Chattisgarh High Court
Nandu Yadav vs State Of Chhattisgarh on 25 October, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
1
Digitally
signed by
SMT
NIRMALA
RAO
2024:CGHC:42293-DB
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 08/10/2024
Judgment Delivered on : 25/10/2024
CRA No. 578 of 2020
1 - Nandu Yadav S/o Manohar Yadav, Aged About 27 Years R/o
Village Belsonda, Police Station Mahasamund, District Mahasamund,
Chhattisgarh.
---- Appellant
Versus
1 - State Of Chhattisgarh Through Station House Officer Of Police
Station Mahasamund, District Mahasamund Chhattisgarh.
---- Respondent
(Cause-title taken from Case Information System)
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For Appellant : Shri Roop Naik, Advocate.
For Respondent-State : Shri Sacchidanand Yadav, P.L.
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Hon'ble Smt. Rajani Dubey, Judge Hon'ble Shri Rakesh Mohan Pandey, Judge C.A.V. JUDGMENT Per Rakesh Mohan Pandey, Judge
1. This criminal appeal filed by the appellant/accused herein under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 14.02.2020 passed by the learned Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Mahasamund, District Mahasamund, Chhattisgarh in Sessions Trial No. H-08 of 2019, whereby the appellant has been convicted and sentenced as under:- 2
Conviction Sentence
Under Section 363 of the Rigorous Imprisonment for 7
Indian Penal Code. years and fine of Rs.500/- and
in default of payment of fine,
additional R.I. for 1 month.
Under Section 376AB of Life Imprisonment till the
the Indian Penal Code. natural death and fine of
Rs.25,000/- and in default of
payment of fine, additional R.I.
for 6 months.
2. As per the prosecution story, on 29.3.2019, the victim, aged about 6 years, had gone to the Well of a neighbour to take a bath and she returned at about 9:00 am. Her mother found stains of "Gudakhu" (paste made of jaggery and tobacco) over her skirt, lips, waist and private parts. The victim informed her mother that the father of Gautam (accused) had taken her; she was disrobed; the accused laid down over her and put off his trousers and after that, rubbed over her private parts. The mother and father of the victim went to the house of the accused and the matter was informed to the niece of the accused. A report was lodged on 29.3.2019 vide Ex.P/1. Subsequently, the police registered an FIR (Ex.P/2) for the commission of the offence punishable under Section 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
3. The police prepared the site plan (Ex.P/4), and seized the mark-sheet of the victim vide Ex.P/6 and caste certificate vide Ex.P/5. The Medical Officer prepared two vaginal slides and swab. The Patwari prepared the map vide Ex.P/14. The accused was examined by the Medical Officer and after the completion of the investigation; the charge-sheet was filed.
4. Learned trial Court framed charges for the commission of offences 3 punishable under Sections 363 & 376 AB of IPC, Section 5 read with Section 6 of the POCSO Act, 2012 and Sections 3 to 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the appellant. The appellant/accused abjured the guilt and took the plea that he has not committed the offence and had falsely been implicated in the case.
5. The prosecution examined as many as 12 witnesses to prove the guilt of the appellant and exhibited 20 documents. The statement of the appellant/accused under Section 313 of Cr.P.C. was recorded where he took a plea of false implication.
6. Learned trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned herein above, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.
7. Learned counsel for the appellant would submit that in the written report (Ex.P/1), there was no allegation of sexual assault. He would further submit that according to the written report, the accused put off his pants and rubbed her chest. He would also submit that in the FIR also there was no allegation of the commission of the sexual act. He would contend that the victim (PW-2) in her evidence exaggerated her statement and made an allegation of penetration by the appellant of his private part in her mouth. He would further contend that with regard to sexual acts, the allegation was made for the first time in the deposition. It is also contended that the victim was medically examined on 30.3.2019 and on that date, a vaginal slide and swab were 4 prepared by the Medical Officer. The undergarments, two vaginal slides and one vaginal swab were seized by the police on 30.3.2019 whereas, these articles were sent for chemical examination by the police on 23.12.2019 and there is no evidence to the effect that where these articles were kept for 9 months. He would further argue that the eyewitness/niece of the accused has not been examined which is fatal for the prosecution case. He would also argue that the incident had taken place prior to the amendment in the POCSO Act and therefore, the learned trial Court ought to have convicted the appellant according to the unamended provision. He would state that the prosecution failed to bring the act of the appellant/accused within the definition of aggravated penetrative sexual assault; therefore, the conviction and sentence are liable to be set aside.
