Siddhant Sarthi @ Babu Vs State of Chhattisgarh

1. The appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 ( for short, the Cr.P.C ) questioning the impugned judgment dated 15.03.2023 passed in Special Criminal Case under the POCSO Act No. 43/2022 by which the learned Additional

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Sessions Jude FTSC (POCSO), Raigarh, District Raigarh, has convicted

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and sentenced the appellant as under:

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Conviction under Section	Sentence Under Section	Sentence	Fine	In default of payment of fine additional rigorous imprisonment
376(3) of the Indian Penal Code	376(3) of the IPC	20 years Rigorous	Rs. 5000/-	Six months
(for short, the IPC) and		imprisonment
Section 4(2) of the
Protection of
Children from
Sexual Offences
Act, 2012 (for short, the POCSO Act)
377 of the IPC	377 of the IPC	5 years rigorous imprisonment	Rs. 3000/-	3 months

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Both the sentences have been directed to run concurrently but the default sentence has been directed to run separately.

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2. Case of the prosecution, in short, is that the victim made a written complaint at the Jute Mill Police Station to the effect that she was 14 years old and her date of birth was 11.10.2008. About 17 days ago, at 12:00 a.m. when she had came out of the house to answer the nature’s call, at that time, the appellant, who was also the resident of the same locality, suddenly came from behind and gagged her mouth with his left hand and took her to a nearby vacant house where no one lived and forcibly removed her clothes. The victim cried and pleaded but the appellant did not listen to her and threw her on the ground and tore her underwear and forcibly had sexual intercourse with her. It is alleged that

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the appellant forcibly inserted his penis and hand in her vagina and buttocks. He left her at about 4:00 a.m. and threatened her that whatever he had done to her, she should not tell to anyone or else she would be done to death alongwith her family members. As she was very scared, she did not tell the incident to anyone, but after five days of the incident, she could gather some courage and tell the incident to her mother. On the basis of the victim's written complaint (Exhibit P/1), an FIR (Exhibit P/2) bearing Crime No. 0/2022 was registered at Jute Mill Police Station for the offences under sections 376 (3), 377 of the Indian Penal Code and Section 4 of the POCSO Act on 31.07.2022 at 13:30 hours. Thereafter, numbered FIR (Exhibit P/12) being Crime No. 1116/2022 was registered at Police Station, Raigarh Kotwali,for the offence under Section 376(c), 377 of the IPC and Section 4 of the POCSO Act on the same day at 15:30 hours.

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3. During investigation of the case, statement of victim was recorded by a Lady Police OfÏcer and after taking consent from mother of victim, private part of victim was medically examined. After examining private part by lady doctor and advising to preserve two slides for FSL, said exhibits were seized as per seizure memo Exhibit P-13 and seizure proceedings were done. Statement of victim was also recorded under Section 164 of the Cr.P.C. and counseling statement of victim was recorded by Child Welfare Committee. The appellant-convict was arrested and proceedings were done as per arrest memo Exhibit P-15. After completion of the investigation proceedings, the charge sheet under sections 376 (3), 377 of the IPC and section 4 of the POCSO Act was filed before the learned trial Court.

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4. Accordingly, Special Criminal Case under the POCSO Act No. 43/2022 was registered by the learned trial Judge and charges were framed against the appellant/convict on 19.09.2022 for the offences under Sections 376(3) IPC, 377 IPC, 506-B IPC and Section 4(2) of the POCSO Act. The convict/appellant abjured the guilt and prayed for trial.

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5. In order to bring home the offence, prosecution examined as many as 11 witnesses namely, the victim (PW-1), victim’s mother (PW-2), victim’s brother (PW-3), Principal of the School (PW-4), victim’s neighbour (PW5), Arun Kumar Patel (PW-6), Dr. Upma Patel (PW-7), Rakesh Kumar Sharma (PW-8), Clostica Khare (PW-9), R.S.Netam (PW-10 and Smt. Santara Chouhan (PW-11). The prosecution exhibited as many as 23 exhibits and two Articles in support of its case.

