State of Chhattisgarh Vs Om Prakash Sao

Since the aforesaid criminal appeal and acquittal appeal arise out of the same judgment, they are being heard together and decided by this common judgment.

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The present Criminal Appeal No. 257 of 2018 and Acquittal Appeal No. 28 of 2021 arise out of the judgment dated 22.12.2017 passed by the learned Additional Sessions Judge (Fast Track Court), Durg, in Special Criminal Case No. 163 of 2015. By the said judgment, the appellant in Criminal Appeal No. 257 of 2018 was convicted for offences punishable under Section 363 of the Indian Penal Code and Section 354 of the Indian Penal Code, and was sentenced to undergo rigorous imprisonment for three years and four years, respectively, along with a fine of Rs. 500/- on each count, with the usual default stipulation. By the same judgment, the respondent in Acquittal Appeal No. 28 of

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2021 was acquitted of the charges under Section 366 of the Indian Penal Code and Section 5 (k) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

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The case of the prosecution, in brief, is that on the date of the alleged incident the parents and brother of the prosecutrix went outside the house and the prosecutrix was present at home along with her younger sister. Taking advantage of the absence of the family members, the accused Omprakash Sahu allegedly took the prosecutrix to the vacant house of her uncle and committed sexual intercourse with her. It is further alleged that when younger sister of the prosecutrix, witnessed the incident, the accused threatened her with dire consequences and fled from the spot. In the evening, when the mother of the prosecutrix returned home, her younger daughter along with a neighbour informed her about the incident. Thereafter, the prosecutrix was taken for medical examination to a lady doctor, who opined that the prosecutrix was pregnant for about two to three months. Based on the said information, the mother of the prosecutrix lodged a report at Police Station Supela against the accused Omprakash Sahu alleging commission of sexual assault upon her daughter. On the basis of the said report, a crime was registered and investigation was set in motion.

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During the course of investigation, seizures were made and accused and the prosecutrix were taken for medical examination. Thereafter, the prosecutrix identified the accused during

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identification proceedings conducted in accordance with law and an identification panchnama (Ex.P/7) was prepared in this regard.

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Further, during the investigation, the Investigating Officer caused the prosecutrix to be medically examined by a radiologist for the purpose of determination of her age. On the basis of the statements of the witnesses recorded during investigation and the evidence collected, the accused was arrested. The seized articles were sent to the State Forensic Science Laboratory for chemical examination. After completion of the investigation and upon finding sufficient material establishing the commission of the offence, a final report (charge-sheet) was filed against the accused before the trial Court. Thereafter, charges were framed against the accused under Sections 363, 366 and 376(2)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, to which accused abjured his guilt and claimed to be tried.

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In order to bring home the guilt of the accused, the prosecution examined as many as 13 witnesses. The statement of the accused was also recorded under Section 313 of the Code of Criminal Procedure, wherein he denied all the incriminating circumstances appearing against him and pleaded innocence alleging false implication in the case. However, the accused did not examine any witness in defence.

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Upon proper appreciation of the oral and documentary evidence available on record, and after hearing the learned counsel for the respective parties, the learned Trial Court acquitted the accused of the offences under Section 366 of the Indian Penal Code and Section 5(k) read with Section 6 of the POCSO Act. However, the Trial Court found the accused guilty of the offences punishable under Sections 363 and 354 of the Indian Penal Code and sentenced him accordingly as stated in para 2 of this judgment.

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In CRA No. 257/2018 , learned counsel for the appellant submits that the judgment of conviction passed by the learned Trial Court is bad in law and contrary to the facts and circumstances available on record. The learned Trial Court has failed to properly appreciate and evaluate the evidence placed on record in its true perspective. He further submits that the appellant is innocent and has been falsely implicated in the alleged offences. The prosecution has failed to prove the guilt of the appellant beyond reasonable doubt, which is the basic requirement for recording a conviction in criminal cases. The essential ingredients of Sections 363 and 354 IPC are not made out against the appellant and there is no evidence on record to establish the commission of the said offences. The learned trial Court failed to properly appreciate the evidence and material on record, which resulted in an erroneous finding and an incorrect judgment of conviction. The independent witnesses examined by the prosecution have not supported the prosecution case, which creates serious doubt

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about the prosecution story. The version of the prosecutrix appears to be improbable and is not supported by the surrounding circumstances of the case. The learned trial Court has awarded the maximum sentence under Section 354 IPC without proper justification, which is excessive and liable to be set aside. Therefore, it is most respectfully submitted that the impugned judgment of conviction and sentence passed by the learned Trial Court deserves to be set aside and the appellant be acquitted of the charges.