Learned counsel for the appellant has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Pattu Rajan vs. State of Tamil Nadu, (2019) 4 SCC 771 where it is held that it is the duty of an expert witness to assist the Court effectively by furnishing with the relevant report based on his expertise along with his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. The relevant paragraph 51 is reproduced herein below:-
"51. Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise alongwith his reasons, so that the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts."5
8. In the present case, the FSL report Ex.P/20 is against the appellant.
Learned counsel for the appellant has alleged that the FSL report is doubtful on the ground that seized articles were not kept in proper custody for a period of 9 months. The appellant failed to move any application for examination of Assistant Chemical Examiner Dr. R. Sirmour, who authored the report.
9. Learned counsel appearing for the appellant has further placed reliance on the judgment of the Hon'ble Supreme Court rendered in the matter of Naresh Kumar vs. State of Delhi, 2024 SCC OnLine SC 1641, in this judgment the Hon'ble Supreme Court has held that non-questioning on incriminating circumstances to the appellant during the examination under Section 313, Cr.PC, caused material prejudice to the accused. The Hon'ble Supreme Court while dealing with the issue in paragraphs 21 & 22 held as under:-
"21. We have already held that whether non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. *****
22. In the light of the above view of the matter, we are inclined to consider the further question whether the non-questioning on the aforesaid twin incriminating circumstances to the appellant during his examination under Section 313, Cr.PC, had caused material prejudice to him. ****"
10. In the present case, learned counsel for the appellant failed to point out the exact questions which were not put to the appellant. A perusal of the examination of the accused under Section 313 of Cr.P.C. would show that all relevant questions were put to the appellant; therefore, in the opinion of this Court, the appellant would not get any benefit from 6 the cited judgment.
11. Mr. Nayak has placed also reliance on the judgment rendered in the matter of State of Uttar Pradesh vs. Sonu Kushwaha, (2023) 7 SCC 475, where the Hon'ble Supreme Court has held that the punishment for the commission of an offence under Section 4 or 6 read with Section 2(1)(a), 3(a) and 5(m) of the POCSO Act, 2012 for the offence of aggravated penetrative sexual assault was 10 years but after 16.8.2019 it has been enhanced to 20 years. In the cited case, the accused was punished with imprisonment for 10 years.
12. In the present case, the offence was committed on 29.3.2019 prior to the date of the amendment under Section 6 of the POCSO Act but the appellant has been convicted under Section 376 AB of IPC applying provisions of Section 42 of the POCSO Act, therefore, this judgment is of no help to the appellant.
13. Learned counsel appearing for the appellant has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Prakash Nishad @ Kewat Zinak Nishad vs. State of Maharashtra, 2023 SCC OnLine SC 666, particularly paragraphs 78 & 79, where it is held that the investigating officers were changed time and again and the same was not explained. It is also held that the provisions of Section 53A of Cr.P.C. were not complied with. There was an unexplained delay in sending samples collected for analysis. In the present case, the evidence of the victim is trustworthy where she has made specific allegations with regard to the commission of an offence against the appellant. There is only one lacuna with regard to the delay in sending samples collected by the prosecution but the conviction of 7 the appellant is not solely based on the FSL report.
