Rakesh Sahu @ Lalu Vs State of Chhattisgarh

This criminal appeal has been filed by the appellant against the impugned judgment of conviction and sentence dated 12.12.2023, passed by learned Second Additional Sessions Judge, FTSC (POCSO), Raipur, District Raipur (C.G.), in Special Session Case No. 23 of 2018, arising out of Crime No. 89 of 2018, registered at Police

¶19

2

¶20

Station Mujgahan, District Raipur, whereby the appellant has been

¶21

convicted and sentenced in the following manner:

¶22

CONVICTION	SENTENCE
U/s 376(2)(l)/376(2) of IPC and u/s 5(k)/6 of the Protection of the Children from Sexual Offences Act, 2012	Rigorous Imprisonment for life (imprisonment till natural death) and fine of amount of Rs. 2000/-, in default of payment of fine further one month imprisonment.

¶23

The case of the prosecution, in brief, is that, on 14.06.2018, the victim, who is a person with 50% mental and physical disability, went missing from her home around 06:00 PM. Her family members and villagers searched for her, and at approximately 09:00 PM, she was seen returning from the direction of the appellant’s house in a crying condition and was not wearing her pajamas. The victim, through gestures and signs, indicated that the appellant, Rakesh Sahu alias Lalu, had taken her to a secluded spot, closed her mouth, and committed sexual assault upon her. The written complaint was submitted by the sister of the victim (PW-01), based on which the FIR (Exhibit P-02) was registered at Police Station Mujgahan for the offence under Section 376 of the IPC and Section 4 of the POCSO Act.

¶24

******* During the investigation, the victim was sent for medical examination to District Hospital Raipur, where Dr. A. Dutta (PW-13) examined her and gave reports (Exhibits P-15 and P-16), noting an intact hymen and advising chemical analysis of the stains found on her underwear. The spot maps were prepared by the police (Exhibit P-19) and by the Patwari (Exhibit P-18), identifying the place of occurrence near the appellant's residence. With respect to the age and mental

¶25

3

¶26

status of the victim, a disability certificate (Exhibit P-05) issued by the District Medical Board and a caste certificate (Exhibit P-06) were seized. To record the statement of the speech-impaired victim, experts from the Government School for Blind and Deaf, Raipur, including PW04 and PW-09, were engaged. Her statement under Section 164 of CrPC (Exhibit P-10) was recorded before the Magistrate and was also video-recorded (Exhibit P-11).

¶27

******* The appellant was arrested on 18.02.2018 and was sent for medical examination to Dr. B.P. Chandrakar (PW-12), who found him fit for sexual intercourse vide report (Exhibit P-13). The seized articles, including the undergarments of the victim and the appellant, were sent to State FSL Raipur, from where the FSL report (Exhibit P-30) was received, indicating the presence of semen on the appellant's clothing but no human spermatozoa on the victim's slides or garments. After completion of the investigation, a charge sheet was filed before the learned Trial Court for the offences under Sections 376(2)(n), 376(3) of the IPC, Section 6 of the POCSO Act, and Section 3(2)(v) of the SC/ST Act.

¶28

The learned trial Court framed charges against the appellant for the offences under Sections 376(2)(n), 376(3) of the IPC, Section 6 of the POCSO Act, and Section 3(2)(v) of the SC/ST Act. The appellant denied the charges and claimed trial.

¶29

In order to prove the charge against the appellant, the prosecution examined as many as 18 witnesses. Statement of the appellant under Section 313 of CrPC has also been recorded in which he denied the

¶30

4

¶31

circumstances that appear against him, pleaded innocence, and has submitted that he has been falsely implicated in the offence.

¶32

After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court convicted and sentenced the appellant as mentioned in the earlier part of this judgment, while acquitting him of the charges under Section 376(3) of the IPC and Section 3(2)(v) of the SC/ST Act, hence this appeal.

¶33

Learned counsel appearing for the appellant would submit that, prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The prosecution has failed to prove by leading cogent evidence that the appellant committed the alleged offence, as the medical evidence significantly contradicts the oral testimony. Dr. A. Dutta (PW-13) explicitly stated that the hymen of the victim was intact and no internal or external injuries were found, which completely negates the allegation of forceful sexual intercourse. Furthermore, the FSL report (Exhibit P-30) clearly indicates that no human spermatozoa or semen were found on the vaginal slides or the undergarments of the victim, thereby failing to establish any biological link between the appellant and the victim.

¶34

******* He would also submit that the learned Trial Court erred in relying upon the gestures and signs of a mentally disabled victim without sufficient corroboration from independent witnesses. One of the key independent witnesses, PW-10 turned hostile and did not support the prosecution's story regarding the

¶35

5

¶36

victim's disclosures. The discrepancies in the site maps (Exhibits P-03, P-08, and P-19) further create a shadow of doubt regarding the place of occurrence. Additionally, the conviction was based on electronic evidence (Exhibit P-11) that was admitted without the mandatory certificate under Section 65B of the Indian Evidence Act, which is a grave procedural irregularity. Given that the medical and scientific evidence does not support the prosecution's case, the appellant is entitled to the benefit of doubt and should be acquitted.

¶37

Per contra, learned counsel appearing for the State opposes the submissions made by learned counsel for the appellant and has submitted that the case of the prosecution is based on the evidence of a victim who suffers from 50% mental and physical disability, making her a highly vulnerable witness. Although the victim is speechimpaired, her version of the incident was clearly established through signs and gestures, which were interpreted and corroborated by special educators and experts from the Government School for Blind and Deaf. He would also submit that for the offence of rape, penetration to any extent is sufficient, and the lack of injury or an intact hymen does not negate the commission of the offence, especially in cases involving victims with mental infirmities.

¶38

******* He further submits that the oral testimony of the victim’s sister (PW-01), father (PW-08), and other family members is consistent and duly supports the prosecution’s case regarding the victim's condition immediately after the incident. The presence of semen on the appellant's undergarments further corroborates his involvement. The learned trial Court, after appreciating the entire facts and

¶39

6

¶40

circumstances of the case, the vulnerability of the victim, and the statutory presumptions under Sections 29 and 30 of the POCSO Act, rightly convicted the appellant. The judgment does not suffer from any irregularity or perversity, and the appeal filed by the appellant is liable to be dismissed.

¶41

We have heard learned counsel for the parties and considered their rival submissions made herein above and also gone through the records of the trial court with utmost circumspection.

¶42

The first question arises for consideration would be the age of the victim, as to whether she was minor on the date of incident and less than 18 years of age or not?

¶43

The prosecution has relied upon the birth registration record and the disability certificate (Exhibit P-05) to establish the age of the victim. According to the investigation and the statement of the victim’s father (PW-08), the victim was born on 10.04.2002. The prosecution sought to prove the age of the victim through the testimony of PW-15, who stated that during the investigation, he issued a notice under Exhibit P-21 to the Kotwar of the village to produce the birth registration book. The record indicated that the victim's age at the time of the incident on 14.06.2018 was approximately 16 years and 04 months.

¶44

******* The learned Trial Court meticulously analyzed the age-related documents and the medical evidence. While the prosecution initially alleged that the victim was 15 years and 08 months old to attract the more stringent provisions of Section 376(3) IPC, the court, after

¶45

7

¶46

evaluating the birth register and the oral testimony of the parents, concluded that the victim was 16 years and 04 months old on the date of the incident. It was noted that these entries were made long before the occurrence of the crime, leaving no room for the imagination that the date of birth was manipulated to falsely project the victim as a minor. Although the victim had surpassed the age of 16, she was clearly established to be under the age of 18, thereby confirming her status as a "child" under the provisions of the POCSO Act, 2012. The defense could not produce any cogent evidence to rebut these official records or to prove that the victim had attained the age of majority at the time of the commission of the offence.

¶47

In Jarnail Singh v. State of Haryana (2013) 7 SCC 263, the Hon’ble Supreme Court laid down guiding principles for determination of the age of a victim, wherein it was held that although Rule 12 is strictly applicable for determining the age of a child in conflict with law, the aforesaid statutory provision should also form the basis for determining the age of a child who is a victim of an offence. In the present case, the prosecution and the learned Trial Court correctly adhered to this principle by relying upon the first available statutory record, the Birth Registration Record, which established the victim's date of birth as 10.04.2002, thereby confirming her age as 16 years and 04 months on the date of the incident (14.06.2018). Since this document-based evidence was available, it was rightly given overriding effect over any other secondary evidence or medical guesswork.

