Chattisgarh High Court
Milap vs State Of Chhattisgarh on 14 July, 2023
Neutral Citation
2023:CGHC:17824
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1424 of 2018
• Milap, S/o Dashrath Satnami, Aged About 31 Years, R/o Kirkar, Police
Station Malkharoda, District- Janjgir-Champa, Chhattisgarh.
---- Appellant
Versus
• State of Chhattisgarh Through- The Station House Ofcer, Police Station
Malkharoda, District- Janjgir-Champa, Chhattisgarh.
---- Respondent
For Appellant : Shri Basant Dewangan, Advocate For State/Respondent : Shri Anurag Verma, P.L. Hon'ble Shri Justice Arvind Singh Chandel Order on Board 14/07/2023
1. This appeal has been preferred against the judgment dated 03.05.2018 passed in Special Sessions Case No.26/2016 by the First Additional Sessions Judge, Sakti, District - Janjgir-Champa, Chhattisgarh, whereby the appellant has been convicted for the ofence punishable as mentioned below:
Conviction Sentence
U/s 454 of Indian Penal Code R.I. for three years and fne of
Rs.1,000/-
U/s 323 of the Indian Penal Code R.I. for one year
U/s 8 of Protection of Children R.I. for 5 years and fne of from Sexual Ofences Act, 2012 Rs.2,000/- with default Neutral Citation 2023:CGHC:17824 2 stipulations U/s 6 of Protection of Children R.I. for ten years and fne of from Sexual Ofences Act, 2012 Rs.5,000/- with default stipulations All sentences are directed to run concurrently
2. According to the case of prosecution at the relevant point of time age of the prosecutrix/victim girl (PW-2) was about 10 years. It is further case of the prosecution that on 12.08.2016 at about 3:00 PM, when the prosecutrix was along in her house, at that time, the appellant was drunk and he entered into her house and with intention to outrage her modesty, caught hold her hands and tried to do wrongful act with her. The incident was witnessed by the cousin of the prosecutrix, and on seeing her, the appellant fed away from the spot. On 17.08.2016, a written report (Ex.P-1) was lodged by the mother of the prosecutrix and on the basis of said written complaint, FIR (Ex.P-2) was registered under Section 354, 354(A)(1), 323 of the IPC and Section 8 of POCSO Act. Statement of the prosecutrix as well as other witnesses were recorded under Section 161 of the Cr.P.C. After completion of the investigation, charge-sheet was fled and Trial Court framed charges under Sections 454, 354(A), 506, 323 of the IPC and Section 8 of the POCSO Act. To prove the guilt of the appellant, the prosecution has examined as many as 8 witnesses, whereas no defence witness has been examined by the appellant. The appellant in his statement recorded under Section 313 of the Cr.P.C. has abjured his guilt and pleaded innocence. Neutral Citation 2023:CGHC:17824 3
3. After completion of the trial, on 28.03.2018 fnal argument was concluded by both the parties and matter was fxed by the Trial Court for pronouncement of judgment on 06.04.2018. On 06.04.2018 application under Section 216 of the Cr.P.C. has been fled by the prosecution which has been allowed by the Trial Court vide its order dated 19.04.2018 and framed additional charges against the appellant under Section 6 of POCSO Act and alternatively, Section 376/511 of the IPC. Thereafter, again an opportunity was given to the prosecution and defence both for adducing their evidence and fnally after hearing the parties, vide impugned judgment dated 03.05.2018 the order of conviction and sentence as mentioned in paragraph one of this judgment has been passed, against which this appeal has been preferred by the appellant.
4. Learned Counsel appearing for the appellant submits that appellant has been wrongly convicted by the Trial Court without there being any sufcient and clinching evidence available on record. It is argued that incident occured on 12.08.2016 and written complaint was lodged by the mother of the prosecutrix on 17.08.2016 and delay in lodging the written complaint has not been duly explained. He further submits that in the written complaint as well as in the statements of the witnesses recorded under Section 161 of the Cr.P.C., mother of the prosecutrix, prosecutrix herself and other witnesses have only stated that on 12.08.2016 the appellant entered in the house of the prosecutrix and there he abused her, caught hold her hand and tried to outrage her modesty, they have not stated anything regarding allegation of sexual assault or attempt to commit Neutral Citation 2023:CGHC:17824 4 rape with the prosecutrix. However, during trial prosecutrix and other witnesses developed their statements and on the basis of their developed statements, the trial Court framed additional charges under Section 6 of POCSO Act and Section 376/511 of the IPC and thereby, passed the impugned judgment fnding the appellant guilty which is not in accordance with law. It is further argued that if the entire statements given by the witnesses before the trial Court is taken as it is, no ofence of aggravated penetrative sexual assault is established. Further, considering the fact that appellant has already undergone more than fve years in jail in this case, it is prayed that he may be sentenced for the period already undergone by him.
