Kumbhkaran Gendre vs State Of Chhattisgarh

Ramesh Sinha, CJ

The appellant has preferred this appeal under Section 374(2) of Cr.P.C. questioning the impugned judgment dated 29.09.2021 passed in Special Criminal (POCSO) Case No. 66/2020 by which the learned Additional Sessions Judge/Second Fast Track Special Court, Raipur, District Raipur, has convicted and sentenced the appellant as under:

Conviction under Section

Sentence under Section

Term and nature of Sentence

Fine

In default of payment of fine

450      of      the Indian       Penal Code

450 of IPC

07             years rigorous imprisonment

Rs. 5000/-

06      months additional imprisonment

376(3)    of    the IPC              and

Section  4(2)  of the    Protection of         Children

From      Sexual Offences      Act

(in      light      of Section   42   of the        POCSO Act)

376(3)    of IPC

20             years rigorous imprisonment

Rs. 10,000/-

08      months additional imprisonment

Case of the prosecution, in short, is that on the date of incident i.e. on 11.03.2020, at about 10:00 p.m., the appellant committed forceful sexual intercourse with the victim while she was sleeping in her home alongwith her brother and sister and when the victim tried to scream, the appellant gagged her mouth with a handkerchief and restrained her from raising an alarm.

The victim made a written complaint to the Station House Officer, Police Station Gobranawapara, District Raipur on 16.03.2020 (Exhibit P/7) to the effect that she is the resident of village Umarpoti, Gobranawapara, District Raipur and her parents reside at Raipur and do the work of labour. On 11.03.2020, while she was sleeping with her brother and sister, at about 10:00 p.m., her neighbour i.e. the appellant entered her room and forcefully committed sexual intercourse with her. When she tried to scream, he gagged her mouth with a handkerchief and said that if she become pregnant, he would give her medicine. On the basis of said complaint, FIR (Exhibit P/8) was registered on 16.03.2020 at 13:50 hours for the offences under Sections 376 IPC and Section 4 and 6 of the POCSO Act, 2012. In the written complaint and the FIR, her age is stated to be 16 years.

After investigating the matter, the police submitted the police report alongwith charge-sheet against the appellant/convict under section 376 of the IPC and Section 4 and 6 of the POCSO Act, 2012.

The said case was tried in the Court of Additional Sessions Judge/Second Fast Track Special Court, Raipur and the case was registered as Special Criminal (POCSO) Case No. 68/2020.

The learned Additional Sessions Judge framed charge on 06.02.2021 charging the appellant/accused for the offence punishable under Section 376(3) and 450 of the IPC and Section 4(2) of the POCSO Act, 2012.

Amongst others, the prosecution has filed the following documents in support of its case:

§  Copy of Dakhil Khariz Register (Exhibit P/1C) Property seizure memo (Exhibit P/2)

§  Memo to Head Master regarding providing of Dakhil Khariz Register (Exhibit P/3)

§  Supurdnama of Dakhil Khariz Register (Exhibit P/4)

§  Memo for medical examination of victim and medical report (Exhibit P/5) and (Exhibit P/6)

§  Written complaint (Exhibit P/7) FIR (Exhibit P/8)

§  Consent letter (Exhibit P/9)

§  Crime Details Form(Exhibit P/10)

§  Property seizure memo (Exhibit P/11) and (Exhibit P/12)

§  Statement of victim under Section 164 Cr.P.C. (Exhibit P/13)

§  Consent letter (Exhibit P/14) and (Exhibit P/15)

§  Property seizure memo (Exhibit P/16) CWC Proforma - 19 (Exhibit P/17)

§  Property seizure memo (Exhibit P/18) and (Exhibit P/19) Memo for medical examination of appellant and medical report (Exhibit P/20)

§  Memo for query of seized underwear of appellant and query report (Exhibit P/21)

§  Memo to JMFC regarding recording statement of victim under Section 164 Cr.P.C. (Exhibit P/22)

§  Memo to CWC regarding recording statement of victim (Exhibit P/23)

§  Memo regarding providing of spot map (Exhibit P/24) Memo for FSL report (Exhibit P/25)

§  Receipts of Exhibits (Exhibit P/26) FSL report (Exhibit P/27)

§  Arrest / Court surrender memo (Exhibit P/28) Arrest Information (Exhibit P/29)

§  Spot Map (Exhibit P/30)

§  Memo for furnishing of Spot Map (Exhibit P/31)

In order to bring home the offence, prosecution examined as many as 9 witnesses namely:

Alakh Ram Tandiya (PW-1): He is the Head Master of Primary School, Umarpoti. He had produced the original Dakhil Khariz register in which the date of birth of the victim is stated to be 01.10.2004 and since she failed in Class IV, she left the school on 20.06.2013.

