Chattisgarh High Court
Sukhram vs State Of Chhattisgarh on 21 October, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 834 of 2016
Judgment Reserved On : 18/10/2022
Judgment Delivered On : 21/10/2022
• Sukhram S/o Laxminath Poyam Aged About 22 Years R/o Village
Bunagaon, Police Station And District Kondagaon, Chhattisgarh
---- Appellant
Versus
• State Of Chhattisgarh Through District Magistrate Kondagaon,
Chhattisgarh.
---- Respondent
For Appellant : Shri Ashok Kumar Varma and Shri Gajendra Sahu, Adv.
For Respondent : Shri Sudeep Verma, Deputy Govt. Advocate.
Hon'ble Shri Sanjay K. Agrawal &
Hon'ble Shri Deepak Kumar Tiwari, JJ
CAV JUDGMENT
Deepak Kumar Tiwari, J
1. By this Appeal under Section 374 (2) of the CrPC, the appellant herein
calls in question the legality, validity and correctness of the impugned
judgment dated 4.5.2016 passed by the Special Judge (POCSO Act,
2012), Kondagaon in Special Sessions Case No.46/2013 whereby the
appellant has been convicted and sentenced as under:-
Conviction Sentence
2
Section 366 of the IPC 10 years RI with fine of Rs.500/-
Section 376 of the IPC Imprisonment for life
Section 342 of the IPC RI for one year with fine of Rs.500/-
Section 506 (Part-2) of the IPC RI for 7 years with fine of Rs.500/-
Section 4 of the POCSO Act, 2012 Imprisonment for life with fine of
Rs.500/-
with usual default stipulations.
2. Case of the prosecution, in brief, is that on 11.12.2012 around 8 pm
when the prosecutrix (PW-5), aged about 14 years, went near the Badi
for urination, the appellant pressed her mouth, threatened to kill her and
took her forcibly to his uncle's house and gave her water mixed with
some sedative and thereafter committed sexual intercourse. In the next
day, during night, she somehow managed to flee and came to her
mother's house and narrated the incident to her mother (PW-4), elder
brother (PW-1) and maternal uncle (PW-2). Thereafter the FIR was
lodged on 14th December, 2012 at Police Station Kondagaon vide Ex.-P/
7 and the reason for delay in lodging the report is mentioned as non-
availability of any senior member in the family.
3. During investigation, the spot map (Ex.-P/9) was prepared by the ASI
(PW-10) DS Nishad. The prosecutrix was medically examined vide
Ex.-P/10 and undergarments of the prosecutrix were also examined vide
Ex.-P/11. (PW-8) Smt. Anita Panna, Patwari, has prepared the spot
map Ex.-P/12. The accused/appellant in the medical examination was
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found capable to perform sexual intercourse vide Ex.-P/13. The
appellant's undergarments were also examined vide Ex.-P/14.
Statements of the witnesses were recorded. In the FSL report vide Ex.-
P/20, on undergarments of the accused/appellant and the prosecutrix as
well as vaginal slides 'A', 'B','C', no stain of semen and human sperm
was found.
4. After completing the investigation, charge sheet was filed and the case
was committed to the Special Judge under the POCSO Act. The
appellant abjured his guilt. In his statement recorded under Section 313
of the CrPC, the appellant pleaded false implication.
5. In order to prove its case, the prosecution has examined as many as 10
witnesses and exhibited 20 documents. The appellant has not produced
any defence witness and exhibited two documents.
6. After completion of trial and after appreciating the oral and
documentary evidence on record, the appellant was convicted and
sentenced as mentioned above, against which this Appeal has been
preferred by him.
7. Shri Ashok Varma, learned counsel for the appellant would submit that
the appellant has been falsely implicated and the trial Court has not
appreciated the evidence in proper perspective. The FIR was lodged
belatedly after the prosecutrix and her family negotiated with the family
of the accused/appellant, and after Panchayat meeting, delayed report
was lodged. The age of the prosecutrix is not legally proved by the
prosecution and no ossification test was conducted during investigation.
