Nafr High Court
Case Details
1 2025:CGHC:16303 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 162 of 2016 Banshibadan Mandal S/o Nitai Mandal Aged About 22 Years R/o Village Dudhpur, P.S.Chakada, District Nandiya Calcutta West Bangal, At Present Near Government Pashu Ahar, Dhamdha Naka, Dhamdha, District Durg Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, P.S. Mohan Nagar, Durg, District Durg Chhattisgarh. ... Respondent For Appellant : Mr. Praveen Dhurandhar, Advocate appears on behalf of Mr. N.S. Dhurandhar, Advocate For State : Mr. Jitendra Shrivastava, Dy. Govt. Advocate Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board (07.04.2025) 1. This appeal filed under Section 374(2) of the Criminal Procedure Code has been preferred by the appellant against the judgment of conviction and order of sentence dated 14.01.2016 passed by the learned Special Judge (F.T.C.) and Special Judge Protection of Children for Sexual Offences Act, 2012, Durg Chhattisgarh in Special Session Case No. 18/2014, whereby the appellant has been convicted and sentenced as under:- 2 Conviction Sentence Under Section 457 of Indian Penal Code R.I. for 05 years and fine of Rs. 5,000/- in default of payment of fine amount further imprisonment for 06 months. Under Section 363 of Indian Penal Code R.I. for 07 years and fine of Rs. 5,000/- in default of payment of fine amount further imprisonment for 06 months. Under Section 323 of Indian Penal Code R.I for 01 year and fine of Rs. 100/- in default of payment of fine amount further imprisonment for 03 months. Under Section 10 of Protection of Children from Sexual Offences Act, 2012 R.I. for 05 years and fine of Rs. 5,000/- in default of payment of fine amount further imprisonment for 06 months. Under Section 354 of Indian Penal Code As the appellant has been sentenced under Section 10 of Protection of Children from Sexual Offences Act, he has not been sentenced for the offences under Section 354 as mentioned in para 76 of the impugned judgment. All the sentences are to be run concurrently. 2. The prosecution story in brief, is that on 02.10.2013 at about 7’o clock the father of the prosecutrix PW-04 lodged a report against an unknown person alleging that on 01.10.2013 at about 10:30 in the night when he along with his wife, son and daughter(prosecutrix) were sleeping after having their dinner. At around 4’o clock on 02.10.2013 the watchman of Brand Rice 3 Mill came along with the prosecutrix and told her daughter was roaming in the park and the prosecutrix was not having the clothes of her lower body. On being asked the prosecutrix told that an unknown person came at night and forcefully took her with him in the Rice Mill and removed her lower body clothes. On screaming the accused person slapped her twice and ran from the spot. Upon this the complainant PW-04
Legal Reasoning
lodged an FIR. Crime was registered . During investigation the appellant was enquired and memorandum was taken and a Nokia Mobile was seized and from the place of incident a railway ticket was siezed. 3. On completion of investigation, charge-sheet was filed against the appellant before the concerned Trial Court. Charges were framed against the appellant for the offence referred to above and he denied the charges leveled against him and sought trial. 4. Prosecution in order to prove its case examined total 10 witnesses. Statement of the accused appellant was also recorded under Section 313 of CrPC in which he denied all the 4 incriminating evidences available against him, pleaded innocence and false implication. Initially the appellant was charged under Section 457, 380, 363, 323 and 354 of IPC and Section 10 of Protection of Children from Sexual offences, later on, on trial the appellant has been convicted and sentence under Section 457,363,354 and 323 of IPC and Section 10 of POCSO Act. 5. Learned counsel for the appellant would submit that the judgment, sentence and finding is against the law, facts and evidences. He stated that the learned trial court failed to appreciate that there has been immense contradiction and the statement of prosecutrix PW-01 and the complainant PW- 04. He further stated that the appellant has already remained in jail for about two years and three months. Hence he pleads to set aside the judgment passed by the learned trial court vide order dated 14.01.2016and the appellant be acquitted from all the charges leveled against him in the interest of justice. 5 6. On the other hand, learned State Counsel opposing the
Legal Reasoning
prayer of the learned counsel for the appellant, would submit that looking to offence made by the present appellant, no leniency should be shown to him. 7. I have heard learned counsel for the respective parties and perused the record with utmost circumspection. 8. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under :1. “94. Presumption and determination of age- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with inquiry under section 14 or section 36, as the case may be,without waiting for further confirmation of the age. (2). In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake process of age determination, by seeking evidence by obtaining- (i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; 6 (ii) The birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 9. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has not produced any document to prove the age of the child, such as marksheet or equivalent certificate issued by concerned educational institution where the prosecutrix was studying. No Dakhil Kharij register relating to the admission of the prosecutrix or the birth certificate has been duly produced. However PW-10 Dr. B.N. Dewangan, Radiologist in his report Ex. P-19 has clearly stated that on the basis of the said X-ray report prepared after examining the bones of the prosecutrix an opinion has been given regarding the age of the prosecutrix being 08 to 10 years , which has not been challenged by the defence in the 7 cross examination of the medical witness. Hence it is an indisputable fact the prosecutrix was a child whose age was less than 10 years at the time of incident. 