Dr. S.D.Kanwar (PW-2): She is the Doctor who had examined the victim. She states that there were no sign of injury on the body of the victim. On external examination, she found her pubic hairs were cut, hymen was old torn at 6 O’Clock and no fresh injuries were found on the hymen. On internal examination, she found that front and rear vaginal wall was normal. Uterus was also normal. She opined that the victim was subjected to sexual intercourse. The old injury on the hymen was because of any hard and blunt object and the duration of injury was 4 to 7 days. She had handed over two vaginal slides to the Constable for further examination. She had prepared the report (Exhibit P/5). On the same day, the Constable had handed her a sealed packet in which there was an old cotton underwear which had semen like stains. The said stains were marked with blue ink and was sealed in a packet and handed over to the Constable for chemical examination.

Victim (PW-3): She states that she was born on 01.10.2004. She states that on the date of incident at about 10:00 p.m, she was reading a book lying on a cot. Her younger brother and sister were sleeping on separate cots. She had kept the door of the house open as they did not had fan. She states that she does not know how to write. The accused came and gagged her mouth with a handkerchief and thereafter committed sexual intercourse. Her one brother is aged about 15 years and sister is aged about 11 years and one brother is aged about 10 years. On the date of incident, her parents were at Raipur. The accused threatened her that if she narrates the incident to any one, he would kill her. He further assured her that if she becomes pregnant, he would give her medicine and would take her to hospital. She informed about the incident to her grand father who was residing in another house. She did not inform the incident to her parents. After three days, when her parents returned on 16.03.2020, she informed about the incident after which they went to the Police Station for lodging the report.

In cross-examination, she stated that she was studying in Class XI and she does not use any mobile phone. She has denied that she was having any affair with the brother of the accused. Some questions were asked to the victim upon which she had replied that she does not know how to write. She had given the written complaint to the Police after copying the matter which was given by the police in writing. However, the police had written what was narrated by the victim only.

Victim’s mother (PW-4): She states that the date of birth of her daughter was 01.10.2004. She and her husband had given consent for medical examination of the victim. The police had seized the progress report card and the undergarment of the victim. The police had also recorded her statement.

In cross-examination, she states that she knows how to sign but does not know to read and write. She had denied that the victim was aged about 18 years. She has also denied that there was any affair between the victim and the brother of the appellant Naindas @ Lalla.

Victim’s father (PW-5): He has also made similar deposition before the Court as has been made by her wife (PW-5). In the cross-examination, he states that he knew Manglu who was father of the appellant. He also knew Naindas @ Lalla who is the younger brother of the appellant. He denies that he had ever taken Rs. 1,40,000/- from Manglu or any agreement was entered into between them. He admits that he had taken Rs. 20,000/- as loan from Manglu after notarised agreement in which Chandrahas and Baliram were the witnesses and the said amount was taken by him after 1 ½ years of the incident. He denied that he had taken an amount of Rs. 1,40,000/- so that he would ask her daughter to make false deposition before the Court so that the appellant could be acquitted. He admits that he has not seen the incident on his own.

B.L.Kosariya (PW-6): He is the Investigating Officer. He had recorded the FIR (Exhibit P/8). During the course of investigation, after taking consent from the victim (Exhibit P/9) and from the mother of the victim (Exhibit P/14), medical examination of the victim was done. He had also prepared the spot map (Exhibit P/10), seized her Class V progress report card (Exhibit P/12). He had also seized the underwear of the appellant (Exhibit P/16). He had sent the appellant for medical examination regarding which he had prepared a memo (Exhibit P/20). On 17.03.2020, he had made an application (Exhibit P/22) before the JMFC, Raipur, for recording the statement of the victim under Section 164 Cr.P.C. He had also given a representation to the Child Welfare Committee, Mana Camp (Exhibit P/23) and the victim was handed over to her father vide Supurdnama (Exhibit P/17). He had also requested the Head Master of the Government Primary School, Umarkoti, for providing the Dakhil Khariz Register (Exhibit P/3) which was seized vide Exhibit P/2 and after preparing a true copy (Exhibit P-1C) the same was returned back to the Head Master vide Exhibit P/4. He had also made a request to the Tahsildar (Exhibit P/24) for directing the Patwari to prepare a map. The slides of the victim, undergarments and the undergarments of the appellant were sent to FSL vide Exhibit P/25, P/26 and its report is Exhibit P/27. The appellant was arrested vide Exhibit P/28 and an information regarding the same was given to the father of the appellant vide Exhibit P/29.

