Ravi Khutiyare vs State Of Chhattisgarh
2022 Latest Caselaw 1573 Chatt

                                       1

                                                                          AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                            CRA No. 490 of 2018

   • Ravi Khutiyare S/o Revaram Khutiyare Aged About 24 Years R/o
     Village Mahua Jhad, Near Gosiya Mosque, Camp-1, P. S. Cantonment,
     District Durg Chhattisgarh

                                                                 ---- Appellant

                                   Versus

   • State Of Chhattisgarh Through The Police Station Chawni, Cantonment,
     District Durg Chhattisgarh

                                                               ---- Respondent

For Appellant : Shri A.K. Yadav with Shri Vikas Pandey, Advocate. For Respondent : Ms. Smriti Shrivastava, Panel Lawyer.

Hon'ble Shri Deepak Kumar Tiwari, J

Order On Board

25/03/2022 :

1. The present Appeal is directed against the judgment of conviction and

order of sentence dated 8.12.2017 passed by the Additional Sessions

Judge (FTC) Durg in ST No.40/2015 whereby learned Additional

Sessions Judge convicted the appellant under Sections 363 & 366 (A) of

the IPC, as also under Section 6 of the Protection of Children from

Sexual Offences Act, 2012 and sentenced him to undergo RI for 3

years, RI for 5 years and RI for 10 years, with fine amount of Rs.500/-

on each count, with usual default stipulations, respectively.

2. Case of the prosecution, in brief, is that on 1.3.2015 mother of

prosecutrix (PW-1) lodged an FIR at Police Station Chhawni, District

Durg stating that on the said date, at about 8.30 am, she left for the

work leaving her children at home and she returned at about 2.30 pm

whereupon her daughter (prosecutrix) (PW-2) informed her that she is

having pain in her vagina. The mother of the prosecutrix noticed

swelling on her private part and it became red. On being asked, the

prosecutrix informed that the appellant took her to the dilapidated house

and after laying her down on the ground, the appellant removed her

underwear and thereafter committed sexual intercourse with her. The

mother of the prosecutrix informed about the incident to her mother-in-

law, sister-in-law as also the mother of the appellant. On the same day

she lodged the FIR (Ex.-P/1) at 18.45 hours.

3. During investigation, Alexander Keero (PW-9) recorded the statements

of witnesses. Spot map was prepared vide Ex.-P/3. Revenue Inspector

S.N. Kaushik (PW-10) also prepared the map vide Ex.-P/4. The

prosecutrix was medically examined by Dr. Smt. Chhaya Tiwari (PW-

4), who gave her report vide Ex.-P/5. She noticed redness in the pelvic

region of vagina. The hymen was fresh torn. Only tip of the finger

could be inserted into vagina. During examination, it was noticed that

the blood was not coming from the vagina but there was tenderness.

The doctor prepared two vaginal slides from the vaginal discharge and

sent the same for chemical examination. The injury was caused by hard

and blunt object. The underwear of the appellant was seized vide Ex.-

P/6. Dr. S.K. Agrawal (PW-6) examined the appellant and gave his

report vide Ex.-P/7. According to him, the appellant was capable of

performing sexual intercourse. Dr. B.N. Dewangan (PW-7) conducted

the ossification test and ascertained the age of the prosecutrix as 3 to 5

years vide his report Ex.-P/9.

4. After conducting investigation, charge sheet has been filed. In order to

prove the charge, the prosecution has examined as many as 10

witnesses. The appellant abjured his guilt and in examination under

Section 313 of the CrPC, he has stated that he has been falsely

implicated and he has not examined any defence witness. After

completion of trial, by the impugned judgment, the appellant has been

convicted and sentenced as above.

5. Learned counsel for the appellant submits that the finding recorded by

the trial Court is perverse and contrary to the material available on

record. The prosecutrix (PW-2) herself has not stated about the sexual

intercourse. Therefore, the evidence of the prosecutrix and her mother

is contradictory. Hence considering the infirmities in the prosecution

evidence, learned counsel for the appellant prays to allow the Appeal

and acquit the appellant of the charges.

6. Per contra, learned State Counsel opposes the Appeal and supports the

impugned judgment on submission that the finding recorded by the trial

Court is based on proper marshalling of evidence and the same is not

liable to be interfered with while invoking jurisdiction of Appeal.

7. Heard learned counsel for the parties at length and perused the record of

the Court below.

8. The prosecutrix (PW-2), a minor girl aged about 5 years, deposed that

on the date of the incident her mother and father had left the house for

work and she was playing with her cousin sister and friend Dev in front

of her house. At that time, the appellant, who is also the resident of

same locality, came there and took the photographs of the prosecutrix

and her friend Dev. The appellant took her to the dilapidated house and

after laying her down disrobed her and also removed the clothes of her

friend Dev, a minor. The appellant inserted his finger into the vagina

of the prosecutrix. When she started weeping, the appellant left her on

seeing Pawan Bhaiya, who was playing bat ball. The prosecutrix came

to her home. When her mother came at about 1 o'clock to the house,

she narrated the incident. Her mother has also been examined as PW-1.

Her mother found swelling on her private part and it became red. The

prosecutrix informed her mother that the appellant has committed rape

on her and also bit her lips. When she cried, the appellant run away.

After coming to know about the incident, the prosecutrix' mother

immediately rushed to the appellant's house where his mother was

present and the appellant denied the incident. The prosecutrix' mother

had shown private part of the victim to the appellant's mother and also

informed the incident to her mother-in-law and sister-in-law. Smt.