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6. The statement of the convict/appellant was recorded under section 313 CrPC wherein he has expressed his ignorance to most of the questions, however, some of them were denied as well. He stated that he was innocent and has been falsely implicated.

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7. In support of his case, the appellant convict got the statement of the mother of the victim exhibited as Exhibit D/1.

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

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9. Mr. Ishwar Jaiswal, learned counsel appearing for the appellant/convict submits that the appellant has been falsely implicated in this case. In fact, the appellant and the victim had love affair and since the wife of the appellant had seen the appellant and the victim in a compromising

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position, the victim had lodged a false complaint against the appellant. Even the prosecution has not successfully proved the fact that the victim was minor on the date of incident. There are omissions and contradictions in the statement of the prosecution witnesses. The entire prosecution story is based on false and frivolous grounds and there is no clinching evidence so as to connect the appellant with commission of the offence in question.

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10. On the other hand, learned Panel Lawyer appearing for the State/respondents submits that the learned Court below was fully justified in convicting and sentencing the convicts/appellant as mentioned in the opening paragraph. There is ample evidence on record to hold the appellant guilty of the offence. The order passed by the learned Court below needs no interference and the appeal filed by the convict/appellant deserves to be dismissed.

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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. Vide order dated 21.11.2023, the victim was directed to be noticed regarding pendency of this appeal and the application for suspension of sentence and grant of bail filed by the appellant/convict and that she can appear and object the said application. The application for suspension of sentence and grant of bail filed by the appellant was rejected by this Court vide order dated 11.01.2024 on which date also, none had appeared on behalf of the victim, though she is reported to be served. Thereafter, while allowing the application (IA No. 2 of 2024) for urgent hearing vide order dated 24.10.2024, this Court had directed the matter to be listed for final hearing in the week commencing 02.01.2025 and

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accordingly, the matter is listed today for final hearing and is being heard today finally.

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13. There is no eye witness to the incident and the case rests mainly on the testimony of the victim. The victim (PW-1) in her examination in chief stated that the appellant was her neighbour. She further stated that she was not aware as to what was her date of birth. She has stated that when she had gone to answer the nature’s call in the midnight, the appellant came and gagged her mouth and took her to a vacant house situated nearby and made physical relationship. Thereafter, she was threatened by the appellant not to tell about the incident to anyone. Five-six days after the incident, the wife of the appellant asked her as to what she was doing with the appellant, and also assaulted her. At that time, her mother and brother came and asked as to why she was being beaten and she was taken to her aunt ( Mausi ) where she narrated the incident.

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14. In cross examination, she has stated that she was acquainted with the appellant as he was her neighbour and also used to talk with him. She further stated that when the appellant was taking her to the vacant house, she had tried to resist. However, she admitted that when she was alongwith the appellant in the vacant house for three hours, she did not resist when she was being disrobed. She further admitted that if she would have screamed, her voice could have been heard by her family members.

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15. Mother (PW-2) of the victim has stated before the learned Trial Court that as she was not literate, she could not tell about the exact date of birth but by guesswork she stated that the victim was aged about 14 years. She has admitted that the wife of the appellant had beaten the victim and when the said incident took place, only on that date, she came to know

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that the appellant had committed rape upon her daughter. She has further stated that she had four sons and one daughter i.e. the victim. She could not tell that as to at which age she got married and when her children were born.

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16. Brother (PW-3) of the victim stated that he was not aware of the exact date of incident, however, it has been admitted that the wife of the appellant had beaten her sister. He also could not tell the date of birth of either himself or any other brother or the victim but states that the victim was aged about 14 years.

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17. The Principal (PW-4) has stated that the victim had taken admission in his school in Class 6^th on 22.07.2019 and her date of birth was recorded as 11.10.2008 in the admission/discharge register (Exhibit P/8). However, he could not state as to on what basis the said date of birth was recorded. He further stated that the said entry was not made by him but by any one of the staff of the school.

