Suraj Kumar vs State of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 23.2.2016 passed by Additional Sessions Judge (F.T.C.), Janjgir, District Janjgir-Champa in Special Sessions Case No.87/2014, by which the appellant herein has been convicted and sentenced in the following manner:-

Conviction

Sentence

U/s 363 of IPC

R.I.  for  5  years  and  fine  of Rs.10,000/-      in      default whereof, additional R.I. for 3 months.

U/s 366 of IPC

R.I.  for  5  years  and  fine  of Rs.10,000/-      in      default whereof, additional R.I. for 3 months.

U/s 4 of POCSO Act.

Imprisonment   for   Life   and fine of Rs.20,000/- in default whereof, additional R.I. for 6 months.

Substantive sentences have been directed to run concurrently and default sentences consecutively.

Case of the prosecution, in brief, is that on 17.12.2013 at about 2-3:00 p.m. at Village Champa under Police Station Champa, District Janjgir-Champa, the appellant kidnapped the minor victim (PW-1) from the lawful custody/guardianship of her parents without their consent for the purpose of sexually assaulting her and also committed penetrative sexual assault on her; thereby committed the aforesaid offences.

Further case of the prosecution is that on 17.12.2013, when victim (PW-1) was returning from her school along with PW-3 on bicycle and they stopped near Chandra Auto Parts at about 2-3:00 p.m., at that time the appellant came there on his bicycle and forcefully abducted the victim without her consent and took her to a secluded place at Village Kurda and committed penetrative sexual intercourse on her causing bleeding from her private part and thereafter he is said to have absconded from the spot. Being seriously injured, the victim was hospitalized at B.D.M. Hospital, Champa. Thereafter, on her report, the aforesaid offences were registered against the appellant vide FIR (Exhibit P-13). Dehati Nalishi was recorded vide Exhibit P-1. The victim was medically examined by Dr. Anita Shrivastava (PW-8). According to MLC report (Exhibit P-9), injuries have been found in private part of the victim. In FSL report (Exhibit P-22), stains of semen and human sperm were not found in slide (Article 'A1') and underwear (Article ‘B') of the victim. However, in slide (Article ‘A1’) blood was found and on underwear (Article ‘B’) of the victim as well as on underwear (Article ‘E’) of the appellant, human blood of 'B' Group was found. The victim was also subjected to Test Identification Parade vide Exhibit P-2 in which the appellant was identified by her. Thereafter, the appellant was apprehended vide Arrest Memo (Exhibit P-23).

After completion of investigation, the appellant was charge-sheeted for the offence punishable under Sections 363, 366 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short, ‘POCSO Act’) before the concerned jurisdictional Criminal Court from where the case was committed to the Court of Sessions and after committal, the matter was received by the Court of Additional Sessions Judge (F.T.C.), Janjgir, for trial and its disposal in accordance with law, in which the appellant abjured his guilt, pleaded innocence and claimed to be tried.

During the course of trial, in order to bring home the offence, the prosecution has examined as many as 20 witnesses and exhibited 26 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the appellant was recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

After conclusion of the trial, the trial Court, by impugned judgment dated 23.2.2016, on appreciation of oral and documentary evidence available on record, convicted the appellant for the offence punishable under Sections 363, 366 of IPC and Section 4 of the POCSO Act and sentenced him as mentioned in para-1 of this judgement. Feeling aggrieved and dissatisfied by the said judgment of conviction and order of sentence, the present appeal has been preferred by the appellant.

Mr. Alok Tiwari, learned counsel appearing for the appellant, would submit that victim does not appear to be trustworthy, as before conducting Test Identification Parade, appellant was already shown to her by police personnel. He would further submit that even victim herself is not sure as to the offence has been committed by the present appellant or by someone else. As such, prosecution has failed to bring home the said offences beyond reasonable doubt and therefore appeal deserves to be allowed by acquitting the appellant giving him the benefit of doubt.

On the other hand, Mr. Sudeep Verma, learned Deputy Government Advocate, would submit that prosecution has been able to bring home the offences beyond reasonable doubt. He would further submit that victim was a minor girl aged about 11 years on 17.12.2013 when she was subjected to rape and FIR was lodged by her on the same day and her MLC (Exhibit P-9) is also found to be positive. He would also submits that Test Identification Parade (Exhibit P-2) has been conducted in accordance with law and considering the fact that victim is a rustic villager, appellant is not entitled to be acquitted on the basis of benefit of doubt. As such, appeal deserves to be dismissed.

We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

The victim (PW-1) has been found to be minor on the date of incident i.e. on 17.12.2013. Since victim did not know the appellant, a Test Identification Parade was conducted vide Exhibit P-2 in which she has identified the appellant herein. The victim has been examined as PW-1 on behalf of the prosecution. In her statement, she has clearly stated that she did not know the appellant prior to the incident and, on a question being asked by the Court, she has stated that only on the date of incident she had seen the appellant and he was present at the time of incident. She has further stated that name of the appellant has been informed to her by police.

Furthermore, Test Identification Parade (Exhibit P-2) was conducted on 6.1.2014 at 1:30 p.m. by Dev Singh Uikey (PW-16) preferably in the office of Tahsildar, Champa. The victim (PW-1), in her cross-examination, has clearly stated that prior to the date of incident she had not seen the appellant and FIR was lodged against the unknown person. However, in para-2 of her statement, she has stated that before Test Identification Parade, she had seen the appellant in police station and she and the appellant both were taken to the office of Tahsildar by police personnel.

In the matter of Prahalad Singh v. State of M.P. 1997 Cri. L.J. 4078, their Lordships of the Supreme Court have held that identification of accused by prosecutrix is not acceptable as accused was shown to her prior to identification; complicity of accused in offence is not established and he is entitled to acquittal.

In the instant case, as per statement of victim (PW-1), she had not seen the appellant prior to the date of incident and name of the appellant also was not known to her. Therefore, she was subjected to Test Identification Parade vide Exhibit P-2 by the Tahsildar Dev Singh Uikey (PW-16). However, as per statement of victim, she had seen the appellant in police station and both of them were taken by police personnel to the office of the Tahsildar and police personnel had already informed her about the name of the appellant being Suraj. In that view of the matter, it is nowhere established that it is the appellant who has committed sexual intercourse with victim (PW-1).

Moreover, only blood has been found in slide (Article ‘A1’) and underwear (Article ‘B’) of victim and no semen or human sperm has been found on the said  articles. Though MLC (Exhibit P-9) of victim has been found to be positive but in absence of identity of accused being established that it is the appellant who in fact is the author of crime, the trial Court is absolutely unjustified in convicting the appellant herein for the aforesaid offences.

Thus, in view of the discussion made herein above, we are unable to uphold the conviction of the appellant for the offence punishable under Sections 363, 366 of IPC and Section 4 of the POCSO Act and he is entitled to be acquitted from the said offences on the basis of benefit of doubt.

Accordingly, the impugned judgment dated 23.2.2016 passed by Additional Sessions Judge (F.T.C.), Janjgir, District Janjgir-Champa in Special Sessions Case No.87/2014, convicting the appellant for the offences punishable under Sections 363, 366 of IPC and Section 4 of POCSO Act, is hereby set-aside/quashed and the appellant is acquitted from the said offences. The appellant is stated to be in jail since 6.1.2014. He be released from jail forthwith, if not required in any other offence.

Consequently, this criminal appeal is allowed.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant is presently lodged and suffering jail sentence, forthwith for necessary information and action, if any.