4
From the entire prosecution case itself, it appears that there was some
love affair between the accused/appellant and the prosecutrix, as one
love letter (Ex.-P/8) was seized from the possession of the prosecutrix
(PW-5). Due to quarrel and denial of marriage after the Panchayat
meeting, the delayed FIR was lodged. The case of the prosecution is
not medically corroborated. Thus, learned counsel prays to allow the
Appeal and acquit the appellant.
8. Per contra, learned State Counsel would support the impugned
judgment on submission that the trial Court has properly appreciated the
evidence and rightly convicted the appellant for the aforesaid offences.
The finding is well merited and it does not call for any interference.
Therefore, the Appeal deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival
submissions and have gone through the records with utmost
circumspection.
10. When a person is charged for the offence punishable under the
Protection of Children from Sexual Offences Act, 2012 (henceforth 'the
Act, 2012'), or for rape punishable in the Indian Penal Code, the age of
victim is significant and essential ingredients to prove such charge and
the gravity of offence gets changed when the child is below 18 years, 12
years and more than 18 years. Section 2(d) of the Act, 2012 defines the
"child" which means any person below the age of eighteen years.
5
11. In Jarnail Singh v. State of Haryana1, it was observed that there is
hardly any difference insofar as the issue of minority is concerned,
between a child in conflict with law, and a child who is a victim of
crime. Therefore, their Lordships held that it would be just and
appropriate to apply Rule 12 of the 2007 Rules, to determine the age of
the prosecutrix, and the relevant paras 22 & 23 reads thus :
22. On the issue of determination of age of a minor, one
only needs to make a reference to Rule 12 of the
Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as "the 2007
Rules"). The aforestated 2007 Rules have been framed
under Section 68(1) of the Juvenile Justice (Care and
Protection of Children) Act, 2000. Rule 12 referred to
hereinabove reads as under:
"12.Procedure to be followed in determination of
age.--(1) In every case concerning a child or a juvenile
in conflict with law, the court or the Board or as the
case may be, the Committee referred to in Rule 19 of
these Rules shall determine the age of such juvenile or
child or a juvenile in conflict with law within a period
of thirty days from the date of making of the
application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis of
physical appearance or documents, if available, and
send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may
be, the Committee by seeking evidence by obtaining--
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
1 (2013) 7 SCC 263
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(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year,
and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii)
or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the
date of offence, on the basis of any of the conclusive
proof specified in sub-rule (3), the court or the Board or
as the case may be the Committee shall in writing pass
an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and
these Rules and a copy of the order shall be given to
such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise
is required, inter alia, in terms of Section 7-A, Section
64 of the Act and these Rules, no further inquiry shall
be conducted by the court or the Board after examining
and obtaining the certificate or any other documentary
proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also
apply to those disposed of cases, where the status of
juvenility has not been determined in accordance with
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the provisions contained in sub-rule (3) and the Act,
requiring dispensation of the sentence under the Act for
passing appropriate order in the interest of the juvenile
in conflict with law."
23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are
of the view that the aforesaid statutory provision should
be the basis for determining age, even of a child who is
a victim of crime. For, in our view, there is hardly any
difference insofar as the issue of minority is concerned,
between a child in conflict with law, and a child who is
a victim of crime. Therefore, in our considered opinion,
it would be just and appropriate to apply Rule 12 of the
2007 Rules, to determine the age of the prosecutrix
VW, PW 6. The manner of determining age
conclusively has been expressed in sub-rule (3) of Rule
12 extracted above. Under the aforesaid provision, the
age of a child is ascertained by adopting the first
available basis out of a number of options postulated in
Rule 12(3). If, in the scheme of options under Rule
12(3), an option is expressed in a preceding clause, it
has overriding effect over an option expressed in a
subsequent clause. The highest rated option available
would conclusively determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or equivalent)
certificate of the child concerned is the highest rated
option. In case, the said certificate is available, no other
evidence can be relied upon. Only in the absence of the
said certificate, Rule 12(3) envisages consideration of
the date of birth entered in the school first attended by
the child. In case such an entry of date of birth is
available, the date of birth depicted therein is liable to
be treated as final and conclusive, and no other material
is to be relied upon. Only in the absence of such entry,
Rule 12(3) postulates reliance on a birth certificate
issued by a corporation or a municipal authority or a
panchayat. Yet again, if such a certificate is available,
then no other material whatsoever is to be taken into
consideration for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the absence
of any of the aforesaid, that Rule 12(3) postulates the
determination of age of the child concerned, on the
basis of medical opinion."
