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2020 DIGILAW 121 (CHH)

RAJKUMAR DHANKAR @ CHOTU v. STATE OF CHHATTISGARH

2020-01-30

ARVIND SINGH CHANDEL

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JUDGMENT Arvind Singh Chandel, J. - The instant appeal has been preferred against the judgment dated 9.3.2018 passed by the Additional Sessions Judge (FTC), Durg in Sessions Trial No.42 of 2014, whereby the Appellant has been convicted and sentenced as under: Conviction Sentence Under Section 450 of the Indian Penal Code Rigorous Imprisonment for 5 years and fine of Rs.500/- with default stipulation Under Section 6 of the Protection of Children from Sexual Offences Act (henceforth the Pocso Act) Rigorous Imprisonment for 10 years and fine of Rs.1,000/- with default stipulation 2. Prosecution case, in brief, is that on the relevant date, the prosecutrix was an about 12 years old mentally retarded girl. On 21.11.2013 at about 10:00 a.m., she was at her house along with her 5-6 years old younger sister Lokeshwari (PW6). The Appellant entered the house and asked Lokeshwari (PW6) for bringing water and thereafter he entered inside the room of the prosecutrix. He undressed the prosecutrix and committed rape with her. The incident was witnessed by Lokeshwari (PW6) from a hole of the door of that room. The incident was explained by the prosecutrix to Lokeshwari (PW6) by expressing hints. Lokeshwari (PW6) informed about the incident to her grandmother Tuman Bai (PW9). Tuman Bai (PW9) narrated the incident to other family members. On 25.11.2013, First Information Report (Ex.P12) was lodged by Khileshwar (PW7), father of the prosecutrix. Since the prosecutrix was a mentally retarded girl, S. Asha (PW1), a teacher of Mand Buddhi Vidyalaya, Sneh Sampada, Durg recorded her statement (Ex.P2) by understanding her hints. The prosecutrix was medically examined by Dr. Smita Choudhary (PW4). Her report is Ex.P9. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed against the Appellant. Charges were framed against him. 3. In support of its case, the prosecution examined as many as 10 witnesses. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. In his defence, he examined 2 witnesses. 4. On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellant as mentioned in the first paragraph of this judgment. Hence, this appeal. 5. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. In his defence, he examined 2 witnesses. 4. On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellant as mentioned in the first paragraph of this judgment. Hence, this appeal. 5. Learned Counsel appearing for the Appellant submitted that without there being any clinching evidence on record against the Appellant, the Trial Court has wrongly convicted him. It was further submitted that the prosecutrix has not been examined before the Trial Court nor has her statement been recorded by the police under Section 161 of the Code of Criminal Procedure. There is no documentary evidence available on record on the basis of which it could be said that the prosecutrix was a mentally retarded girl. Therefore, non-examination of the prosecutrix before the Court is fatal to the case of the prosecution. It was further submitted that though teacher S. Asha (PW1) recorded the statement (Ex.P2) of the prosecutrix, the prosecutrix never went to the school of the said teacher for studying and the said teacher had never met with the prosecutrix earlier and there is no detail given by the teacher on record that what hints of the prosecutrix were understood by her and how. From perusal of the statement (Ex.P2) of the prosecutrix, it reveals that this statement was recorded as was told by the younger sister of the prosecutrix. Thus, from the statement (Ex.P2) also, the prosecution does not get any help and, therefore, this statement is not reliable. According to the prosecution, the sole eyewitness is Lokeshwari (PW6), younger sister of the prosecutrix. On the relevant date, Lokeshwari (PW6) was aged about 5 years. Her statement was recorded before the Court on 6.1.2016. In her cross-examination, she has categorically admitted that the Appellant had committed wrong act with the prosecutrix was to be told before the Court. She has further admitted in paragraph 7 of her deposition that such statement was to be given before the Court was also told by her father. Thus, it is clear that Lokeshwari (PW6) is a tutored witness and, therefore, her statement also cannot be relied upon. It was further submitted that Tuman Bai (PW9), grandmother of the prosecutrix has also developed her statement on material points and, therefore, her statement is also not reliable. Thus, it is clear that Lokeshwari (PW6) is a tutored witness and, therefore, her statement also cannot be relied upon. It was further submitted that Tuman Bai (PW9), grandmother of the prosecutrix has also developed her statement on material points and, therefore, her statement is also not reliable. From the statement of Dr. Smita Choudhary (PW4) and the medical examination report (Ex.P9) of the prosecutrix, it is also established that hymen of the prosecutrix was old ruptured and no definite opinion could be given by the doctor regarding recent sexual intercourse with the prosecutrix. Therefore, the Appellant committed any aggravated penetrative sexual assault on the prosecutrix is also not established. Therefore, the finding of the Trial Court is perverse and not sustainable. 