Chattisgarh High Court
Prakash Mandavi vs State Of Chhattisgarh on 22 July, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 353 of 2016
Prakash Mandavi S/o Bhagirathi Mandavi Aged About 30 Years
R/o Village Barga, P.S. Lalbag, Civil And Revenue District
Rajnandgaon, Chhattisgarh. At Present R/o Shantibai Uikeys
House Kaurinbhata, P.S. Basantpur, District Rajnandgaon,
Chhattisgarh., Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through P.S. Basantpur, Civil And
Revenue District Rajnandgaon, Chhattisgarh., Chhattisgarh
Respondent
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For Appellant : Shri Rajesh Tiwari, Adv.
For Respondent : Ms. Pushplata Khalko, P.L.
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Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (22/07/2022)
1. Assailing the legality, correctness, judicial propriety of the impugned judgment of conviction and award of sentence dated 15.12.2015 passed in Sessions Trial No. 17/2013, in the Court of Fast Track Court of Additional Sessions Judge and Special Judge POCSO, 2012 Rajnandgaon (C.G.) (for short, 'the trial Court'), whereby the appellant has been convicted and sentenced in the following manner:-
Conviction Sentence Under Section 376 of the Indian R.I. for 10 years and fine of Rs. 2000/- Penal Code. and in default of payment of fine additional R.I. for 1 Month.
under Section 377 of Indian RI for 10 years and fine of Rs.2000/- Penal Code. and in default of payment of fine Additional R.I. for 1 month.
Section 3-4 of POCSO Act. R.I. for 7 years and fine of Rs.1000/-
and in default of payment of fine Additional R.I. for 1 month.
The appellant is before this Court in this Criminal Appeal under Section 374(2) of Criminal Procedure Code, 1973 (for short, 'CrPC').
2. The appellant was convicted for offence punishable under 2 Sections 376, 377 of Indian Penal Code, 1860 (for short, 'IPC') and Section 3/4 of POCSO Act on the allegation of committing rape of his niece at about 10-11 a.m. on 27.08.2013 in the house of her grand mother at village Korinbhata, Rajnandgaon.
Facts of the case
3. The prosecution story in brief is that mother of prosecutrix/victim Smt. Annu Sahu (PW-1) who lives in Atal Awas Kaurinbhata and she is a maid servant and her husband Rajesh Kumar Sahu (PW-3) is a Rickshaw puller. She used to go for work at 6 am and comes back at about 1:30 pm and her husband Rajesh Kumar Sahu (PW-3) also goes for his work. They are having three children and their elder daughter Prosecutrix (PW-2) is aged about 10 years and studying in class 6th. On the fateful day i.e. on 27.08.2013 the prosecutrix did not go to school and from that day she acted restless and complaint of pain in her hips and irritation on her private part. Therefore, she used to apply powder on it. It is further case of prosecution is that on 05.09.2013 prosecutrix (PW-2) was pressed her chest then she asked her not to do it, prosecutrix stated that she did not go to school and revealed that when at about 10-11 am she went to house of her grand mother and at that time her uncle/appellant Prakash Mandavi taking advantage of loneliness started pressing her chest and committed sexual intercourse and unnatural intercourse with her. This being informed by prosecutrix, she examined her in person and found some swelling in the private part, thereafter, FIR (Ex.P-1) was lodged on 05.09.2013. Rajesh Choudhary (PW-12) who prepared Spot Map (Ex.P-2), seized underwear of the prosecutrix (Ex.P-4) and also seized Dakhil Kharij Register (Ex.P-5C) and Attendance Register (Ex.P-7C), the prosecutrix was medically examined by Dr. Sohadra Thakur (PW-8) who gave the medical examination report (Ex.P-9). Appellant was medically examined by Dr. Sanjay Meshram (PW-9).
4. During course of investigation the statement of the witnesses were recorded and after due investigation charge-sheet was filed before the Competent Court. The appellant was charged for offence punishable under Sections 376, 377 of IPC and 3-4 3 of POCSO Act, he absurd the guilt and claim to tried. Prosecution examined as many as 12 witnesses and exhibited 18 documents. The statement of appellant/ accused under Section 313 of CrPC was recorded. The learned trial Court after due appreciation of the evidence and material placed before it, convicted and sentenced the appellant as stated above vide impugned judgment dated 15.12.2015 which is challenged before this Court by the appellant.
Submissions on behalf of the appellant
5. Counsel for the appellant made the following submissions :-
(a) The impugned judgment of conviction and award of sentence is patently erroneous, contrary to the evidence and material available on record is bad in law. The trial Court did not appreciate the evidence and material placed before it to its proper perspective and erroneously passed the impugned judgment of conviction. The trial Court committed an error of law as well as fact in marshaling the evidence brought by the prosecution to sustain the conviction.
(b) He further submits that the statements of prosecution witnesses namely prosecutrix (PW-2), her mother (PW-1) do not inspire confidence. He submits that from the statement of Dr. Sohadra Thakur (PW-8) it is apparent that there was no external and internal injury caused on person of the prosecutrix/victim. The alleged incident said to have been committed on 27.08.2013 and report was lodged on 05.09.2013 at Police Thana Basantpur, therefore, the prosecution was not able to bring home the guilt of appellant/accused beyond reasonable doubt.