¶48

8

¶49

Subsequent to the aforesaid judgment, the Juvenile Justice (Care and Protection of Children) Act, 2015 came into force, and thereafter the procedure for determination of the age of children has been provided under Section 94 of the said Act. Under Section 94(2), foremost preference is given to the date of birth certificate from the school, or the matriculation certificate, and in their absence, the birth certificate given by a corporation, municipal authority, or a panchayat.

¶50

******* In the present case, the prosecution has established the age of the victim through the Birth Registration Record, which was produced and verified during the testimony of the investigating officers and corroborated by the oral evidence of the victim's father, PW-08. According to these records, the date of birth of the victim is 10.04.2002, making her 16 years and 04 months old on the date of the incident (14.06.2018). As this statutory record was available and proved, the learned Trial Court correctly relied upon it to determine that the victim was a "child" as defined under Section 2(1)(d) of the POCSO Act, 2012.

¶51

The victim, despite her mental and physical disabilities, indicated through gestures and the support of experts that she was not yet an adult at the time of the incident. Her father, PW-08, reaffirmed her age and background in his testimony. The age and date of birth of the victim have been duly proved by the prosecution through the Birth Registration Record, which was seized and verified during the investigation. According to the record, her date of birth is 10.04.2002, making her 16 years and 04 months old on the date of the incident

¶52

9

¶53

(14.06.2018). The learned Trial Court, after considering the evidence available on record and applying the principles laid down by the Hon'ble Supreme Court in the case of Jarnail Singh (supra), held that the victim was a minor and less than 18 years of age on the date of the incident. In view of the consistent documentary evidence, we do not find any illegality or perversity in this finding.

¶54

So far as the offence of rape is concerned, we have examined the evidence of the victim and the supporting witnesses. The victim, who suffers from 50% mental and physical disability, indicated through gestures and with the assistance of special educators (PW-04 and PW-09) that the appellant took her to a secluded spot, closed her mouth, and committed sexual assault. This version is corroborated by her sister (PW-01) and father (PW-08), who saw her returning from the direction of the appellant’s house in a distressed state without her lower garments. Although the medical officer (PW-13) found the hymen to be intact, it is a settled position of law that for the offence of rape, penetration to any extent is sufficient. The trial court correctly held that the testimony of a vulnerable witness, when corroborated by the immediate conduct of the victim and the testimony of family members, is sufficient to prove the act of Aggravated Penetrative Sexual Assault under the POCSO Act and Rape under the IPC.

¶55

In the case of State of Himanchal Pradesh v. Sanjay Kumar , 2017 (2) SCC 51, it has been held by the Hon'ble Supreme Court that:

¶56

“30. By no means, it is suggested that whenever such charge of rape is made, where the victim is

¶57

10

¶58

a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system

¶59

11

¶60

as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims.

¶61

After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek

¶62

12

¶63

corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551}. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.”

¶64

The evidence of the victim, as interpreted by the special educators (PW-04 and PW-09), is supported by the evidence of her sister (PW01) and her father (PW-08). They stated that on the date of the incident, when the victim did not return home by evening, they began a search in the village. At approximately 09:00 PM, they saw the victim returning from the direction of the appellant’s house in a crying

¶65

13

¶66

condition, notably without her lower garments. When they questioned her, the victim, despite her speech impairment, used gestures to indicate that the appellant had taken her to a secluded spot and committed a 'wrong act' upon her person. This immediate conduct of the victim and the testimony of the family members corroborate the prosecution's case that the appellant took advantage of the victim's mental disability to commit the alleged offence.

¶67

PW-12, Dr. B.P. Chandrakar, medically examined the appellant to assess his sexual potency. Upon examination, he found the appellant capable of performing sexual intercourse and duly proved his medical report (Exhibit P-13). The testimony of this witness remains unrebutted, establishing that the appellant was physically capable of committing the alleged offence.