14. Learned counsel for the appellant has further placed reliance on the judgment of this Court rendered in the matter of Kishan Lal @ Champa Yadav vs. the State of Chhattisgarh, Criminal Appeal No. 565 of 2022 where in paragraph 28, the Hon'ble Division Bench considered the DNA report and found a cloud of suspicion over it. Paragraph 28 is reproduced herein below:-
"(28) Concludingly, it is clearly established after careful analysis of the material available on record that the victim (PW-02) has denied that any sexual assault has been made to her by the appellant herein on the date of offence and the conviction of the appellant is solely based on the DNA evidence, whereas taking of blood samples has been denied by the victim (PW-02), her father (PW-01) and also by the appellant in his statement recorded under Section 313 of CrPC. Furthermore, the seizure memo (Ex.P/06) by which the blood samples were collected and seized does not have any sample seal and, the Constable of Police Station Ghumka, to whom the blood samples were handed over by Dr. Amit Kumar Tiwari (PW-06), has not been examined by the prosecution nor he has been cited as a prosecution witness. Moreover, as per DNA report (Ex.P/24), the blood samples were produced by Surendra Ramteke (Constable No.519) from the District Hospital, Rajnandgaon, which were subsequently received by the FSL, Raipur from Investigating Officer- Rajesh Kumar Sahu (PW-08). However, the blood samples, marked as Article- "A", "B" & "C" bore seal of Medical Officer, Government Medical College Hospital, Rajnandgaon and there is no 'malkhana' register brought on record by the prosecution to show that the blood samples were kept in safe custody from 12.02.2020 till 13.02.2020. As such, the prosecution has failed to establish that appropriate and proper procedure, which is required to be followed for collection of blood sample till depositing, was followed. Therefore, DNA report (Ex.P/24) comes under the cloud of suspicion and, in absence of any other piece of legal evidence on record, it would be absolutely unsafe to convict the appellant herein by relying upon the said DNA report (Ex.P/24) and the learned trial Court is fully unjustified in convicting the appellant herein on the basis of DNA report (Ex.P/24). Thus, in our considered opinion, the conviction of the appellant deserves to be set aside."8
15. As already observed that the conviction of the appellant is not based solely on the FSL report, there is other relevant evidence like the de- position of the victim, deposition of her mother and medical report.
16. On the other hand, learned State counsel opposes the submissions advanced on behalf of the appellant. He would submit that the prose- cution has proved the case beyond reasonable doubt against the present appellant. It is submitted that undisputedly, the age of the vic- tim was 6 years at the time of the incident. He would further submit that Dr. Onkeshwari Sahu, Medical Officer (PW-7) has found abra- sions, redness and tenderness over labia majora and labia minora and the hymen was found intact. Two vaginal slides and one vaginal swab were prepared. As per the FSL report, semen was found over the slide, swab and underwear. He would also submit that there was no exaggeration by the victim and she had described the incident fairly before the Court below. He would argue that the written report was lodged by the parents and on this ground alone; the case of the prose- cution cannot be falsified. It is contended that the witnesses have sup- ported the case of the prosecution. He would state that the appeal de- serves to be dismissed.
17. We have heard learned counsel for the parties and perused the record with utmost circumspection.
18. Issues that emerge for decision are:-
(i) Whether the evidence on record is sufficient to record the conviction against the appellant?
(ii) What should be the appropriate punishment to be imposed on the appellant?9
19. Admittedly, the incident took place on 29.3.2019. The victim was taken by the accused to an isolated place where as per the contents of the FIR as well as evidence of the victim, she was disrobed and the accused committed a sexual act. The evidence in this regard is against the appellant.
20. Dr. Onkeshwari Sahu (PW-7), who medically examined the victim on 30.3.2019 vide Ex.P/12A, found abrasions, redness and tenderness over the private parts. The medical evidence could not be refuted by the accused. Two vaginal slides and one vaginal swab were prepared and these articles along with the undergarments of the victim were sent for FSL. The report is against the appellant though there is no explanation regarding delay by the prosecution as the articles were deposited at the forensic laboratory on 23.12.2019, though those articles were seized on 30.3.2019, but it would not be fatal for the prosecution as there is no allegation of any fabrication or change of the slides or swab. The victim (PW-2) in her evidence has categorically stated that the appellant rubbed his private parts with the private parts of the victim. It is also alleged that the accused put his private part in the mouth of the victim. In cross-examination, there is no rebuttal of the statement made by the victim.
