Chattisgarh High Court
Gulshan Suryavanshi @ Gulshan ... vs State Of Chhattisgarh on 17 August, 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.7 of 2021
Judgment Reserved on : 28.7.2021
Judgment Delivered on : 17.8.2021
Gulshan Suryavanshi @ Gulshan Kumar Suryavanshi, age about 23 years,
son of Shri Harprasad Suryavanshi, R/o Kisan Parsada, P.S. Masturi, District
Bilaspur, Chhattisgarh
---- Appellant
versus
State of Chhattisgarh through the Station House Officer, Police Station
Masturi, District Bilaspur, Chhattisgarh
--- Respondent
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For Appellant : Shri A.N. Bhakta, Advocate
For Respondent : Shri H.S. Ahluwalia, Dy. Advocate General
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Hon'ble Shri Justice Arvind Singh Chandel
C.A.V. JUDGMENT
1. This appeal has been preferred against judgment dated 23.12.2020
passed by 1st F.T.S.C. (Pocso)/Additional Sessions Judge, Bilaspur
in Special Sessions Trial No.261 of 2015, whereby the Appellant
has been convicted and sentenced as under:
Conviction Sentence
Under Section 294 of the Fine of Rs.1000, in default of
Indian Penal Code payment thereof, 3 months
rigorous imprisonment
Under Section 323 of the Fine of Rs.1000, in default of
Indian Penal Code payment thereof, 3 months
rigorous imprisonment
Under Section 506 Part II 3 years rigorous imprisonment
of the Indian Penal Code and fine of Rs.1000, in default
of payment thereof, 6 months
rigorous imprisonment
Under Section 377 of the 10 years rigorous imprisonment
Indian Penal Code and fine of Rs.2000, in default
of payment thereof, 2 years
rigorous imprisonment
Under Section 6 of the 10 years rigorous imprisonment
Protection of Children and fine of Rs.2000/- in default
from Sexual Offences Act, of payment thereof, 2 years
2012 (henceforth 'the rigorous imprisonment
Pocso Act')
All the jail sentences are
directed to run concurrently
2. In this case, age of the victim boy (PW1) was about 8 years.
According to the case of prosecution on 1.7.2015 at about 11 am
the victim boy had gone to purchase some grocery to a grocery
shop. At that time, allegedly, the Appellant dragged the victim boy
nearby one room adjoining to the said grocery shop and committed
unnatural mouth sex by entering his male organ into the mouth of
the victim boy. It was further alleged that at that time the Appellant
also abused the victim boy filthily and threatened him of life on
making report. The incident was witnessed by friends of the victim
boy Suresh (PW5) and Vishnu (PW6). At the time of incident Akriti
(PW13) reached the spot and knocked the door of the said room on
which the Appellant opened the door and ran away from there.
Since the Appellant had threatened the victim boy of his life on
making a report, he did not disclose the incident at his house.
When the friends of the victim boy Suresh (PW5) and Vishnu
(PW6) disclosed the incident at the house of the victim boy, then he
also told about the incident at his house. Thereafter elder brother
of the victim boy made a written complaint (Ex.P3) on 4.7.2015. On
the basis of Ex.P3, First Information Report (Ex.P4) was registered.
Statements of the victim boy and other witnesses were recorded
under Section 161 of the Cr.P.C. Medical examination of the victim
boy was conducted by Dr. S.K. Sinha (PW10). His report is
Ex.P10. On completion of investigation, charge-sheet was filed
against the Appellant. The Trial Court framed charges.
3. To bring home the offence, the prosecution examined as many as
14 witnesses. Statement of the Appellant was also recorded under
Section 313 of the Cr.P.C. in which he denied the guilt, pleaded
innocence and false implication. No witness has been examined in
his defence.
4. On completion of the trial, the Trial Court convicted and sentenced
the Appellant as mentioned in 1 st paragraph of this judgment.
Hence, this appeal.
