SH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN v. State Of Chhattisgarh Through
Case Details
1 2025:CGHC:9408 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 481 of 2022 Umesh Kumar @ Bablu Joshi S/o Birbal Joshi Aged About 27 Years R/o Village Sahawada, Police Station - Narharpur, District - Kanker (Chhattisgarh) Presently Residing At Shivnagar, Kumhari, District - Durg Chhattisgarh. AKHILESH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN ... Appellant(s) versus State Of Chhattisgarh Through - Police Station - Kumhari Distrtict Durg Chhattisgarh. ... Respondent(s) For Appellant(s) :
Legal Reasoning
Mr. Anmol Sharma, Advocate. For Respondent(s) : Mr. Bharat Gulbani, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 24/02/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.01 of 2025, which is second application under Section 430 of the BNSS, 2023 for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is 2 heard finally. 2. 3.
Decision
Accordingly, I.A. No. 01 of 2025 stands disposed of. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 01.02.2022 passed by the Additional Sessions Judge, Fourth Fast Track Court, Special Court – (Protection of Children from Sexual Offences Act, 2012) Durg, District – Durg (C.G.) in Special Sessions Trial (POCSO Act) No. 298/2019, whereby the appellant/accused has been convicted and sentenced in the following manner with a direction to run both the sentences concurrently. CONVICTION SENTENCE U/s 6 r/w Section 18 of Rigorous Imprisonment for 10 years Protection of Children with fine of Rs.5,000/-, in default of from Sexual Offences Act, payment of fine additional SI for 02 2012. months. Section 8 of Protection of Rigorous Imprisonment for 05 years Children from Sexual with fine of Rs.3,000/-, in default of Offences Act, 2012. payment of fine additional SI for 01 month. 4. Case of the prosecution, in brief, is that the complainant (PW-01) resides in Shivnagar, Kumhari, with her parents and older brother, and attends third grade at Saraswati Primary School, Kumhari. On 10.12.2019, the complainant's father left for Hirapur, Raipur, for 3 tailoring work, while her mother went to Kumhari for labor around 9:30 am. The complainant remained at home with her 12-year-old brother. The accused then took the complainant to the rooftop of his rented house and removed her clothes, including her underwear, and his pants. He touched her body with his hands and, with the intention of dishonoring her, held her down and lay on top of her. At that moment, witness Ramkumar Soni arrived on the rooftop, prompting the accused to quickly put on his pants and jump down from the rooftop, fleeing the scene. Subsequently, the complainant put on her clothes and informed Ramkumar Soni about the incident. Later, when her parents returned from work, she reported the incident to them. Thereafter, the complainant's (PW-02) submission of a written complaint (Ex.P-11) at Kumhari Police Station on 11.12.2019, Sub-Inspector Meeluram Kanwar recorded the First Information Report (Ex. P-12). On 12.12.2019, an inspection of the crime scene was conducted, and a site map (Ex.P-06) was prepared based on the complainant's statements. Witness statements were recorded as per their accounts. For the preparation of the site map, an application (Ex.P-18) was sent to the Tehsildar, Dhamdha to record the complainant's statement under Section 164 of the CrPC, an application (Ex.P-19) was submitted to the court of the Chief Judicial Magistrate, First Class. An application was also sent to the Child Welfare Committee, Durg. The accused was arrested (Ex.P- 20) and their family members were informed about the arrest. On 23.12.2019, the complainant's father submitted a progress report, and items were seized (Ex.P-03) in the presence of witnesses. The 4 principal of Saraswati Primary School, Kumhari, presented the admission and withdrawal register, which was seized (Ex.P-05) in the presence of witnesses. Subsequently, the charge-sheet was submitted to the court of Additional Sessions Judge, First FTC, Special Judge (POCSO Act), Durg, and the case was transferred for trial, receiving court on 22.02.2020. The accused denied committing the crime voluntarily and sought defense. In his statement under Section 313 of the CrPC, he categorically denied the entire prosecution narrative and claimed to be innocent. 5. Prosecution in order to prove its case examined as many as 11 witnesses and exhibited 20 documents i.e. Exs. P-1 to P-20, the accused has not examined any witness in his defence. 