(c) Lastly, he submitted that the age of prosecutrix is not proved in accordance with law.
Submissions on behalf of the respondent state
6. On the other hand counsel for the State made the following submissions :-
(a) The learned trial Court was absolutely justified in holding 4 the appellant guilty of the above stated offence as it has properly and meticulously examined the evidences and material placed before it and gave a categorical finding that it is the appellant who has committed the aforesaid offence and therefore the finding of conviction and award of sentence do not require any interference by this Court.
(b) He also submits that the age of prosecutrix has been proved by the Head Master Santosh Kumar Shrivastava (PW-4) who has proved the entry of age in Dakhil Kharij Register (Ex.P-5C) therefore, there is no doubts with regard to age of prosecutrix.
(c) He further goes on to submit that the statement of prosecutrix (PW-2) is very categorical and it is a settled position of law that the conviction can be sustained only on the basis of statement of prosecutrix which inspire confidence.
(d) Lastly, he submits that the prosecutrix is less than 12 years of age, therefore, when she informed about the happening of the offence to her mother, the report was lodged so even assuming there is delay in lodging the FIR that cannot be a ground to doubt on prosecution case.
Analysis and Conclusions
7. I have heard learned counsel for the parties, considered their rival contentions and perused the record meticulously with utmost circumspection.
8. The first question for consideration is that whether the prosecutrix (PW-2) is less than 18 years of age?
9. In order to prove the age of the prosecutrix, the prosecution has examined Santosh Kumar Shrivastava (PW-4) who happens to be Head Master of School where prosecutrix was studying. This witness categorically stated that the name of prosecutrix is registered as Serial No.1680 in the admission register and he has proved the age of prosecutrix i.e. 5 01.01.2003 which is marked as Ex.P-5C. From the cross- examination of this witness nothing significant incriminating fact has been brought. Therefore, in the considered opinion of this Court the prosecution was able to prove the age of the prosecutrix is below 12 years of age.
10. Now the second question for consideration whether the present appellant is the author of the crime or not?
11. The prosecution in order to prove the guilt of appellant basically examined mother of prosecutrix (PW-1), prosecutrix (PW-2) and Dr. Sohadra Thakur (PW-8). It is well settled preposition of law that if the statement of the prosecutrix inspire confidence, the conviction can be sustained on the basis of sole testimony of prosecutrix.
12. Hon'ble Supreme Court, in the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, in paragraphs 6 and 7, it is observed and held as under:
"6. We are conscious that the courts 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 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 the 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 court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para
21).]
7. It is also by now well settled that 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 6 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. (See Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635)."
In the case of State (NCT of Delhi) v. Pankaj Chaudhary and ors, (2019) 11 SCC 575 it is observed and held in paragraph 29 as under:
"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down 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, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. . [State of Rajasthan v. N.K., (2000) 5 SCC 30]."
In a recent decision of the Hon'ble Supreme Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74 considering various case laws on the point that conviction can rest on the sole testimony of prosecutrix if it inspires confidence held in paragraph 11 as under :-
"11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained."
13. In the light of above principle of law laid down by Hon'ble Supreme Court, it is well settle preposition of law that the accused can be convicted only on the basis of the sole testimony of the prosecutrix if it is found credible and inspires confidence 7 without any further corroboration.
14. Now I shall examine the evidence brought by prosecution to bring home the guilt of accused/appellant. Prosecutrix (PW-2) who happens to be less than 12 years of age was examined and categorically stated in Para 2 that when she went to the house of her grandmother, the appellant closed the door and threatened her with knife and held her chest and opened her undergarments and also assaulted her. She further stated that the appellant committed sexual intercourse and unnatural intercourse with her. She further states that she was subjected to bleeding also. This witness was subjected to lengthy cross- examination by the appellant but nothing significant incriminating fact was brought on record. In fact in the cross- examination Para 12 she has categorically denied that the appellant has not committed any wrong act. Therefore, in the opinion of this Court the testimony of the prosecutrix inspire confidence and credible. Testimony of this witness is also corroborated by testimony of Smt. Annu Sahu (PW-1) who is mother of prosecutrix. She has stated the incident was narrated by prosecutrix to her. Dr. Sohadra Thakur (PW-8) who medically examined the prosecutrix though after examining of the victim this witness gave no definite opinion. The testimonies of PW-2 and PW-1 cannot be discarded. Looking to the age of victim and her behavior, it is also to be seen that the incident took place on 27.08.2013 and the victim was examined on 05.09.2013, in the opinion of this Court, even if the medical evidence may not corroborate with the statement of prosecutrix, however as discussed earlier the statement of prosecutrix inspire confidence and no benefits can be extended to the appellant in this regard.
15. In fallout of above discussion, this Court is of the considered opinion that the prosecution is able to bring home the guilt of appellant/accused beyond reasonable doubt. The appeal has no merit and is liable to be and is hereby dismissed.
Sd/-
(Sachin Singh Rajput) Judge parul