children from Sexual Offences Act. During investigation, the after obtaining consent, the prosecutrix was sent for medical examination vide Ex.P.-22 to the lady doctor of CHC Udaipur. Subsequently, as per the statement of the prosecutrix and the witnesses, the spot map of the incident Ex.P.-2 was prepared. Thereafter, the accused was arrested and sent for medical examination to CHC, Udaipur. During investigation, underwear and two slides of vaginal secretion was prepared vide Ex.P-27. Statement of the prosecutrix under Section 164 of the Cr.P.C was recorded. With respect to the age of the prosecutrix, Dakhil Kharij Register was seized vide Ex.P/8. Birth certificate of the prosecutrix was seized vide Ex.P/27.

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After completing the investigation, a charge-sheet under Section 363, 366, 376(2)(N) of the IPC and Section 05(ञ)(ii)/06 of POCSO Act was submitted before the Court. After framing the charges against the accused/appellants, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial.

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In order to bring home the offence, the prosecution has examined 10 witnesses in its support and exhibited documents (Ex.P/1 to Ex.P/28). Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. In his support, Rati Ram Uraon (DW1) has been examined.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 05/01/2022 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that appellant has been falsely implicated in this case, he has not committed any offence as alleged against him. The conviction is based on assumption and presumption. The prosecution has completely failed to its case beyond reasonable doubt. There is no evidence with regard to the age of the prosecutrix that on the date of the incident she was below 18 years of age. There are material contradictions and omissions in the statement/deposition of the prosecution witnesses. Hence, the conviction of the appellant is bad in law and is liable to be set-aside.

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Learned State Counsel opposes the submission of counsel for the appellants and would submit that there is sufficient evidence against the appellant and the trial Court has rightly appreciated the evidence, which does not require any interference.

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We have heard learned counsel for the parties and perused the record with utmost circumspection.

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The first question for consideration arises whether the prosecutrix was minor on the date of incident or not?

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The prosecutrix (PW9) in her Court statement has stated that she does not remember her date of birth. But during her statement, she has stated that her current age is 15 years, which has been irrefutable in cross-examination.

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The father of the prosecutrix (PW1) has stated in his statement that his daughter is currently 13 years old. The said witness has not been crossexamined by the defence regarding age.

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As per Dakhil Kharij Register (Ex.P-09/C), the date of birth of the prosecutrix has been mentioned as 10/12/2004. Assistant Teacher, Ajay Kumar Chouhan (PW2) in his deposition has stated that the age of the Prosecutrix as per the Dakhil Kharij Register is 10/12/2004.

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After considering the above evidence, it is proved that the Prosecutrix (PW9) on the date of incident was minor and below the 18 years of age.

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The next question for consideration arises whether the appellant had committed rape with the prosecutrix or not?.

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The Supreme Court in the matter of Rai Sandeep alias Deenu v. State (NCT of Delhi), 2012 (8) SCC 21 held as under:-

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“22. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be

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any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more recise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

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16. Also, the Supreme Court in the matter of S tate of Maharashtra vs Chandraprakash Kewal Chand Jain, 1990 SCC 550 held as under:-

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“A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that

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the Court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. There is no rule of law or practice incorporated in the Indian Evidence Act, 1872 (in short ‘Evidence Act’) similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is own to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.”

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Reverting to the facts of the present case, the Prosecutrix (PW9) has deposed in her statement that the appellant used to come her house and used to tell her to marry her. On the date of incident, her parents had gone for work. On that day, after taking meal, her brother and she was

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sleeping in a separate room. She had forgotten to lock the door, at that time, the appellant came to her house and took her to his house, where, he, on the pretext of marriage, committed sexual intercourse with her. She has further deposed that after that incident, the appellant also committed forcible sexual intercourse with her for 2-3 times, due to which she became pregnant. The said fact was, subsequently, narrated by her to the parents when she was inquired. She specifically stated that the appellant had refused to marry with her. She was pregnant and delivered a baby girl.

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Father (PW1) of the prosecutrix has deposed in his statement that they were gone for work for about two months at Vishrampur and after returning when they saw the stomach of the prosecutrix was swollen, then the prosecutrix narrated the entire evidence to him. Subsequently, they lodged the report.

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Dr. Shashikala Miri (PW3) in her deposition has stated that the Prosecutrix was brought before her for medical examination. While external examination she found secondary sexual characteristics were fully developed; no external injury was there; the stomach was swollen. While internal examination, she found that hymen was old ruptured; no injury mark was there; two vaginal slides were prepared and were given for chemical examination.

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Mother (PW4) of the prosecutrix has corroborated the statement of father (PW1) of the prosecutrix. She categorically stated that on being inquire to the Prosecutrix, she narrated the incident to them and

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subsequently, they lodged the report.

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Considering the entire evidence available on record and the facts and circumstances of the case, it would be safe for this Court to hold that the appellant has committed rape upon her due to which she became pregnant and delivered a baby girl which is evident from the statement of Dr. Sarita Singh (PW6) who has conducted the Sonography of the Prosecutrix and found that she was pregnant of 28 weeks and 02 days.

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For the foregoing discussions, this Court is of the opinion that the prosecution has fully proved its case beyond reasonable doubts and the appellant has been found guilty of the offence. Therefore, the conviction as awarded by the trial Court to the appellant under Sections 363, 366, 376(2)(N) of the IPC and Section 05(ञ)(ii)/06 of POCSO Act is hereby upheld.

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With regard to sentence awarded under Section U/s 376(2)(N) of the IPC, the trial Court has awarded the appellant RI for life imprisonment till natural death, which in the opinion of this Court and in the interest of justice, should be modified only to life imprisonment.

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Accordingly, this Criminal Appeal is partly allowed . The sentence awarded to the appellant U/s 376(2)(N) of the IPC is modified and the appellant is sentenced to Life imprisonment under the said Section only. The fine amount shall remain intact. The remaining sentence in respect of other offences as awarded by the trial Court shall remain unaltered.

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It is stated that the appellant is in jail, he shall serve out the remaining sentence as modified by this Court.

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Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also 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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Let a copy of this judgment and the original record be transmitted to the Trial Court concerned for necessary information and compliance.

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Sd/Sd/-

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(Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Rahul/Gowri

Temna @ Karamsai Majhwar v. State of Chhattisgarh

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Temna @ Karamsai Majhwar v. State of Chhattisgarh

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