6. Learned Counsel appearing for the State/Respondent supported the impugned judgment of conviction and sentence. 7. I have heard Learned Counsel appearing for the parties and perused the record with due care. 8. According to the prosecution, the prosecutrix is a mentally retarded girl. Therefore, I shall first consider this point. The sole eyewitness, i.e., Lokeshwari (PW6) is younger sister of the prosecutrix. She has deposed that the prosecutrix cannot speak properly. She is unable to understand anything. Khileshwar (PW7), father of the prosecutrix has also deposed that the prosecutrix is not able to read and write and, therefore, she was got admitted in 6th Class. He has further deposed that according to the doctor, the prosecutrix suffers from 60% mental retardness. She speaks very little and expresses herself by giving hints and she speaks with children. 9. Munnalal (PW8), a resident of the same village has deposed that the prosecutrix is able to speak and hear, but he is not aware whether she is able to understand or not. 10. Tuman Bai (PW9), grandmother of the prosecutrix has deposed that the prosecutrix understands little things. She is not able to understand everything, but she is able to hear. 11. Apart from the above oral statements of the witnesses, there is no material on record regarding mental retardness of the prosecutrix. Though father of the prosecutrix Khileshwar (PW7) has stated that the doctor has told 60% mental retardness of the prosecutrix, no medical document has been produced in this regard nor has any doctor been examined to establish this fact. The prosecutrix has also not been produced before the Trial Court. Though father of the prosecutrix Khileshwar (PW7) has stated that the doctor has told 60% mental retardness of the prosecutrix, no medical document has been produced in this regard nor has any doctor been examined to establish this fact. The prosecutrix has also not been produced before the Trial Court. The Trial Court has also not made any observation on this point that the prosecutrix is a mentally retarded girl. If the prosecutrix had been produced before the Trial Court, the Court would have made an observation in this regard saying that the prosecutrix is a mentally retarded girl or not. As provided in Section 118 of the Indian Evidence Act, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. According to the explanation to Section 118, a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. But, in the instant case, the prosecutrix has not even been produced before the Trial Court. Therefore, whether the prosecutrix was able to give her statement before the Court or not, no observation in this regard has come forward by the Trial Court. Therefore, there is no material available on record on the basis of which it could be established that the prosecutrix is a mentally retarded girl. 12. The statement (Ex.P2) of the prosecutrix was recorded by S. Asha (PW1), a teacher of Mand Buddhi Vidyalaya, Sneh Sampada, Durg. The statement (Ex.P2) reads as under: 13. According to teacher S. Asha (PW1), she recorded the statement (Ex.P2) of the prosecutrix as was told by the prosecutrix and as per the hints given by her. What hints and how those hints were given by the prosecutrix, nothing in this regard has been stated before the Court by S. Asha (PW1). ^^ena cqf) ckfydk b'kkjs vLi"V Hkk"kk vuqlkj fuEu dFku nh gS%& In the statement (Ex.P2), it is written by S. Asha (PW1) that ^^,slk mldh NksVh cgu dk dguk gSA^^ . What hints and how those hints were given by the prosecutrix, nothing in this regard has been stated before the Court by S. Asha (PW1). ^^ena cqf) ckfydk b'kkjs vLi"V Hkk"kk vuqlkj fuEu dFku nh gS%& In the statement (Ex.P2), it is written by S. Asha (PW1) that ^^,slk mldh NksVh cgu dk dguk gSA^^ . In last part of Ex.P2, it is written by S. Asha (PW1) that From the above, it seems that the prosecutrix had given her statement (Ex.P2) both by speaking and by giving hints. It also reveals that S. Asha (PW1) recorded the statement (Ex.P2) as was told by younger sister of the prosecutrix Lokeshwari (PW6) also. Thus, the statement (Ex.P2) does not inspire confidence of this Court. 