5. Per contra, learned Counsel appearing for the State supported the impugned judgment and submits that the sentence awarded by the Trial Court is just and proper and requires no interference.
6. I have heard learned Counsel appearing on behalf of the parties and perused the record minutely.
7. The trial Court has relied upon the statements of mother of the prosecutrix and other documentary evidence available on record and arrived at the conclusion that at the time of incident prosecutrix was below 12 years of age which is based upon evidence available on record which in my considered opinion is a correct fnding of fact and it is neither perverse nor contrary to the record and accordingly, I hereby afrm the said fnding.
8. With regard to the incident, the prosecutrix (PW-2) in her Court statement has deposed that on the date of incident when she was Neutral Citation 2023:CGHC:17824 5 alone in her house and cleaning the utensils, at that time the appellant entered in her house and caught hold her hand, and thrown her on the foor, then removed her clothes and tried to commit wrongful act with her. She further deposed that when her cousin returned to home after school, she saw them, then appellant fed away from the spot. The above statement of this witness was duly corroborated by her cousin who is also a minor girl, aged about 12 years. This witness only stated that when she entered in the room, she saw that appellant was tring to do wrongful act with the prosecutrix, thereafter, she came out from there and appellant also fed away from there. This witness has not stated that at that time the prosecutrix was undress and appellant was on the top of the prosecutrix. Mother of the prosecutrix has also deposed that when she reached at the house, then prosecutrix informed her that appellant came inside her house, removed her clothes and tried to do wrongful act with her. On the basis of the said statements made by these witnesses, the trial Court has framed additional charges and found the guilt of the appellant for the ofence under Section 6 of the POCSO Act and alternatively, Section 376/511 of the IPC.
9. On a Minute examination of the stament of above witnesses, clearly shows that though in their Court statements they have stated that the appellant entered in the house of the prosecutrix, then removed her clothes and being on top tried to commit wrongful act with her but this fact has not been mentioned in their diary statement as well as in written complaint (Ex.P-1) which was recorded by mother of the proseuctrix. The said written complaint was made after a gap of Neutral Citation 2023:CGHC:17824 6 about 5-6 days from the date of incident. Thus, there was sufcient time available with the mother of the prosecutrix to lodge the complaint as per the occurence of incident. But she has not mentioned in her written complaint that on the date of incident the appellant removed the clothes of the prosecutrix and was trying to commit wrongful act. Thus, it is clear that on this particular point, the prosecutrix as well as other witnesses have developed their statements and deposed accordingly. Even if the statement of prosecutrix (PW-2) and contents of the written complaint is taken as it is then also it is established that the appellant had only caught hold the proseuctrix and laid on her top.
10. Now the question for consideration would be whether the act committed by the appellant comes under penetrative sexual assault as defned under Section 3 of the POCSO Act or sexual assault as defned under Section 7 of POCSO ActF
11. To deal with this question, it would be appropriate to reproduce Section 3 and 7 of the POCSO Act which is as under:
"3. Penetrative sexual assault.- A person is said to commit "penetrative sexual assult" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or Neutral Citation 2023:CGHC:17824 7 any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
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."
12. On careful examination of the statement of prosecutrix (PW-2), it is clear that the appellant has not done such act which would fall under penetrative sexual assault. Rather it is established that the appellant with sexual intent, caught hold the prosecutrix and developed physical contact with her only. Therefore, in my considered view, the act committed by the appellant falls within the ambit of sexual assault which is defned under Section 7 of the POCSO Act which is punishable under Section 8 of the POCSO Act.
13. Resultantly, the conviction of the appellant under Section 6 of POCSO Act and alternatively under Section 376/511 of the IPC are set aside. However, conviction of the appellant for rest of the ofences are afrmed.
14. With regard to the sentence of the appellant under Section 8 of the POCSO Act, provides maximum sentence for fve years for ofence of sexual assault as defned under Section 7 of POCSO Act. The appellant has already undergone more than fve years in this case, Neutral Citation 2023:CGHC:17824 8 therefore, appellant is sentenced to the period already undergone by him. Ordered accordingly.
15. The appellant is reported to be in jail. He be released forthwith, if not required in any other case.
16. In the result, the appeal is allowed in part to the extent shown above.
17. Record of the Court below be sent back along with copy of this judgment forthwith for information and necessary action.
Sd/-
(Arvind Singh Chandel) Judge Prakash