Nafr High Court
Case Details
1 CRA No.537 of 2016 SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.07.08 10:45:45 +0530 2025:CGHC:30355 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 537 of 2016 1 - Nilambar Alias Paklu S/o Khemraj Barik Aged About 21 Years R/o Village Badedhabha Police Station Basna, District Mahasamund, Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Police Station Basna, District Mahasamund, Chhattisgarh. , Chhattisgarh ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s)
Legal Reasoning
: Mr. Shivbhan Singh Banjare, Advocate on behalf of Mr. Ravi Kumar Bhagat, Advocate For Respondent(s) : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 03/07/2025 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 31.03.2016 passed in Special Criminal Case No. H-59/2015 by the learned Additional Sessions Judge (FTC)/ Special Court (POCSO Act) 2 CRA No.537 of 2016 Mahasamund, District Mahasamund, C.G., whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 8 of the POCSO Act Rigorous imprisonment for 03 years and fine of Rs. 500/- with default stipulation. U/s 454 of the IPC Rigorous imprisonment for 03 years and fine of Rs. 500/- with default stipulation. U/s 506 of the IPC Fine of Rs. 500/- with default All the sentences were directed to run concurrently. stipulation. 2. Case of the prosecution in brief is that on 10/10/2015 in village Badedhabaa (around 06:00 AM), Accused/appellant by climbing over the boundary wall of the victim’s house reached before the victim when she was going for answering nature’s call; hold her hand with bad intention; and offered her to elope with him on which the victim screamed and raised alarm and on hearing the same, parents and brother-in-law of the victim reached the spot. Thereafter on the Complaint of the victim, police has registered an FIR bearing Crime No. 295/2015 against the appellant. 3. During investigation, Spot Map (Ex.P/3) was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Article- A1 C) was seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge- sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges 3 CRA No.537 of 2016 were read out and explained to the appellant, he denied committing the crime and demanded trial. 5. In order to bring home the offence, the prosecution has examined 11 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 31.03.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. He would submit that the medical report is not supported the version of the prosecution. According to the learned counsel only to harass the appellant the false case has been foisted against him and without there being any cogent and clinching evidence and, as such, the conviction of the appellant is bad in the eyes of law. 8. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the 4 CRA No.537 of 2016 appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 9. 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. 10. The very first question for consideration is whether the accused trespass into the house of the victim with the intention of outraging her modesty. 11. PW/1 -victim in her statement categorically stated that she knows the accused Nilambar. She stated that on the date of incident, the accused came to her house; climbing over the boundary wall of her house; held her hand and arm with bad intentions; and the accused told her that he loves her and further the accused offered her to elope with him on which, she screamed loudly, then her father , brother-in-law and mother came. Her father tried to catch the accused, but he jumped over the wall and ran away. In cross-examination, the victim denied the fact that her family did not talk to the accused because of an old dispute between him and her family, rather she voluntarily said that after this incident, they have stopped talking to him. 12. PW/2 – father of the victim has stated in his deposition that he knows the the accused. He stated that upon hearing the screaming of his daughter he instantly went towards the garden and saw that the accused ran over from there by jumping over the wall. In his cross-examination, he categorically stated that no one has seen the accused entering his house. 5 CRA No.537 of 2016 13. Perusal of the above statements, it is crystal clear that the trial Court has rightly appreciated the evidence and the statements of the prosecution witnesses and the charges leveled against the appellant under Section 454 & 506 of the IPC is held reliable against the appellant. So far as the conviction of the accused is under Section 454 & 506 of the IPC is concerned, it is apparently clear from the prosecution witnesses and the version of the prosecution that the appellant had trespassed the house of the victim by climbing over the wall of the house of the victim with bad intentions and also threatened her that if she could not elope with him he will kill her parents and, therefore, his conviction under Sections 454 & 506 of the IPC is sustained and, in the opinion of this Court, the offence under Sections 454 & 506 are hereby affirmed. 14. As far as the question of age of the victim is concerned, PW/8 – Assistant Teacher (LB) posted in Primary School, Badedhabha has stated in his cross-examination that in the Dakhil Kharij register (Article- A1 C), he has not recorded the date of birth of the victim and he further submits that he cannot tell who recorded the entry in the register. PW/2 – Father and PW/3 – mother of the victim both stated that they are illiterate and unable to tell their daughter’s correct age and also stated that the date of birth was being recorded on assumptions. The victim herself stated regarding her age that she has given her date of birth as 10- 06-1998 on the basis of her mark sheet. From the above, it appears that the age of the victim on the date of incident is more than 16 years and less than 18 years. 6 CRA No.537 of 2016 15. The next question for consideration is whether the accused sexually assaulted the victim or not. 16. PW/3- mother of the victim has stated in her deposition that when her daughter was questioned about the incident, her daughter told that the accused was holding her hand and arm and was saying that he will kill her parents. Apart from this, she did not tell anything else about the incident. She in her cross-examination categorically stated that when the accused reached in the garden of her house, the accused was stood near her daughter. She further stated that she did not see that the accused caught hold up her daughter’s hand. 17. Upon cumulative analysis of evidence on record, I am of the view that this was a case which deals Section 11 of the POCSO instead of Section 8 which outlines sexual harassment of a child specifically actions that constitute acts involving words, sounds, gestures, or objects with sexual intent, showing body parts, displaying pornographic material, stalking, and threatening with depictions of sexual acts. Under these circumstances, this Court is of the the opinion that this is a fit case to impose conviction upon the appellant for the offence punishable under Section 11 of the POCSO Act instead of Section 8 of the POCSO Act and the appellant is sentenced to undergo to the period already undergone by him i.e. 5 months 9 days (13-11-2015 to 22-4-2016). However, the fine amount imposed by the learned trial Court shall remain unaltered. 18. Accordingly, the conviction of the appellant under Section 454 & 506 of the 7 CRA No.537 of 2016 IPC is upheld and the conviction imposed under Section 8 of the POCSO Act is altered to Section 11 of the POCSO Act and he is sentenced under the aforementioned Sections to undergo to the period already undergone by him. 19.
Decision
For the foregoing reasons, the appeal is allowed in part by holding that the sentence already undergone by the appellant is sufficient and adequate in the facts and circumstances of the case. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. 20. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. S. Bhilwar/ Gowri Sd/- (Bibhu Datta Guru) Judge