Chattisgarh High Court
Rajesh Fatwani @ Purushwani vs State Of Chhattisgarh 49 Cra/453/2015 ... on 14 August, 2018
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 310 of 2015
1. Rajesh Fatwani alias Purushwani S/o Narayandas, aged
about 41 years, R/o Bhagat Singh Ward, Bhatapara, Civil
and Revenue District Balodabazar, Bhatapara, CG
---- Appellant
Versus
1. State of Chhattisgarh through Station House Officer,
Police Station Bhatapara (City) Civil and Revenue District
Bhatapara, CG
---- Respondent
For Appellant : Smt. Laxmin Tondey, Advocate For Respondent/State: Shri Vivek Sharma, GA Hon'ble Shri Justice Pritinker Diwaker Hon'ble Shri Justice Gautam Chourdiya Judgment On Board by Pritinker Diwaker, J 14/08/2018 This appeal has been filed against the judgment of conviction and order of sentence dated 16.12.2014 passed by Additional Sessions Judge/Special Judge (POCSO Act) Balodabazar, in special Sessions Trial No. 01/2014 convicting the accused/appellant under Sections 376, 506-II IPC & Section 6 of the POCSO Act, and sentencing him to undergo imprisonment for life and pay fine of Rs. 5000/- under Section 6 of the POCSO Act and rigorous imprisonment for three years with fine of Rs. 1000/- under Section 506-II IPC, plus default stipulations.
2. Facts of the case in brief are that on 4.1.2014 FIR (Ex. P- 2
3) was lodged by the prosecutrix (PW-2) aged about 16 years at the relevant time to the effect that the accused/appellant who happens to be her step father was having physical relations with her for last two years therefrom. FIR further says that all the time the accused/appellant used to threaten her for not disclosing to anyone about the physical relations between the two or else he would make her drop from the school. According to the case of prosecution, In the intervening night of 2/3.1.2014 the mother of the prosecutrix namely Reshma Fatwani (PW-3) had also seen the accused/appellant having physical relations with her daughter (the prosecutrix herein) and also putting her under threat of being dropped out of the school in case she disclosed the incident to anyone. On seeing this, PW-3 immediately went to her sister Himani Herani (PW-1) and narranted the entire incident to her, and then the report was lodged. Based on this FIR, offence under Sections 376, 506 IPC and section 5 (l) (n) and 6 of the POCSO Act was registered against the accused/appellant. Prosecutrix was medically examined by Dr. Anita Verma (PW-4) who gave her report Ex. P-8 stating that she was habitual to sexual intercourse. Progress report of prosecutrix of class VIII was seized under Ex. P-1 where her date of birth is recorded as 4.11.1999 and according to it the age of the prosecutrix at the relevant time comes to about 15 years, and two years prior thereto since when the accused started making physical relations with her, it comes to about 13 years. As per the FSL report Ex.P-11 spermatozoa was 3 found on the underwear of the prosecutrix, vaginal slides and underwear of the accused/appellant. After completion of investigation, police filed challan against the accused/appellant u/s 376, 506 IPC and section 5 (l) (n) and 6 of the POCSO Act followed by framing of charge by the Court below under Section 376, 506 (Part-II) IPC and section 6 of the POCSO Act.
3. In order to prove the complicity of the accused/appellant in the crime in question, the prosecution has examined 10 witnesses. Statement of the accused/appellant under Section 313 Cr.P.C. was also recorded in which he denied his guilt and pleaded innocence and false implication in the case.
4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned above.
5. Counsel for the accused/appellant submits as under:
(i) That the accused/appellant has been falsely implicated in the case as he failed to get registered his land in the name of the prosecutrix as per the agreement entered into while performing the second marriage of mother of the prosecutrix with the accused/appellant.
(ii) That the prosecutrix has just been made a tool for implication of the accused/appellant in the crime in question.
(iii) That a very improbable story has been put forth by the prosecution about commission of rape by the accused on his own daughter.4
(iv) That the medical report of the prosecutrix also does not support the case of the prosecution.
6. State counsel however supports the judgment impugned and submits that the findings recorded by the Court below convicting and sentencing the accused/appellant as described above are based on due appreciation of the evidence on record and there is no infirmity in the same. He submits that prosecutrix (PW-2) and her mother (PW-3) have duly supported the case of the prosecution narrating the manner in which the victim was molested by her step-father - the accused/appellant herein. According to him, FSL report (Ex.P-
11) also supports the case of the prosecution which shows the presense of spermatozoa on the undergarments of accused and that of the prosecutrix as also the vaginal slides so prepared. According to the State counsel, the progress report of the prosecutrix of class VIII seized under Ex. P-1 mentioning her date of birth as 4.11.1999 further establishes the fact that she was minor on the date of incident.
