1 2025:CGHC:4128 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1532 of 2018 Shanichar Ram S/o Sh. Raghu Ram Aged About 50 Years R/o Village Chatakpur, Sukhbasupara, P.S. Duldula, District Jashpur (C.G.) ...Appellant versus State Of Chhattisgarh Through P. S. Duldula, District Jashpur Chhattisgarh, District : Jashpur (C.G.) ... Respondent For Appellant : Mr. Tarun Dansena, Advocate For Respondent/State : Mr. Atnu Ghosh, Dy. G.A for the State. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 22/01/2025 1. This appeal has been filed under Section 374(2) of Criminal Procedure Code 1973, filed by the appellant against the impugned judgment of conviction and sentenced dated 24.07.2018 passed by learned Additional Sessions Judge, Kunkuri, District - Jashpur in Special Criminal Case No.31 of 2017, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 363 of I.P.C. : R.I. for 1 years and fine of Rs. 1000/- and in default of payment of fine Digitally signed by VAIBHAV SINGH Date: 2025.02.14 11:49:51 +0530 2 Additional R.I. for 15 days. Under Section 376 of IPC : R.I. for 10 years and fine of Rs.5,000/- has been imposed upon accused and in default of payment of fine additional R.I. for 2 months. Under Section 4 of Protection of children from Sexual offences Act, 2012 (for short ‘POCSO Act, 2012) : R.I. for 10 years and fine of Rs. 5,000/- has been imposed upon accused and in default of payment of fine additional R.I. for two months (All the sentences are directed to run concurrently.) 2. The brief facts of the case are that the mother of the victim PW-1, has lodged a report on 24.08.2017 to the police against the appellant that on 23.08.2017 in the evening at about 5:00p.m. when she returned from Jungal, her minor daughter informed her that when she was working in her house, the appellant came there, dragged her towards Jungal and committed rape upon her. Her father-in-law has also informed her that the incident was witnessed by the villager and when they challenged the appellant, he fled away from the place. The incident was informed to the other villager of the vicinity and since it was the night time, she came to lodge the report on the next day. The FIR Ex.P/1 was registered for the offence under Sections 363, 366 & 376 of IPC, and Section 4 of the POCSO Act. The victim was sent for her medical examination to Community Health Center, Duldula, where PW-11 Dr. Saudamuni Dehri has medically examined her and gave report Ex.P/17. During the medical examination, the doctor has noticed that her labia majora, labia minora were normal her vulva was red due to injury and her hymen was ruptured the margin of the 3 hymen was irregular. She opined that according to the above clinical examination, she has been sexually intercourse. Two slides of vaginal swab were prepared, sealed and handed over to the police for chemical examination. The victim was also advised for X-ray examination for confirmation of her age. The birth certificate of the victim Article A-1 has been seized by the police vide seizer memo Ex.P/3, spot map Ex.P/7 was prepared by the police and Ex.P/4 was prepared by the patwari. The vaginal slides of the victim was sent for medical examination to Regional FSL, Ambikapur, from where report Ex.P/20 was received and according to the FSL report semen and sperm were found on the vaginal slide of the victim. The appellant was arrested on 25.08.2018 and he too was sent for his medical examination to community Healthy Center, Duldula, where PW-10 Dr. Bipin Kumar Indwar, has medically examined him and gave his report Ex.P/16 according to the medical report, the appellant was found to be capable to perform sexual intercourse. The statement of the witnesses have been recorded under Section 161 of Cr.P.C. and statement of the victim and other witnesses were recorded under Section 164 of Cr.P.C. and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offence under Sections 363, 366 & 376 of IPC and Section 4 & 6 of POCSO Act. 3. Learned trial Court has framed charge for the offence under Section 363, 376 of IPC and Section 4 of POCSO Act. The appellant abjured his guilt and claimed trial. 4. In order to establish the charge against the appellant the prosecution has examined as many as 15 witnesses. The statement of the 4 appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 5. After appreciation of the oral as well as documentary evidence produced by the prosecution, the learned trial court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. There is no cogent and clinching evidence, with respect to the age of the victim that she was minor on the date of incident. The victim herself is inconsistent in her deposition with that of her 164 Cr.P.C. statement and in such inconsistency, the appellant cannot be convicted. In alternative he would submit that the evidence is alleged to be occurred in the year 2017, at that time the minimum sentence provided for the offence of Section 376 was 7 years. The appellant is in jail since 26.08.2017 and therefore, his undergone period may be considered to be sufficient sentence for the alleged offence. 