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12. Reverting to the factual matrix of the present case, the learned trial
Court in para-14 of the impugned judgment assessed the age of the
victim on the date of incident i.e. 11.12. 2012 as 14 years and wrongly
shifted the burden on the accused that he has not adduced any evidence
on the basis of which it could be said that Prosecutrix was more than 18
years.
13. In Babu v. State of Kerala2, it was held that in cases where the statute
does not provide for the burden of proof on the accused, it always lies
on the prosecution.
14. The Prosecutrix (P.W.5) deposed that her date of birth recorded in the
School register is 24/04/1998 and she specifically stated in her cross
examination that on the basis of Mark-sheet, she disclosed the date of
birth, though prosecution has seized the mark-sheet vide Ex.P-6, seizure
memo, from the Prosecutrix, but during trial such document was neither
exhibited nor proved. Further, (P.W.-5) Prosecutrix is unable to state as
to on what basis her date of birth was recorded in the school register.
No one was examined from the School to that effect. Prosecution has
neither proved the School register nor other evidence was brought to
determine the age of the victim on the date of the incident. Although a
specific procedure has been stipulated to determine the age of the
victim, but the prosecution has failed to prove the age according to such
procedure established by law.
2 (2010) 9 SCC 189
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15. In Ravinder Singh Gorkhi v. State of U.P.3, it was observed thus at
para-23:-
"23. Section 35 of the Evidence Act would be attracted
both in civil and criminal proceedings. The Evidence
Act does not make any distinction between a civil
proceeding and a criminal proceeding. Unless
specifically provided for, in terms of Section 35 of the
Evidence Act, the register maintained in the ordinary
course of business by a public servant in the discharge
of his official duty, or by any other person in
performance of a duty specially enjoined by the law of
the country in which, inter alia, such register is kept
would be a relevant fact. Section 35, thus, requires the
following conditions to be fulfilled before a document
is held to be admissible thereunder: (i) it should be in
the nature of the entry in any public or official register;
(ii) it must state a fact in issue or relevant fact; (iii)
entry must be made either by a public servant in the
discharge of his official duty, or by any person in
performance of a duty specially enjoined by the law of
the country; and (iv) all persons concerned indisputably
must have an access thereto."
16. In Birad Mal Singhvi v. Anand Purohit [1988 Supp SCC 604], the
Hon'ble Supreme Court held thus : (SCC p. 619, para 15)
"15.
..................................................................
..................................................................
..................................................................
To render a document admissible under Section 35,
three conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official book,
register or record; secondly, it must be an entry stating
a fact in issue or relevant fact; and thirdly, it must be
made by a public servant in discharge of his official
duty, or any other person in performance of a duty
specially enjoined by law. An entry relating to date of
birth made in the school register is relevant and
admissible under Section 35 of the Act but the entry
regarding the age of a person in a school register is of
not much evidentiary value to prove the age of the
3 (2006) 5 SCC 584
person in the absence of the material on which the age
was recorded.................................................."
17. In Mousam Singha Roy v. State of W.B.4, it was observed thus:-
"28. It is also a settled principle of criminal
jurisprudence that the more serious the offence, the
stricter the degree of proof, since a higher degree of
assurance is required to convict the accused."
18. Considering the aforesaid principles, and looking to the evidence that
only the victim has stated about her date of birth and she has supplied
such information on the basis of mark-sheet, and the marksheet was not
proved during trial, this Court is of the opinion that the prosecution has
utterly failed to prove the age of the victim on the date of the incident.
In the circumstances, the benefit of doubt regarding suspicious age of
the victim, which is not proved, is extended to the appellant and the
conviction imposed upon the appellant under Section 4 of the Act, 2012
is held to be bad in law.