10. Sec 457 of the Indian Penal Code, 1860 basically provides for offences of house-breaking by night or lurking trespasses. This section applies to classified offences which are punishable with imprisonment. Particularly, this section states that whosoever commits either lurking house-trespass, or housebreaking by night to commit any offence punishable with imprisonment, shall be punished with imprisonment up to five years, and fine. The provisions specifically mention the offences of theft in the manner that, if the house-breaking or trespass has been done with an intention to commit theft, then the term of the imprisonment may be extended up to fourteen years. The ingredients of section 457 are as under:- 1. A trespass or breaking of the house has happened. 2. The presence or attempts to enter into the house has been deliberately concealed. 3. The trespass or housebreak has been committed to giving effect commission of any crime punishable with imprisonment. 4. The housebreak or trespass has been committed for the purpose of theft. Offences under section 457 of IPC are regarded as Cognizable- Offences and arrests can be made by police without any prior permission or order of Court. The offences under the Section 457 of IPC have been categorized as 8 Non-Bailable offence. It is also regarded as the non-compoundable offences under the provisions of Cr.P.C. 11. In the present case as per the statement given by the victim that when she was sleeping at her home the accused picked her up in his hand and took her to the rice mill where he got awaked. The accused removed her lower body clothes and on screaming he pressed her mouth. Later ran away from the spot when a whistle sound came in the Rice mill. She further told that there were two people in the rice mill, to them she told that she wants to go to her grand parents house and told them the address of their home. On being asked how she came here, she narrated the same to the people of the rice mill. This fact has also been deposed by PW-01 who was the watch man of the same mill. Thus section 457 of Indian Penal Code is clearly made out against the appellant. There is no requirement of interference as it is evident that the accused appellant lured into the house of prosecutrix in order to abduct her and outrage her modesty. 9 12. Section 323 of the Indian Penal Code (IPC) deals with the accused of hurting other people intentionally. In order to be considered an offence under this section, there must be some specified conditions: a. The accused must have done it with the intention to hurt the other person. b. The hurt caused by the accused must not be severe or life-threatening. c. The act will not be counted if it is committed in the heat of passion or in self- defence. 13. Looking to the facts and circumstances of the case, it is clear that the accused has entered the house of the prosecutrix with an intention to abduct the prosecutrix and outrage her modesty. He ran away from the spot after listening to the whistle made by the watchman before which he also slapped the prosecutrix in order to stop her from screaming. Moreover it was not conducted in the heat of passion rather it was a voluntary hurt. Thus the ingredients of Section 323 of the Indian Penal Code is clearly made out against the appellant. Thus the learned trial court has rightly convicted him for the offence punishable under Section 323 of the Indian Penal Code and this court finds it inappropriate to 10 make any interference or change in the conviction made by the trial court in this section. 14. Therefore, after perusal of impugned judgment reveals that the trial court after elaborately considering the evidences of each individual material witness, has observed that prosecution has proved the case against the appellants under Section 457, 323 of IPC and Section 10 of POCSO Act. Hence, it has been observed that prosecution has proved its case beyond reasonable doubt against the appellant herein and that being the position, this court is of the considered opinion that the Trial court has not committed any error in arriving at a conclusion that appellant is guilty of the offence punishable under Section 457, 323 of Indian Penal Code and Section 10 of POCSO Act. 15. As regards the Section 363 of Indian Penal Code is concerned, Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. In the present case the accused has kidnapped the prosecutrix from her home in the middle of the 11 night. So Section 363 of IPC is clearly made out but this court is of the considered opinion that rigorous imprisonment of 07 years shall be reduced to only 05 years, looking to the fact that he has already remained in jail for near about 2 years and three months. But the fine amount i.e. Rs. 5,000/- will remain intact.
Decision
16. In the result, the appeal is partly allowed. Conviction of the appellant under Section 457 and 323 of IPC and Section 10 of POCSO is hereby afÏrmed. However, sentence of 07 years in Section 363 of IPC is reduced to only 05 years. Sentences imposed upon appellants under aforementioned Section are hereby modified and reduced as mentioned above. However, fine amount imposed on appellant in all the sections will remain the same. 17. Appellant is reported to be on bail, hence, his bail bond stands canceled and surety, if any, stands discharged. 18. Record of case be sent back forthwith with a copy of this order for information and necessary action. sd/-d (Arvind Kumar Verma) Judge Alfiza