Mangteen Bai (PW-3) took the prosecutrix to the Police Station in her

lap. The prosecutrix' mother has lodged the FIR (Ex.-P/1) on the same

day of the incident i.e. 1.3.2015 at 18.45 hours at Police Station

Chhawni, District Durg against the appellant.

9. Dr. Smt. Chhaya Tiwari (PW-4) has examined the prosecutrix and has

found no external injury on the body of the prosecutrix. On internal

examination, she found that redness was present at pelvic region.

Hymen was fresh torn and tip of finger could be entered into vagina. No

bleeding was found during examination. Tenderness was present. She

opined that the injury was caused by hard and blunt object. During her

examination, she also prepared two slides from vaginal discharge. Dr.

S.K. Agrawal (PW-6) examined the appellant vide Ex.-P/7 and found

him capable to perform sexual intercourse. Dr. BN Dewangan, (PW-7),

a Radiologist, has proved the ossification test report (Ex.-P/9) and

opined that the prosecutrix is aged between 3-5 years.

10.Alexander Keero (PW-9), Inspector, has prepared the site map vide Ex.-

P/3 and has deposed that during investigation he has recorded the

statements of witnesses and arrested the appellant on 2 nd March, 2015.

He has also filed the FSL report (Ex.-P/15). In the slides prepared

during examination of the prosecutrix and underwear of the appellant,

no stain of semen was found.

11.Having considered the evidence, it is held that the age of the prosecutrix

is below 12 years and such finding was properly recorded by the trial

Court on the basis of ossification test, which is acceptable, in view of

the principle laid down by the Hon'ble Supreme Court in the matter of

Jarnail Singh Vs. State of Haryana {AIR 2013 SC 3467}.

12.The evidence of the prosecutrix and her mother inspire confidence of

the Court, as the same is trustworthy and reliable. Even in cross-

examination, there is nothing on record to discredit their testimony. Her

evidence is also supported by the medical evidence and the FIR has also

been lodged promptly i.e. on the same day.

13.At this juncture, it would be profitable to quote some relevant sections

of the POCSO Act:-

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

4. Punishment for penetrative sexual assault...........

5. Aggravated penetrative sexual assault..............

5 (m) whoever commits penetrative sexual assault on a child below twelve years;

6. Punishment for aggravated penetrative sexual assault. - (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."

14.Though the prosecutrix in her statement has not stated about the

incident of sexual intercourse and she has informed to her mother, but

considering the changed definition of rape under Section 375 (b) of the

IPC, after amendment from 3.2.2013, and also the corresponding pari

materia Section 3 (b) of the Protection of Children from Sexual

Offences Act, 2012 (for short 'the POCSO Act') defining penetrative

sexual assault, as also Sections 4, 5, 5(m), 6 of the POCSO Act, it is

observed that the trial Court after evaluating the entire evidence in a

proper manner, has rightly convicted the appellant under Sections 363

and 366 of the IPC and under Section 6 of the POCSO Act. Therefore,

the finding recorded by the trial Court is not liable to be interfered with,

which deserves to be affirmed.

15.Moreover, in Nawabuddin Vs. State of Uttarakhand {CRA

No.144/2022, decided on 8th February, 2022, by the Hon'ble Supreme

Court}, the victim aged about 4 years was all alone in the house and the

accused enticed and took the victim girl in the bushes to rape her. At

that time, the accused was spotted by some persons naked in the process

of raping the victim girl. The accused and the victim girl were

disrobed. The victim was exploited by the accused in similar manner,

as he entered his finger into the vagina of the victim. The Hon'ble

Supreme Court taking note of the fact that the accused was aged

approximately 65 years at the time of commission of offence, he was a

neighbour of the victim girl, he took advantage of absence of her

parents, observed that the accused was found to have committed

aggravated penetrative sexual assault on a girl child aged 4 years, which

demonstrated the mental state or mindset of the accused and held the

accused guilty for the offence under Section 376(2)(i) of the IPC and

Section 5 of the POCSO Act.

16.Coming back to the sentence awarded to the appellant under Section 6

of the POCSO Act, an amendment has been carried out in 2019

whereby minimum sentence has been prescribed as 20 years, and prior

to it, the minimum sentence shall not less than be 10 years. All the

sentences have been directed to run concurrently and only the minimum

sentence has been awarded. Therefore, the sentence part is also not

liable to be interfered with.

17.For the foregoing, this Court is of the opinion that the Appeal is devoid

of any substance, the same deserves to be and is hereby dismissed.

18.Let a copy of the judgment along with records be sent to the trial Court

for necessary compliance.

Sd/-

(Deepak Kumar Tiwari) Judge Barve

HEADLINES

In view of changed definition of rape under Section 375 (b) of the IPC

pari materia to Section 3(b) of the POCSO Act, sexual intercourse is not necessary

to attract the ingredients of offence of rape or penetrative sexual assault.

Hkkjrh; naM lafgrk dh /kkjk 375 ¼[k½ ds rgr ySafxd vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e

2012] dh /kkjk 3¼[k½ esa cykRlax dh cnyh gqbZ ifjHkk"kk dks ns[krs gq,] cykRlax rFkk

ySafxd ;kSu mRihM+u ds vijk/kksa ds vo;cksa dks vkdf"kZr djus gsrq laHkksx vko';d ugha gSA