Vidya Sagar Sahu vs State Of Chhattisgarh

Radhakishan Agrawal, J

This Criminal Appeal preferred by the appellant herein under Section 374(2) of the Cr.P.C assails the judgment of conviction and order of sentence dated 14.01.2020 passed in Special Sessions (POCSO) Case No.19/2017 by the Additional Sessions Judge, Fast Track Special Court (POCSO), Rajnandgaon (C.G.), by which, the appellant stands convicted & sentenced as under:-

Conviction

Sentence

Under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)

Life imprisonment till natural life of the appellant with fine of Rs.5,000/-, in default to pay fine, additional RI for six months.

Under Section 506 (2) of IPC

RI for 3 years with fine of Rs.5,000/- and in default to pay, additional RI for six months.

In short, the case of the prosecution is that on 22.04.2017 at around 7.00 am and before the said date, the appellant, being the father/guardian/relative of minor girl below 16 years, committed rape on the victim more than once. On the date of incident, the victim was aged 9 years. The information of which was given by the victim to her mother (P.W.9), who lodged a report in Police Station Lalbagh on 23.04.2017 stating therein that the accused/appellant, who is the step-father of the prosecutrix, used to molest and commit wrong doings with the victim. The Police registered the offence against the appellant under Sections 376, 506 IPC and 4 & 6 of POCSO Act. Thereafter, the victim was subjected to MLC and MLC report is Ex.P.4. With respect to the victim, the samples of slide, underwear, birth certificate, Dakhil Kharij register and its relevant page were seized vide Ex.P.1, P.2, P.3, P.6 and P.7. Thereafter, the appellant was subjected to medical examination and its report is marked as Ex.P.9. Vide Ex.P.10 underwear of the appellant was seized. Seized articles were sent for examination to Forensic Science Laboratory.

Statements of witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellant was charge-sheeted under Sections 376, 506 Part-II of IPC and Section 6 of the POCSO Act before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which, appellants/accused persons abjured their guilt and entered into defence by stating that they have not committed any offence.

In order to bring home the offence against the appellant, prosecution has examined as many as 13 witnesses and brought on record 31 documents whereas the appellant-accused person in support of his defence hasexhibited none nor examined any witness.

The trial Court after appreciation of oral and documentary evidence on record, convicted the appellants for the aforesaid offences and sentenced as above against which the present appeal has been preferred.

Learned counsel for the appellant would argue that the conviction and sentence of the appellant recorded by the trial Court without appreciating the evidence available on record is contrary to law. He further submits that although case of the prosecution rests upon the evidence of prosecutrix (P.W.10) and evidence of mother (P.W.9), but their evidence does not inspire confidence and untrustworthy as they turned hostile and did not support the case of the prosecution. He further submits that no DNA test was conducted in the instant case. Hence, the impugned judgment deserves to be set aside and the appellant may be acquitted of the charges.

Per contra, learned counsel for the State would argue that the conviction and sentence of the appellant is based on the evidence of mother of the proseuctrix (P.W.9) and prosecutrix herself, who have categorically stated that the appellant has committed rape on the prosecutrix and the evidence of these witnesses is also supported by the statement of grandmother (P.W.11). He would also submit that the FSL report is also positive. He would further submit that the conviction and sentence of the appellant recorded by the trial Court do not warrant any interference.

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

The question that remains for our consideration would be, whether the appellant was rightly convicted and sentenced by the trial Court for the aforesaid offences?

In the matter of Raju and others vs. State of Madhya Pradesh reported in (2008) 15 SCC 133, the Supreme Court observed that it cannot be lost sight of that rape causes distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well and held in para 11 as under:-

“11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

Yet, in another matter rendered in the case of Rai Sandeep alias Deepu vs. State (NCT of Delhi) reported in (2012) 8 SCC 21 the Supreme Court, while dealing with the acceptance of version of a prosecutrix on the face value, has held in paras 29, 30 and 31 as under :-

“29. As compared to the case on hand, we find that apart from the prosecutrix not supporting her own version, the other oral as well as forensic evidence also do not support the case of the prosecution. There were material contradictions leave alone lack of corroboration in the evidence of the prosecutrix. It cannot be said that since the prosecutrix was examined after two years there could be variation. Even while giving allowance for the time gap in the recording of her deposition, she would not have come forward with a version totally conflicting with what she stated in her complaint, especially when she was the victim of the alleged brutal onslaught on her by two men that too against her wish. In such circumstances, it will be highly dangerous to rely on such version of the prosecutrix in order to support the case of the prosecution.

