1 2025:CGHC:13430 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 317 of 2020 1 - Kamal Narayan S/o Darbari Singh Jagat Aged About 48 Years R/o Village Bahtara, Police Station Pachpedi, District Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Pachpedi, District Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh ... Respondent For Appellant : Mr. Priyanshu Gupta, Advocate For Res./State For Objector : : Ms. Isha Jajodia, Panel Lawyer Ms. Varsha Sharma, Advocate holding brief of Ms. Sareena Khan, Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 20.03.2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06.02.2020 passed by the learned Special Judge (Protection of Children from Sexual Offences Act, 2012), Bilaspur (C.G.) in Special Criminal Case (POCSO Act, 2012) No. 44/2017 whereby the appellant has been convicted and sentenced as under:- 2 Conviction U/S Sentence Fine In default of payment of Fine Under Section 4 of the Protection of Children from Sexual Offences Act, 2012 Rigorous imprisonme nt for 10 years Rs. 50,000/- R.I. for 03 months Under Section 450 of IPC Rigorous imprisonme nt for 5 years Rs. 10,000/- R.I. for 03 months All the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that on 07.05.2017 at about 9.00am when the victim was alone in her own house and her parents had gone to take bath in the pond, the appellant entered into her house, gaged her mouth with a piece of cloth and committed rape upon her. At that time, her neighbhour knocked the door, she gave bangles from outside of her house and returned back. When her mother returned back to the house, she informed about the incident and then she saw the blood on the undergarment of the victim and then the victim disclosed about the incident. The mother of the victim had informed the incident to village Sarpanch and Kotwar and, thereafter, lodged the FIR Ex. P/5 against the appellant on 10.05.2017 for the offence punishable under Section 376 of IPC and Section 4 of POCSO Act, 2012. In the FIR itself, it has been mentioned that the victim was physically disabled by hand and legs and she was not able to walk even properly. The victim was sent for her 3 medical examination to Community Health Centre, Mastoori where Dr. Smt. Parul Jogi (PW05) has medically examined her and gave her report Ex. P/8. While medically examining the victim, the doctor has noticed redness present in labia majora swelling and tenderness are present, hymen was torned and abrasion present. After medical examination of the victim, the doctor has opined that she is not habituated to intercourse, injuries caused by hard and blunt object and probably intercourse has been done. For confirmation of the same, she prepared two slides of her vaginal swab, sealed and handed it over to police for its chemical examination and forensics analysis. The spot map (Ex.P/1) was prepared by the police and spot map (Ex. P/7) was prepared by the Patwari . The undergarment of the victim has been seized vide seizure memo Ex. P/3. With respect to the age and date of birth of the victim, the Police has seized the mark-sheet of class 5th and a photocopy of a disability certificate of the victim vide seizure memo Ex. P/4. The appellant was arrested on 10.05.2017 and he too was sent for medical examination to Community Health Centre, Mastoori where Dr. Mahendra Madhukar (PW06) has medically examined him and gave his report Ex. P/10. While medically examining the appellant, the doctor has noticed swelling on right testis and smegma was absent, however, he does not find any symptoms that the appellant is not able to perform sexual intercourse. Vaginal slides and underwear of the victim and semen slides and underwear of the appellant were sent for chemical examination to concerned Forensic Science Laboratory (FLS) from where FSL report was received and according to the FSL report, semen and sperm were found on the vaginal slides of the victim. 3. The statement of witnesses were recorded under section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have also been 4 recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 450 and 376 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”) before the learned trial Court. 4. The Trial Court has framed charges against the appellant for the offences under Sections 450 and 376 of IPC and Section 4 of POCSO Act, 2012 The appellant abjured his guilt and claimed trial. 5. In order to establish the charge against the appellant, the prosecution examined as many as 12 witnesses. The statement of appellant was also recorded under section 313 of Cr.P.C. in which he denied the material appearing against him, plead innocence and submitted that he is innocent and has falsely been implicated in the case. He further submitted that some dispute regarding money transaction was there with the father of the victim for which he has been falsely implicated in the crime in question. 6. After appreciation of oral & documentary evidence available on record, the learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence, this appeal. 7. Learned counsel for the appellant would argue that the prosecution has failed to prove its case against the appellant beyond reasonable doubts. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. He would also submit that there is no legally admissible evidence with respect to the age and date of birth of the victim to prove that she was minor on the date of incident, as mark-sheet of class 5th has not been proved in accordance with law and except the seizure memo of the said mark-sheet, there is no document available on record to determine the 5 age of the victim. In absence of any cogent and clinching evidence, the victim cannot be hold to be minor on the date of incident. He would further submit that due to the money dispute with the father of the victim, the appellant has been falsely implicated in the case. It is the case of the prosecution that her neighbour had come to the house of the victim and after giving her bangles she returned back, but at that time the appellant was not seen in the house of the victim and even the victim has not disclosed about any incident to her at that very moment. He would further submit that there is no evidence on record to show that the victim was suffering from mental and physical disability. He would also submit that since the victim was not found to be minor, the conviction cannot be made for the offence under Section 376 (2)(i) of the IPC and Section 4 of POCSO Act, 2012 also and, therefore, the appellant is entitled for acquittal. 