Aalok Toppo vs State Of Chhattisgarh
2021 Latest Caselaw 2389 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                             Criminal Appeal No.1611 of 2016

                          Judgment Reserved on :               26.8.2021

                          Judgment Delivered on :              17.9.2021

Aalok Toppo, son of Shri Jorom Toppo, aged about 21 years, by caste Uraon,
resident of Basen, P.S. Kansabel, District Jashpur, Chhattisgarh
                                                                  ---- Appellant
                                   versus
State of Chhattisgarh through the District Magistrate, Jashpur, District
Jashpur, Chhattisgarh
                                                               --- Respondent
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For Appellant : Smt. Indira Tripathi, Advocate For Respondent : Shri Ravi Maheshwari, Panel Lawyer

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal has been preferred against judgment dated 6.10.2016

passed by the Special Judge under the Protection of Children from

Sexual Offences Act, 2012 (henceforth 'the Pocso Act') and

Additional Sessions Judge (FTC), Jashpur in Special Case No.74

of 2015, whereby the Appellant has been convicted and sentenced

as under:

Conviction Sentence

Under Section 6 of the Rigorous Imprisonment for 10 years Pocso Act and fine of Rs.500 with default stipulation

2. According to the prosecution case, the prosecutrix (PW2) was a

deaf and dumb girl and was aged about 13 years at the relevant

time. According to the entries of her school progress report

(Ex.P6), her date of birth is 28.11.2002. The date of incident is

15.7.2015. According to the ossification test report (Ex.P23), her

radiological age was 14-15 years. It is the case of the prosecution

that on 15.7.2015 at about 5 p.m., the prosecutrix (PW2) was

standing at Basen Chowk. At that time, the Appellant came there

on a bicycle. Having seen him, she asked him to give his bicycle

for cycling. She cycled his bicycle to some distance. He went

behind her and made her sit on the bicycle and took her on the

bicycle to a jungle. Allegedly, there he committed forcible sexual

intercourse with her. Thereafter, he left her back near her house.

Sumitrabai (PW3), mother of the prosecutrix having seen blood

stains on the clothes of the prosecutrix asked her then the

prosecutrix told her about the incident. The matter was reported by

Dilip (PW4), father of the prosecutrix vide Ex.P11. The prosecutrix

was medically examined by Dr. Rosa Toppo (PW1). Her report is

Ex.P1. Statements of the prosecutrix and other witnesses were

recorded under Section 161 of the code of Criminal Procedure. On

completion of the investigation, a charge-sheet was filed against

the Appellant. The Trial Court framed charges against him.

3. To bring home the offence, the prosecution examined as many as

14 witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the guilt, pleaded innocence and false implication. No witness has

been examined in his defence.

4. On completion of the trial, the Trial Court convicted and sentenced

the Appellant as mentioned in 1 st paragraph of this judgment.

Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that the

Appellant has been wrongly convicted by the Trial Court without

there being sufficient evidence on record. Statement of the

prosecutrix (PW2) is suspicious. It was argued that on the basis of

her statement and medical evidence, the act committed by the

Appellant falls within the ambit of Section 376 of the Indian Penal

Code only. There is no conclusive evidence available on record to

show that the prosecutrix was below 18 years of age. Therefore,

conviction of the Appellant under Section 6 of the Pocso Act is not

sustainable. The Appellant is in jail since 17.7.2015. Therefore, it

was prayed that his conviction may be altered to Section 376 of the

Indian Penal Code and his sentence may be restricted to the period

already undergone.

6. Opposing the above arguments, Learned Counsel appearing for

the State supported the impugned judgment. He submitted that

there is sufficient evidence on record to show that at the time of

incident the prosecutrix was below 18 years of age and, therefore,

conviction of the Appellant under Section 6 of the Pocso Act is in

accordance with the evidence available on record.

7. I have heard Learned Counsel appearing for the parties and

minutely perused the record of the Trial Court including statements

of the witnesses and other material.

8. As regards the incident, the prosecutrix (PW2), in her Court

statement deposed that at the time of incident, the Appellant was

cycling a bicycle near her house. She asked him to give her the

bicycle and she started cycling. The Appellant took his bicycle

back and made her sit on the back of the bicycle. He took her to

other side of the river and made her fall down there and committed

forcible sexual intercourse with her. She feared and, therefore, did

not shout. She further deposed that bleeding started from her

private part. Thereafter, the Appellant left her near her house then

she told about the incident to her mother.

9. Sumitrabai (PW3), mother of the prosecutrix supported the above

statement of the prosecutrix and deposed that she saw blood stains

on the clothes of the prosecutrix and the prosecutrix was weeping.

On being asked, she narrated her the entire incident. This witness

and the prosecutrix remained firm during their cross-examination.

On medical examination of the prosecutrix, swelling and redness

were found with pain on the labia minora and hymen was ruptured.

As opined by Dr. Rosa Toppo (PW1), sexual intercourse was

committed with the prosecutrix. Looking to the entire evidence

adduced by the prosecution, it appears that forcible sexual

intercourse was committed by the Appellant with the prosecutrix.

10. With regard to age of the prosecutrix (PW2), according to the case

of the prosecution, the date of birth of the prosecutrix is 28.11.2002.

In her Court statement, the prosecutrix (PW2) has not stated

anything regarding her age. Sumitrabai (PW3), mother of the

prosecutrix and Dilip (PW4), father of the prosecutrix both have

deposed that in the year of incident, the prosecutrix had passed the

examination of 8th standard. As deposed by Sumitrabai (PW3), age

of the prosecutrix was 15 years and her date of birth is 28.11.2002.

There is no rebuttal to this statement in her cross-examination and

no contrary suggestion was put to her in this regard. Dilip (PW4),

father of the prosecutrix also deposed that the prosecutrix was

aged about 14 years. This statement was also not rebutted during

his cross-examination and no contrary suggestion was put to him in

this regard. According to the ossification test report (Ex.P23),

radiological age of the prosecutrix was 14-15 years. On taking

margin of 3 years on both sides, age of the prosecutrix comes

below 18 years. Looking to the entire evidence, both oral and

documentary (Ex.P23/the ossification test report), it is well

established that at the time of incident, the prosecutrix was below

18 years of age. Therefore, the finding of the Trial Court in this

regard is in accordance with the evidence available on record. I do

not find any substance in the argument advanced in this regard by

Learned Counsel appearing for the Appellant.

11. Consequently, conviction of the Appellant under Section 6 of the

Pocso Act is affirmed and the appeal is dismissed.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal