Nafr High Court
Case Details
1 CRA No. 982 of 2019 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.01.21 17:06:07 +0530 2025:CGHC:2579 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 982 of 2019 (Arising out of judgment dated 27.04.2019 passed in Special th Additional Sessions Criminal Case No.277/2017 by the 7 Judge, Raipur, District Raipur, Chhattisgarh.) Shashi Bhoi S/o Lalit @ Dhiriram Bhoi, R/o Borgaon, Police Station Sinhapali, District Balangir (Odisha), at present behind B.K. Niketan School, V.I.P. Road, Telibandha, Raipur, Chhattisgarh. versus ... Appellant State of Chhattisgarh through the Station House Officer, Police Station Telibandha, Raipur, District Raipur Chhattisgarh. ... Respondent For Appellant
Legal Reasoning
:- Mr. Varunendra Mishra, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For Respondent :- Mr. Rahul Tamaskar, Government Advocate. Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 15/01/2025 1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and 2 CRA No. 982 of 2019 order of sentence dated 27.04.2019 passed by the 7th Additional Sessions Judge, Raipur District Raipur, Chhattisgarh in Sessions Trial No.277/2017 whereby the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 376(2)(i)/511 of the IPC & under Section 6 read with Section 18 of the POCSO Act. [However, punished only Under Section 6/18 of the POCSO Act, as the same is higher in degree to that of Section 376(2) (i)/511 of the IPC] Sentenced to undergo rigorous imprisonment for 10 years and pay fine of 1,000/-; in default of payment of fine amount, rigorous additional imprisonment for 1 months ₹ 2. The case of the prosecution, in a nutshell, is that on 06.07.2017 at about 3:00 pm, when mother of the victim (PW-1) came home after doing her work, she did not see the victim (PW-2) in the house, therefore, she went outside in search of her daughter (victim). Looking for her daughter, she (PW-1) reached near the spot where Bharat (PW-3), Ankit (not examined), Pitambar (not examined) and Shiva Yadav (not examined) called her, who were witnessed the incident, then she saw her daughter crying. Victim (PW-2) has stated about the incident to her mother (PW-1). The said incident was reported by the mother of the victim (PW- 1) to the police pursuant to which FIR was registered vide 3 CRA No. 982 of 2019 Ex.P/1. Crime detail form was prepared vide Ex.P/2. Victim (PW-2) was medically examined by Dr. Padmaja Dubey (PW- 7) who prepared the medical report of the victim vide Ex.P/20. As per medical report of the victim (Ex.P/20) no sign of forceful sexual intercourse was found so no definite opinion has been given by the doctor (PW-7). As per the birth certificate of the victim (Article-AC), seized vide Ex.P/5, her date of birth is 30.01.2012, meaning thereby, age of the victim was about 6 years at the time of incident, which was supported by the statement of mother of the victim (PW-1). Under wear of the victim and the appellant were seized vide Exs.P/4 & P/13, respectively. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/19) on article B (underwear of the appellant) stains of semen and human sperm were found. 3. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 7 4 CRA No. 982 of 2019 witnesses; exhibited 21 documents and Article-AC whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 6. Mr. Varunendra Mishra, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence under Section 6 read with Section 18 of the POCSO Act. He would also submit that in absence of medical evidence the appellant could not be convicted. In alternative, he would further submit that as per the finding recorded by the trial Court the the appellant has only attempted to commit the offence and, therefore, he may be awarded sentence to undergo the 5 CRA No. 982 of 2019 period already undergone by him for offence under Section 376(2)(i) read with Section 511 of the IPC [however Section 376(2)(i) has been omitted by Act 22 of 2018 w.e.f. 21.04.2018] and he is in jail since 07.07.2017. Thus, the present appeal deserves to be allowed in full or part. 7. On the other hand, Mr. Rahul Tamaskar, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence, therefore, the instant appeal deserves to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. The finding recorded by the trial Court is that the appellant has attempted sexual intercourse with the minor victim and relied upon the statements of mother of the victim (PW-1), victim (PW-2) and eye witness Bharat Bharti (PW-3) which, in my opinion, is the correct finding of fact based on evidence available on the record which is neither perverse nor contrary to the records. 6 CRA No. 982 of 2019 10. Now, the question for consideration would be whether on the basis of the finding recorded by the trial Court that the appellant has attempted sexual intercourse with the minor victim and for that the appellant has rightly been convicted for offence under Section 376 (2)(i) read with Section 511 of the IPC & Section 6 read with Section 18 of the POCSO Act ? 11. A careful perusal of the order of the trial Court would show that the appellant has been convicted for offence under Section 376(2)(i) read with Section 511 of the IPC & Section 6 read with Section 18 of the POCSO Act and awarded sentence for offence under Section 6 read with Section 18 of the POCSO Act to undergo rigorous imprisonment for 10 years. However, considering the facts and circumstances of the case and evidence available on record and also considering the submissions raised on behalf of learned counsel for the parties on question of sentence and further considering the finding recorded by the trial Court in paragraph No.31 of its judgment that the appellant has only attempted to commit the sexual intercourse and even otherwise, since the punishment under Section 511 of the IPC can be awarded to the term which may extent to one-half of the imprisonment for life 7 CRA No. 982 of 2019 or, as the case may be, the appellant is sentenced to undergo rigorous imprisonment for 5 years for offence under Section 376(2)(i) read with Section 511 of the IPC [Section 376(2)(i) has been omitted by Act 22 of 2018 w.e.f. 21.04.2018]. However, the conviction for offence under Section 6 read with Section 18 of the POCSO Act, is unmerited the as the prosecution has failed to bring home the offence beyond reasonable doubt against the appellant accordingly, the conviction as well as sentence for offence under Section 6 read with Section 18 of the POCSO Act are set aside. 12. This criminal appeal is partly allowed. 13. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be sent to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Ankit Sd/- (Sanjay K. Agrawal) Judge