Arvind Giri Goswami (PW-7): He is the Patwari who had prepared the map (Exhibit P/30).

Sunita Mahilange (PW-8): She is the lady Head Constable. She was present when the FIR was being registered. She had seized the undergarment of the victim and had also recorded her statement vide Exhibit D/1. The victim and the undergarment was sent to the C.H.C. Gobranawapara however, since there was no female Doctor, the same was taken to C.H.C. Abhanpur.

Dr. Suryakant Tiwari (PW-9): He is the Doctor who had medically examined the appellant. He was a fully grown adult and had opined that he was capable of performing sexual intercourse. On the said day, the underwear of the appellant which was produced by the Constable which had some stains on it, was sent for chemical analysis and was handed back to the Constable after sealing it.

The statement of the accused under section 313 CrPC was recorded on 12.08.2021. He stated that he was innocent and has been falsely implicated in this case. On being asked, he stated that he want to lead evidence in his defence. In support of the appellant, he had led evidence of Chandrahas Kurre (DW-1) and Baliram Banjare (DW-2).

Chandrahas Kurre (DW-1) stated that he knew the appellant as well as the victim’s family. The appellant works in a Hospital. He states that in front of a hotel near Tahsil, the victim’s father had demanded Rs. 50,000/- from the father of the appellant and if he agrees to give the said amount, he would compromise the matter. Thereafter, the father of the victim (PW-5), father of the appellant and this witness went to Police Station where they came to know that since the FIR was registered online, no compromise can take place. After 1 ½ months of the incident, a meeting was conducted in the house of the appellant where being the Up-Sarpanch, he was also present. There, the father of the victim had demanded Rs. 1,50,000/- for changing his statement before the Court. He further stated that two months thereafter, another meeting was held in the house of the victim where PW-5 demanded 50 decimals of land from the father of the appellant, however, thereafter the victim herself went to the police station stating that she was being pressurized for compromise. He was called by the police personnel and given to understand that he should stay away from other’s case. One day, in an intoxicated condition, PW-5 said that since the wall of the appellant’s house and the victim’s house was adjacent from which water was seeping, he had lodged a false case against the appellant. PW-5 was alongwith his entire family from 10th to 14th of March, 2020.

In cross-examination, this witness states that there was no animosity between the family of the victim and the appellant.

Baliram Banjare (DW-2) states that both the victim and the appellant belong to his village. The house of the victim and the appellant are adjacent. He stated that on account of some property dispute, a false FIR has been lodged by the victim against the appellant and if the appellant would have given money, the matter could have been compromised. He was present in the meeting where the father of the victim (PW-5) had demanded 50 decimals of land from the father of the appellant. In the cross examination, this witness states that on the date and time of incident, the appellant was in the Hospital and no such incident had occurred.

In support of his case, he has also got the statements recorded under Section 161 Cr.P.C. of the victim and father of the victim as Exhibit D/1 and D/2.

The learned Additional Sessions Judge, after considering the evidence on record, convicted the appellant/accused under Section 450 and Section 376(3) of the and convicted the appellant as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellant/convict.

The present appeal was filed on 21.12.2021 and the matter was admitted for hearing on 18.01.2022. Thereafter, on 11.08.2023, the matter was listed for hearing on IA No. 1 of 2022, i.e. application for suspension of sentence and grant of bail to the appellant. The said application stood dismissed on the said date. Thereafter,the matter was directed to be listed for final hearing and after hearing the learned counsel for the parties on 10.10.2023 finally, the matter was reserved for judgment.

Mr. Shobhit Koshta, learned counsel for the appellant submits that there is no eye witness to the incident and the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. There are contradictions and omissions in the statement of witnesses. The allegation is that the appellant committed sexual intercourse forcefully with the victim in the house of the victim while she was sleeping with her brother and sister. The said version is quite impractical as in presence of other siblings present in the room, such act cannot be performed without making any noise or sound. The prosecution story states that the parents of the victim were at Raipur, however, no document or witness have been produced to prove the said fact. Further, the Doctor who had examined the victim had stated that there were no signs of struggle on the body of the victim and there were no injuries on her internal organs/parts and the mental status of the victim was completely fine. Further, the FSL report also does not confirm commission of offence as no semen stains or human sperms were found on the vaginal slide or the undergarment of the victim or the appellant. Reliance on the sole testimony of the victim is highly defective. The prosecution has not made the grand father of the victim as witness in this case. The victim and the brother of the appellant were having an affair which was known by the appellant and in order to save their skin, the appellant has been falsely implicated in this case. The victim has admitted in her cross examination that she does not know how to write and as such, the written complaint made by her is totally doubtful.