19. Prosecutrix (P.W.-5) would not depose that during the course of the
incident, the appellant had threatened to kill her, though such fact was
mentioned in the F.I.R. (Ex.P-7), but such fact was not stated in the
Court statement by the prosecutrix. FIR is not the substantive piece of
evidence, it can corroborate or contradict the evidence of the informant
(See : Sohan Lal v State of Punjab, AIR 2003 SC 4466). So, the
conviction imposed upon the appellant under Section 506 Part -II of the
I.P.C. is also not sustainable.
4 (2003) 12 SCC 377
20. Now, for the remaining Sections 342, 366 & 376 of the IPC, if we
examine the evidence of the Prosecutrix (PW-5), she clearly deposed
that on the date of incident at about 7-8 pm, when she went to her back
courtyard (Baadi), the appellant suddenly came and caught her and
pressed her mouth and forcibly took her to his uncle's house at School
Para, and gave her water mixed with some sedative and forcefully
committed sexual intercourse. In the morning, when she gained
consciousness, she found that the door was locked from the outside, and
in the night when the appellant opened the door, she somehow ran away
to her house and narrated the incident to her mother (PW-4), and
brother (PW-1). She further stated that her mother and brother had gone
in the night to the house of appellant, but they had beaten her mother,
and after one day she had lodged the F.IR. (Ex-P/7). In the cross
examination, nothing significant was elicited in favour of the accused.
The Prosecutrix remained unrebutted in her cross-examination and was
found fully reliable about the incident.
21. Dr. Manisha Goyal (PW-7) had examined the prosecutrix (PW-5) on
15.12.2012 and proved her report (Ex. P-10), in which the following
was recorded :
"mild laceration with induration present in vaginal
orifice lower side.
Torn lags of hymen present. No bleeding. Vagina
admitting 2 finger with difficulty.
Signs of sexual intercourse."
22. Dr. T.R. Kunwar (PW-9) had examined the appellant vide Ex.-P/13,
and found him capable to perform sexual intercourse.
23. The defence has not put forth any question as to the love affair between
the appellant and the prosecutrix to demonstrate that the prosecutrix
was a consenting party. The love letter was seized vide Ex.-P/8. Perusal
of the same would show that the appellant himself tried to compel the
prosecutrix. Considering the entire fact situation of the case and the
testimony of the prosecutrix, it appears that delay of some days in
lodging the FIR (Ex.-P/7) is not fatal. Mother of the prosecutrix (PW-
4) also supported the version of the prosecutrix (PW-5) and stated that
her daughter informed the incident stating that the appellant forcibly
took her to the house of Motiram (PW-6) and committed sexual
intercourse. Thereafter she went to the house of Motiram and Motiram
(PW-6) had asked them to marry the prosecutrix with the appellant,
which she refused because the prosecutrix is younger in age. Motiram
(PW-6) and the appellant had beaten her. Thereafter she called meeting
in the village and in the said meeting, compromise was arrived at.
Thereafter the appellant again forcibly took away the prosecutrix and
committed sexual intercourse. So, they have lodged the FIR.
24. It is settled law that when the version of the prosecutrix was found
consistent right from the very beginning and the evidence of prosecutrix
is found to be reliable, conviction can be sustained on the sole
testimony of the victim/prosecutrix. In the present case, we do not find
any reason to doubt the credibility or trustworthiness of the evidence of
the prosecutrix. Her evidence is of sterling quality. So, corroboration
as a condition for judicial reliance on the testimony of the prosecutrix is
not a requirement of law. In various judgments, the Hon'ble Supreme
Court has laid down the said proposition.
25. In the matter of State of H.P. v. Asha Ram 5, the following has been
observed at para-5:-
"5. .................................... It is now a well-settled
principle of law that conviction can be founded on the
testimony of the prosecutrix alone unless there are
compelling reasons for seeking corroboration. The
evidence of a prosecutrix is more reliable than that of
an injured witness. The testimony of the victim of
sexual assault is vital, unless there are compelling
reasons which necessitate looking for corroboration of
her statement, the courts should find no difficulty in
acting on the testimony of a victim of sexual assault
alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It is
also a well-settled principle of law that corroboration
as a condition for judicial reliance on the testimony of
the prosecutrix is not a requirement of law but a
guidance of prudence under the given circumstances.
