1 NAFR Reserved on 18.03.2025 Pronounced on 13.06.2025 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 836 of 2019 Uttam Sahu S/o Mansha Ram Sahu Aged About 25 Years R/o Village Rehuntakala, Thana Kunda, Tahsil Pandariya, District Kabirdham Chhattsigarh, District : Kawardha (Kabirdham), Chhattisgarh ... Appellant versus The State Of Chhattisgarh Through Police Station Bodla, District Kabirdham Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh ... Respondent For appellant : Shri Parag Kotecha, Advocate For Respondent : Shri Devesh Kela, PL DB: {Hon’ble (Smt.) Justice Rajani Dubey & Hon’ble Shri Justice Sachin Singh Rajput} CAV Judgment Per Sachin Singh Rajput, J Judgment assailed in this appeal is dated 30.04.2019 rendered in ST No. 29/2018 by Special Judge (POCSO) FTC Kabirdham, (CG) by which the accused/appellant has been convicted under Sections 363, 366, 376A and 302 IPC and sentenced to undergo RI for 04 years with fine of Rs. 500/-, RI for 04 years with fine of Rs, 500/-, imprisonment for life till death with fine of 2 Rs. 3000/- and imprisonment for life with fine of Rs. 3,000/- under each Section respectively, plus default stipulations. 2. Facts in short: On 18.04.2018 there was a marriage in the house of Tekram Sahu (PW-14) where Goutram (PW-2) – the father of the deceased/prosecutrix had also gone. The deceased/prosecutrix aged 11 years at the relevant time, her younger sister Ragini and her friend Damini Sahu had also gone there in a Marshal vehicle along with the bridegroom. Marriage procession (Barat) stayed in front of the house of one Samaru and that after taking dinner some of the Baratis left for their respective houses. At about 10 PM Goutram (PW-2) inquired from his daughter Ragini as to the whereabouts of the deceased/prosecurtrix who in turn informed to have seen her accompanying the accused/appellant on motorcycle. Same thing was disclosed by Dhaniram (PW-4). Accused/appellant is also stated to have come to attend the marriage ceremony at village Bagharra. About two hours thereafter i.e. at 1.00 AM the accused/appellant came over there and that the shirt worn by him was stained with blood and scratches over his face were there, on seeing which Babulal Sahu (PW-11) and Tekram Sahu (PW-14) inquired from him as to where the deceased/prosecutrix was. Initially he tried to equivocate the things but on being persistently asked about, he told that he took her away towards a canal in the name of offering cold drink but as there was quarrel over making physical relations, he pressed her neck and done away with by repeatedly striking her head against the canal wall. He is said to have allured her away with the intention of physically exploiting her and then killed her. Then on the intimation given by father of the deceased/prosecutrix merg (Ex.P-26) was registered, after inquest her dead body was sent for postmortem examination to Government Hospital Bodla, and after completion of investigation charge-sheet was filed for the offence punishable 3 under Sections 363, 366, 376A and 302 IPC followed by framing of charge accordingly. The appellant however denied the charges and claimed trial. 3. To prove its case prosecution examined 20 witnesses in all followed by recording of statement of the accused/appellant under Section 313 CrPC where as usual he pleaded his innocence and false implication in the case. 4. Learned trial Court on the basis of material available before it convicted and sentenced the accused/appellant as described above. Hence this appeal. 5. Learned counsel for the appellant submits that the findings recorded by the trial Court are erroneous and without considering the fact that the accused/appellant has been roped in the crime in question due to the previous enmity. He submits that the evidence of the witnesses in particular that of father of the deceased/prosecutrix namely Goutram (PW-2), sister of the deceased/prosecutrix namely Rajani alias Ragini (PW-3) and Dhaniram (PW-4) does not inspire confidence but even then the trial Court has proceeded to hold the accused/appellant guilty which is illegal, arbitrary and without application of mind. He submits that the accused/appellant has been implicated in a false case and has not committed the offence alleged. He further submits that the conviction of the accused/appellant is fully based on conjectures and surmises and therefore not sustainable in law. It is submitted that there is unexplained and unreasonable delay in lodging the FIR which raises serious doubt in the credibility of the case of the prosecution. It is further submitted that the DNA report in this case is also unreliable and inadmissible on account of there being multiple procedural lapses, one being that consent of the accused/appellant for the DNA test was not obtained before the Court which raises serious concern about the voluntariness and legality of the sample collection process. Secondly, according to the counsel for the appellant, two samples were taken but only one was acknowledged as 4 the first one was mishandled and sent without requisite precautions, which also creates doubt in the case of the prosecution. According