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Mahfooz Miyan vs State Of Chhattisgarh 11 … on 14 September, 2018

Page No.1

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment Reserved on : 07.09.2018

Judgment Delivered on : 14/09/2018

CR.A. No. 705 of 2015

Mahfooz Miyan, S/o. Jainul @ Jainu, Aged About 23 Years, R/o. Village
Amtahi, Police Station Kusmi, District Balrampur -Ramanujganj
Chhattisgarh.
—- Appellant
Versus
State Of Chhattisgarh, Through : The Police Station Kusmi, District
Balrampur Ramanujganj Chhattisgarh.
—–Respondent

For Appellant : Mr. S.C. Verma, Advocate
For Respondent/State : Mr. Ashok Swarnakar, Panel Lawyer

Hon’ble Shri Justice Rajendra Chandra Singh Samant

C A V JUDGMENT

14/09/2018

1. This appeal has been preferred against the judgment of

conviction and order of sentence, passed by the Special Judge,

Surguja, Ambikapur, District – Sarguja (C.G.), in Special

Sessions Trial No.29/2011 on 29.05.2015 convicting the appellant

for the offence under Section 376 of the Indian Penal Code and

sentencing him to under go R.I. for 10 years along with fine of

Rs.5,000/- and in default of payment of fine, the appellant is

required to further under go R.I. for 1 year separately.
Page No.2

2. Facts

of the case in brief is this that on 24.01.2010, at about 7.00

PM, the appellant came in a jeep and asked the prosecutrix,

aged 11 years, who belongs to scheduled tribe to show the house

of Samrath Nageshiya. The prosecutrix accompanied her in that

jeep and she was forcefully taken to a lonely place, where she

was raped by the appellant. After lodging of the FIR, the case

was investigated and the charge-sheet was filed before the

concerned Court.

3. Appellant was charged with offence under Section 376 of the

Indian Penal Code and Section 3 (ii) (v) of Scheduled Castes and

Scheduled Tribes (Prevention of Atrocity) Act. The appellant

denied the charges and prayed for trial. The prosecution

examined as many as 10 witnesses on its behalf. On examining

the appellant under Section 313, he denied all the incriminating

evidence against him and pleaded innocence and false

implication. No witness was examined in defence. On completion

of trial, judgment has been delivered, in which the appellant

stands convicted and sentenced as mentioned aforesaid.

4. It is submitted by the learned counsel appearing on behalf of the

appellant that the trial Court has passed totally erroneous

judgment of conviction without there being any basis of reliable

and cogent evidence in support of the charge. The prosecutrix

herself has not identified the appellant in the Court. The

witnesses examined by the prosecution are not reliable and their
Page No.3

evidence could not have been formed the basis for conviction

against the appellant. In the alternative, it is prayed that in case,

this Court is not inclined to allow this appeal and acquit this

appellant, then this Court may be pleased to reduce the sentence

of imprisonment imposed upon the appellant.

5. Counsel for the State opposes the grounds raised in appeal and

the submissions made in this respect. It is submitted that the

prosecution has proved its case beyond all reasonable doubt.

The identity of the appellant has been clearly established in the

evidence and all the witnesses have clearly supported the case

of the prosecution. Hence there is no room for interference in the

impugned judgment, hence, the appeal be dismissed.

6. I have heard the learned counsel for the parties and perused the

record of the Court below.

7. The prosecutrix (P.W.-1) is 11 years old girl. She identified the

appellant, when he was produced in custody, but could not

recollect his name. She has stated that on the date of incident,

the appellant asked her to show the house of of Samrath and

then she sat in the vehicle to show his asked address.

Subsequent to that, appellant took her near river and then raped

her, this she has described very clearly in her statement. In

cross-examination, she is bit shaken about identification of the

appellant and then stated that she did not know the name of the

appellant earlier. She is a child witness. Questions put to her by
Page No.4

defence counsel may show that she has shaken little, but there is

no clear admission made by her, that appellant was not the

person who has raped her.

8. Prosecutrix (P.W.-1) is also lodger of FIR (Ex.P-1). There is no

such admission or contradictory statement in her cross-

examination against the content of the FIR. Recording of FIR has

been proved by A.S.I., Madwar Ram (P.W.-10), which has not

been challenged in his cross-examination. FIR (Ex.P-1) is clearly

named FIR against the appellant, which is a strong circumstance

against the appellant.

9. Another important witness of identification, Sukhram (P.W.-2) is

father of the prosecutrix, who has stated that after he came to

know about the incident, he asked Mannu Miya to present his

driver and on seeing the driver of Mannu Miya, the prosecutrix

identified him as the person who had raped her. This witness has

partly supported the prosecution case and the statement

regarding the identity of the appellant by the prosecutrix, has

remained un-rebutted in his cross-examination. Baldev Nagesiya

(P.W.-3) and Samrath Nagesiya (P.W.-4) are hearsay witnesses.

Additional Superintendent of Police, S.R. Diwan (P.W.-5) is the

investigation officer, who has proved the investigative

procedures.

10. Another relevant and main witness is Dr. Smt. Jagrani Lakda

(P.W.-8), who examined the prosecutrix on 26.01.2010 and she
Page No.5

made assessment of her age about 10 years. On examining her

private parts, she found her hymen torn in two places and it was

painful. She prepared two vaginal slides and advised for FSL

examination vide her report Ex.P-15. She has given this opinion

that the prosecutrix was raped. Her statement has remained un-

rebutted in cross-examination.

11. Smt. Savitri Baghel (PW.-9) is the Head Mistress of Primary

School, Rajendrapur. She has given statement before the Court

on the basis of the school register, the date of birth of the

prosecutrix according to the school admission register (Ex.P-16)

was 26.06.1999. Her statement has remained unchallenged in

her cross-examination.

12. According to proof of school admission register, and the un-

rebutted statement of Sukhram (P.W.-2) and also the assessment

made by the Dr. Smt. Jagrani Lakada (P.W.-8), it is clearly

established that the age of the prosecutrix on the date of incident

was about 10-11 years.

13. After scrutinizing and analyzing all the evidence present on

record of this case, I am of this opinion that the prosecution has

proved its case beyond all reasonable doubt. The evidence of the

prosecution witnesses inspire full confidence of the Court. The

age of the prosecution had been about 10-11 years and she was

raped on the date of incident by this appellant undoubtedly.

According to the existing provisions of Section 376 of the Indian
Page No.6

Penal Code, on the date of incident, the punishment for rape with

female child of below 12 years of age was not less than 10 years.

Hence, it appears that the trial Court has imposed minimum

sentence upon the appellant. Therefore, on the basis of these

findings, I am of this opinion that there is no room for interference

in the conviction and the sentence passed by the trial Court in the

impugned judgment.

14. Resultantly, the appeal has no merit and is dismissed

accordingly.

1. Sd/-

(Rajendra Chandra Singh Samant)
Judge

Balram

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