Rewant Lal Dewangan vs State Of Chhattisgarh

This criminal appeal filed by the appellant-accused under Section 374(2) of the Code of Criminal Procedure, is directed against the impugned judgment of conviction and order of sentence dated 11.11.2022 passed by learned Upper Sessions Judge, (Fast Track Special Court), (POCSO ACT), Bemetara Distt. Bemetara (CG) in Session Trial No.74/2021, whereby the appellant-accused has been convicted and sentenced in the following manner:

Sl.

No.

Conviction under Section

Sentence

Fine

Default

1.

376 AB IPC

Imprisonment  for life

Rs.2,000/-

RI for 02 months

2.

6 of POCSO

Act

Imprisonment  for life

Rs.2,000/-

RI for 02 months

Case of the prosecution, in brief, is that on 14.11.2021 at about 8.00 pm, minor prosecutrix, aged about 07 years, was playing with other children outside her house. After some time, she went to play with other kids in the car of neighbouring house. Present appellant came and sat inside the car and made the prosecutrix to sit along with him at the back seat of the car. Allegation against the appellant is that he after making the victim to lie down on the backside of the seat, licked on her cheek and kissed on her lips with tongue, pressed her chest and also tried to remove her underwear. The appellant after removing his underwear tried to touch the body of the victim girl with his private parts and he was also not allowing the victim girl to get down from the car. However, the victim girl managed to open the door of the car and run away to her mother and narrated the incident to her mother. Mother of the victim girl (PW-1) lodged a written complaint (Ex-P/1) in this regard against the appellant in Police Station Bemetara on the same day. The Police registered FIR (Ex-P/2) against the appellant for the offence under Section 376AB of IPC and Section 6 of Protection of Children from Sexual Offeneces Act, 2012 (for short ‘POCSO Act’). The police after obtaining consent (Ex-P/7 & P/8) from the parents of the victim girl, sent the victim to District Hospital, Bemetara for medical examination. Spot map was prepared vide Ex-P/4. Statement of the victim girl as well as other witnesses were also recorded. The police arrested the accused/ appellant and the Alto car bearing registration No.CG 25 E 2600, allegedly used for commission of offence was seized vide. Ex- P/5. After completion of investigation, charge sheet was filed against the appellant in the court of Upper Sessions Judge/FTC (POCSO Act), Distt. Bemetara for trial and for hearing and disposal in accordance with law.

The appellant/accused abjured his guilt and entered into defence that he has not committed any offence. He further stated in his statement recorded under Section 313 CrPC that he has falsely been implicated in the alleged crime.

In order to bring home the offence, the prosecution examined as many as 07 witnesses and exhibited 16 documents.The appellant examined one witness Chandrakant Dewangan (DW-1) in his defence, who is his son.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 11.11.2022, finding evidence adduced by the prosecution trustworthy, convicted the appellant for offence under Sections 376 AB IPC and Section 06 of the POCSO Act and sentenced him as aforementioned in the opening paragraph, against which, this appeal has been filed.

Shri Prasoon Agrawal, learned counsel appearing for the appellant would submit that the learned trial Court has absolutely unjustified in convicting the appellant in the instant case as the prosecution has failed to prove the offence. He would further submit that there is no reliable evidence adduced by the prosecution with regard to the age of the prosecutrix. Case of the prosecution rests only on the evidence of interested witnesses. He further submits that defense witness Chandrakant Dewangan, who was also present on the spot, has denied occurence of any such incident. Further, essential ingredients of the offence under which the appellant has been convicted are not being fulfilled in the instant case. He would further submit that the leaned Court below has not appreciated the provisions of POCSO Act in respect of difference between sexual assault and penetrative sexual assault and has convicted the appellant under both offences under Section 376AB of the IPC as well as Section 6 of the POCSO Act, whereas neither victim nor medical evidence proves that there is penetration done by the accused in any count as has been defined under Section 375 IPC or Section 3 or 5 of the POCSO Act, which is an error of law, therefore, it deserves to be set aside. He would further submit that perusal of the evidence recorded in the case clearly shows that the prosecution has utterly failed to substantiate the charges as framed against the appellant, therefore, the appellant deserves to be acquitted.