6. The learned Additional Sessions Judge, Fourth FTC, Durg (C.G.) after appreciating oral and documentary evidence available on record vide impugned judgment dated 01.02.2022 convicted and sentenced the appellant as mentioned in opening paragraph of this order. Feeling aggrieved by the said judgment, the instant appeal under Section 374(2) of CrPC has been filed by the appellant. 7. Learned counsel for appellant would submit that he is not pressing this appeal so far as it relates to conviction part of impugned judgment is concerned and is confining his argument to the quantum of sentence only. He submits that though the conviction and sentence of the applicant was made under Section 6 read with Section 18 of the POCSO Act for 10 years, but even if the statement of the victim recorded before the trial Court is taken at its face value, 5 the case would not travel beyond the scope of Section 7/8 of POCSO Act. He also submits that the applicant has already served out 5 years and 2 months of jail sentence out of 10 years imposed by the trial Court, hence his conviction be altered to Section 7/8 of the POCSO Act and he be sentenced to the period already undergone by him. 8. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the allegations levelled and conduct of the appellant, leniency should not be shown to appellant. 9. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 10. Though learned counsel for appellant has not challenged conviction of the appellant and confined his prayer only with regard to reduction of sentence as undergone, but still this Court deems it appropriate to examine the impugned judgment of the trial Court. This Court has meticulously perused impugned judgment and evidence on record. 11. Now the question arises for consideration would be whether the present case comes within the purview of Section 7/8 of the POCSO Act or not as urged by learned counsel for the appellant. 12. The learned trial Court has convicted the appellant under Section 6 read with Section 18 of the POCSO Act and sentenced him to undergo RI for 10 years and to pay fine of Rs.5,000/-, in default of payment of fine, additional SI for two months. 13. Section 6 of the POCSO Act reads as under :- 6 “6. Punishment for aggravated penetrative sexual assault.—(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 14. The most important witness of the incident, the victim (PW-1) has stated in her main examination that she recognized the accused. Her evidence is that she was playing in the house, then the accused Bablu came to her house and saying “Come, he will take her to the terrace” and took her to the terrace and removed her panty, then slept on her. Her brother’s friend saw and told her brother (PW-5), then her brother (PW-5) called the mobile uncle, then on asking the name of mobile uncle, the victim told his name as Rajkumar Soni. Her brother (PW-5) and the mobile uncle went to the terrace, then the accused ran away from the terrace on seeing the mobile uncle. 15. Thus, the victim (PW-1) has shown in her main examination that on the date of incident, while she was playing in the house, the accused came and took her to the terrace saying “Come, he will take her to the terrace” and removed her panty and slept on her. Apart from this, on the suggestion of the accused in paragraph 14 of the cross- examination, the witness has stated in response to the question that the accused had not removed her clothes either, but the witness has 7 clarified in his own statement that the accused had removed her panty and the accused had opened the zip of his pant. There is no allegation of any penetrative sexual assault. Further, in MLC report (Ex.P-16) conducted by Dr. B. Saxena (PW-10), no definite opinion regarding sexual intercourse has been given. 16. Section 7 of the POCSO Act reads as under :- “7. Sexual assault.—Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” 17. Section 8 of the POCSO Act reads as under :- “8. Punishment for sexual assault.—Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.” 18. Considering the statement of the victim recorded before the trial Court, it transpires that the present case comes within the purview of Section 7/8 of the POCSO Act and the learned trial Court has committed grave illegality in convicting the accused/appellant under Section 6 read with Section 18 of the POCSO Act. 19. In view of the same, conviction of the appellant awarded by the trial Court under Section 6 read with Section 18 of the POCSO Act is hereby altered to Section 7/8 of the POCSO Act and he is sentenced to undergo RI for 5 years. The fine sentence imposed by the learned trial Court shall remain intact. 8 20. In the result, the appeal is partly allowed to the extent indicated hereinabove. 21. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ramesh Sinha) Chief Justice Akhil