7. On the other hand learned counsel for the State opposes and submitted that there are overwhelming evidence against the appellant that he committed the offence. The prosecution has proved its case beyond reasonable doubt. The evidence of the prosecutrix supported by her medical report in which injuries have been found on her body, there is no reason for the false implication of the appellant particularly 5 he is the maternal uncle of the victim. He would further submit that in the FSL report of the vaginal slide of the victim, semen and sperm were found present which further proves the offence of the appellant that he committed rape upon the victim. Immediately the report has been lodged. He would further submit that PW-3 and PW-5 are the witnesses who seen the appellant committing rape upon the victim who duly proved the prosecution’s case. Therefore, there is no merits in the appeal filed by the appellant and the same is liable to dismissed. 8. I have heard learned counsel for the parties and perused the record of the case. 9. The first and foremost question arises for consideration would be the age of the victim as to whether she was minor on the date of incident or not. 10. The prosecution has mainly relied the birth certificate of the victim Article-A1 which has been issued by In charge Police station cum Registrar birth and dates police station, Jashur District – Jashpur. He issued the birth certificate on the basis on the record maintained by them. The said birth certificate issued by the Registrar, birth and dates has been issued in discharge of their official duty on the basis of official record. The birth certificate of the victim is admissible under Section 35 of the Indian Evidence Act, 1872, and in absence of any challenge to the birth certificate, it cannot be disbelieved. 11. In the matter of Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263 in para 20 the Hon’ble Court has held that:- On the issue of determination of age of a minor, one only 6 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; (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. 7 (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, 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 off cases, where the status of juvenility has not been determined in accordance with 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.” 12. From the birth Article A-1 and the consideration laid down in the aforesaid judgment by the Hon’ble Supreme Court, the learned trial Court has come into conclusion that the victim was minor on the date of incident and this Court have no reason to differ with the finding recorded by the learned trial Court, that the victim was minor on the date of incident. 13. So far as the involvement of the appellant in the offence in question, the victim PW-2 have stated in her evidence that on the date of incident, when she was working, the appellant came there and dragged her towards the jungal and committed rape upon her. After commission of rape upon her, he fled away after leaving her in the jungle. She came back to her house and informed the incident to her mother. Earlier also the appellant took her towards jungle and committed rape upon her. In cross-examination the suggestion has been given by the defence counsel that prior to the present incident also the appellant committed rape upon her and he regularly said that he will marry with her. Although in para 20, whenever the appellant asked her to go with him she happily and voluntarily had gone with him and both of them have made consensual physical relation but in 8 the facts that she is minor and less than 18 years of age, is not able to give her consent. From the evidence of the victim, when she admitted that she engaged in the making physical relation with the appellant and she is found to be minor as per her birth certificate, her consent is immaterial as she was not competent to gave her consent due to her minority. Yet the appellant has made physical relation with her which does amounts to rape upon the victim. PW-3 and PW-5 are the witnesses who saw the appellant committing rape upon the victim and when they challenged him the appellant fled away from the place. In view of the above, the evidence of the victim is duly supported by PW- 3 & PW-5 and it is proved that the appellant took her towards Jungle and committed rape upon her. 14. PW-1 is the mother of the victim who stated in her evidence that at the time of incident when she returned back from jungle, she found her daughter weeping in the house. When she asked form her, she informed that appellant has committed rape upon her, thereafter, the witnesses who seen the appellant committing