to the counsel for the accused/appellant, the prosecution has failed to examine Dr. Sanchali A. Padhye, the Schientific Expert, State Forensic Laboratory as a witness which has deprived the defence of an opportunity to challenge the finding and conclusion contained in the Forensic report and thereby the fundamental right of fair trial of the accused has been violated. It is further submitted that the doctor (PW-7) who conducted the post mortem examination on the body of the deceased/prosecutrix has failed to mention the time duration of death in the report which is a crucial factor in a criminal trial which aids in corroborating or refuting the sequence of events in the case of the prosecution. In totality, he submits that as the prosecution has utterly failed in establishing its case beyond all reasonable doubts, the judgment impugned needs quashment by allowing the appeal. In support of his submissions, reliance is placed on the decision of the Supreme Court in the matter of Rahul v. State of Delhi, Ministry of Home Affairs and another and Ravi Kumar v. State of NCT of Delhi and Vinod alias Chhotu v. State Government of NCT of Delhi Home Affairs reported in (2023) 1 SCC 83 as also on the decision of this Court in the matter of Khemchand Rohra v. State of CG in CRA No. 492 of 2024 rendered on 28.11.2024. 6. State counsel on the other hand, lends full support to the findings recorded by the trial Court in the judgment impugned and submits that in view of the evidence available on record the trial Court has been fully justified in convicting and sentencing the accused/appellant as mentioned above, and no interference is required with the well reasoned finding. He further submits that Rajani alias Ragini (PW-3) who at the relevant time was aged about 9 years has clearly stated that she saw the accused/appellant taking the 5 deceased/prosecutrix away with him on motorcycle, and thereafter when the accused/appellant returned to the place of marriage after some time, though on being asked as to the whereabouts of the deceased/prosecurtrix, initially he tried to evade giving disclosure, on persistent enquiry he confessed the fact that after taking her to the canal, he committed forcible sexual intercourse with her and as she was making resistance to that, he killed her by repeatedly striking her against the canal wall. This apart, blood was seen on the shirt of the accused/appellant and scratches on his face. Countering the submission of the counsel for the accused/appellant as to certain procedural flaws in taking of the blood samples for the DNA test, State counsel submits that in the midst of important piece of evidence as to the involvement of the accused/appellant in the crime in question, the same being merely a corroborative piece of evidence cannot overshadow the merit aspect of the matter. 7. Heard counsel for the parties and gone through the evidence on record. 8. Goutram (PW-2) – the father of the deceased/prosecutrix has stated that on 18.04.2018 he along with the deceased/prosecutrix and another daughter Rajani alias Ragini (PW-3) had gone to village Bagharra to attend the marriage of his nephew Tekram Sahu (PW-14). After taking dinner when he was to get back, deceased/prosecutrix was not there and on being asked his another daughter (PW-3), she told him about her being taken away by the accused/appellant on motorcycle same is told by his brother Dhaniram (PW- 4). Though search in the nearby area was made, she could not be found. At about 1:00 AM the accused/appellant came there with his shirt stained with blood and face with scratches and on being asked initially he did not tell anything. On being asked by his brother Babulal (PW-11) and nephew 6 Tekram (PW-14) also he remained totally on denial mode but when he was asked by the Baratis (members of the marriage procession), he disclosed that he had taken her on motorcycle towards Baiharsari Canal on the pretext of providing her cold beverage and during his attempt to make physical relations with her there was a quarrel and in furtherance of that he forcibly committed sexual intercourse with her and thereafter killed her by pressing her neck and striking her against the base of the canal. On such disclosure, this witness along with other relatives went to the spot and saw the victim lying dead in a half nude state drenched with blood, followed by an information to this effect being given to the concerned police outpost. On the basis of the said information, the police went to the spot, recorded Dehati Nalisi (Ex.P-5) and FIR (Ex.P-6). Postmortem examination on the body of the deceased was conducted at Community Health Centre, Bodla. According to this witness, police had seized Class-III mark-sheet of the prosecutrix/deceased under Ex. P-8 and the admission register under Ex. P-1, both bearing his signature. According to this witness, first of all the body of the deceased was seen by Lallu Sahu and his co-brother Naresh (not examined). He has denied any public movement at the canal. He has admitted that the matter was not reported immediately after the confession made by the accused/appellant and first of all the search for the dead body was launched. He has further stated that even after the dead body being traced, the report was not made promptly as the sad incident had thrown them in deep grief. 