Chattisgarh High Court
Rajesh Panika vs State Of Chhattisgarh on 20 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Reserved on 06.01.2023
Order Delivered on 20.01.2023
Criminal Appeal No. 721 of 2017
Rajesh Panika, S/o Puransai Panika, Aged about 25 years,
R/o Vill. Navadeeh P.S. Chando, Distt. Balrampur (C.G.)
---- Appellant
Versus
State of Chhattisgarh, Through :- Aarakshi Kendra Patna,
Distt. Koria (C.G.)
---- Respondent
For Appellant : Mr. Vikash A. Shrivastava, Adv.
For Respondent : Mr. H.S. Ahluwalia, Dy. Advocate General.
Hon'ble Shri Justice N.K.Chandravanshi
Order [CAV]
1. This appeal arises of the judgment of conviction and order of
sentence dated 30th January, 2017 passed by Upper Sessions
Judge (FTC) Baikunthpur, District Koria in Special Sessions Case
No. 34/2015, whereby the appellant/accused has been convicted &
sentenced in the following manner :-
Conviction Sentence
Under Section 363 of IPC Rigorous imprisonment for 7 years
with fine of Rs. 500, in default of
payment of fine, to further undergo
rigorous imprisonment of six
months.
Under Section 366 of IPC Rigorous imprisonment for 10 years
with fine of Rs. 500, in default of
payment of fine, to further undergo
rigorous imprisonment of six
months.
Under Section 6 of Rigorous imprisonment for 10 years
Protection of Children from with fine of Rs. 500, in default of
Sexual Offences Act, 2012 payment of fine, to further undergo
(henceforth "POCSO Act"). rigorous imprisonment of six months
All the sentences have been directed to be run concurrently.
It has been further observed that since the appellant has also been
convicted under Sections 376(2) (>) & (<) of the Indian Penal Code
but holding that Section 6 of the POCSO Act is aggravated offence,
hence, appellant has not been sentenced separately for the
offence under Section 376 of the IPC.
2. Case of the prosecution, in brief, is that in the intervening
night of 14-15 May, 2015 minor victim (PW-3) was abducted by
unknown person from her house. On the very next day i.e. on
15.05.2015, at the instance of her mother, Dehati Nalishi (Ex.P-13)
was recorded at Police Help Centre, Pandavpara, Police Station
Patna, District Koria (C.G.), on the basis of which, FIR under
Section 363 IPC was registered against the unknown person. After
about 7 days, on being informed by mother of the appellant that
victim has been brought by the appellant to her house, she was
recovered from village Deepadih on 23.05.2015 vide recovery
memo Ex.P-3. After being recovered, victim disclosed the fact that
in the fateful night of incident, on the pretext of marriage, appellant
took her to Ambikapur and, thereafter, he took her his mother's
house at Champa and has made physical relation with her. Her
statement under Section 164 of the Cr.P.C. was also recorded. Her
medical examination was conducted by Dr. Kalawati Patel (PW-04)
vide Ex.P-7. Student Admission Register [Ex.P-2(c)] of Primary
School, Khod, District Koria was seized from Nansai (PW-1),
Headmaster of that School vide seizure memo (Ex.P-1). Vaginal
slide was prepared by doctor, undergarments & vaginal slide of
victim were seized vide Seizure Memo (Ex.P-8). A mobile hand set
was seized from the appellant vide Ex.P-10. The appellant/accused
was also examined by Dr. Rakesh Soni (PW-14), in which, he
opined that he is capable to perform sexual intercourse vide
Ex.P-14. Undergarments and sperm slide of appellant prepared by
doctor were seized vide seizure memo Ex.P-12. Spot map was
prepared. Progress report of Class 5 th of the victim was seized from
her mother vide Ex.P-18, statement of witnesses were recorded.
The appellant was arrested on 23.03.2015 vide arrest memo
(Ex.P-20). Seized articles were got examined from FSL and its
report (Ex.P-24) was procured in this regard.
3. After completion of investigation, charge-sheet under
Sections 363, 366 , 376 (2)(>)(l)(n) of the IPC and Section 4 & 12
of the POCSO Act was filed against the appellant before the
POCSO Court, thereafter, the case was tried by Upper Sessions
Judge (FTC), Koria (Baikunthpur) C.G.
4. Charges under Sections 363, 366, 376(2)(>) & (<) of the IPC
and under Section 6 read with Section 5(B),(M) of the POCSO Act
were framed and explained to the appellant, who abjured the guilt.