rape upon her daughter have also informed that they have seen the appellant committing rape upon her daughter. She called the village Sarpanch and other elderly people of the village and informed the incident and thereafter lodged the report. She denied the suggestion that her daughter attained the age of 19 years. She admitted that her daughter is short heighted and appears to be mentally weak, she subsequently came to know that her daughter was indulged in making physical relation with the appellant for long time. 9 15. PW-11, Dr. Saudamuni Dehri who medically examined the victim have found injuries on her body and opined that the victim was subjected to sexual intercourse. The injuries found on the body of the victim have further corroborated by the FSL report which comes positive and semen and sperm were found on the vaginal slides of the victim. Therefore, I do not fine any good ground to interfere with the conviction of the appellant and there are sufficient evidence available in the record against the appellant that he kidnapped the victim, took her towards the Jungal and committed rape upon her, after enticing her to perform marriage but she is found minor on the date of incident and therefore, offence of kidnapping, and rape has been made out against the appellant. 16. So far as the sentence part is concerned, the offence is alleged to be occurred on 24.08.2017. At that time the unamended provision of Section 376 of IPC provided the minimum sentence of 7 years imprisonment. The unamended provision of Section 376(1) of IPC is reproduced herein below:- “376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section which shall not be less than seven years but which may be for life or for a term which may extended to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. 10 17. Section 376(1) of IPC was amended with effect from 21.04.2018 by the amendment Act of 22 of 2018 and the minimum sentence was provided for 10 years imprisonment which reads as under:- 1[376. Punishment for rape – (1) Whoever, except in the cases provided for in sub-Section(2), commits rape shall be punished with rigorous imprisonment of either description for a term which 1[ Shall not be less than then years, but which may extend to imprisonment for life, and shall also be liable to fine]. 18. Likewise, Section 4 of the POCSO Act was initially provided minimum sentence of 7 years prior to its amendment incorporated with effect from 16.08.2019 which reads as under:- 4. Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extended to imprisonment for life, and shall also be liable to fine. 19. The Section 4 of the POCSO Act was also amended by the Act of 25 of 2019 with effect from 16.08.2019 and the amended provision of Section 4 reads as under :- 4. Punishment for penetrative sexual assault.- 1[(1)]Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 3[ten years] but which may extend to imprisonment for life, and shall also be liable to fine. 4[(2)] Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which 11 shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine. (3) 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.] 20. The present incident is occurred on 23/24.08.2017 and unamended provisions of IPC and POCSO Act are applicable prevailing on the date of alleged incident which provides the minimum sentence of imprisonment for 7 yeas in both the enactments. Looking to the peculiar facts and circumstances of the present case this Court is of opinion that the ends of justice would meet if the sentence awarded to the appellant is to be reduced for the minimum sentence provided for the alleged offence as prescribed on the date of incident. Therefore this Court while maintaining the conviction of the appellant for the offence under Section 363, 376 of IPC and Section 4 of POCSO Act, reduced the sentence awarded to the appellant for the offence of Section 376 of IPC from R.I. for 10 years to R.I. for 7 years with fine of Rs.5,000/- in default of payment of fine additional R.I. for 2 months and under Section 4 of POCSO Act, no separate sentence is required to awarded in view of Section 42 of the POCSO Act, which provides the alternate punishment. Since the appellant has already been awarded sentence for the offence under Section 376 of IPC, of IPC he need not be required to separately sentence under the POCSO Act. The sentence of the appellant for the offence under Section 363 is maintained. All the sentences awarded to the appellant is directed to run concurrently. 12 21. The appellant is reported to be in jail since 26.08.2017 he is entitled for set off his undergone period during the trial as well as during the present appeal. 22. With the aforesaid alteration in the sentence, the appeal filed by the appellant is partly allowed. 23. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 24. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav