Rajkumar Agariya vs State Of Chhattisgarh

Rajani Dubey, J

This appeal arises out of the judgment of conviction and order of sentence dated 23.12.2021 passed by the Additional Sessions Judge, F.T.S.C. (POCSO), Manendragarh, District Koriya (C.G.) in Special Criminal Case No.17/2019 convicting the accused/appellant under Section 376 (2) (n) of the Indian Penal Code (IPC) & sentencing him to undergo R.I. for 14 years and pay fine of Rs.1000/-, in default of payment of fine amount to further undergo additional R.I. for one year.

Brief facts of the case are that the Prosecutrix (PW/3) had gone to her sister’s house namely Bela Kunwar (PW/5) at Charcha as her sister had delivered a child, where she stayed for around one months to assist her in household work. During her stay in her sister’s house, she came into contact of the accused/appellant, who was residing near the house of Bela Kunwar (PW/5), sister of the prosecutrix. The accused/appellant used to entertain/molest the prosecutrix and asked the prosecutrix (PW/3) that he likes her very much & after 2-3 days, when the Prosecutrix (PW/3) was sleeping in varandah at night, and her sister was sleeping in another room, the accused/appellant came there, removed her undergarment, gagged her mouth and committed forcible sexual intercourse with her extending life threat if she disclosed the incident to anyone. The accused/appellant used to come to Prosecutrix (PW/3) after an interval of 1-2 days and used to commit forcible sexual intercourse with her. After staying for about one month in her sister’s house, she came to her village at Gudaru and after passage of seven months, she developed abdominal pain, thereafter, PW/1, mother of Prosecutrix, took her to Rambai (PW/4), who after touching the abdomen of Prosecutrix (PW/3) confirmed that the Prosecutrix is pregnant and on 04.11.2016 she delivered a child, who died after 10-15 minutes. Thereafter, on a complaint of Prosecutrix (PW/3), FIR (Ex.P/2) was registered on 07.11.2016 against the accused/appellant for the offence punishable under Section 376 (2) (f) (i) (n), 506 of the Indian Penal Code (for short IPC) and Section 5 (j) (ii) (l) of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). After obtaining consent of the Prosecutrix (PW/3) vide Ex.P/3, on 07.11.2016, she was medically examined by Dr. (Ms.) Archana Kumhare (PW/21) vide Ex.P/18, who opined that secondary sexual characters were not fully developed, axillary and public hair not developed, breast milk discharged present with tenderness, old hymens were torn, pain in vagina. Accused/appellant was also medically examined by Dr. Satyanarayan Gupta (PW/10) vide Ex.P/14, who opined that the accused/appellant is competent enough to do the sexual intercourse. Spot map was prepared vide Ex.P/5. Consent letter of father of Prosecutrix for DNA test was obtained vide Ex.P/1. Dead body exhumation panchanama for taking DNA sample of child of Prosecutrix was prepared vide Ex.P/8. Dead body was exhumed and dead body buried panchanama was prepared vide Ex.P/9. Seized articles i.e. slides and panty were sent for chemical examination to FSL, Ambikapur, Surguja and FSL report was obtained vide Ex.P/ 17, which do not confirm presence of human sperm on seized articles. DNA report of prosecutrix and accused/appellant was obtained vide Ex.P/33, according to which, no definitive conclusion could be given as all markers of DNA profile of Ex.C (086) were disintegrated. After investigation, charge sheet was filed against the accused/appellant under Sections 376 (2) (f) (i) (n), 506 of IPC and Section 5 (j) (ii) (l) and 6 of POCSO Act, however, the trial Court has framed the charges under Section 376 (2)(n) IPC and Sections 4, 6 of POCSO Act.

So as to hold the accused/appellant guilty, the prosecution examined as many as 23 witnesses. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal.

Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence is arbitrary and perverse. The story of the prosecution is wholly unreliable and unsustainable. The learned Court below has failed to appreciate oral and documentary evidence adduced before it. The appellant is innocent and has been falsely implicated in the crime in question. Learned counsel further submits that there is huge delay of about 7 months in lodging the FIR and no plausible explanation has been offered by the prosecution, which creates shadow of doubt in the prosecution case and therefore, the appellant is entitled for acquittal. It has been also argued by learned counsel that there is serious discrepancies in the oral statement of the witnesses and documentary evidence with regard to the age of the prosecutrix. The sentence awarded by the learned trial Court is only on the basis of assumption and presumption of fact which is not sustainable in the eye of law. Mere omnibus allegation does not create an offence. The main witnesses have not supported the case of the prosecution. It has been also submitted that the prosecution story is wholly improbable and concocted and furthermore DNA report is also not supported the case of the prosecution. Therefore, this appeal may be allowed and the appellant is liable to be acquitted of the charges levelled against him. In support of his submission, learned counsel placed reliance on the decision of Hon’ble Apex Court in the matter of Sunil Vs. State of Haryana reported in AIR 2010 SC 392 : 2009 AIR SCW 7656.

On the other hand, supporting the impugned judgment it has been argued by learned State counsel that the prosecution has proved its case beyond reasonable doubt and this appeal has no merit and is liable to be dismissed.

We have heard learned counsel for the parties and perused the material available on record.

The learned trial Court framed charges against the accused/ appellant under Section 376(2)(N) of the IPC and Sections 4 & 6 of the POCSO Act.

Since the prosecutrix was minor, the Court below put certain general questions to her in order to satisfy itself that she is able to understand the questions and answer the same rationally and after recording its satisfaction as to the competence of the prosecutrix to give evidence, proceeded to record her evidence without swearing on oath.

As per the prosecution case, at the time of incident, the prosecutrix was aged around 14 years.

Prosecutrix (PW/3) has stated in her evidence that she had gone to her elder sister’s house as she was about to deliver a child. She had stayed there for about one month. During her stay at her elder sister’s house, accused/appellant, who is brother-in-law (Dewar) of his sister PW/5, used to commit forcible sexual intercourse with her at night. This witness has further stated that after one month she came back to her house and thereafter she delivered a girl child. When the accused/appellant denied the paternity of her child and did not keep her with him, she lodged the FIR against the appellant. This witness, in para 5 of her cross-examination, has stated that the accused/appellant used to do bad work and molest her & she did not disclose about this to anyone. The aforesaid evidence of Prosecutrix (PW/3) goes to show that she keep relation with the accused/appellant in night many times and she did not tell anyone about the said relation and when she became pregnant and delivered a girl child, she narrated the incident to her family members.

PW/1, who is mother of the Prosecutrix, has stated in her examination-in-chief that age of her daughter Prosecutrix (PW/3) is 14-15 years. In cross-examination, this witness has admitted that she forgot the date of birth of her daughter. PW/2, who is father of the Prosecutrix, has stated in his cross-examination that it is true that he is telling approximate age of his daughter to be 13 years.

PW/5, who is the elder sister of Prosecutrix (PW/3), has not supported the case of the prosecution and turned hostile1. In her cross-examination, she admitted that when her sister Prosecutrix was staying in her house, the accused/appellant, who is her brother-in-law (Dewar), used to visit her house, but she did not know that the accused/appellant used to commit forcible sexual intercourse with her sister at night extending threat. When this witness was cross-examined by defence counsel, she states that nobody told her that who is the father of her sister's child and she also states that on being asked by police she also stated that she has no information about the incident. It is pertinent to mention that this witness has also not stated anything about the date of birth of Prosecutrix (PW/3).

PW/6-Ramnath, PW/7 – Ramdin and PW/8 – Lalwa, who are the relatives of Prosecutrix, have stated in their statements that they came to know about the incident when Prosecutrix (PW/3) delivered a child and the Prosecutrix was saying that the accused/appellant is the father of her child. It is also pertinent to mention here that these witnesses have also not stated about the date of birth of the Prosecutrix and they only stated that the Prosecutrix was aged around 16 years.

Though the prosecution has come out with the evidence of PW/1-Mother, PW/2 – Father of the Prosecutrix, PW/3-Prosecutrix, PW/5-elder sister of Prosecutrix, PW/6, PW/7 and PW/8, relatives of the Prosecutrix, we find that the Prosecutrix never disclosed the incident to anyone till delivery of girl child and after seven months of the alleged incident when she delivered a child, she narrated the incident to her parents and relatives that the accused/appellant is father of her child, which renders it highly doubtful. Further, these witnesses, much particular the parents of the Prosecutrix, have not stated about the exact date of birth of the prosecutrix and only stated that the Prosecutrix is approximately aged around 16 years. Therefore, the question of determination of age of the Prosecutrix (PW/3) is very significant in the present case.