Prosecution in order to bring home the guilt, examined as many as
14 witnesses and exhibited 24 documents. But none of the
witnesses was examined by the appellant in his defence.
Incriminating evidence brought by the prosecution against the
appellant were put to him, which he denied and pleaded his
innocence in his statement recorded under Section 313 of the
Cr.P.C.
5. Learned trial Court after appreciating oral and documentary
evidence available on record, convicted the accused/appellant
under Sections 363,366, 376 (2)(>)(<) of the IPC and Section 6 of
the POCSO Act and sentenced him as mentioned in opening
paragraph of this judgment, against which instant appeal has been
preferred questioning the impugned judgment of conviction and
order of sentence.
6. Learned counsel for the appellant / accused would submit
that appellant has erroneously been convicted for offence of rape
of minor girl whereas it has not been proved by adducing any legal
evidence that on the date of incident, victim was minor. In this
regard, only admission register of victim, that too, of class "2" has
been proved, but it has not been proved that on the basis of which
document, her date of birth was mentioned as 09.01.2005 in the
alleged admission register (Ex.P-2c). It is further submitted that
wherefrom the victim was recovered is highly doubtful, as evidence
of victim, her mother and recovery memo (Ex.P-3) are full of
contradiction and omission in this regard. It is further submitted that
victim herself has admitted in her cross-examination that, the
appellant has not committed sexual intercourse with her. In
medical examination also, no external or internal injuries over the
body or private part of victim have been reported to be found,
despite that appellant has been convicted and sentenced as
aforementioned. Hence, impugned judgment of conviction and
order of sentence passed against the appellant, being perverse
and unsustainable, are liable to be set aside.
7. Per contra, learned counsel for the State would submit that
victim (PW-3) and her mother (PW-2) have clearly proved that
appellant is a person, who abducted her and took her to his
mother's place at Champa, which was informed by mother of
appellant, thereafter, she was recovered from village Deepadih
from the possession of the appellant, as victim was brought by
appellant at village Deepadih at the time of recovery, which has
also been proved by independent witnesses namely Rajput (PW-
10) and Manoj Kumar (PW-5). It is further submitted that victim
(PW-3) has specifically stated in her deposition that
appellant/accused had made physical relation with her for 3 days
and this fact has also been supported by FSL report (Ex.P-24)
wherein semen stained and human sperm have been reported to
be found in undergarments (Chaddi) of victim and the appellant
and slide prepared from private part of the victim. It is further
submitted that at the time of incident, victim was studying in class
Vth and her date of birth was 9.1.2005, which has been proved by
School record. While examining the matter carefully, the Court has
also observed her age as about 11 years. Thus, it has been very
well proved by the prosecution that at the time of incident, victim
was below 11 years of age at the time of incident and she was
minor, hence, his conviction for alleged offence is well merited,
which does not call for any interference, therefore, instant appeal is
liable to be dismissed.
8. Heard learned counsel for the parties and considered their
rival submissions made hereinabove and perused the record of the
trial Court with utmost circumspection.
9. As per case of the prosecution, at the time of incident victim
(PW-3) was minor. In her deposition, the Court has observed her
age as 11 years and she has stated that in the year 2016, when
her statement was recorded, she was studying in Class 6 th . Her
mother -Tara Bai (PW-02) has also stated that age of victim was
10-11 years on the date of incident.
10. To prove the age of the victim, admission register (Ex.P-2c)
was seized by ASI - Ramnayan Gupta (PW-12), who is
Investigating Officer of the case, vide seizure memo (Ex.P-1) from
Nansai, Headmaster of Primary School, Khod, District Koria, who
has also supported aforesaid fact. As per admission register
[Ex.P-2(c)], date of birth of victim is 9.1.2005. Accordingly, on the
date of incident, her age was 10 years & four months. Although,
Headmaster Nan Sai (PW-1) has admitted in his cross-examination
that he could not have able to say that on the basis of which
document, the aforesaid date of birth was mentioned in admission
register (Ex.P-2c), but apart from the victim and her mother, the
Court and Dr. Kalawati Patel (PW-4), who medically examined the
victim on the date of her recovery i.e. on 23.5.2015 and prepared
medical report (Ex.P-7), have also assumed the date of birth of
victim as 11 years, therefore, in view of the provisions contained in
sub - Section (2) of Section 94 of The Juvenile Justice (Care and
Protection of Children) Act, 2015, date of birth of the victim as
shown in admission register cannot be disbelieved only because
non proving of document, on the basis of which, the date of birth of
victim was mentioned in the School Admission Register
[Ex.P-2(c)]. Therefore, this Court is of the firm view that the learned
trial Court has not committed any error in holding that on the date
of incident, age of victim was 10 years, 4 months and 6 days and,
thus, she was minor at the relevant point of time.