14. Now, I shall examine the other evidence available on record with regard to the alleged incident. The sole eyewitness of this case is Lokeshwari (PW6), who is younger sister of the prosecutrix. Lokeshwari (PW6), in her Court statement, has deposed that on the date of incident, her parents were not present at home. The prosecutrix was wearing clothes to go to school. At that time, the Appellant came there and asked this witness for fetching water. She went to fetch water for the Appellant. Thereafter, she saw that the Appellant and the prosecutrix were inside a room. Underwear of the prosecutrix was removed and the prosecutrix was weeping. On being asked, the prosecutrix put her hands on her chest and private part, but did not say anything from her mouth. After sometime, her grandmother reached there. This witness told her about the incident. A question was put to this witness by the Court against which she answered that at the time of incident, the Appellant had worn his clothes. During cross-examination, in paragraph 7, this witness has admitted that what statement was to be given in the Court was told by her father. Again in paragraph 9, this witness has further admitted that she was told by her father that she had to tell before the Court that the Appellant had committed wrong act with the prosecutrix. 15. Tuman Bai (PW9), grandmother of the prosecutrix has deposed that at 10:00 a.m., she reached home. At that time, the prosecutrix was at home and has not gone to school. Then she asked younger sister of the prosecutrix Lokeshwari (PW6). 15. Tuman Bai (PW9), grandmother of the prosecutrix has deposed that at 10:00 a.m., she reached home. At that time, the prosecutrix was at home and has not gone to school. Then she asked younger sister of the prosecutrix Lokeshwari (PW6). Lokeshwari did not tell her anything about the incident, but she told her that since the Appellant had threatened her that he will kill her, she was not telling anything to this witness. Then this witness went inside the room. At that time, she saw in the room that the prosecutrix had fallen down unconscious. During cross-examination, this witness has further deposed that at that time, the prosecutrix was lying smeared with blood on bed and she was unconscious. But, this fact is not mentioned in diary statement of this witness nor was any cloth or bed smeared with blood seized. As opined by Dr. Smita Choudhary (PW4), hymen of the prosecutrix was old ruptured. She found that no bleeding or injury was present in the private part or over any other part of the body of the prosecutrix. Dr. Smita Choudhary (PW4) could not give any definite opinion regarding recent sexual intercourse with the prosecutrix. Thus, it is established that Tuman Bai (PW9), grandmother of the prosecutrix has fully developed her statement before the Court. 16. On a minute examination of the evidence available on record, it is established that though sole eyewitness Lokeshwari (PW6), younger sister of the prosecutrix has stated about the incident, she is a child witness. From her statement, she seems to be a tutored witness. She has admitted that she stated before the Court as was asked by her father. Thus, her statement is not reliable. Tuman Bai (PW9), grandmother of the prosecutrix has also developed her statement before the Court on material points and, therefore, her statement is also not reliable. The prosecutrix has not been examined before the Court nor was her statement taken by the police under Section 161 of the Code of Criminal Procedure. Her statement (Ex.P2) recorded by teacher S. Asha (PW1), as discussed above, is not reliable. It is also not established that the prosecutrix is a mentally retarded girl and she was not able to give her statement before the Court. From the statement of Dr. Her statement (Ex.P2) recorded by teacher S. Asha (PW1), as discussed above, is not reliable. It is also not established that the prosecutrix is a mentally retarded girl and she was not able to give her statement before the Court. From the statement of Dr. Smita Choudhary (PW4), it is also established that hymen of the prosecutrix was old ruptured and no bleeding or injury was found in her private part or over any other part of her body. No definite opinion could be given by Dr. Smita Choudhary (PW4) regarding recent sexual intercourse with the prosecutrix. Therefore, a sexual assault or an aggravated penetrative sexual assault or a penetrative sexual assault was done on the prosecutrix is prima facie not established. In these circumstances, according to Section 29 of the Pocso Act, no presumption can be drawn against the Appellant. 17. Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charges framed against him. 18. Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.