Shri Wasim Miyan, learned counsel for the State would support the impugned judgment and would submit that conviction of the appellant is well founded and well supported by the evidence leading to the inference that the appellant has committed the aforesaid offence, as such, the trial Court has rightly convicted the appellant for the aforesaid offences in question. He would further submit that apparently the victim was less than 12 years of age on the date of incident and in that view of the matter, the sentence awarded by the trial Court is absolutely justified and it be maintained by dismissing the instant appeal.

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

The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor?

When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. Reverting to the facts of the present case, mother of the victim (PW-1) and father of the victim (PW-3) have deposed that they have two children, the victim is the younger one and the date of birth of the victim is 18.10.2014. However, the investigating officers Poonam Thakur (PW-6) and Prem Prakash Awadhiya (PW-5) have not deposed in respect of seizure of any documents to prove the age of the victim. Even Dr. Neha Sahu (PW-4), who examined the victim on the date of incident, in her report (Ex-P/9) has mentioned the date of birth of victim as 18.10.2014 and she has assumed her age as 07 year, on the date of her medical examination, even learned trial Court has also noted her apparent age as 07 years in the deposition sheet. The statement of the mother and father of the victim, medical report of the doctor (Ex-P/9) and other facts, as has been mentioned above in respect of age of the victim, i.e. 07 year at the time of the incident, has not been challenged by the appellant/accused, therefore, there is no reason to disbelieve the date of birth of the victim, hence, the trial Court has rightly held that the date of birth of the victim was 18.10.2014 and on the date of incident, she was minor and her age was 07 year 01 month.

The next question for consideration before us is whether the appellant has committed rape on minor victim? 12. Victim (PW-2), who was minor, aged about 7 years on the date of incident, was examined before the trial Court, wherein, she has clearly stated that on the date of incident, she came out of the house for playing with Babu (grand-son of the accused/appellant) after informing her mother. She saw Babu sitting inside the car and she also sat inside the car for playing with him. She further deposed that Babu was sitting on the driving seat, his father was sitting on the co-passenger seat i.e. beside Babu and she sat on the rear seat/back side seat of the driver seat. After some time, Babu’s grand-father (appellant/accused) came and he sat on the backside seat adjacent to her. She further deposed that Babu’s grand-father made her to sit on his lap, licked her cheek and kissed on her lips, he was trying to remove her underwear, but she resisted. She would further deposed that thereafter Babu’s grand-father i.e. accused opened his underwear and asked her to touch his private parts. The accused also asked her whether she is feeling good. She would further deposed that somehow she managed to open the door of the car and ran away to her house and narrated the incident to her mother (PW-1). In the cross examination also she reiterated her above statement and nothing significant was elicited in favour of the accused.

Mother of the prosecutrix (PW-1) also supported the version of the victim girl and stated that her daughter informed the incident stating that on 14.11.2021 at about 8.00 pm., she was doing her house hold work, her daughter went outside the house to play with neighbour’s son Babu. After some time she came back weeping and told her that when the victim went outside for playing, the appellant’s car was parked in front of his house, the appellant opened the back door of the car and sat there and also made the victim to sit near him. She further deposed that her daughter told her that the appellant was licking and kissing the cheek and was also kissing on her lips. She would further depose that her daughter has told her that the appellant was trying to remove the underwear of the victim, but she resisted, then the appellant opened his underwear and was trying to touch his private part with victim’s body parts and also asked her whether she was feeling good. She would further deposed that her daughter told her that after trying a lot, she managed to open the door of the car and thereafter run away to the house and narrated the incident to her. In cross-examination she stated that she has not seen the appellant, his son Chandrakant, Babu and her daughter sitting inside the car at the time of incident. She deposed that this fact was told to her by her daughter. She has also denied the fact that there was quarrel between Babu and her daughter while sitting inside the car. She has also denied the suggestion that she made a wrong complaint against the appellant on the basis of the facts told by her daughter in respect of the quarrel between the children.