The evidence of the prosecutrix is more reliable than
that of an injured witness. Even minor contradictions
or insignificant discrepancies in the statement of the
prosecutrix should not be a ground for throwing out an
otherwise reliable prosecution case."
26. In the matter of Phool Singh v. State of M.P.6, the following has been
observed at para-10:-
"10. In Sham Singh v. State of Haryana [Sham Singh
v. State of Haryana, (2018) 18 SCC 34 : (2019) 3 SCC
(Cri) 129] , it is 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
5 (2005) 13 SCC 766
6(2022) 2 SCC 74
convict an accused where her testimony inspires
confidence and is found to be reliable. It is 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. In paras 6 and 7, it
is observed and held as under : (SCC pp. 37-38)
"6. We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of
rape. They must deal with such cases with utmost
sensitivity. The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal
nature, to throw out an otherwise reliable prosecution
case. If the evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars.
If for some reason the court finds it difficult to place
implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and
the court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual
molestations or sexual assaults. [See State of Punjab v.
Gurmit Singh [State of Punjab v. Gurmit Singh, (1996)
2 SCC 384 : 1996 SCC (Cri) 316] (SCC p. 403, para
21).]
7. It is also by now well settled that the courts must,
while evaluating evidence, remain alive to the fact that
in a case of rape, no self-respecting woman would
come forward in a court just to make a humiliating
statement against her honour such as is involved in the
commission of rape on her. In cases involving sexual
molestation, supposed considerations which have no
material effect on the veracity of the prosecution case
or even discrepancies in the statement of the
prosecutrix should not, unless the discrepancies are
such which are of fatal nature, be allowed to throw out
an otherwise reliable prosecution case. The inherent
bashfulness of the females and the tendency to conceal
outrage of sexual aggression are factors which the
courts should not overlook. The testimony of the
victim in such cases 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 a victim of
sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases amounts
to adding insult to injury. (See Ranjit Hazarika v. State
of Assam [Ranjit Hazarika v. State of Assam, (1998) 8
SCC 635 : 1998 SCC (Cri) 1725] .)"
27. Having considered the aforesaid propositions and having found that the
evidence of the prosecutrix is duly corroborated by the medical
evidence, as also the evidence of (PW-4), mother; (PW-1) brother and
(PW-2), her maternal uncle, we are of the view that the prosecution has
successfully established its case that the appellant forcibly had taken
away the prosecutrix, confined her and committed rape. Therefore,
conviction imposed on the appellant under Sections 366, 376 and 342 of
the IPC deserves to be and is hereby affirmed. Conviction under Section
506 (Part-2) of the IPC and under Section 4 of the Act, 2012 deserves to
be set aside.
28. From the aforesaid appreciation and the conclusion arrived at in the
preceding paragraphs, conviction and sentence imposed on the
appellants under Section 4 of the Act, 2012 and under Section 506
(Part-2) of the IPC are set aside and the appellant is acquitted of the said
charges.
29. The appellant is in jail since 15.12.2012 and the date of incident is
11.12.2012. As per Section 376 of the IPC, Pre-amendment, the
offence is punishable for a term which shall not be less than 7 years but
which may for the life or for a term which may extend to 10 years.
30. Considering the attending facts and circumstances of the case, we find it
appropriate to reduce the sentence under Sections 366 and 376 of the
IPC to the period already undergone by him, which is more than 9½
years. Ordered accordingly. The sentence awarded under Section 342
of the IPC requires no interference and the same is affirmed.
31. The appellant be released forthwith unless required to be detained in
any other case. The fine amount imposed under Sections 366 and 342 of
the IPC by the trial Court shall remain intact.
32. Resultantly, the Appeal is partly allowed to the extent indicated above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Barve