21. Iti Behera (PW-1), the mother of the victim has supported the case of the prosecution. In cross-examination, she remained uncontroverted. Nurpati (PW-3) is an independent and a hearsay witness. Dr. Smt. Alka Pardal (PW-4) has proved the age of the victim by conducting an ossification test. Bhagwat Sen (PW-5) was declared hostile. Prithvi Dubey (PW-6), Deputy Superintendent of Police recorded statements 10 of witnesses under Section 161 of Cr.P.C. Padmavati Sahu (PW-8), Patwari prepared a spot map (Ex.P/14). Vimla Dhruv (PW-9), Constable seized undergarments, vaginal slides and vaginal swabs vide Ex.P/9 on 30.3.2019.
22. Smt. Santoshi Agrawal, (PW-11), Sub-Inspector conducted the investigation. She admitted that there is no document to show the submission of vaginal slides, swabs and undergarments with Forensic Lab in the charge sheet.
23. From a perusal of the contents of the FIR and the evidence of the victim, it is apparent that she was sexually assaulted by the accused. Although there are some discrepancies regarding the submission of the undergarments of the victim, vaginal slides and vaginal swab with the FSL and there is no explanation as to whether these articles were properly preserved or stored; also one eyewitness/niece of the accused has not been examined, but these lacunas do not affect the veracity of the case of the prosecution.
24. The Hon'ble Supreme Court in the case of State of Himachal Pradesh vs. Manga Singh, (2019) 16 SCC 759 where a 9-year-old victim was sexually exploited and in the absence of medical evidence the accused was acquitted by the High Court, the Hon'ble Supreme Court held that no corroboration is required unless there are compelling reasons which necessitate the courts to insist for corroboration of the statement of the victim. Minor contradictions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix, even medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to 11 base the conviction, if it inspires the confidence of the Court. The relevant paragraphs No.10, 11, 12, 13, 14 and 20 are reproduced herein below:-
'10. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.
11. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court.
12. In State of Punjab v. Gurmit Singh and Others - (1996) 2 SCC 384, it was held as under:-
"8. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases 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 a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who 12 complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?".
(emphasis supplied)
13. The prosecutrix was aged only nine years, she had no reason to falsely implicate her cousin. Since the prosecutrix has been compelled to face the ordeal of sleeping with the respondent-accused everyday night, On 04.03.2010 she refused to go the house of her aunt. Considering the evidence of PW-4, a girl of tender years, corroboration from an independent source of the evidence of the prosecutrix is not required. The evidence of the prosecutrix clearly established that the accused was committing rape on her by penetration.
14. The trial court, which had the opportunity of observing and hearing the prosecutrix (PW-4), recorded a finding of fact that the evidence of prosecutrix (PW-4) is convincing and inspires the confidence of the court. When the trial court which had the opportunity of seeing and hearing the witness has held that the evidence of the prosecutrix (PW-4) inspires confidence of the court, in our considered view, in the absence of any convincing reason, the High Court ought not to have interfered with such finding of fact.
20. In the present case, the prosecutrix (PW-4), being a young girl aged about nine years, had no reason to falsely implicate the respondent-accused. The testimony of the prosecutrix (PW-
4) must have been appreciated in the light of the background of the case; more so, the prosecutrix (PW-4) was reluctant to go back to the house of her aunt and complained the act of sexual intercourse committed by the respondent-accused to her teachers, Pooja Mahajan (PW-1) and Ritubala (PW-2). The High Court has not appreciated the evidence of the prosecutrix (PW-4) in the light of the well-settled principles and erred in reversing the conviction of the respondent-accused to the acquittal. The impugned judgment of the High Court is not sustainable and is liable to be set aside. Since at the time of incident the victim was at her tender age, we do not find any reason to show sympathy towards the respondent-accused.'
25. Section 3 of the Act, 2012 is reproduced herein below for ready reference:-
'3. Penetrative sexual assault.―A person is said to commit "penetrative sexual assault" if―
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or 13
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
26. According to Section 3(a) of the POCSO Act, 2012, a person is said to commit "penetrative sexual assault" if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person. According to Section 3(b) of the POCSO Act, 2012, a person is said to commit "penetrative sexual assault" if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person.
