Vasudev Chouhan Vs State of Chhattisgarh

1 The appellant has preferred this appeal under Section 415(2) of the Bhartiya Nagrik Suraksha Sanhita, 2023 ( for short, the BNSS ) questioning the judgment of conviction and order of sentence dated 30.11.2023 passed in Special Criminal POCSO Case No. 11/2020 by the learned Special Judge (Protection of Children from Sexual Offences

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Act, 2012) Saraipali, District Mahasamund, by which the appellant has been convicted and sentenced as under:

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Con	viction under Section	Sentence Rigorous Imprisonment	Fine	Default Sentence
363	of the Indian	RI for 5 years	Rs. 500/-	2 months RI
Pena short	l Code (for , the IPC)			more
366A	of the IPC	RI for 7 years	Rs. 500/-	2 months RI more
5(k),	5(l)/6 of the	RI for 20 years	Rs. 2,000/-	2 months RI
Prote	ction of			more
Child	ren from Sexual
Offen	fces Act, 2012	f
(for POC	short, the SO Act)
376(2	)((l)(n) of the	Alternatively, con	victed under Se	ction 6 of POCSO
IPC		Act in light of Sec	tion 42 of the P	OCSO Act

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2 The appellant/accused was charged for the offences punishable under Section 363, 366A, 376(2)(l) and 376(2)(n) of the IPC and Section 5(k) and 5(l) of the POCSO Act alleging that he kidnapped/abducted a minor from the school located in village Navagarh under Police Station, Saraipali on 05.01.2020 at about 22:00 hours and took her away from the lawful custody of her guardian without her consent and forced or enticed her to have illicit sexual intercourse with him. The appellant did it with the intent to rape a minor and physically disabled person by having sexual intercourse more than once and by taking advantage of the mental and physical disability of the victim, and made physical relations with the victim by committing aggravated penetrative sexual assault.

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3 The prosecution case, in brief, is that on 05.02.2020 the victim (PW-1) made a written complaint (Exhibit P/1) at Saraipali Police Station that she

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was handicapped with both legs. On 03.01.2020, when she had gone to the school to attend the half-yearly examination, the appellant Vasudev Chauhan, son of Fagulal Chauhan, enticed her to marry her and took her to Damdarha, Saraipali, and from there, he took her to Raipur via Saraipali by bus, from Raipur he took her to Hyderabad by train and when she got off the on the railway station, a call came from the victim's home, then her family members asked her to return back. On the same day, she came back to Raipur by train and from Raipur, she came to Saraipali by bus. At Saraipali, the elder brother of the appellant came and took both of them to Darrahbhatha. On the night of 05.01.2020, the appellant made physical relations with her and continued having physical relations with her till 10.01.2020 and on 11.01.2020 at 12 midnight, he left her outside her house and went somewhere. It was specifically alleged that the appellant had made physical relations with her several times by luring her with marriage but he did not return and as such has cheated her.

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4 On the basis of the written complaint of the victim, First Information Report (Ex.P/02) was registered against the appellant. After recording the statement of the victim, she was taken to CHC, Saraipali for medical examination after obtaining her consent (Exhibit P/3) and in this regard, a memo was sent to the Block Medical Officer, Saraipali vide Exhibit P/26. After examination, when the constable provided 02 sealed packets, seizure memo (Ex.P/06) was prepared and thereafter, the statement under Section 164 Cr.P.C. of the victim was recorded vide Exhibit P/4. The documents related to the date of birth of the victim were seized as per seizure memo Exhibit P/8. The medical examination of the appellant was also conducted, and the report (Ex.P/15) was obtained. Site map of the place of incident (Ex.P/13) and Panchnama (Ex.P/14) were also

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prepared. The appellant was arrested vide arrest memo (Ex.P/22) and information regarding the arrest was given to the appellant’s family vide Exhibit P/23. The seized property was sent to the State Forensic Science Laboratory Raipur by the Superintendent of Police Mahasamund as per Ex.P/24, whose report is Ex.P/25. The statement and supplementary statement of witnesses were also recorded and after conclusion of the investigation, charge sheet was filed upon which the case was registered as Special Criminal Case No. 11/2020 by the learned Special Judge.

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5 Charges were farmed against the appellant for the offences under Sections 363, 366A, 376(2)(n), 376(2)(l) of the IPC and Section 5(k) and 5(l) of the POCSO Act. The appellant abjured the guilt and prayed for trial.

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6 In order to bring home the offence, the prosecution examined as many as 17 witnesses and exhibited as many as 28 exhibits and 1 Article. In defence, the appellant exhibited three exhibits marked as Exhibit D/1, D/2 and D/3, however, he did not led any evidence in support of his case.

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7 The statement of the appellant was recorded under Section 313 Cr.P.C. in which he denied most of the questions and in respect of some questions, he expressed his ignorance. He stated that he had been falsely implicated in this case because of animosity.

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8 The learned trial Judge, after considering the evidence on record, convicted and sentenced the appellant/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict.

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9 Mr. Anand Kumar Gupta, learned counsel for the appellant submits that the prosecution could not prove its case beyond reasonable doubt that

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the victim was a minor on the date of incident. Further, the relationship between the appellant and the victim was consensual and the same would not fall under the definition of rape. The love letters exhibited vide Exhibit D/1 and D/2 clearly establishes the said fact. It is not a case where the appellant made physical relationship and ran away at once but the relationship was made for a number of times and had it been forceful, the victim was very well free to make complaint to anyone as she was not in any captivity. She, on her own sweet will accompanied the appellant to Hyderabad. She had stayed with the appellant for about 4-5 days and as such, the entire prosecution story appears to be concocted one and as hence, the appeal deserves to be allowed and the appellant be acquitted of the charges.