¶68

PW-08 is the father of the victim. He stated in his evidence that on the date of the incident, when the victim did not return home by 06:00 PM, he and other villagers began searching for her. He testified that around 09:00 PM, the victim was seen coming from the direction of the appellant’s house in a distressed and crying state. He further stated that the victim, through gestures, pointed towards the appellant and indicated that he had committed a 'wrong act' with her. Despite being a family member, his testimony regarding the immediate conduct and the state of the victim upon her return corroborates the prosecution's story.

¶69

From the evidence available on record, the prosecution has sought to prove that the appellant committed the offence upon a minor victim who suffers from significant mental and physical disabilities. Although

¶70

14

¶71

the medical evidence is not conclusive of forceful penetration, the Hon'ble Supreme Court in the case of State of Punjab v. Gurmit Singh , (1996) 2 SCC 384, has observed that the testimony of a victim of sexual assault is vital and unless there are compelling reasons which render the court to look for corroboration of her testimony, the court should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused.

¶72

In the present case, the learned trial Court relied upon this principle, holding that the victim's version, as interpreted by experts and corroborated by the immediate conduct of her family members, is sufficient to sustain a conviction. The court held that the absence of physical injuries or a ruptured hymen does not automatically falsify the victim's account, especially considering her vulnerable mental state and the statutory presumptions under the POCSO Act.

¶73

The Hon'ble Supreme Court in the landmark judgment of State of Punjab v. Gurmit Singh , (1996) 2 SCC 384, has underscored the sensitivity required in such adjudications. Paragraph 21 of the said judgment is reproduced hereinunder:

¶74

“21. …….. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a

¶75

15

¶76

case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”

¶77

******* Applying this principle to the present case, even though the medical report indicates an intact hymen and the FSL report is negative, the consistent testimony of the disabled victim (interpreted via experts) and the immediate corroborative conduct observed by her family (PW-01 and PW-08) provide sufficient "assurance" to the prosecution’s case. Following the mandate of the Apex Court, the broader probabilities clearly point toward the guilt of the appellant.

¶78

Regarding the quantum of sentence, it is submitted that the act committed against a mentally disabled minor is a grave violation of her

¶79

16

¶80

constitutional rights. The Hon'ble Supreme Court in Prahlad v. State of Haryana , (2015) 8 SCC 688, has observed as under:

¶81

“17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the

¶82

17

¶83

Constitution, for they are the “fons juris” of our Constitution. The said rights are constitutionally secured.

¶84

Therefore, regard being had to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law. The perpetrators of the crime must realize that when they indulge in such an offence, the really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution.”

¶85

******* In view of the aforesaid principles, the sentence of life imprisonment awarded by the learned Trial Court is just and proper, considering the concavity created in the dignity and bodily integrity of the victim.

¶86

Based on the evidence produced by the prosecution and a meticulous consideration of the entire material available on record, the learned Trial Court has found the appellant, Rakesh Sahu alias Lalu, guilty of the alleged offences of Aggravated Penetrative Sexual Assault and Rape committed against a minor victim suffering from a 50% mental and physical disability.

¶87

******* In the considered opinion of this Court, the findings of the Trial Court do not suffer from any perversity or illegality. The conviction is well-founded upon the testimony of the victim, which was duly

¶88

18

¶89

corroborated by the immediate conduct observed by her family members and the expert interpretation of her gestures. The absence of physical injury or biological evidence in the FSL report does not dilute the prosecution's case, as the legal standards set by the Hon'ble Supreme Court for vulnerable witnesses have been strictly followed. We find no scope for interference in the well-reasoned judgment and the sentence of life imprisonment awarded by the learned Trial Court. Accordingly, the present appeal fails and is hereby dismissed .

¶90

The appellant is reported to be in jail since 18.02.2018. In view of the dismissal of this appeal and the nature of the conviction, he shall serve the entire sentence as awarded by the learned Trial Court.

¶91

Registry is directed to 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.

¶92

Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.

¶93

Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

¶94

ved

Rakesh Sahu @ Lalu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rakesh Sahu @ Lalu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Akansha Lal Vs Jyothsna George

Siddique Khan Vs State of Chhattisgarh

Abc Vs State of Chhattisgarh

Hetram Sahu Vs State of Chhattisgarh

Pramod Dansena Vs State of Chhattisgarh

Gopal Rajput Vs Smt. Gulapa Bai Rajput