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Alternatively, he submits that without assailing the finding of conviction, the appellant has restricted the present appeal solely to the question of quantum of sentence. It is urged that the incident is of the year 2015, the appeal has remained pending since 2017, the appellant was about 50 years of age at the time of the incident and has now attained the status of a senior citizen and he has already undergone 2 years, 4 months and 13 days of incarceration. In view of these mitigating circumstances, it is prayed that the sentence already undergone be treated as sufficient punishment.

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In CRA No. 257/2018 , learned counsel for the State/respondent submits that the impugned judgment passed by the learned Trial Court is based on proper appreciation of the oral and documentary evidence; therefore, no interference by this Court is required in the impugned judgment.

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In ACQA No. 28/2021 , learned counsel for the appellant/State submits that the impugned judgment of acquittal passed by the learned Trial Judge is illegal, improper and contrary to the material available on record. The learned Trial Judge has passed the impugned order in a cryptic and laconic manner without properly appreciating the evidence adduced by the prosecution. The learned Trial Court failed to consider that the prosecution witnesses are natural and trustworthy and have consistently narrated the true version of the incident. In particular, the testimony of younger sister of the prosecutrix, who is an eyewitness, clearly establishes that the accused took the prosecutrix inside the house and committed wrongful acts with her and even threatened the witness not to disclose the incident. Further, the learned Trial Court has not assigned any cogent reason for disbelieving the testimony of the Investigating Officer. It is a settled principle of law that conviction can be based on the testimony of the Investigating Officer if the same is found reliable and trustworthy. Moreover, the medical evidence also supports the prosecution case. As per the MLC report of Dr. Babita Saxena, the prosecutrix was pregnant for about 8–10 weeks, which corroborates the occurrence. The radiologist report (Ex. P/22) further establishes that the prosecutrix was about 17–18 years of age, making her a minor, whereas the respondent/accused is about 50 years old. In view of the above evidence and circumstances, the learned Trial Judge ought to

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have convicted the accused/respondent for the offence punishable under Section 5(k) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012. Hence, it is humbly prayed that the impugned judgment of acquittal be set aside and the respondent/accused be convicted in accordance with law.

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In ACQA No. 28/2021, learned counsel for the respondent/accused submitted that the learned Trial Court passed a well-reasoned and lawful judgment after proper appreciation of the entire evidence on record. It is contended that the prosecution failed to prove the charges against the respondent beyond reasonable doubt as the testimony of the alleged witnesses suffers from material contradictions and lacks independent corroboration. The learned Trial Court rightly considered these inconsistencies and the absence of reliable evidence while granting acquittal to the respondent. It is further submitted that for challenging the conviction under Sections 354 and 363 of IPC, the accused/respondent has already preferred an appeal bearing CRA No. 257/2018 before this Court. Therefore, the impugned judgment of acquittal does not call for any interference by this Court and the appeal filed by the State deserves to be dismissed.

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Heard counsel for the parties and perused the material available on record.

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It is evident from the record of the learned Trial Court that charges were framed against the accused under Sections 363, 366 and 376(2)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012. Upon appreciation of the oral and documentary evidence on record, the learned Trial Court convicted the accused for the offence punishable under Section 354 of the Indian Penal Code, in place of Section 376(2)(n) of the Indian Penal Code, by virtue of Section 222 of the Code of Criminal Procedure. The accused was also convicted for the offence punishable under Section 363 of the Indian Penal Code. However, the accused was acquitted of the charges under Section 366 of the Indian Penal Code and Section 5(k) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

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It is not in dispute before this Court that the prosecutrix is a deaf and dumb girl and is also mentally retarded. The prosecution did not produce any documentary evidence regarding the age of the prosecutrix. Therefore, in order to determine her age, the prosecution conducted an ossification test.

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Dr. B.N. Dewangan (P.W.-10) stated that, as per the X-ray report, the age of the prosecutrix was between 17 to 18 years and he submitted his report vide Ex.P/22. During his crossexamination, he admitted the suggestion that as per Modi’s Jurisprudence , owing to factors such as food habits, lifestyle and

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genetics, there may be a variation of about six months on either side in the age determined through X-ray examination.

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The learned trial Court minutely appreciated the testimony of Dr. B.N. Dewangan (P.W.-10) and Dr. Babita Saxena (P.W.-13), who opined that the secondary sexual characteristics of the prosecutrix were well developed. Upon such appreciation of the evidence, the learned trial Court held that the prosecution failed to prove beyond reasonable doubt that the prosecutrix was below 18 years of age. This finding appears to be based on proper appreciation of the oral as well as documentary evidence on record.

