Masih Prakash Toppo Vs State of Chhattisgarh

This criminal appeal filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 28.02.2022, passed by the learned Additional Sessions Judge, Fast Track Special Court, Surajpur, District Surajpur (C.G.) in Special Criminal Case No.44/2019, whereby the appellants/accused have been convicted for the offence and sentenced as under:-

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Conviction	Sentence
Under Section 376 (D) of the IPC	R.I. for 20 years and fine of Rs.200/-
Under Section 6 of POCSO	R.I. for 20 years and fine of Rs.200/-
	In default of payment of fine further R.I. of four months each respectively.

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All the sentences are directed to run concurrently

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Facts of the case in brief is that on 13.06.2019, the prosecutrix lodged a FIR against the appellants at Police Station Ramanujnagar District Surajpur (C.G.) that on 12.06.2019 the prosecutrix with her sister went to the marriage function of Sumitra. Further, during the function few boys were dancing while playing DJ and around midnight the appellant No.1 came and caught her hand and asked the co-accused Umashankar to take prosecutrix along with them. Thereafter, both the appellants have taken her near field that is beside the pond and committed

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forcible sexual intercourse and thereafter the offence was registered and appellants were framed with charges and trial was commenced. Subsequently, the police registered an FIR vide ExP/10 against the appellants/accused. Spot map was prepared vide Ex.P-4. After due investigation, the appellants were arrested. Medical Examination of victim was conducted by Dr. Deepshikha (PW-7) and submitted a report vide Ex.P/30.

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The trial court has framed charges against the appellants for the aforementioned offence and the appellants abjured their guilt and pleaded innocence.

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In order to establish the charge against the appellants, the prosecution examined as many as 10 witnesses and exhibited 44 documents. The statement of the appellants under Section 313 of Cr.P.C. was also recorded in which they denied the material appearing against them and stated that they are innocent and they have been falsely implicated in the case. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellants and sentenced them as mentioned in para 1 of the judgment. Hence, this appeal.

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Learned counsel for the appellants submits that there are material contradiction and omission in the statement/deposition of prosecution witnesses. He submits that the learned trial Court erred in convicting the appellants only on the basis of assumption and presumption and the finding given by the learned

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trial Court against the appellants is perverse and contrary to evidence on record. Also, looking to the entire evidence adduced by the prosecution, the alleged offence is not made out against the appellants and they have been falsely implicated in the present case. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside.

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On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and submits that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering the material available on record has rightly convicted and sentenced the appellant, in which no interference is called for.

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

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7. Now, the first question for consideration would be what was the age of the prosecutrix (PW4) at the time of alleged incident?

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The prosecutrix (PW4) in her statement has deposed that at the time of incident, her age was 16 years. Sister (PW-3) of the prosecutrix has also supported the above statement and has categorically stated that her sister is aged about 16 years. Further Sheetal Kerketta (PW-5) stated that she is posted as clerk at High School, Barbaspur and deposed that the date of birth of the prosecutrix is 06.03.2003 according to the Dakhil Khariz register

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(ExP/07). Further, the marksheet of class V was also seized vide (Article A-1) wherein the Date of Birth of the prosecutrix is mentioned as 06.03.2003. Thus, looking to the evidence both oral and documentary available on record, the Trial Court rightly arrived on the conclusion that at the time of alleged incident, prosecutrix was below 18 years of age. we hereby affirm the said finding recorded by the Trial Court which is neither perverse nor contrary to the evidence on record.

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Now, the second question which arises for consideration is, what are the circumstances which shows that the victim was raped by the appellants/accused.

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The victim (PW-4) stated that Sumitra was getting married, and she had gone there on invitation, along with her sister Dhaneshwari and brother Rajpal and around 12:00 at night, DJ was playing in the wedding house and they were dancing. After that she was sitting there after dancing. At that time, Masih Prakash, who is brother-in-law of the victim, came there and took her towards the drain by holding her hand. The other accused Umashankar, was also with him. After that, the accused Masih Prakash forcefully did wrong things with her, which happens between a husband and a wife. The accused Masih Prakash forcefully did wrong things with her once and the accused Umashankar forcefully did wrong things with her three times. She further stated that she was screaming at the time of the incident,

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but due to heavy music no one heard her. She further stated next day when she came home, she told her sister and Sunita Didi that the accused had forcefully done wrong things with her.

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Kumari Sweta (PW-1) deposed in her statement that she saw Umashankar came and pulled the victim and took her to the back side and took her somewhere. She further stated that they searched for the victim but could not find her. However, further this witness has been declared hostile.

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(PW-3) sister of the prosecutrix stated in her statement she along with her sister and others went to attend a wedding. She further stated that at the night when everyone was dancing suddenly Chandini, Shweta came and told her that the accused Masih Prakash and his companion had taken the victim away. They searched for the victim nearby at that time but she was not found. The victim was found the next morning and the victim had told her that both the accused had taken her to the field and raped her.

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Dr. Deepshikha (PW-7), has conducted the medical examination of victim and submitted a report vide Ex.P-30, in which she found no injury marks were found on external organs. Secondary sexual characteristics were present. She stated that there were no signs of injury on the genitals. Her hymen was old and torn. She further stated that definite opinion regarding sexual intercourse can be given after the FSL report.

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Medical Examination of the appellants/accused were conducted by Dr. Sumit Kumar Soni (PW-9) and submitted a report vide Ex.P/32 and P/34 and opined that there is no evidence to suggest that the appellant/accused cannot perform sexual intercourse.

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In FSL report vide Ex.P-42, is positive and semen stains and human sperm were found.

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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-

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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 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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Also, the Supreme Court in the matter of State of Maharashtra

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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

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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 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 in light of above

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principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that from the statement of victim (PW-4) that around midnight the appellant no.1 came and caught her hand, and asked the co-accused Umashankar to take prosecutrix along with them. Thereafter, both the appellants have taken her near field that is beside the pond and committed forcible sexual intercourse. In her evidence, she further stated that at the time when the appellants committing sexual intercourse with her, she was suffering from pain and was screaming.

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Importantly, looking to the FSL report (Ex.P/42) wherein semen stains and human sperm were found. Hence, the accused/appellants have committed the crime of gang rape of minor girl by taking her to filed, which is a serious and inhuman crime.

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In the result, when we look at the evidence of victim, we find that she has categorically stated about the sexual intercourse that was committed by both the appellants. Therefore, taking into consideration the evidence of victim (PW-4), evidence of Kumari Shweta (PW-1), (PW3) sister of the victim, evidences of Dr. Deepshikha (PW-7) and FSL report, we are of the considered opinion that the appellants committed sexual intercourse with her, therefore, we have no hesitation in accepting the evidence of victim. Thus, the trial Court has rightly convicted the appellants for the aforesaid offence. The conviction and sentence as

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awarded by the trial court to the appellants is hereby upheld.

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The present criminal appeal lacks merit and is accordingly dismissed .

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Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing the jail sentence to serve the same on the appellants informing them that they are 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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The Registry is directed to transmit the certified copy of this judgment along with the record 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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Jyoti/ $ Bhilwar

Masih Prakash Toppo v. State of Chhattisgarh

Case brief

What is this about?

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Masih Prakash Toppo v. State of Chhattisgarh

Case brief

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