Korba, Chhattisgarh v. 1 State Of Chhattisgarh Through Station House Officer, Police Station Kusmunda, District Korba Chhattisgarh
Case Details
JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.07.04 10:19:10 +0530 1 / 6 CRA No. 500 of 2019 2025:CGHC:29898 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 500 of 2019 1 Basant Kumar Shrivas S/o Late Kushal Shrivas Aged About 25 Years R/o Village Newsa Chowki, Hardi Bazar, Police Station Kusmunda, District Korba Chhattisgarh., District : Korba, Chhattisgarh ... Appellant versus 1 State Of Chhattisgarh Through Station House Officer, Police Station Kusmunda, District Korba Chhattisgarh., District : Korba, Chhattisgarh (Cause title is taken from Case Information System) ... Respondent(s)
Legal Reasoning
For Appellant For Respondents/State : Mr. U.K.S. Chandel, Dy. A.G. : Mr. Aditya Khare, Advocate Hon’ble Shri Bibhu Datta Guru, Judge Order on Board 02/07/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 27.02.2019 passed in Special Criminal Case No. 33/2017 by the learned Special Judge (POSCO) Katghora, District Korba c.G. whereby the appellant has been convicted and sentenced as under:- 2 / 6 CRA No. 500 of 2019 Conviction Sentence U/s 4 of the Protection of Children from Sexual Offences Act, 2012 R. I. For 10 years & fine of Rupees 10000/- in default of fine . Additional R.I. for 2 months and out of the fine of amount Rs. 5,000/- paid by the appellant to the complainant P.W. 1 2. Case of the prosecution in brief is that the prosecutrix (PW1) along with her mother and her step father went to Hardi Bazaar for doing labourer work and lived in Javed Khan's house. On 03.09.2017 at 7 p.m. the complainant (PW1) went for a walk with her stepfather near the railway bridge on the road. Her stepfather went back after the walk and the complainant (PW1) stopped near the same bridge. After some time accused Basant Shrivas came and started talking to her and thereafter he forcibly dragged her into the jungle beneath the bridge and forcibly took off her clothes and raped her in the jungle. On hearing her screams, Javed Khan and Ankur Rathore came. Javed Khan caught hold of accused Basant Kumar Shrivas and slapped him 2-3 times, after which accused Basant Shrivas ran away from the place of incident. Javed Khan took the complainant (PW1) to her parents' house, where the complainant (PW1) told her mother and stepfather about the incident. On 5.9.2017, the complainant (PW1) along with her mother filed a report at the police station Hardi Bazaar . 3. On the basis of the said report, offence was registered against the appellant. Prosecutrix was medically examined by Dr. S. Kanwar 3 / 6 CRA No. 500 of 2019 (PW-12) and her report is Ex.P-35. Statement of the prosecutrix and other witnesses were recorded under Section 161 of the Cr.P.C. After completion of the investigation, a charge-sheet was filed. The Trial Court framed the charges under Section 376 of the IPC and Section 4of POCSO Act. To prove the guilt of the appellant, prosecution examined as many as 12 witnesses, whereas no defence witness has been examined. The appellant in his statement recorded under Section 313 of the Cr.P.C. has abjured his guilt and pleaded innocence. 4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 27.02.2019 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 5. Learned Counsel appearing for the appellant submits that appellant has been wrongly convicted by the Trial Court without there being any sufficient and clinching evidence available on record. Further, there is no conclusive evidence available on record which shows that at the time of alleged incident, prosecutrix was below 18 years of age. Therefore, conviction of the appellant under Section 4 of POCSO Act is not sustainable. Alternatively, it is argued that if the alleged incident had occurred, then considering the fact that the incident had occurred in the year 2017 i.e. prior to the amendment in the POCSO Act, the appellant may be sentenced for lesser punishment. 6. On the other hand, learned counsel for the State opposed the 4 / 6 CRA No. 500 of 2019 submission of the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. 7. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 8. Now, the first question for consideration would be what was the age of the prosecutrix (PW1) at the time of alleged incident? 9. The prosecutrix (Pw1) in her statement has deposed that at the time of incident, her age was 16 years. The above statement of this witness is not duly rebutted during her cross-examination. Mother (PW-2) of the prosecutrix has also supported the above statement of her daughter and has categorically stated that her daughter is about 15 years. Further Vikas Sharma (PW-6) stated that he is Head master of Govt Primary School, Imlibhata and deposed that the date of birth of the prosecutrix is 11.11.2005 according to the dakil kharij register. Thus, looking to the evidence both oral and documentary available on record, the Trial Court rightly arrived on the conclusion that at the time of alleged incident, prosecutrix was below 18 years of age. I hereby affirm the said finding recorded by the Trial Court which is neither perverse nor contrary to the evidence on record. 10. With regard to the alleged incident, the prosecutrix (PW-1) has categorically stated that the accused dragged her to the jungle and committed sexual assault with her. She further stated that on 5 / 6 CRA No. 500 of 2019 listening her screaming Javed came to her rescue and brought her and accused out of jungle and when she narrated Javed about the incident he slapped the accused and thereafter the accused ran away. The above statement of the prosecutrix is corroborated with the statement of Javed (PW3), who stated in his cross examination that the victim narrated about the incident and this witness slapped the accused at that time and further the step father of victim i.e. (PW-2) stated that Javed brought the accused and his daughter out of the jungle and thereafter they came back home. Thus, from the evidence available on record, it is well established that appellant had committed sexual intercourse with the prosecutrix. Looking to the entire evidence adduced by the prosecution, the Trial court has rightly convicted the appellant for the offence punishable under Section 4 of POCSO Act and accordingly, the said conviction is also affirmed by this Court. 11. With regard to the sentence, the appellant has been sentenced by the Trial Court to undergo rigorous imprisonment for 10 years and fine of Rs.5,000/-. Considering the facts that appellant has already undergone the jail sentence of about six years and four months in this case and the fact that the alleged incident occurred in the year 2017 i.e. prior to the amendment in the POCSO Act and before amendment, the minimum sentence prescribed under Section 4 of POCSO Act was 7 years, and the appellant has been sentenced for rigorous imprisonment for 10 years, which appears to be on higher side, I am of the view that the ends of justice 6 / 6 CRA No. 500 of 2019 would be served if he is sentenced with rigorous imprisonment for 7 years. Accordingly, his jail sentence is reduced to 7 years from 10 years. The fine sentence imposed upon by the Trial Court is hereby affirmed.
Decision
12. In the result, the appeal is allowed in part to the extent shown above. 13. Record of the Court below be sent back along with copy of this judgment forthwith for information and necessary action. Sd/- (Bibhu Datta Guru) Judge Gowri/ Jyoti