In this regard, the prosecution has examined PW/19-Surendra Kumar Singh, Principal of Government Primary School, Gudrupara, District Korea. This witness has stated that in the School Admission Register (Ex.P/22), at Sl. No.120, the date of birth of the Prosecutrix is recorded as 20.03.2003, the date of admission in class-1 is written as 03.07.2008 and date of leaving of school is recorded as 18.06.2013. The true copy of registered is Ex.P/22-C and he admitted his signature on 'A to A' and 'B to B' part. This witness has admitted his signature on 'A to A' part of class 5th result of the Prosecutrix. This witness, in para 6 of his cross-examination, has admitted this fact that entry of date of birth of the Prosecutrix was not made by him in the school admission register and the same might have been done by teacher Tiwari or some other teacher as at the relevant time he was posted as Principal.

The Hon'ble Supreme Court in the matter of Sunil (supra), held in para 31, 32 and 33, which read thus :-

“31. The School Leaving Certificate produced by the prosecution was also procured on 12.09.1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable.

The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged School Leaving Certificate on the basis of which the age was entered in the school was not produced.

Bishan, PW8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on a approximate date.

In the instant case also, Surendra Kumar Singh (PW/19) has not made entry in the school admission register. He stated that Assistant Teacher namely Tiwari has been working in the school since 2005, who, on his instruction, fills the details in school admission register but the prosecution did not examine the said Assistant Teacher Tiwari or any other Teacher/author who made entry in the school admission register. This witness has admitted in para 5 of his cross-examination that he did not sign on school admission register before putting seal and he put the seal after being demanded by the Police Station – Kelhari. Even the PW/1-Mother and PW/2-Father of the Prosecutrix, have not been able to narrate the exact date of birth of the Prosecutrix in their evidence. That apart, the prosecution has not conducted ossification test of the prosecutrix to determine her age. Therefore, looking to the evidence of PW/1-mother, PW/2 – father of Prosecutrix and PW/19-Surendra Kumar Singh, Principal, age of the prosecutrix is not proved beyond reasonable doubt. In absence of any incriminating evidence regarding date of birth of the Prosecutrix (PW/3), it would be very difficult to arrive at finding that the Prosecutrix was minor at the time of incident.

So far as paternity of the deceased child is concerned, in this case, DNA test was conducted and according to the DNA report (Ex.P/33), no definite conclusion could be given as all the marker of D.N.A. profile in Ex. C-086 (prosecutrix's dead child which was exhumed) were not received.

In cases where there is so much discrepancies in prosecution case, the Hon'ble Supreme Court in the matter of Sunil (supra) has held in para 34, which read as under :-

“34. On consideration of the totality of the facts and circumstances of the case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunae in the prosecution version. The appellant is clearly entitled to benefit of doubt.

In the instant case, the conduct of the Prosecutrix (PW/3) clearly goes to show that she was a consenting party to the act of the appellant. She did not tell anyone about the incident for long time and when accused denied the paternity of her child and denied to keep her with him, the prosecutrix disclosed the incident to her parents and then the report came to be lodged. The DNA report is also in favour of the accused/appellant but the learned trial Court, ignoring all these material aspect of the matter, convicted the accused/appellant relying upon the testimony of the Prosecutrix (PW/3) and recorded the finding that the Prosecutrix (PW/3) is below 18 years of age and convicted him.

Looking to the evidence of prosecution witnesses and the conduct of the Prosecutrix (PW/3), the prosecution has utterly failed to prove the age of the Prosecutrix. That apart, the DNA report also do not supports the case of the prosecution. As such, it would be unsafe to convict the accused/appellant as there are much lacuna in the prosecution version and the appellant is clearly entitled to receive benefit of doubt.

Consequently, the appeal filed by the appellant deserves to be allowed and is hereby allowed. The impugned judgment of conviction and order of sentence is set aside. The accused/appellant is acquitted of the charges levelled against him. The accused/appellant is in jail. He be released forthwith, if not required in any other case.

The appellant shall execute bail bonds and two sureties each in the like amount to the satisfaction of the Trial Court concerned as required by Section 437-A of Cr.P.C.

Let a copy of this judgment and the original record be transmitted  to  the  trial  Court  concerned  for  necessary information and compliance.