Father of the victim (PW-3) also supported the version of the victim and her mother. He deposed that on 14.11.2021 at about 8.00 pm, he was at his shop and at that time his wife (mother of the victim) telephoned him and narrated about the incident and asked him to come to the Police Station. When he reached to the police Station, his wife and daughter (victim) were there and they narrated him about the incident. He has also deposed that he was not the eyewitness of the incident. He has also denied the suggestion that due to the quarrel between the children, they made a false complaint against the appellant.

Defence witness Chandrakant Dewangan, who is son of the appellant/accused, has stated in his deposition that at the time of the incident, he was present at the spot. He has further stated that while sitting in the car, the victim and his son Babu while playing, quarreled each other to drive the car, hence, he and the accused intervened and he ousted his son Babu and his father (accused) ousted victim forcefully from the car and no alleged act of offence was occurred. But, these facts have been clearly denied by the victim in her deposition. Further, aforesaid defense witness has stated in his cross-examination that their relation with the parents of the victim is good and there is no enmity between them, hence, there is nothing to believe that as to why victim party will unnecessarily rope old age grand-father of friend of victim in such type of disgusting criminal act. Therefore, deposition of defence witness Chandrakant Dewangan does not found to be trustworthy.

Dr. Neha Sahu (PW-4) has examined the victim on 15.11.2021 i.e. after next day of the incident and gave her report vide Ex-P/9. She deposed that on physical examination of the victim, no external or internal injuries were present and no sign of any forceful intercourse was present on the body of the victim.

Thus, although medical evidence did not support the case of prosecution, but, we do not find any good ground to disbelieve the deposition of the victim and her parents. Further, in their cross-examination also nothing has been brought to disbelieve or discard their deposition, rather son of appellant himself has admitted in his cross-examination that they have no enmity with the family of the victim. Hence, on the basis of evidence adduced by the prosecution, it is proved that the appellant/accused has committed aggravated sexual assault on the victim/ prosecutrix below the age of 12 years on the date and time of the incident.

In view of the above discussion, we find that the prosecution has proved the fact that the appellant has made aggravated sexual assault upon the victim girl, but considering the proven facts, i.e. act of sexual assault made by the appellant upon the victim girl, we do not find that act of the appellant comes under the purview of rape or penetrated sexual assault, as victim has not stated anything to prove the factum of penetration as has been defined under Section 376 IPC and Section 3/5 of the POCSO Act. To prove the offence of rape or penetrated sexual assault, necessary ingredients enumerated under Section 375 IPC are thus:

“375. Rape.-- A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

More or less, aforesaid ingredients are also enumerated on Section 03 of the POCSO Act.

Considering the aforesaid provisions of the IPC/ POCSO Act and the proven facts in the instant case, we do not find that the appellant has committed the offence of rape or penetrated sexual assault upon the victim girl rather it has been proved that he committed aggravated sexual assault which is the offence under Section 9(m) of the POCSO Act and the same is punishable under Section 10 of the POCSO Act.

In view of aforesaid discussion, we are of the considered view that offence committed by the appellant/ accused is of Section 9(m) of the POCSO Act and it is punishable under Section 10 of the POCSO Act.

Accordingly, conviction and sentences of the appellant under Section 376AB and Section 6 of the POCSO Act are set aside and instead thereof, he is convicted for the offence under Section 10 of the POCSO Act and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for 06 months.

The appellant is stated to be in jail and he shall serve out the sentence as modified by this Court.

The Criminal Appeal is partly allowed to the extent indicated herein-above.

Let a copy of this judgment and original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.