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The only eye-witness, the younger sister of the prosecutrix (P.W.-3), stated in her examination-in-chief that she saw the accused and the prosecutrix in a compromising position. However, in para 7 of her cross-examination, the Court put a question to the witness as to whether, at the time she reached the spot and allegedly saw the accused Omprakash with the prosecutrix, both of them were wearing clothes or not. In response, the witness stated that in her examination-in-chief she had mentioned that upon hearing a sudden noise she reached the place where cows were earlier tied, which was then vacant. She further stated that she saw the accused Omprakash along with her sister (the prosecutrix) at that place and that at the said time both the accused Omprakash and the prosecutrix were fully dressed.

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The statement of the prosecutrix could not be recorded before the learned trial Court as she was unable to understand sign language. As per the statement of Smt. Shanta N. Acharya (P.W.6), Special Teacher at Prayas Hearing Handicapped Institute, Supela, Bhilai, District- Durg (C.G.), she made her best efforts to record the statement of the prosecutrix; however, the victim was unable to respond due to her mental disability, as reflected in her MR certificate. Consequently, the statement of the prosecutrix could not be recorded and she was not examined before the learned trial Court.

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As per the statement of the treating doctor, the prosecutrix was pregnant at the time of the report; however, the prosecution did not conduct a DNA test. Therefore, the learned trial Court relied upon the testimony of the younger sister of the prosecutrix (P.W.3) and the neighbour of the prosecutrix (P.W.-5), who stated that she saw the accused attempting to enter the room and upon reaching there, found the prosecutrix lying on a sack while the accused was standing quietly near the door.

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The learned Trial Court altered the charge from Section 376(2) (n) of the IPC to an offence under Section 354 of the IPC. After carefully and minutely appreciating the statements of all the witnesses, including the medical evidence, the learned Trial Court rightly convicted the appellant under Section 354 of the IPC and acquitted him of the remaining charges. However, the learned

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Trial Court erred in recording the finding of conviction of the appellant under Section 363 of the IPC.

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The Hon’ble Apex Court, in its latest judgment dated 12.02.2024 i n Mallappa and Others v. State of Karnataka , passed in Criminal Appeal No. 1162 of 2011 , has held in para 36 as under :-

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36.Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-

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“(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive-inclusive of all evidence, oral and documentary;

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(ii Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of

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challenge;

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(iii If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

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(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

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(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the

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decision of the Trial Court.”

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In view of the aforesaid facts and the law laid down by the Hon’ble Supreme Court in Mallappa (supra) the scope of interference in an appeal against acquittal is limited. The appreciation of evidence by the learned Trial Court appears to be proper and plausible and no perversity, illegality or material irregularity has been demonstrated in the impugned judgment. Even if another view is possible on the evidence available on record, the view favourable to the accused is required to be adopted.

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The findings recorded by the learned Trial Court in ACQA No. 28/2021 are based on a proper and correct appreciation of the oral as well as documentary evidence available on record. The prosecution has failed to establish its case beyond reasonable doubt. In such circumstances, no ground is made out for interference with the impugned judgment of acquittal passed by the learned Trial Court. Accordingly, the appeal (ACQA No. 28/2021) , being devoid of merit, is dismissed at the motion stage itself.

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In CRA No. 257/2018 , preferred by the appellant challenging his conviction under Sections 363 and 354 of the IPC, this Court finds that the learned Trial Court committed an error in recording the conviction of the appellant under Section 363 of the IPC. However, this Court does not find any infirmity in the findings recorded by the learned Trial Court with regard to the conviction

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of the appellant under Section 354 of the IPC. Accordingly, the conviction of the appellant under Section 363 of the IPC is set aside and the appellant is acquitted of the said charge. However, the conviction of the appellant under Section 354 of the IPC is hereby affirmed.

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With regard to the sentence awarded for the offence under Section 354 of the IPC, considering that the incident occurred in the year 2015 and nearly eleven years have elapsed since then; that the appellant is presently about 61 years of age and is a senior citizen; that he has already undergone incarceration for a period of about two years, four months and thirteen days; and that he has remained on bail for a considerable period without misusing the liberty granted to him, this Court is of the considered opinion that the ends of justice would be adequately met if the sentence imposed upon the appellant under Section 354 of the IPC is reduced to the period already undergone by him.

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Consequently, the appeal ( CRA No. 257/2018 ) is partly allowed. The conviction of the appellant under Section 363 of the IPC is set aside and he is acquitted of the said charge. However, the conviction of the appellant under Section 354 of the IPC is maintained. The sentence imposed by the learned Trial Court for the offence under Section 354 of the IPC is reduced to the period already undergone by the appellant. The fine amount shall remain intact.

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The appellant is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provision of Section 481 of the B.N.S.S.

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

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Sd/Sd/(Rajani Dubey) (Radhakishan Agrawal) JUDGE JUDGE

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Ruchi

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RUCHI YADAV Digitally signed byRUCHI YADAV

State of Chhattisgarh v. Om Prakash Sao

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State of Chhattisgarh v. Om Prakash Sao

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