30 . In the decision reported as Lalliram v. State of M.P. (2008) 10 SCC 69) in regard to an offence of gang rape falling under Section 376 (2)(g) this Court laid down the principles as under in paras 11 and 12: (SCC p. 72)

“11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra v. State of Orissa where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix's version is credible, then no corroboration is necessary. But if the prosecutrix's version is not credible then there would be need for corroboration. (See Aman Kumar v. State of Haryana.)

As rightly contended by learned counsel for the appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar case it was observed that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter case there is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial.” (emphasis added)

When we apply the above principles to the case on hand, we find the prevaricating statements of the prosecutrix herself in the implication of the accused to the alleged offence of gang rape. There is evidence on record that there was no injury on the breast or the thighs of the prosecutrix and only a minor abrasion on the right side of neck below jaw was noted while according to the prosecutrix’s original version, the appellants had forcible sexual intercourse one after the other against her. If that was so, it is hard to believe that there was no other injury on the private parts of the prosecutrix as highlighted in the said decision. When on the face value the evidence is found to be defective, the attendant circumstances and other evidence have to be necessarily examined to see whether the allegation of gang rape was true. Unfortunately, the version of the so called eye witnesses to at least the initial part of the crime has not supported the story of the prosecution. The attendant circumstances also do not co-relate to the offence alleged against the appellants. Therefore, in the absence of proper corroboration of the prosecution version to the alleged offence, it will be unsafe to sustain the case of the prosecution.”

In the matter of Sadashiv Ramrao Haldbe vs. State of Maharashtra and another reported in (2006) 10 SCC 92, while dealing with the conviction of the accused on the sole testimony of the prosecutrix, the Supreme Court held in para 9 of its judgment as under :-

“9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.”

In the light of the aforesaid principles laid down by their Lordships in the above referred matters, we shall now examine the evidence brought by the prosecution on record.

At the out set, P.W.3 Himmat Patel was examined by the prosecution to ascertain the age of the prosecutrix. He has stated that date of birth of the prosecutrix is 02.08.2007 as is evident from the certificate (Ex.P.3) issued by Municipal Commissioner, Rajnandgaon and the statement of P.W.5 Smt. Narmada Thakur, Headmistress, Primary School Kourinbhata also shows that the prosecutrix was born on 02.08.2007 as per Ex.P.6 and Ex.P.7, which is a Dakhila Kharij Register, also shows her date of birth as 02.08.2007. After appreciating the evidence of P.W.3 Himmat Patel and P.W.5 coupled with documents Ex.P.3 and P.6 as well as Ex.P.7, the trial Court found that the age of the prosecutrix as on the date of incident is 9 years 8 months and 20 days. The finding recorded by the trial Court with respect to age of the prosecutrix is a finding of fact, based on evidence, both oral and documentary, available on record.

Now, coming to the conviction of the appellant, the same is based on the statements of P.W.9, mother of the prosecutrix and P.W.10 Prosecutrix. P.W.9 has stated that she is working as maid-servant and on the date of incident when she returned, prosecutrix told her that the appellant (step-father) had held her in his arms in the morning. After hearing that, she went to the Police Station with her daughter. She has further deposed that the incident was said to have happened at 06:00 -06:30 in the morning after she left the house. However, she denied that her daughter informed her with respect to any wrong doings. Her daughter said that the appellant was dirty because he caught her. This witness has further stated that she told the police with respect to wash the under garment and gave it to the police. She has deposed further that her daughter told her that the appellant (father) caught hold her and was very dirty and after hearing this from her daughter, she has gone to the police station along with the prosecutrix. However, she has turned hostile and did not support the prosecution story.

