Ashok Soni vs State Of Chhattisgarh
2022 Latest Caselaw 1129 Chatt

                                                                         NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR

                      Criminal Appeal No.168 of 2018

                   Judgment Reserved on :         9.2.2022
                   Judgment Delivered on :       3.3.2022

Ashok Soni, son of Maniram Soni, aged about 35 years, resident of Village
Gadleedeeh, P.S. Lormi, District Mungeli, Chhattisgarh
                                                            ---- Appellant
                                   versus
State of Chhattisgarh through Police Station Lormi, District Mungeli,
Chhattisgarh
                                                                --- Respondent

For Appellant            :             Shri Vivek Sharma, Advocate
For Respondent           :             Shri Saumya Rai, Panel Lawyer


           Hon'ble Shri Justice Rajendra Chandra Singh Samant
                Hon'ble Shri Justice Arvind Singh Chandel
                               C.A.V. JUDGMENT

Per Arvind Singh Chandel, J.

1. 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 Imprisonment for Life (Till Last Indian Penal Code (Two Breath) and fine of Rs.25,000 Counts) (Two Counts) with default and stipulation Under Section 6 of the (The Trial Court has sentenced Protection of Children from the Appellant only for the offence Sexual Offences Act, 2012 under Section 376(2)(f) of the (henceforth 'the Act, 2012') Indian Penal Code as per the (Two Counts) provision contained in Section 42 of the Act, 2012) The sentences are directed to run concurrently

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 4 th 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.

9. 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.

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

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

above.

                          Sd/-                                    Sd/-
              (Rajendra Chandra Singh Samant)           (Arvind Singh Chandel)
                         Judge                                  Judge

Gopal