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18. The neighbour (PW-5) of the victim has turned hostile and not supported the prosecution case.

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19. Dr. Arun Kumar Patel (PW-6) is the Medical OfÏcer who had examined the appellant/convict and as per his report (Exhibit P/10), the appellant was capable of performing sexual intercourse.

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20. The medical examination of the victim was conducted by Dr. Upma Patel (PW-7) who in her report (Exhibit P/11) has not found any external injury over the body of the victim, however, the hymen was found to be ruptured and healed. She could not give any opinion with regard to recent sexual intercourse. She had further advised to consult Radiologist or Dentist for ascertaining the age of the victim.

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21. R.S.Netam (PW-10) is the Investigating OfÏcer who has conducted the investigation and has stated investigation done by him in detail.

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22. The FIR was lodged by the victim on 31.07.2022 and even as per the victim, the incident is said to have taken place 17 days before lodging of the FIR. The victim has not been able to explain as to why it took her 17 days to lodge the FIR when she was free and able to move and go anywhere. She was not in captivity of the appellant. The conduct of the victim herself is suspicious as only after the assault being made on the victim by the wife of the appellant five days after the incident, the victim narrated about the alleged incident to her mother. But still after coming to know about the incident, both the mother and the victim took further 11 days to lodge the FIR. In normal course, if the victim was so scared to lodge the FIR on the threats being given by the appellant, the mother of the victim could have lodged the FIR when she came to know about the incident. Remaining silent for 11 days without any explanation raises grave suspicion. Further, the place of incident is also the neighbouring house and the victim herself has admitted that if she would have screamed or made hue and cry, the same could have been heard by her mother which she did not do and further remained with the appellant for long three hours.

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23. Another important factor in this case is with regard to the age of the victim. As per the MLC of the victim, the Doctor has found her breast to be well developed, hymen ruptured and healed. The Doctor (PW-7) could not give any definite opinion regarding recent sexual intercourse and for determination of the age of the victim, she had advised to consult Radiologist and Dentist. The prosecution has not produced any report of the Radiologist or any Dentist. The Principal (PW-4) has stated that the

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victim had taken admission in his school in Class 6^th on 22.07.2019 and her date of birth was recorded as 11.10.2008 in the admission/discharge register (Exhibit P/8). However, he could not state as to on what basis the said date of birth was recorded. He further stated that the said entry was not made by him but by any one of the staff of the school. In the case in hand, the prosecution has not attempted to produce the Dakhil/Kharij register of the school in which the victim took admission for the first time and the Dakhil/Kharij register produced was of the subsequent school in which also, what was the basis of recording the date of birth has also not been explained.

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24. In Jarnail Singh v. State of Haryana {(2013) 7 SCC 263}, the Supreme Court, at paragraph 23 has observed as under:

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“23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In

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case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.”

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25. Even in the FSL report, no human sperms have been found in the vaginal slides of the victim, though human sperms have been found in the undergarment of the appellant which cannot be said to be a conclusive proof with regard to commission of the offence.

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26. In view of the above discussion, this Court is of the considered opinion that the prosecution has not been successful in proving the guilt of the appellant beyond reasonable doubt and the judgment passed by the learned trial Court needs interference and as such, the judgment of conviction and order of sentence awarded to the appellant is hereby set aside and the appellant is acquitted of the charges.

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27. Resultantly, this appeal is hereby allowed.

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28. The appellant-Siddhant Sarthi @ Babu is in jail. He is directed to be released forthwith unless wanted in any other case. However, keeping in view the provision of Section 437-A of the Cr.P.C { Section 481 of the

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Bhartiya Nagrik Suraksha Sanhita, 2023 }, the accused-appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Supreme Court.

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29. Registry is directed to transmit the trial Court record along with a copy of this order to the court concerned forthwith for necessary information and compliance.

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Sd/- Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) JUDGE CHIEF JUSTICE

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Chandra

Siddhant Sarthi @ Babu v. State of Chhattisgarh

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Siddhant Sarthi @ Babu v. State of Chhattisgarh

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