Mr. Koshta further submits that the victim’s father in a state of intoxication had stated that he had filed a false case against the appellant as there was problem of water seepage from the appellant’s house into his house as they share a common boundary and that the victim’s father had made a demand of Rs. 50,000/- and some portion of agricultural land in order to reach a compromise in a meeting held at the house of the accused. There is no seizure of any handkerchief by which the victim’s mouth is stated to have been gagged by the appellant.

On the other hand, Mr. Avinash Singh, learned Panel Lawyer appearing for the State/respondent submits that the appellant has committed a heinous crime of rape against a minor girl. The medical evidence clearly supports the case of the prosecution. The judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference.

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

In the case in hand, the FIR was lodged by the victim herself. The incident is said to have occurred on 11.03.2020 at about 10:00 p.m. and the written complaint and the FIR was made on 16.03.2020. Though the victim herself has deposed that she does not know how to write but she has explained that she had narrated the incident to the police and the police had written the complaint for her which she copied later. Hence, there can be no manner of doubt that no written complaint was made by the victim.

So far as age of the victim is concerned, Exhibit P/1C, which is copy of Dakhil Khariz Register, clearly states that the date of birth of the victim is 01.10.2004. The victim, her father and mother have also stated the same date of birth and there is no reason to disbelieve the Dakhil Khariz Register (Exhibit P/1C) which has been proved by Alakh Ram Tandiya (PW-1). According to Article ‘A’, which is copy of progress report of Class V of Government Primary School, Borsi, the date of birth is mentioned as 01.10.2004 only. According to the said date of birth, the age of the victim on the date of incident would be 15 years 5 months and 10 days.

Though in the FSL report (Exhibit P-27), no semen or human sperm was found on Articles ‘A’-slide of the victim, Article ‘B’-underwear of the victim and Article ‘C’-underwear of the appellant, Dr. S.D.Kanwar (PW-2) in her report (Exhibit P-5) has opined that the victim was subjected to sexual intercourse.

Semen and sperms could not have been found on the said articles as the incident was said to have taken place on 11.03.2020 and the articles were received by the FSL, Raipur for examination on 31.03.2020. Further, so far as injuries not being found on the private part of the victim is concerned, the learned trial Court has rightly observed that since the medical examination of the victim was conducted after four days of the incident and by that time, the swelling etc. if any, could have vanished which is quite normal. The victim has clearly deposed in her statement that the appellant had inserted his penis in her vagina.

So far as allegation against the father of the victim that in order to settle his personal scores, he had demanded a sum of Rs. 1,40,000/-and later 50 decimals of land from the appellant’s father appears to be an afterthought. The appellant has not produced any written document or any concrete evidence except the statement made by DW-1 and DW-2. According to these witnesses, the demand was made by the father of the victim (PW-5) much later after the incident. Further, the statement of DW-2, Baliram Banjare is not worth believing who states that on the date and time of incident, the appellant was in the Hospital. Had it been a case that the appellant was in Hospital at the time of incident, where he was working, there could have been many more witnesses who could have given similar statement with regard to his presence in the Hospital.

In the case of Ganesan v. State, (2020) 10 SCC 573, the Supreme Court observed and held that that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality.

In the case of State (NCT of Delhi) v. Pankaj Chaudhary, {(2019) 11 SCC 575}, it was observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It was further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises.

In the case of Sham Singh v. State of Haryana, {(2018) 18 SCC 34}, the Supreme Court observed that testimony of the victim 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 the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It was further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.

Applying the law laid down by the Supreme Court in the cases (supra) 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 victim. 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 victim can be sustained.

Dr. Suryakant Tiwari (PW-9) had examined the appellant who found him to be capable of performing sex. He also submitted that on examination of the underwear of the appellant which was brought by the Constable, he found some stains on it which was sent for chemical analysis.

The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case, the only view possible was the one taken by the learned trial Court.

From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict.

Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed.

The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 29.09.2021.

Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.