9. Rajani alias Ragini (PW-3) was at the relevant time aged about 9 years and therefore, by assessing her competency to give evidence by putting certain questions to her, trial Court has proceeded to record her evidence. This witness who claims to have first seen the accused/appellant taking the deceased/prosecutrix away with him on motorcycle has stated that on the 7 date of incident when she was sitting with Tekram, the victim herein, and her brother Yogesh after taking dinner, her father came to her and asked to leave for their home. After her father went back to inform the same to his brother, the accused/appellant came there and took the deceased/ prosecutrix with him on motorcycle on the pretext of providing her cold beverage. Thereafter, her father got back and asked as to where the deceased/ prosecutrix was, on which she told him about her being taken by the accused/appellant on motorcycle. Though the search was made, it was in vain and eventually the body of the deceased/ prosecutrix was found. In cross examination also she remained firm to the things stated by her in examination in chief. She however has denied about the statement being made by her on the tutoring by her father. 10. Dhaniram (PW-4), Bhagwat (PW-10), Babulal (PW-11), Tekram Sahu (PW-14) & Bhuneshwar (PW-15) have also made almost the same statement in the line of PW-2 & PW-3. According to these witnesses, on being asked, first the accused/appellant tried to evade the question but on being persistently subjected to questioning, he told that he took the deceased/ prosecutrix away towards the canal, exploited her sexually and as she tried to resist his act, he pressed her neck and struck her against the floor of the canal which resulted in her death. PW-10 is also the witness to memorandum Ex.P-22 and seizure of motorcycle having stains of blood there-over made under Ex. P-23. He is also the witness to seizure of full shirt of the accused/ appellant of which one of the buttons was missing, one blood stained full pant, one blood stained wrist watch, one underwear and one mobile phone made under Ex. P-24. From the testimony of PW-11 & PW-14, it is evident that during search the half nude dead body of the deceased/ prosecutrix drenched in blood was recovered from the canal. In the evidence of these 8 witnesses it has also come that after the accused/ appellant took away the deceased/ prosecutrix, number of telephone calls were made on his phone but he did not attend the same. 11. Guniram Sahu (PW-1) is the witness to seizure of admission register to show the date of birth of the prosecutrix according to which it was 23.04.2007. Dr. Yogesh Sahu (PW-7) is the witness who did postmortem on the body of the deceased/ prosecutrix, along with Dr. P. L. Kurre. According to him the deceased/ prosecutrix was aged about 11 years; multiple injuries were there on various parts of his body including fracture. He has stated that the secondary sexual characters were not developed; blood clot was there on the upper portion of her vagina; hymen was ruptured and she appeared to have been subjected to forcible sexual intercourse. He has further stated that all the injuries were ante mortem in nature, they could be caused with hard and blunt object; their duration was within 18 hours from the time of examination; the cause of death was excessive bleeding and head injury; and the death was homicidal in nature. The Postmortem report is Ex. P-16. This witness has admitted that if the penetration is made in the vagina of a tender age girl, the male organ may have the scratches and redness. P. L. Kurre (PW-8) has stated that he noticed blood on the handle and clutch of motorcycle and both these articles were sent for chemical examination. Dr. Bharat Sahu (PW-9) is the witness who medically examined the accused/ appellant and found him capable of having sexual intercourse vide report Ex. P-20. This apart, four scratches were also found around his neck. Nitin Tiwari (PW-12), Sanjeev Tiwari (PW-13), Shankar Nishad (PW-16) & Lavkesh Parihar (PW-17) are the witnesses who assisted in the investigation. Narendra Pujari (PW-19) is the Investigating Officer who has duly supported the case of prosecution. He made seizure of certain blood stained articles 9 including motorcycle and a mobile phone under Ex. P-13, Ex. P-23 and Ex. P-24. Seizure of progress report of the deceased/ prosecutrix mentioning her date of birth as 23.04.2007 was also made under Ex. P-8. S. R. Soni (PW-20) is the witness who sought permission regarding collection of bloods samples of the accused/appellant for DNA test under Ex. P-37 to Ex. P-39. Vide Ex. P- 40 he obtained consent of the accused/appellant for the purpose of DNA test. The blood sample was seized under Ex. P-42 in presence of the witnesses and through the concerned SP was sent to Forensic Science Laboratory under Ex. P-43 which was received under Ex. P-44. DNA report received from the Laboratory is Ex. P-45. In cross examination he remained firm to what has been stated in the examination-in-chief. 