Nafr High Court
Case Details
1 2025:CGHC:29190 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1636 of 2022 Manrakhan Sori S/o Ram Kishan Sori Aged About 37 Years R/o Limaudhih, P.S. Daundi, District Balod, Chhattisgarh. versus ... Appellant State of Chhattisgarh Through P.S. Daundi, District Balod, Chhattisgarh. ... Respondent For Appellant : Mr. Dharmesh Shrivastava, Advocate For Respondent/State : Mr. Bharat Gulbani, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 30/06/2025 1. Though the present appeal has been listed today for hearing on I.A. No. 02 of 2024, which is an application for compounding the offence under Section 320(5) of the Cr.P.C., on the ground that the complainant and the appellant belong to the same village and the complainant has denied the allegations levelled against the appellant, considering the nature of the allegations and the evidence on record, I am not inclined to allow the application (I.A. No. 02 of 2024), as the offence is not compoundable. 2. Accordingly, I.A. No. 02 of 2024 stands dismissed. RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 2 3. The appellant has been in jail since 07.02.2021. With the consent of learned counsel for the parties and considering the period of detention undergone by the appellant, the Court proceeds to hear the matter finally. 4. On 25.04.2025 this Court passed the order which is quoted hereinbelow: “None appears on behalf of the appellant to press this appeal when the case is called out.
Legal Reasoning
Mr. Bharat Gulbani, learned Panel Lawyer, appearing for the respondent/State. The accused/appellant has caused appearance by Mr. Shyamlal Thakur, Jailer, Central Jail, Durg through video conferencing and on a pointed query being made to the appellant as to why the earlier counsel are not representing, he stated that he wants to change the counsel, for which he prays for and is allowed two weeks’ time to appoint new counsel of his own choice. List this case again on 10th June, 2025. It is made clear that, if the applicant fails to engage a counsel within the said time period, amicus-curiae would be appointed by the Court as he is in jail since 2012 and the maximum sentence awarded to him for offence under Section 376/511 of the IPC is rigorous imprisonment for 7 years.” 5. On 10.06.2025, this Court further passed the order which is quoted hereinbelow: “Heard Mr. Bharat Gulbani, learned Panel Lawyer, appearing for the respondent/State. 3 None appeared for the appellant to press this appeal when the case is called for hearing. From a perusal of the order dated 25.04.2025, it transpires that the accused/appellant desired to change his earlier counsel because his counsel had not been responding. Consequently, he sought time, approximately two weeks, to appoint a new counsel of his choice, which was allowed. The matter was adjourned to June 10, 2025 (today). When the matter came up before this Court today, no counsel appeared on behalf of the appellant/accused to press the present appeal. In view of this, Mr. Dharmesh Shrivastava, learned counsel, is appointed as amicus curiae to argue the present appeal of the appellant/accused, and his name shall be included in the cause list for the next date of hearing. The Registrar (Judicial) is directed to inform the appellant/accused about this order. Let the matter be listed again on 30.06.2025.” 6. Hence Mr. Dharmesh Shrivastava has been appointed as amicus curiae to argue the present matter. 7. 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 27.09.2022 passed by the learned Special Judge (POCSO Act 2012), Balod, District – Balod (C.G.) in Special Sessions Trial (POCSO Act) No. 16/2021, whereby the appellant/accused has been convicted and sentenced in the 4 following manner with a direction to run both the sentences concurrently. CONVICTION SENTENCE Under Section 363 of Rigorous Imprisonment for 03 years Indian Penal Code. with fine of Rs.1,000/-, in default of payment of fine additional R.I. for 01 month. Under Section 376/511 of Rigorous Imprisonment for 07 years Indian Penal Code. with fine of Rs.2,000/-, in default of payment of fine additional R.I. for 02 months. 8. Case of the prosecution, in brief, is that the complainant/informant is the mother of the victim, residing in village Tekadhoda, police station Daudi, district Balod, and works in agriculture. The victim is her daughter, approximately 11 years old. On February 6, 2021, at around 6 pm, the victim left home on her bicycle to sell paddy at a shop in Tedadhoda. When she didn't return even after an hour, the victim's father and some villagers went out to search for her. Upon finding the victim's bicycle and paddy bag on the roadside, the father asked an elderly man standing nearby, who then fled. The father and villagers proceeded into the forest, where they saw a man wearing a red T-shirt committing a wrongful act with the victim. The man tried to flee but fell and hit a stone, allowing the father and villagers to catch him. The victim stated that near her village, two men on a motorcycle stopped her bicycle, and the man in the red T- 5 shirt took her to the forest under the pretext of showing Surendra's house. The other man stayed near the motorcycle. The man in the red T-shirt forcibly laid her down, removed her leggings and his jeans and underwear, and committed a wrongful act with her. Based on the victim's mother's written report, Woman Inspector Padma Jagat registered a First Information Report (FIR) against the accused under sections 363, 366(A), 376 (AB), and 34 of the Indian Penal Code and sections 4 and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. After investigation, a charge sheet was filed against the accused on February 25, 2021. 9. Prosecution in order to prove its case examined as many as 12 witnesses and exhibited 38 documents i.e. Exs. P-1 to P-38, the accused has not examined any witness in his defence. 10. The learned Special Judge (POCSO Act 2012), Balod, District – Balod (C.G.) after appreciating oral and documentary evidence available on record vide impugned judgment dated 27.09.2022 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. 11. 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 376/511 of Indian Penal Code for 07 years, but even if the statement of the 6 victim recorded before the trial Court is taken at its face value, 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 more than 4 years and 5 months of jail sentence out of 7 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. 12. 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. 13. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 14. 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. 15. 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. 16. The learned trial Court has convicted the appellant under Section 376/511 of Indian Penal Code and sentenced him to undergo RI for 07 years and to pay fine of Rs.2,000/-, in default of payment of fine, 7 additional R.I. for 02 months. 17. The most important witness of the incident, the victim (PW-1) has stated that she is a student of Class 7th at Shaskiya Purva Madhyamik Shala, village Tekadhodha. She lives with her parents, grandmother, brother, and sister, and her parents and grandmother work in agriculture. On the day of the incident, she was going to sell paddy at a shop on her bicycle. When she reached halfway, two men on a motorcycle came, and the accused, Manrakhan, told her he would show her Surendra's house and took her on foot, while the other accused stood near the motorcycle. Manrakhan took her to the forest, forcibly laid her down, removed her leggings and his jeans and underwear, and committed a wrongful act with her but was unsuccessful. Meanwhile, her father and some villagers came searching for her and saw the accused trying to flee. The accused held her hand and tried to run, but her father caught him and took him to the panchayat. The victim (PW-1) further stated that she was screaming while the accused was committing the act, but he asked her to keep quiet. The victim's statement is supported by her mother (PW-2), which has not been contradicted by the accused. 18. The victim (PW-1) stated during her examination that on the date of the incident, while she was on her way to sell paddy at a shop on her bicycle, two men approached her on a motorcycle. One of them, the accused Manrakhan Sori, asked her to accompany him on the pretext of showing her Surendra’s house, while the other man remained near the motorcycle. Manrakhan then took her into the forest, forcibly laid her on the ground, removed her leggings as well 8 as his jeans and underwear, and committed a wrongful act upon her. However, the medical testimony of Dr. Pushpa (PW-7) reveals that there were no injury marks or scratches on the victim’s thighs or hips, and her hymen was found to be intact, suggesting that no act of rape or even attempted rape had occurred. Furthermore, the victim’s statement (PW-1) is not corroborated by the medical evidence, nor by the testimonies of her father (PW-3) and the independent witness Vinod Mandavi (PW-5). Additionally, defense witness Madanram also denied that any such incident took place involving the accused Manrakhan Sori and the victim. 19. 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.” 20. 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.” 21. 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 376/511 of Indian Penal Code. 9 22. In view of the same, conviction of the appellant awarded by the trial Court under Section 376/511 of Indian Penal Code 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. 23.
Decision
In the result, the appeal is partly allowed to the extent indicated hereinabove. 24. 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 Rahul Dewangan