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
State Of Chhattisgarh, Through : The Police Station Kusmi, District
Balrampur Ramanujganj Chhattisgarh.
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
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.
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
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
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
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
10. Another relevant and main witness is Dr. Smt. Jagrani Lakda
(P.W.-8), who examined the prosecutrix on 26.01.2010 and she
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
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
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
14. Resultantly, the appeal has no merit and is dismissed
(Rajendra Chandra Singh Samant)