12. The factual scenario in the light of the evidence of the witnesses leads this Court to make assessment as to the correctness or otherwise of the conclusion drawn by the trial Court thus: The most important witnesses to the case in hand happens to be Rajani alias Ragini (PW-3) – a girl aged about 9 years. She is the witness who had first seen the accused/appellant taking the deceased/prosecutrix away with him on motorcycle. Her deposition shows that on the date of incident when she was sitting with Tekram, the victim herein, and her brother Yogesh after taking dinner, her father came to her and asked to leave for home. She has then clarified that after her father went to meet his brother before departing, the accused/appellant came and took the deceased/ prosecutrix with him on motorcycle on the pretext of providing her cold beverage. After sometime when her father came and asked about the deceased/prosecutrix, she told him about her being taken away by the accused/appellant on motorcycle. She however has denied about the statement made by her on being tutored by her father. Dhaniram (PW-4), Bhagwat (PW-10), Babulal (PW-11), Tekram Sahu (PW-14) & Bhuneshwar 10 (PW-15) have also corroborated the statement of Goutram (PW-2) and Rajani alias Ragini (PW-3). Additionally, they have stated that on coming to know that deceased/prosecutrix was taken away by the accused/appellant, several telephone calls were made on his cell phone but he did not attend them, and that after he came back at about 1 AM and when asked about the deceased/prosecutrix, first he tried to evade the questions but on being persistently subjected to questioning, he confessed to have taken the deceased/ prosecutrix away towards the canal, exploited her sexually and when she tried to resist his act, he pressed her neck and struck her against the floor of the canal which resulted in her death. Bhagwat (PW-10) and Bhuneshwar (PW-15) are also the witnesses to memorandum Ex.P-22 and seizure of motorcycle having stains of blood there-over made under Ex. P-23 and the seizure of full shirt of the accused stained with blood, blood stained wrist watch, underwear and mobile set made under Ex. P-24. From the testimony of PW-10, PW-11 and PW-14, it is evident that at about 6 AM half nude body of the deceased/prosecutrix drenched in blood was recovered from the canal. In the evidence of these witnesses it has also come that after the accused/appellant took away the deceased/prosecutrix, number of telephone calls were made on his phone but he did not attend the same. The deceased/prosecutrix was at the relevant time aged about 11 years as according to Guniram Sahu (PW-1) - the witness to seizure of admission register her date of birth was 23.04.2007. According to Dr. Yogesh Sahu (PW- 7) who conducted postmortem examination on the body of 11 year old deceased/prosecutrix, multiple injuries were there on various parts of her body including fracture; her secondary sexual characters were not developed; blood clot was there on the upper portion of her vagina; hymen was ruptured and she appeared to have been subjected to forcible sexual intercourse; all 11 her injuries were ante mortem in nature; they could be caused with hard and blunt object; their duration was within 18 hours from the time of examination; the cause of death was excessive bleeding and head injury; and the death was homicidal in nature. There is an admission by this witness that if the penetration is made into the vagina of a tender aged girl, the male organ may have the scratches and redness. 13. Having thus taken a close look of the evidence available on record it becomes abundantly clear to this Court that on the date of incident when the unfortunate victim had gone to enjoy a marriage ceremony along with her parents and siblings, the accused/appellant who too happened to be an invitee for the ceremony being subdued by his lust took her to an isolated place on motorcycle, satisfied his urge for sex and on resistance being made, he finished her by pressing her neck and repeatedly striking her against the canal wall. It is also evident from the deposition of the witnesses that the accused/appellant did not even attend the calls made by Tekram (PW-14) and after he returned at about 1 AM to the marriage house and enquired by the witnesses referred to above, he confessed the commission of the offence alleged against him. The seizure witnesses have also supported the case of the prosecution and vide FSL report Ex. P-36 human spermatozoa was found on the underwear and hair of the accused and the vaginal swab of the prosecutrix. Furthermore, multiple injuries on various parts of the body of the deceased/prosecutrix including fracture and rupture of hymen as opined by the doctor who conducted autopsy also fortifies the forcible sexual intercourse with the prosecutrix and then causing her death. 