7. Heard counsel for the parties and perused the material available on record.
8. Prosecutrix (PW-2) has stated that after the death of her father, her mother (PW-3) entered into the second marriage with the accused/appelllant and since then she was living with them. She has further stated that when she was in class VIII, the accused/appellant for the first time made physical relations with her which thereafter continued for about two 5 years. According to this witness, the accused/appellant had also threatened her of being killed in case she disclosed the incident to anyone, and that he had also got discontinued her studies. The incident of her molestation at the hands of the accused/appellant was disclosed by the prosecutrix to her mother, maternal aunt and maternal grand-mother. In cross- examination also, this witness remained firm to what she has stated in the examination-in-chief. Reshma Fatwani alias Manju (PW-3) - mother of the prosecutrix has also supported the case of the prosecution stating that earlier also the prosecutrix had informed her about being subjected to physical relations by the accused/appellant and that when she asked him as to why he was doing like that, he told her that he did not spare even his real daughter then how to leave the step daughter. According to this witness, the accused had threatened her also of being finished in case she opened her mouth elsewhere. Thereafter, she somehow went to her sister and mother and informed them about the incident and then lodged the report. Dr. Anita Verma (PW-4) is the witness who medically examained the prosecutrix and gave her report Ex. P-8. According to this witness, the vagina of the prosecutrix easily entered two fingers and that she was habitual to sexual intercourse. Shobhraj (PW-5) and Suresh Lakhwani (PW-6) have not supported the case of the prosecution and have been declared hostile. Pawan Singh (PW-7) is the Patwari who prepared spot map Ex. P-6. Dr. (Smt.) Shesha Sexena (PW-8) is the Forensic Expert who has stated that on examination of the 6 articles produced before her, she found presence of spermatozoa on the undergarments of the accused, that of the prosecutrix and also the vaginal slides vide Ex. P-11. D.K. Netam (PW-9) is the investigating officer who has duly supported the case of the prosecution. K.S. Usendi (PW-10) is the witness who assisted in the investigation. Accused/appellant was also sent for medical examination vide Ex. P-14 and by way of an unexhibited report he was found capable of sexual intercourse.
9. On hearing the counsel for the parties and considering the evidence of the witnesses, in particular that of the minor prosecutrix (PW-2) and her mother (PW-3) it is established that two year prior to lodgment of report i.e. 4.1.2014, the accused/appellant who happens to be her step father, had subjected her to forcible sexual intercourse under the threat of life and rustication from the school. Evidence further shows that his incestuous act continued for a period of two long years and it is when her mother (PW-3) saw him with her own eyes molesting the prosecutrix, the report came to be lodged. Evidence of PW-3 even goes to show that when she asked the accused as to why he was doing such an indiscreet act, he retorted in the words that there was no question of sparing the step daughter when he did not leave his real daughter, and saying so he also threatened her of life in case she opened her mouth anywhere. FSL report also states the presence of spermatozoa on the undergarments of the prosecutrix, that of the accused and also the vaginal slides. 7
This Court does not find any substance in the argument of counsel for the appellant that the medical report does not support the case of the prosecution. It is for the reason that when the prosecutrix was raped continuously for two long years, there was no question of any injury on her private part or any other part of the body. There appears to be no reason for this Court to discedit the evidence of the prosecutrix who has put a pathetic depiction of being subjected to rape by her step father - the custodian in civilized words. His wolfish conduct in ravishing the teen ager step daughter instead of providing a caring hand for bringing her up, does not make him plead pardon.
10. Court below has been considerate enough in holding the accused/appellant guilty of molesting the tender-aged prosecutrix by putting her under threat of life. Its view is based on just and proper appreciation of the material collected by the prosecution. No infirmity is noticeable by this Court in the well written judgment impugned, and being so it deserves to and is hereby affirmed. Appeal is thus dismissed being without any substance. Being already in jail, the appellant does not need any direction of being put in prison etc. Sd/- Sd/-
(Pritinker Diwaker) (Gautam Chourdiya)
Judge Judge
Jyotishi