In the present case, there is an allegation that the accused penetrated his penis into the mouth of the victim and also inserted his penis up to some extent into the vagina of the victim, therefore, the act of the accused falls within the definition of "penetrative sexual assault".
27. Section 5(m) of the POCSO Act, 2012 says that whoever commits penetrative sexual assault on a child below twelve years is said to commit aggravated penetrative sexual assault and according to provisions of Section 6 of the POCSO Act, 2012, whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
14
28. Section 376 AB of IPC says that whoever commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.
29. In the present case, the appellant was found guilty under Section 6 of the POCSO Act, 2012 as well as Section 376 AB of IPC but he has been sentenced according to provisions of Section 376 AB of IPC applying the provisions of Section 42 of the POCSO Act, 2012. Section 42 of the POCSO Act, 2012 deals with alternate punishment. According to this Section, where an act or omission constitutes an offence punishable under this Act and also under some sections of IPC including 376 AB of IPC, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
30. Taking into consideration the above-discussed facts, it can safely be held that learned trial Court has not committed any error of law in convicting the appellant.
31. Now coming to the issue of appropriate punishment, the appellant has been convicted under Section 376 AB of IPC for imprisonment till the natural life and a fine of Rs.25,000/- and in default of payment of fine, additional R.I. for 6 months. According to Section 376 AB of IPC, the minimum sentence is 20 years which may extend to life imprisonment which means the natural life of a person. The learned Trial Court has sentenced the appellant applying provisions of Section 42 of the 15 POCSO Act.
32. The Hon'ble Division Bench of this Court in the matter of Deepak Verma vs. State of Chhattisgarh, CRA NO. 392 of 2021 vide judgment dated 16.10.2021 while dealing with the unamended provisions of Section 6 of the POCSO Act observed and held as under:-
30. The learned trial Court has convicted the appellant both under Section 6 of the POCSO Act and Section 376AB of the IPC but in view of Section 42 of the POCSO Act, which provides for alternate punishment which is greater in degree and as such, the appellant has been sentenced for the offence punishable under Section 376AB of the IPC.
31. Earlier, before amendment, Section 6 of the POCSO Act provided that whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life and shall also be liable to fine. After amendment, i.e. w.e.f 16.09.2019, the said Section provides for rigorous imprisonment for a term which shall not be less than 20 years. The incident took place on 25.06.2018 and as such, Section 6 of the POCSO Act, which stood as before 16.08.2019 would be applicable in the present case and as such, this Court is of the view that instead of convicting the appellant for the offence under Section 376AB of the IPC and sentencing him to rigorous imprisonment for 20 years with fine of Rs. 50,000/-, the appellant be convicted under Section 6 of the POCSO Act and sentenced to rigorous imprisonment for 10 years with fine of Rs.
50,000/- and in default of payment of fine, to further undergo 1 years rigorous imprisonment. It is ordered accordingly."
33. In the aforesaid judgment, it was held that before the amendment, Section 6 of the POCSO Act provided for punishment with rigorous imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life and shall also be liable to fine. After the amendment, i.e. w.e.f 16.09.2019, the said Section provides for rigorous imprisonment for a term which shall not be less than 20 years. Thus, instead of convicting the appellant for the offence under Section 376AB of the IPC, the appellant was convicted under Section 6 of the 16 POCSO Act and sentenced to rigorous imprisonment for 10 years with a fine of Rs. 50,000/-.
34. Applying the law laid down by the Hon'ble Division Bench of this Court in the matter of Deepak Verma (supra), since the incident had taken place on 29.03.2019 when the unamended provisions of Section 6 of the POCSO Act were in force, the present appellant is convicted and sentenced to undergo rigorous imprisonment for a period of 10 years under Section 6 of the POCSO Act instead of Section 376AB of the IPC. The rest of the conviction and sentence part along with the fine and default stipulation is not interfered with. The accused/appellant shall be entitled to the set-off for the period already undergone by him.
35. Accordingly, the present appeal is partly allowed.
Sd/- Sd/-
(Rajani Dubey) (Rakesh Mohan Pandey)
Judge Judge
Nimmi