Mungeli, Chhattisgarh v. State Of Chhattisgarh Through Police Station Ajak Mungeli, District
Case Details
1 2025:CGHC:36646 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.1705 of 2022 Manoj Kashyap S/o Ramavatar Kashyap Aged About 35 Years R/o Teliyapuran, P. S. Jarhagaon, District : Mungeli, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Police Station Ajak Mungeli, District : Mungeli, Chhattisgarh ... Respondent For Appellant :Shri Akhilesh Mishra, Advocate. For Respondent/State :Shri DR Minj G.A along with Smt Neeta T. Thawani, PL. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 28.07.2025 1. This Appeal has been preferred under Section 374(2) Cr.P.C, 1973 arising out of the judgment of conviction and order of sentence dated 28.10.2022 passed by the Special Judge (FTC), Digitally signed by SISTLA NEELIMA VISHNU PRIYA Date: 2025.07.29 17:05:00 +0530 2 Prevention of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) Mungeli, District Mungeli in Special Criminal Case No.25/2021 whereby, the accused/Appellant has been convicted under Section 10 of POCSO Act r/w Section 354 IPC and sentenced to undergo RI for 5 years with fine of Rs.2,000/- plus usual default stipulation.
Legal Reasoning
2. Briefly stated, the facts of the case are that on 30.05.2021, at about 7 pm, the accused/Appellant has committed sexual assault on the Victim (PW-1), who is six years old and on the next day i.e. 31.05.2021, father of the victim (PW-4) has filed a written report (not proved) wherein, it has been alleged that on the date of incident i.e. 30.05.2021, at about 7 pm, the accused/Appellant came to him and they both consumed liquor and thereafter, he (father [PW-4]) went into the house and slept. It is further alleged by the father (PW-4) of the victim that the accused/Appellant, with an intention to commit sexual intercourse with his daughter/victim (PW-1), removed her underwear and tried to commit sexual intercourse with her which has been seen by his elder daughter (PW-5) and thereafter, the accused/Appellant left his motorcycle at his house and fled away from the spot. Based on such information, FIR (Ex.P-4) has been registered. Statement of the minor victim (PW-1) was recorded under Section 164 Cr.P.C by the JMFC, Mungeli (Ex.P-1) and as the victim belongs to Scheduled 3 Caste/Scheduled Tribe Category, therefore, her caste certificate (Article-’A’) was seized (Ex.P-2). The victim (PW-1) was medically examined (Ex.P-3) by Dr. Chitralekha Verma (PW-6) who found no external injury over her body. For determination of age, Dr. CP Mishra, Radiologist (not examined during trial) has given his report (Ex.P-5) wherein, it was mentioned that age of the victim (PW-1) is about 6-8 years. Crime details form was prepared (Ex.P-6). Adhaar card of victim (PW-1) was seized by the Investigating Officer Raj Kumar Sahu (PW-7) in which, her date of birth has been recorded as 02.07.2015 and motorcycle of the accused/Appellant was also seized (Ex.P-7) from the house of the Complainant/father (PW-4) of the victim. 3. After completion of investigation, charge sheet has been filed. In order to prove its case, the prosecution has examined as many as 8 witnesses and exhibited 15 documents (Ex.P-1 to P-15) as also Article ‘A’, which is the caste certificate of victim (PW-1). Statement of the accused/Appellant was recorded under Section 313 Cr.P.C in which, he denied the charges levelled against him and pleaded innocence and has not adduced any witness in his defence. 4. After evaluating the evidence, the trial Court, vide its impugned judgment, has acquitted the accused/Appellant under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes 4 (Prevention of Atrocities) Act, 1989 and convicted him for the remaining offence as mentioned hereinabove. Hence this Appeal.