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10 On the other hand, Mr. Nitansh Jaiswal, learned Panel Lawyer appearing for the State/respondent submits that the prosecution has been able to prove that the victim was a minor on the date of incident and the appellant taking advantage of the fact that the victim was a handicapped, lured to marry her and made physical relationship and after committing rape upon her, ran away and never turned up which clearly establishes that the relationship was not consensual and she being a minor, was lured and forced to make relationship and as such, the learned trial Court has rightly convicted and sentenced the appellant.

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11 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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12 The first question to be considered is whether the victim was a minor on the date of incident?

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13 In the present case, the statement of the victim (PW-1) recorded under Section 164 Cr.P.C. on 10.02.2020 has been treated to the examinationin-chief in light of Section 164(5)(b) of the Cr.P.C. She has specifically denied the suggestion that on the date when she eloped with the appellant, she was a major. The FIR was lodged after one month of the incident as the date of incident is 05.01.2020 and the FIR was lodged on 05.02.2020. She has stated that she was studying in Class 10^th. Admission/Discharge register (Article A) was produced by the prosecution in which her date of birth was stated to be 15.01.2002 and the same has not been challenged by the appellant. There was no reason for the learned trial Court to disbelieve the said document and as such, it was rightly held that the victim below the age of 18 years and was a minor on the date of incident.

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14 The second question to be considered would be whether the appellant is the author of the crime?

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15 The victim was examined by Dr. Chandrakiran (PW-5) who in her deposition has stated that she had examined the victim who was mentally and physically sound, her secondary sexual characteristics were well developed. As per her report (Exhibit P/9), there were no injuries on her private part but the hymen was found old torn. She prepared vaginal slides and handed over to the Constable for FSL examination. She could not find any sign of forceful sexual intercourse.

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16 Dr. Yogesh Bariha (PW-11) is the Doctor who had examined the appellant. PW-11, in his report (Exhibit P/15) has found that cremasterix reflex was present, his secondary sexual characteristics were fully developed, smegma was not present and after examination, he had

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opined that the appellant was fully capable of performing sexual intercourse.

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17 In the FSL report, though no human sperms or semen stains have been found on the undergarments of either the victim or the appellant or the slides, but the victim in her statement under Section 164 Cr.P.C. has clearly deposed that the appellant used to make phone calls and stated that he would keep her well and he wanted to marry her and would also help him in getting her higher education. She, without informing anyone in the house, had kept her clothes in her school bag and went to school from where the appellant took her to Saraipali, Raipur and then to Hyderabad. On the next morning, when they reached Hyderabad, she asked him to take him back to her house and they returned back. The brother of the appellant had came to receive them who took them to their house where they stayed for about 4-5 days. He used to state that he would marry her and continuously made physical relationship with her. She alongwith the appellant were staying in another room separately. Thereafter, the appellant left the victim to her grandfather’s house. Though she has admitted that she was having love affair with the appellant, however, she has denied of having written any love letters (Exhibit D/1 and D/2).

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18 The sister of the victim (PW-2) has deposed that the next day after their elopement, the victim called her on phone and informed her that she had gone with the appellant. She was asked to come back upon which she returned but stayed in the house of the appellant. The victim informed that while she was in the house of the appellant, she was exploited physically by the appellant.

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19 Gautam (PW-3) is the brother-in-law (Jija) of the victim. He stated that the appellant had kept the victim with her for about a week and had assured that he would marry her but he left the victim and ran away.

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20 Bodhram (PW-8) is the grandfather of the victim who has deposed that after leaving the victim to her school, he used to return back to home. On the last day of her examination, he had left the victim to the school and eight days thereafter, the appellant left the victim in his house. The victim told this witness that the appellant had taken her alongwith him.

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21 Dr. Chandra Kiran (PW-5) has specifically deposed that before she had examined the victim medically, she had taken bath and changed her clothes also and as such, the same could be the reason of absence of semen stain and sperms on her clothes as reported in the FSL examination.

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22 The appellant, in his examination under Section 313 Cr.P.C., could not give any explanation as to why the victim would name the appellant or falsely implicate him in the offence in question. On the contrary, it is clearly proved by the evidence of the witnesses that the victim was lured by the appellant and the appellant made physical relationship on the pretext of marriage with a disabled minor girl.

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23 In the case of Ganesan v. 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,

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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 The Supreme Court in the matter of Rai Sandeep @ Deenu v. State of 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

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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 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 precise, 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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27 Applying the law laid down by the Supreme Court in the cases (supra) to the facts of the case on hand and as observed herein above, we see no reason to doubt the credibility and/or trustworthiness of the victim. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the appellant even relying upon the sole testimony of the victim can be sustained. The view taken by the learned trial Court that the appellant is the author of the 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 is the one taken by the learned trial Court.

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28 From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/ convict.

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29 Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.

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30 The appellant is stated to be in jail. He shall serve out the remaining part of the sentence as has been awarded to him by the learned trial Court.

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31 Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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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32 Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.

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Sd/- Sd/(Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Amit

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AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.08.26 19:11:55 +0530

Vasudev Chouhan v. State of Chhattisgarh

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Vasudev Chouhan v. State of Chhattisgarh

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