8. On the other hand, learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that the prosecution has proved its case beyond reasonable doubt. There are overwhelming evidence against the appellant that he committed rape upon the victim, who was minor on the date of incident. She would also submit that although the mark-sheet of class 5th of the victim has been seized vide seizure memo Ex. P/4, but the same could not be proved yet in the document Ex. P/4, the date of birth of the victim is mentioned as “14.11.2002” which can be taken into consideration to determine the age of the victim. She would also submit that the victim was 90% differently abled girl and suffered from mental and physical disability, who has been subjected to rape by the appellant. In the medical report, the injuries have been found on the body of the victim, and even the injuries have also been found on the body of the appellant. The evidence of the victim 6 itself is sufÏcient to hold guilty of the appellant which has been supported by the other evidence also. Therefore, there is no merit in the appeal filed by the appellant and the same is liable to be dismissed. 9. Ms. Varsha Sharma, learned counsel appearing for the victim/objector would submit that on the date of incident the victim was subjected to rape by the appellant. The victim was differently abled girl, which has not been challenged by the defence in the cross-examination of the witnesses. There is no undue delay in lodging the report and her evidence is sufÏcient to hold guilty of the appellant in the offence in question. There is no reason for the false implication of the appellant and, therefore, she also submits that the appeal filed by the appellant is liable to be dismissed. 10. I have heard the counsel for the parties and perused the material available on record. 11. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident she was minor or not. The prosecution has mainly relied upon the seizure memo Ex. P/ 4 by which the marksheet of class 5th of the victim has been seized. The marksheet has not been relied by the prosecution and has not been exhibited. From the document Ex. P/ 4, it only reflects that the mark- sheet has been seized, in which, the date of birth is recorded as 14.11.2002. The prosecution has not filed any birth certificate, school record or even ossification test report of the victim to prove her age that on the date of incident, she was minor. 12. The victim (PW02) has not disclosed her date of birth in cross- examination, she stated that her father has informed her about date of her birth. 7 13. The mother of the victim (PW03) has also not disclosed about the date of birth of the victim but she stated that the victim was aged about 14 years and she was differently abled, she cannot walk with both legs and both hands keep trembling. In cross-examination, she stated that she has not got prepared her 'birth certificate'. 14. The father of the victim (PW01) did not disclose any date of birth of the victim and has stated that his daughter is aged about 16 years and she was disablled by both the limbs. In cross-examination he stated that he is having three children, but he did not know the date of birth of his children. His daughter has studied upto class 6th and he also admitted that he did not know the date of birth of his daughter, he also could not remember that whether he has got prepared the birth certificate of the victim or not. From these evidences, it cannot be said that the prosecution has proved the fact that the victim was minor on the date of incident in fact it is a case of no evidence with respect of date of birth of the victim that she was minor on the date of incident yet the learned trial Court held her minor only on the basis of the seizure memo Ex. P/ 4. 15. So far as the offence of rape upon the victim is concerned, I again examined the evidence led by the prosecution, the victim (PW01) has stated in her evidence that she is physically disabled and could not able to move. On the date of incident when her father and mother had gone to pond to take bath, she was alone in her house and at that time the appellant entered into her house and after gagging her mouth by a piece of cloth committed rape upon her. At that moment her neighbour (PW08) came there and knocked the door. The appellant hide himself inside the room and after some time he fled away from the place of incident. When her mother came back from the pond she informed to her mother and then her mother had informed to her father and other family members 8 and thereafter, the report has been lodged. In cross-examination though the suggestion has been given to this witness that her father was having some money dispute with the appellant but she denied and stated that the amount of Rs. 40,000/- has been returned to the appellant and part of the amount is still outstanding. She admitted that due to her disability, she used to reside in her house. She stated that she informed the incident to her mother and thereafter her mother lodged the report to the police. From the evidence of this witness the defence could not extract any material, which makes her evidence doubtful that on the date of incident the appellant has not committed any offence with her or she has levelled allegation against the appellant falsely. There is no reason for false implication of the appellant reflects from the evidence of this witness, merely outstanding of the some amount does not find sufÏcient to falsely implicate the appellant in the offence in question. 