Kartik Kumar Chakravarty vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal filed under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 11.08.2017, passed by the learned Second Additional Sessions Judge, Raigarh in Case No. POCSO ACT 2012/ 10/2015, by which, the appellant herein has been convicted for the offence under Section 6 of the Protection of Children from Sexual Offences Act and sentenced to undergo 14 years rigorous imprisonment and fine of Rs.2000/- in default of payment of fine amount, further imprisonment for 1 year.

Case of the prosecution, in short, is that on 17.10.2014, at 5:00 to 6:30 p.m., at village Meelupara, Police Station-Tamnar, the appellant herein committed forceful sexual intercourse with the minor victim (PW-1), aged about 5 years and thereby, committed the offence. The father of the victim (PW-4) reported the matter to the police, pursuant to which, Dehati Nalisi was recorded vide Ex. P-7, FIR was registered vide Ex.P-13 & Ex.P-14, MLC of the victim was conducted by Dr. D.K.Toppo (PW-7) vide Ex.P-9 and as per the doctor’s opinion it is a clear case of forceful sexual assault, as there is severe tenderness over lower abdomen, tenderness over upper part of thigh, neck and face and severe tenderness over pelvic region. The vaginal slide of the victim was prepared, which was sent for chemical examination to FSL along-with other seized articles i.e. undergarments of the victim & appellant and as per the FSL report (Ex.P-20), blood was found in the seized undergarments i.e. Articles-B,C&D and in Article-B i.e. undergarment of the victim, stains of semen and human sperm was found and in Article-C, human blood of ‘A+’ group was found. After due investigation, the appellant was charge-sheeted for the aforesaid offence under Section 376(2)(i) and Section 6 of the POCSO Act before the jurisdictional criminal court, which was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated.

In order to bring home the offence, prosecution examined as many as 15 witnesses and exhibited 20 documents and the appellant-accused in support of his defence has not examined any witness, but has exhibited the document Ex.D-1.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the aforesaid offence as mentioned in the opening paragraph of the judgment, against which the present appeal has been preferred.

Mr. Keshav Kumar Dewangan, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt and it is the case of false implication and, as such, the appellant is entitled for acquittal and the appeal deserves to be allowed.

Per contra, Mr. Sharad Mishra, learned State counsel would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the learned trial Court has rightly convicted the appellant for the aforesaid offence and, as such, the instant appeal deserves to be dismissed.

We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

First of all, the trial Court has rightly recorded the finding that the age of the victim was 5 years & 5 months on the basis of birth certificate of the victim (Ex.P-10), in which, the date of birth of the victim was 22.04.2019, which was proved by Malikram Rathiya (PW-8) and therefore, the age of the victim to be less than 12 years i.e. 5 years & 5 months on the date of offence is a correct finding of fact, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding.

So far as the conviction of the appellant, the victim has clearly supported the case of the prosecution and though she was subjected to some extent of cross-examination, but nothing has been extracted from her to hold that she was not subjected to sexual assault by the appellant herein or she is telling lie before the Court in order to falsely implicate the appellant. As such, her testimony inspire confidence and deserves to be accepted more particularly when her statement is duly supported by the medical report (Ex.P-9) proved by Dr. D.K.Toppo (PW-7), in which, he found that victim was subjected to forceful sexual assault, as there were severe tenderness over lower abdomen, over medial thigh and over lower part of labia majora both side. The vaginal slide was sent for chemical examination to FSL along-with seized undergarments of the victim and appellant, in which, in Article-B i.e. undergarment of the victim, stains of semen and human sperm was found and not only this in Articles- B, C & D i.e. undergarments of the appellant and victim, blood was found and in Article-C, human blood of ‘A+’ group was found. As such, the prosecution has clearly been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence.

Learned counsel for the appellant relied upon the decision of the Supreme Court in the matter of Uttar Pradesh v. Sonu Kushwaha (2023) 7 SCC 475  and submits that prior to 16.08.2019 the minimum sentence prescribed for committing offence under Section 6 of the POCSO Act was 10 years rigorous imprisonment and in the present case, date of offence i.e. 17.10.2014 is considered, in light of the decision of the Supreme Court in Sonu Kushwaha (supra), the sentence of the appellant can also be reduced to 10 years rigorous imprisonment. However, in the present case, considering the age of minor victim, who was aged about 5 years on the date of offence and subjected to aggravated penetrative sexual assault by the appellant who at that time was aged about 20 years and the nature of injuries suffered by the victim, we are not inclined to reduce the sentence awarded to the appellant by the trial Court and accordingly, the aforesaid submission is liable to and is hereby rejected.

Accordingly, the instant criminal appeal is dismissed.