The victim/prosecutrix was examined before the Court below as P.W.10. Before examination, certain questions were asked to her by the Court to measure her state of mind to depose, to which she replied. Thereafter, the Court below, after evaluating her intelligence came to a definite opinion that she would be able to depose independently before the Court and having been satisfied, her examination was conducted. P.W.10 prosecutrix has stated that when she refused to go to school, then the appellant caught hold of her hand in a dirty manner and asked her to go to school while scolding her and when the appellant caught hold of her hand, she felt wrong. She has stated that whatever the appellant committed with her was wrong, which was informed to her mother as by such acts of the appellant, this witness felt bad. She has further deposed that while she was sleeping, the appellant committed such acts five or six times, but she had narrated the incident on the same day. It has also been deposed by her that the appellant was trying to awake her for going to school by touching her legs while staring her, which she felt bad and this act of the appellant was informed by her to her mother. Thereafter, she came to the police station and lodged the F.I.R. against the appellant. She has deposed further that on the day when they went to report, her father started lifting her after holding her legs to go to the school and stared her and for such act of the appellant made her very bad and told her mother about the same and her mother took her to police station to make report. In para 24 of her cross-examination, she has also reiterated the same things. However, in para 25, she has admitted that she did not inform the police that appellant used to commit wrong things with her. She has also specifically denied that her father has committed intercourse with her and touched her private part by inserting his finger.

What is reflected from perusal of the aforesaid evidence is that prior to and on the date of incident, the appellant was trying to wake up the prosecutrix for going to school by lifting her and by such act of the appellant, the prosecutrix felt bad and informed the same to her mother, who, upon hearing the same, took the prosecutrix and went to the police station to lodge the report against the appellant. In examination-in-chief, she deposed about the misbehaviour of the appellant towards her and in cross-examination, in particular para 25, she has admitted that she did not inform the police that appellant used to commit wrong things with her.

Statement of Dr. Sohadra Thakur (P.W.4) shows that although she has examined the proseuctrix, but found no injury mark over the person of the prosecutrix, therefore, she has opined that there was no symptom with respect to forcible sexual intercourse, however, she has prepared four vaginal slides and sent the same for examination.

The F.S.L. report (Ex.P.31) is brought on record and as per FSL report, seminal vesicles and human spermatozoa were found on articles, which are marked as 'A', 'B' 'C'. Although the FSL report is an incriminating material produced by the prosecution, but it cannot be used against the appellant as no DNA test was conducted to prove whether seminal vesicles and human spermatozoa found on above articles are of the appellant or not. Moreover, mother of the prosecutrix (P.W.9) has also stated that she told the police that she had washed the underwear which she had given to the police. In absence of DNA report, the prosecution could not establish that the said FSL report connects the appellant with the commission of crime. This apart, the receipt of F.S.L. Ex.P.30 also shows that on 08.06.2017, three bundles/boxes/packets marked as 'A, B & C' were obtained from the Constable Vijendra Singh Thakur whereas the F.S.L.report Ex.P.31 shows that those three articles were received by the F.S.L. on 30.05.2017, but, as per letter dated 30.05.2017 of Superintendent of Police, those articles were sent to F.S.L. However, the prosecution has failed to prove that after 30.05.2017, the articles were not deposited promptly in safe custody of the F.S.L. but the same were deposited before F.S.L. on 08.06.2017, i.e., after 7 days, as is evident from Ex.P.30 and in order to ascertain this fact, said Vijendra Singh Thakur has also not been examined by the prosecution. Thus, the possibility of tampering of the articles cannot be ruled out.

It is trite law that conviction can very well be recorded on the basis of sole testimony of the prosecutrix provided such testimony inspires confidence, however, if we see the testimony of the prosecutrix, we find that the statement of prosecutrix is not reliable to base the conviction of the appellant. The evidence of P.W.9 and P.W.11, i.e., mother and grand-mother of the prosecutrix is also not reliable as they are only hearsay witnesses, therefore, their evidence cannot be the base to convict the appellant. Moreover, medical evidence also does not support the case of the prosecution. In absence of which, appellant is entitled for acquittal on the basis of benefit of doubt. The learned trial Court is absolutely unjustified in convicting and sentencing the appellant under Section 6 of the POCSO Act and 506 (2) of IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 14.01.2020 passed by the learned trial Court is liable to be set aside and the appellant is entitled to be released by giving him benefit of doubt.

In view of the aforesaid discussion, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt. Consequently, the appeal is allowed and appellant is acquitted of the said charge by extending him the benefit of doubt. Appellant is reported to be in jail. Therefore, we direct that he be released from jail forthwith, if not required in any other matter/case.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.