16. The victim was sent for her medical examination to Dr. Smt. Parool Jogi (PW05), who found certain injuries on her private part, hymen was found ruptured swelling and tenderness was present on the private part and she opined in her medical report Ex. P/8 that the victim was not habituated to sexaul intercourse and she probably subjected to intercourse. Looking to the injuries found on the private part of the victim and allegation made by her that she was subjected to rape by the appellant, it is found proved that the victim was subjected to rape by the appellant. Further the allegation of rape has been found proved by the medical report of the appellant Ex. P/10 in which the swelling on the testis has been found in the medical report of the appellant. 17. The father of the victim(PW01) has stated that the victim is his daughter and she is physically disabled. When he returned from the village, he was being informed by his wife that his daughter is subjected to rape by 9 the appellant, thereafter, they lodged the report. He too has been cross- examined that whether some money dispute is going on between him and the appellant, to which he further stated that the appellant had borrowed total Rs. 33,000/- from him, he further stated that the appellant had borrowed total 42,000/- and out of which some amount is still outstanding against him. 18. The mother of the victim (PW03) has stated that when she came back from the pond, her daughter informed about the incident, she saw the blood stains on undergarment of her daughter and she was being informed by the victim about the incident and, thereafter, she informed the village Sarpanch and the Kotwar and, thereafter, lodged the report. Her daughter is physically disabled and even not able to walk properly. In cross-examination she also remained firm and saying that when she returned back to her home, her daughter informed about the incident that she was subjected to rape by the appellant. She also admitted that her husband has given an amount of Rs. 33,000/- to the appellant and some amount is still outstanding against the appellant. With respect to disclosure of the incident by the victim to her she remained firm and nothing could be elicited by the defence in her cross-examination. 19. PW08 is the neighbour of the victim who stated in her evidence that on the date of incident when she had gone to the house of the victim she knocked the door and then the door was opened by the appellant, she gave the bangles to keep inside the house and returned back. In cross- examination also she remained firm that when she had gone to the victim’s house the appellant opened the door of the house of the victim which further proves the presence of the appellant in the house of the victim at the relevant point of time. Therefore, the allegation that on the date of incident, the appellant entered into the house of the victim who is 10 physically disabled girl and committed rape upon her. The allegation of rape is further corroborated her medical report and thus, the allegation against the appellant is found proved that he committed rape upon the victim who is physically disabled girl. 20. The learned trial Court has convicted the appellant for the offence under Sections 450 and 376(2)(i) of IPC and Section 4 of POCSO Act and in view of Section 42 of POCSO Act, 2012, no separate sentence has been awarded for the offence of Section 376(2)(i) of IPC. 21. Considering the fact that the victim is not found minor on the date of incident, the offence Section 376(2)(i) is not proved as Section 376(2)(i) is for committing an offence on a woman, who is under 16 years of age whereas in the present case, the victim is not found to be under 16 years of age. The evidence available on record proves that the victim was physically disabled girl and the learned trial Court has also considered in paragraphs 15 and 26 of its judgment that the victim was disabled by 90% and differently abled girl. The disability certificate has also been seized vide seizure memo Ex. P/4. Although, the disability certificate could not be exhibited as evidence yet there are sufÏcient oral evidence available on record which has not been specifically challenged by the appellant that the victim does not suffer from any disability and thus, it is further found proved that the victim was a differently abled child who suffered the disability by 90% and therefore, the offence of the appellant comes under the definition of 376(2)(l) of IPC. 22. Considering the overall evidence available on record, the conviction of the appellant under section 376(2)(i) is liable to be modify to the offence under Section 376(2)(l) of IPC. However, his conviction under Section 4 of POCSO Act, 2012 is liable to be and is hereby set aside as the victim is not found to be minor. 11 23. For the foregoing reason, conviction under Section 4 of the POCSO Act, 2012 of the appellant is set aside and his conviction under Section 376(2)(i) of IPC is also set aside instead thereof the appellant is convicted under Section 376(2)(l) of IPC and Sentence for RI for 10 years with fine of Rs. 1000/- in default of payment of fine further RI for two months. The conviction and sentence of the appellant for the offence under Section 450 of IPC is maintained. All the sentences are directed to run concurrently. 24. In the result, The appeal filed by the appellant is partly allowed. The appellant is reported to be in jail since 10.05.2017 he shall served the entire sentence as awarded by this Court. The appellant is entitled for set-off of his undergone period. 25. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentences 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. 26. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) Judge amita Digitally signed by AMITA DUBEY Date: 2025.04.09 18:13:36 +0530