Legal Reasoning
5. Learned Counsel for the Appellant submits that the trial Court has not appreciated the evidence in its proper perspective and no independent witness has been examined. He further submits that about 50 meters from the spot of incident (Spot map [Ex.P-6]), a dasgaatra ceremony was being held at the house of one Badku, and therefore, it is likely that independent witnesses would have been present there and near the aforesaid map, the house of Budhram and Devki Bai was also located, however, the prosecution has shown no interest in examining any witness from there. He further submits that the foundation of the written report has not been proved by the prosecution and the Radiologist, who has given his report (Ex.P-5) has not been examined either. He further submits that albeit the victim's father (PW-4) has categorically admitted that the accused/Appellant went to the police station on the day following the incident, but he denied his claim that while consuming liquor, he (father [PW-4]) took out an amount of ₹30,000 from his pocket. He further submits that when the accused/Appellant questioned the victim's father (PW-4) about the said amount, the latter turned the tables and fabricated a false story against him. He lastly submits that the trial Court has, based on presumptions, without considering the aforesaid infirmities, convicted the accused/Appellant, which is bad in law and prays to 5 allow the Appeal. 6. Alternatively, learned State Counsel has supported the impugned judgment and submitted that the trial Court is justified in convicting the accused/Appellant and the prosecution has proved its case beyond all reasonable doubt, therefore, the judgment impugned is well merited and does not call for any interference. He submits that the mother (PW-2) and father (PW-4) of the victim have categorically stated about the age of the victim (PW-1) in their statements, which has been unrebutted in their cross-examination. He further submits that the prosecution has successfully established the age of the victim (PW-1), and that the victim's (PW-1) testimony regarding the incident is also reliable. 7. Heard learned Counsel for the parties and gone through the record including the judgment impugned carefully. 8. Father of the victim (PW-4) has deposed that on the date of incident, at about 7.30 to 8 pm, the accused/Appellant has come to his house and they both had consumed liquor together. He has further deposed that the Appellant has come along with his daughter and after consuming liquor, father of the victim (PW-4) went to his old house and the accused/Appellant also returned to his house along with his daughter. The case of the prosecution has allegedly happened at about 7 pm, but the father (PW-4) of the 6 victim categorically admits that the Appellant has come along with his daughter and went away at the same time. The father (PW-4) of the victim has further deposed that on the next morning only, his wife (PW-2), his brother (PW-3) and other family members have informed him about the said mishap and also informed him that when his elder daughter witnessed the incident and raised an alarm, the accused/Appellant has fled away. This witness has further deposed that he has given a written information about the incident at police station Jarhagaon, but the prosecution, for the reasons best known to it, has not proved the said document during trial. This indicates that there is a lapse on the part of the prosecution as the foundation of the criminal case, which has been initiated by filing a written complaint, has not been exhibited during the trial. 9. In the FIR (Ex.P-4), it has been stated that the accused/Appellant tried to commit sexual intercourse with the victim (PW-1) but no such fact has been stated by the victim herself and she has only stated that after removal of her underwear, the Appellant touched her private part. Further, at the time of incident, by chance, the mother (PW-2) of the victim who went to the house of Badku for dasgaatra ceremony, sent her elder daughter (PW-5) to the house where the victim (PW-1) was sleeping to check on her as to whether she slept or not and she 7 (PW-5) found therein that the accused/Appellant has removed the skirt and underwear of the victim (PW-1) and was trying to sleep over her and when she (PW-5) raised an alarm, then her mother (PW-2) and other family members came over and the accused/Appellant fled away from the spot. The mother (PW-2) of the victim has also deposed that when she reached the spot, the accused/Appellant was running away whereas, the accused/Appellant has taken a specific defence in his cross- examination that at the relevant time, he was consuming liquor with the father (PW-4) of the victim and was having Rs.30,000/- in his pocket but the father (PW-4) of the victim has denied the fact that he took out his money from the pocket of accused/Appellant, who was under intoxication. But this witness (PW-4) has admitted the fact that the accused/Appellant has gone to the police station wherein, he was arrested (Ex.P-8) on the evening of next day i.e. 31.05.2021 at 18.30 hrs. Monika Singh Parihar (PW-8) has stated that she was not aware of the fact that the accused/Appellant has reached police station to complain that his money has been stolen from his pocket by the family members of the victim (PW-1). Raj Kumar Sahu (PW-7) has also denied that he called the family members of the victim (PW-1), who have stated that there was a dispute with regard to money that they have taken out the money from his pocket. Father (PW-4) of the victim has stated that on the 8 next morning of the alleged incident, the accused/Appellant also went to the police station but the Officer, who was present there has not stated anything about it. 10. Looking to the facts and circumstances of the case as stated above, the following things have to be taken into consideration; firstly, the written complaint which is the basis of the prosecution case has not been proved; secondly, the manner in which the offence has been committed and the timing of the incident are also cloudy as the accused/Appellant has come to the victim’s (PW-1) place along with his daughter and returned to his house and thirdly, father (PW-4) of the victim has admitted the fact that on the next morning, the accused/Appellant has gone to police station with a specific defence that he was in a highly intoxicated condition after consuming liquor and in such condition, his money was removed from his pocket. In hindsight, the investigation appears to have overlooked critical evidence that could have strengthened the case and more likely, the said defence can be justified as at the relevant time, he (accused/Appellant) himself was present there along with the father (PW-4) of the victim and as such, the possibility of money being removed from his pocket by the family members of the victim (PW-1) cannot be ruled out. Furthermore, there exist several inconsistencies concerning the manner in which the incident is described in the FIR (Ex.P-4) as well as the statement of 9 victim (PW-1) and her sister (PW-5). Although the house of the victim (PW-1) was near the house of Badku where the dasgaatra ceremony was held and yet, no independent witness has been examined during trial. 11. In view of the foregoing, this Court is of the considered opinion that there is no wholly reliable evidence available on record which can justify the conviction of the accused/Appellant, therefore, I do not find it apposite to hold that the prosecution has established the guilt of the accused/Appellant beyond all reasonable doubts. In these circumstances, benefit of doubt must go to the accused/Appellant. 12. Accordingly, the instant Appeal is allowed and the conviction and sentence imposed upon the accused/Appellant under Section 10 of POCSO Act r/w Section 354 IPC is hereby set aside and he is acquitted of the said charge. He is reported to be in jail. He be set at liberty forthwith, if not required in any other case. Sd/- (Deepak Kumar Tiwari) Judge Priya