11. Mother of victim - Smt. Tara Bai (PW-2) has stated in her
deposition that in the fateful night, she alongwith her children
including victim were sleeping in the house, but in the morning, the
victim was not found at home. After five days, victim was found
alongwith the appellant in the village Balrampur, after being
informed by mother of the appellant. She has further stated that
victim told her that after alluring, appellant took her with him and
has made physical relation, like husband and wife, with her. She
has also admitted in her cross-examination to the suggestion given
by learned defence counsel that on being informed by mother of
appellant, that victim is in her house, she had gone to Balrampur
where victim was found alongwith appellant in his sister's house.
12. Victim (PW-3), has stated in her deposition, that appellant
was running shop of chocklet and petrol beside her house, hence,
they known to each other. In the fateful night, appellant called her
over phone and on being threatened, she went behind her house,
thereafter, appellant took her with him to Ambikapur by Train and
Champa at his mother's house. She has also stated that after
disrobing her and himself, appellant slept over her and committed
wrong act with her for three days. She has further stated that on
being informed by mother of appellant, her mother & father had
come in the house of appellant's mother along with police
personnel, thereafter, they (appellant & victim) came in Pandopara
police Chowki along with the police. In this regard, recovery
memo (Ex.P-3) was prepared by the police, wherein she has
admitted her signature. In the cross-examination also, she has
admitted suggestion of defence counsel that on being called over
phone by mother of the appellant, her parents came in the house of
mother of appellant and took her, thereafter, she had gone with
them.
13. Evidence of Rajput (PW-10) and recovery memo (Ex.P-3),
which was prepared and proved by Investigating Officer -
Ramnarayan Gupta (PW-12) and also supported by Manoj Kumar
(PW-5) and victim herself shows that victim was recovered on
23.5.2015 from village Deepadih. As per deposition of Rajput
(PW-10), the appellant has taken the victim in his village Deepadih,
from where on being called by appellant, parents of victim and
police personnel came there and they took the victim alongwith
them.
14. Although, there is some contradiction and omission with
regard to place of recovery of victim that whether it was done from
village Deepadih or Balrampur but evidence available on record
proves that victim was taken by the appellant from her village to his
mother's house situated at Champa and kept her for about 7 day,
till recovery of the victim and in between appellant had frequently
made physical relation with her. After about seven days, she was
recovered alongwith the appellant, that too, on being informed by
mother of appellant. Facts of the case shows that victim was taken
from the place of her mother & sister to village Deepadih, hence,
she was recovered from village Deepadih, therefore, aforesaid
contradictions with regard to place of recovery of victim is not found
to be fatal to the case of the prosecution.
15. The victim has admitted the suggestion of defence counsel in
her cross-examination, paragraph 11, that till arrival of her parents,
the appellant has neither done anything with her nor committed
rape with her. Thus, she has contradicted her statement made by
her in the examination-in-chief that the appellant had made
physical relation with her.
16. Dr. (Smt.) Kalawati Patel (PW-4) has also stated in her
deposition and medical report (Ex.P-7) that no injuries were found
on the body of the victim, but vaginal slide of victim, which was
prepared and her undergarments, which was collected by Dr.
(Smt.) Kalawati Patel (PW-4), were examined by Chemical
Examiner and vide Ex.P-24, it has been reported by Chemical
Examiner that semen stained and human sperm was found in her
slide and undergarments (chaddi). Since victim was recovered
from the possession of the appellant on 23.5.2015 and on the
same day, she had been examined by Dr. Kalawati Patel (PW-4)
and aforesaid slid and undergarment had been collected and
seized vide seizure memo (Ex.P-8) wherein semen stained and
human sperm have been found reported in the FSL report,
therefore, aforesaid admission of victim in the cross-examination
and non finding of any injury over her body are not sufficient to
discard statement of victim that appellant had made physical
relation with her for about 3 days.
17. In view of the foregoing discussion, appeal, being devoid of
substance, is liable to be and is hereby dismissed. The judgment of
conviction and order of sentence is hereby upheld.
18. Record of the trial Court be sent back forthwith.
Sd/-
(N.K.Chandravanshi)
Judge
D/-
