Ashok Soni vs State Of Chhattisgarh

Arvind Singh Chandel, J

This appeal is directed against the judgment dated 17.10.2017 passed by the Additional Sessions Judge, Mungeli in Special Criminal Case No.31 of 2015, whereby the Appellant has been convicted and sentenced as under:

Conviction

Sentence

Under Section 376(2)(f) of the Indian Penal Code (Two Counts)

and

Under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (henceforth ‘the Act, 2012’) (Two Counts)

Imprisonment for Life (Till Last Breath) and fine of Rs.25,000 (Two Counts) with default stipulation

(The Trial Court has sentenced the Appellant only for the offence under Section 376(2)(f) of the Indian Penal Code as per the provision contained in Section 42 of the Act, 2012)

The sentences are directed to run concurrently

Case of the prosecution is that there are two victim girls. One is PW6 aged about 10 years and the other is PW8 aged about 9 years. For convenience, we mention them as victim girl No.1 (PW6) and victim girl No.2 (PW8), respectively. Both the victim girls were studying in DSE School, Dindori in 4th and 2nd standards, respectively. There the Appellant was posted as a teacher. Father of victim girl No.1, namely, Shabir Mohammed (PW5) made a written complaint (Ex.P3) on 10.7.2013 stating therein that on the date of incident when his daughter victim girl No.1 returned home, she was under fear. On being asked, she told that the Appellant committed rape with her and, therefore, her private part was bleeding and she was suffering pain there. She further informed that the Appellant committed rape with her friend victim girl No.2 also. On being asked, victim girl No.2 also made such complaint to them. Thereafter, on the basis of Ex.P3, First Information Report (Ex.P4) was registered. Both the victim girls were first medically examined by Dr. Pramila Dau (PW12). On examination of victim girl No.1, an abrasion of 0.5x0.5 cms. was found on her perineum part which was bleeding. During medical examination, victim girl No.2 complained that 2 days before sexual intercourse was done with her, but, no injury was found on her body. Medical examination reports of the victim girls are Ex.P9 and P10, respectively. On 11.7.2013, Dr. Gayatri Bandhi (PW14) of District Hospital, Bilaspur also examined victim girl No.1. On that date, during examination, an injury of 0.5x0.5 cms. was found in the perineum part of victim girl No.1 which was torn in 6 O’clock position. Hymen was also ruptured in 6 O’clock position. Examination report is Ex.P13. During the course of investigation, statements of the victim girls and other witnesses were recorded under Section 161 of the Code of Criminal Procedure. Vaginal slide of victim girl No.1 and other seized articles were sent to the Forensic Science Laboratory (FSL) for chemical examination. Report of the FSL is Ex.P26, according to which, blood was found in the vaginal slide. On completion of the investigation, a charge-sheet was filed against the Appellant. The Trial Court framed charges against him.

In support of its case, the prosecution examined as many as 18 witnesses. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. Defence of the Appellant is that he has been falsely implicated in the case due to a previous dispute with father of victim girl No.1. However, no witness has been examined by him in his defence.

On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, this appeal.

Learned Counsel appearing for the Appellant argued that the Trial Court has convicted the Appellant without there being sufficient and clinching evidence on record. The statements of the victim girls are not reliable. Both are child witnesses. Possibility of their tutoring cannot be ruled out. There are material contradictions and omissions in their statements. Therefore also, their statements are not reliable. It was further argued that no injury was found on the private part or any other part of the body of victim girl No.2. Only 1 injury on the perineum part of victim girl No.1 was found and Dr. Gayatri Bandhi (PW14) has admitted the fact that her hymen could be ruptured due to injury in the perineum part. Therefore, if the entire case is taken as it is, it appears that the Appellant had only committed attempt of rape on victim girl No.1. Therefore, his conviction under Section 376(2)(f) of the Indian Penal Code and Section 6 of the Act, 2012 is not sustainable.

Opposing the above contentions, Learned Counsel appearing for the State supported the impugned judgment of the Trial Court. He argued that both the victim girls (PW6 and PW8) remained firm during their cross-examination on the point of sexual intercourse and fingering committed by the Appellant. Their statements are duly supported by their parents and other witnesses. The complaint was lodged immediately after the incident. Medical examination reports (Ex.P9 and P13) of victim girl No.1 also corroborate the prosecution case. Though no injury was found on the private part of victim girl No.2, from her statement it is established that the Appellant inserted his finger into her private part. Therefore, it is well established that the Appellant committed penetrative sex assault on victim girl No.2 and thereby committed the offence punishable under Section 376(2)(f) of the Indian Penal Code and Section 6 of the Act, 2012. Therefore, the Trial Court has rightly convicted the Appellant.

We have heard Learned Counsel appearing for the parties and perused the statements of the witnesses and other evidence available on record with utmost circumspection.

It is not in dispute that at the time of incident, victim girl No.1 (PW6) and victim girl No.2 (PW8) were aged about 10 and 8 years and they were also studying in DSE School, Dindori in 4th and 2nd standards, respectively. It is also not in dispute that at the relevant time the Appellant was posted and working as a teacher in the said school.

As regards the incident, victim girl No.1 (PW6), in her statement recorded before the Trial Court, deposed that on the date of incident, she was studying in classroom with her friend Shweta. At that time, victim girl No.2 came to her and told that the Appellant had called this witness. Therefore, she along with victim girl No.2 went to the classroom of the Appellant. This witness further deposed that in the classroom, the Appellant asked all the students not to see in front and to see in their books. Thereafter, the Appellant removed down the underwear of this witness and started touching her private part and thereafter he opened his pant’s chain and made her sit on his lap and thereafter he inserted his penis into her vagina. When she complained of pain and started bleeding, the Appellant brought her down and left her in her classroom. This witness further deposed that in her classroom, she ate half of her lunch-box. After end of the school session, when she was returning home, the Appellant met her on the way and he dropped her home on his scooter. Later on, when her mother came inside the room at home and saw her bleeding, she told her about the incident. She further deposed that in the school, before the lunch hour, she first told the incident to victim girl No.2. Then victim girl No.2 told her that earlier the Appellant had done so with her also. Victim girl No.2 (PW8) also supported the above statement of victim girl No.1 (PW6). She also deposed that 1 day prior to the incident, the Appellant had called her also in his classroom and after removing down her underwear he had inserted his finger into her vagina.

Ku. Shweta (PW3), a friend of victim girl No.1 also deposed that when she was studying in classroom with victim girl No.1, victim girl No.2 came there and telling that the Appellant was calling to victim girl No.1, she took her. Mother of victim girl No.1, namely, Menhaz Khan (PW4) deposed that on the date of incident at 3:30 p.m., her daughter/victim girl No.1 returned home. When she went to the room of victim girl No.1, she saw that blood stains were present on the bed-sheet, clothes and private part of victim girl No.1. On being asked, victim girl No.1 told her about the incident. Then she informed about the incident to her husband Shabir Mohammed. Shabir Mohammed (PW5) corroborated the above statement and deposed that he immediately informed about the incident to Ajay Singh, Director of the school and Rajkumar, father of victim girl No.2. Then they asked about the incident from victim girls No.1 and 2. Both the victim girls told them about the incident. Rajkumar (PW7) and Ajay Singh (PW10) supported the above statement of Shabir Mohammed (PW5).

After lodging of the report on 10.7.2013, victim girls No.1 and 2 were medically examined first by Dr. Pramila Dau (PW12). Her reports are Ex.P9 and P10, respectively. On examination of victim girl No.1, an abrasion of 0.5x0.5 cms. was found on her perineum part which was bleeding. During her medical examination, victim girl No.2 complained that 2 days before sexual intercourse was done with her, but, no injury was found on her body.

Next day, i.e., on 11.7.2013, victim girl No.1 was further examined by Dr. Gayatri Bandhi (PW14). During examination of victim girl No.1, an injury of 0.5x0.5 cms. was found in her perineum part which was torn in 6 O’clock position. Her hymen was also ruptured in 6 O’clock position. Examination report is Ex.P13. However, during cross-examination, Dr. Gayatri Bandhi (PW14) admitted that hymen could be ruptured due to the injury in perineum part or this rupture could occur on being dashed with any article while playing.

S.P. Rai (PW18) proved the FSL Report (Ex.P26) in which he reported that blood was found on the vaginal slide of victim girl No.1.

On a minute examination of the above evidence, it is clear that on medical examination of victim girl No.1, an abrasion of 0.5x0.5 cms. was found in her perineum part which was torn in 6 O’clock position and was bleeding. Her hymen was also ruptured in 6 O’clock position. Though Dr. Gayatri Bandhi (PW14) admitted that hymen could be ruptured due to the injury in perineum part or the rupture could occur on being dashed with any article while playing, at the time of examination this suggestion was put to victim girl No.1 (PW6) which she denied. On the point that at the time of incident, the Appellant had committed sexual intercourse with her, this witness (victim girl No.1/PW6) has remained firm during her cross-examination. Immediately after the incident, she informed about the incident first to victim girl No.2 (PW8) and thereafter to her mother. In her vaginal slide also, blood was found (Ex.P26). There is nothing in her cross-examination on the basis of which her statement could be disbelieved.

As regards the incident relating to victim girl No.2 (PW8) also, though in her medical examination no injury was found in her private part, in her Court statement she categorically stated that the Appellant had removed down her underwear and inserted his finger into her vagina. On this point, she remained firm during her cross-examination. There is nothing in her cross-examination also on the basis of which her statement could be disbelieved. Thus, it is also well established that the Appellant had inserted his finger into the private part of victim girl No.2. Looking to the entire evidence adduced by the prosecution, in our considered view, the Trial Court has rightly convicted the Appellant. Thus, the conviction imposed upon him by the Trial Court is affirmed.

As regards sentence part, though the offence committed by the Appellant is grave in nature, particularly when the offence was committed by a teacher and the victim girls were students of about 10 and 8 years’ age which enhances gravity of the offence, considering the fact that at the time of commission of the offence the Appellant was aged about 35 years, he would have a family, he is continuously in jail since 10.7.2013 and he has no criminal antecedent, we feel that interest of justice would be served if his sentence of imprisonment for life till last breath is reduced to rigorous imprisonment for 20 years (two counts). Ordered accordingly. The fine sentence of Rs.25,000 (two counts) imposed by the Trial Court is affirmed. All the sentences shall run concurrently. The order of compensation to the victim girls passed by the Trial Court is also affirmed.

Consequently, the appeal is allowed in part to the extent indicated above.