14. This Court does not find any force in the submission of the counsel for the appellant that on account of certain monetary transaction between the parties, the accused/appellant has been implicated in a false case, because 12 no parent would ever have a recourse to such despicable thought about his own child involving the stigma which will end only with life. Even assuming that there was some like transaction existing, making a tender aged girl-child the scapegoat for that cannot be called anything less than the animal instinct which further aggravates the degree of the offence. Likewise, the delay of few hours in lodging the FIR in such cases, as argued by the counsel for the appellant, cannot be said to be fatal to the case of the prosecution. Delay here is not exorbitant as the victim was removed from the lawful guardianship at about 8 PM, after that efforts were being made to contact the accused/appellant on telephone and after he re-appeared in the marriage house and confessed the commission of crime it was already about 1 AM. That apart, in such heinous offences particularly against a minor girl-child the family members naturally remain sunk in deep sorrow and do not immediately think of lodgment of reports etc and with the passage of time they somehow regain mental equipoise and proceed in that direction. Being so, there cannot be said to be a great delay in putting the criminal law in motion, and therefore, this contention is also turned down. 15. As regards certain anomalies and irregularities in the DNA report as pointed out by counsel for the accused/appellant, this Court is in full agreement with the submission of the counsel for the appellant that such evidence being in the nature of opinion evidence under Section 45 of the Evidence Act its probative value differs from case to case. The vaginal slides, swab, nails and hair found in the fist of the deceased/prosecutrix partially matched with the DNA profile of the underwear, hair and blood of the accused vide report Ex. P-45. But, this is not a case where the conviction of the accused/appellant rests only on such opinion evidence like the DNA test, rather number of important and independent witnesses who have 13 categorically stated as to the manner in which the accused/appellant took the victim on his motorcycle to an isolated place, did not attend the telephonic call made by PW-14, and after returning to the marriage house made a confession of having sexually abused her and then killed her also by pressing her neck and striking her repeatedly against the wall of the canal. Medical evidence also stood by the case of the prosecution to its fullest and this apart, the seizure witnesses too also supported its case. Thus the judgment of the Supreme Court cited by counsel for the appellant in the case of Rahul v. State (NCT) of Delhi (supra) being different on facts is not of much help to the accused/appellant. Even the accused/appellant in his statement recorded under Section 313 CrPC has admitted his presence in the marriage house where the deceased/prosecutrix along with her parents had gone. He has also stated that the seizure of his motorcycle was made from village Baghragali. 16. Thus having traversed the factual and evidential aspect of the case at a great length, this Court arrives at the conclusion that the prosecution has been successful in proving its case beyond all reasonable doubt. So also the trial Court has been fully justified to appreciate the same while arriving at the finding of conviction against the accused/appellant as detailed above. There being no illegality or infirmity in the finding of conviction recorded by the trial Court, this Court affirms the said finding. 17. As regards sentence, for the offence under Section 376-A IPC the trial Court has sentenced the accused/appellant to undergo imprisonment for life till natural death, which according to the counsel for the accused/appellant is too much on the higher side and disproportionate to the act alleged against the accused/appellant. In support of this submission, he pressed into service the Division Bench decision of this Court in the matter of Khemchand Rohra 14 (supra) where it has been held that “the ends of justice would be sufficiently served if the life imprisonment of the appellant is for a minimum of 20 years of actual incarceration before he can seek remissions under the provisions of the Code of Criminal Procedure, 1973 or any other enacted law. We, accordingly direct so. Imposition of fines and imprisonment in default of payment thereof shall stand confirmed.” 18. Accordingly, the net result of this judgment is that the conviction of the appellant under all the sections as detailed above is hereby maintained. Sentence imposed on him under all the sections except u/s 376-A IPC is also maintained. However, under Section 376-A IPC, the sentence of life imprisonment till natural death is commuted to the term sentence for a period of 20 years. Order accordingly. 19. With the above modifications and observations, the appeal is allowed in part. 20. Records be sent back with copy of this judgment to the trial Court. Appellant be informed about this judgment. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Jyotishi/Pawan AVANISH JYOTISHI Digitally signed by AVANISH JYOTISHI Date: 2025.06.13 16:07:26 +0530