5. Learned Counsel appearing for the Appellant submitted that without
there being clinching evidence available on record the Appellant
has been wrongly convicted. The written complaint (Ex.P3) was
lodged after 3 days of the incident and the delay in lodging the said
complaint has not been explained. There are material
contradictions and omissions occurred in the statements of the
victim boy (PW1) and eyewitness Suresh (PW5). Therefore, their
statements are not reliable. In this regard, reliance has been
placed upon 2018 (1) CGLJ 258 (Bhagwan Singh v. State of
Chhattisgarh). It was further submitted that other witnesses Vishnu
(PW6) and Akriti (PW13) who had been reported to be present on
the spot immediately after the incident and got the door of the room
opened where the victim boy was kept by the Appellant have not
supported the case of the prosecution. Therefore also the
statements of the victim boy (PW1) and Suresh (PW5) do not
appear to be natural and trustworthy. In this regard, reliance has
been placed on Raju alias Pralhad Vitthal Naik v. State of
Maharashtra, Criminal Appeal No.223 of 2017, judgment dated
19.8.2020 delivered by a Single Bench of High Court of Judicature
at Bombay. In the case in hand, it was further submitted that since
there was a land dispute between both the families, therefore, false
implication of the Appellant cannot be ruled out.
6. Opposing the above arguments, Learned Counsel appearing for
the State supported the impugned judgment.
7. I have heard Learned Counsel appearing for the parties and
perused the record of the Trial Court including statements of the
witnesses and other material.
8. There is no dispute on the point that at the time of alleged incident
age of the victim boy (PW1) was about 8 years. With regard to the
incident, the victim boy (PW1) deposed that on the date of incident,
he along with Suresh (PW5) and Vishnu (PW6) went to a shop for
purchasing some articles relating to food where the Appellant and
shop owner Kirti (not examined) were also present. He further
deposed that thereafter the Appellant took him inside room
adjoining the said shop and made his friends Suresh (PW5) and
Vishnu (PW6) run away from there. Thereafter, the Appellant
inserted his penis into his mouth. Thereafter, niece of shop owner
Kirti namely Akriti (PW13) knocked the door of the said room on
which the Appellant opened the door and ran away from there. On
being asked by the Trial Court, it was stated by the victim boy that
after taking him by the Appellant inside the room the Appellant had
bolted the door from inside and thereafter the Appellant inserted his
penis into his mouth. When he began to weep, the Appellant beat
him on his head and back. During cross-examination, he admitted
that during the time when he was kept inside the room by the
Appellant he had not shouted. He further admitted that soon after
the incident he went to his house. He found her mother at his
house, but he did not disclose about the incident to her. When
Suresh (PW5) and Vishnu (PW6) told about the incident at his
house then he disclosed about the incident at this house.
9. Eyewitness of this case Suresh (PW5), another child witness, aged
about 12 years supported the statement of the victim boy (PW1)
and deposed that he had gone along with the victim boy to the
grocery shop. He further deposed that thereafter the Appellant took
the victim boy inside the rear room. Then he saw from the window
that the Appellant was inserting his penis into the mouth of the
victim boy. He saw that when the victim boy was stopping the
Appellant to do so then the Appellant threatened the victim boy of
his life. He further deposed that thereafter Akriti (PW13) reached
there and knocked the door of the room on which the Appellant
opened the door and ran away from there.
10. Vishnu (PW6) and Akriti (PW13) have not supported the case of the
prosecution and turned hostile. Pyarelal (PW2) and Meenabai
(PW7) are father and mother of the victim boy respectively. Both
deposed that the incident was told to them first by Suresh (PW5)
and Vishnu (PW6) and thereafter the victim boy (PW1) also told
them about the incident.
11. Virendra (PW3), who is elder brother of the victim boy and
submitted the written complaint (Ex.P3) on 4.7.2015 deposed that
on the date of incident he had gone to Village Sipat at the house of
his maternal uncle. Next day, he returned his village then he was
told about the incident by Suresh (PW5) and Vishnu (PW6) and
thereafter the victim boy (PW1). Thereafter, he asked about the
same from his father Pyarelal (PW2) also. Pyarelal (PW2) also told
him about the incident. Thereafter, he again went to Village Sipat
at the house of his maternal uncle and told him about the incident.
Next day, he returned his village and made the written report
(Ex.P3).
12. Dr. B.P. Kurre (PW4) conducted medical examination of the
Appellant and submitted his report (Ex.P7) in which he reported
that no injury was found in the private part of the Appellant. Dr.
S.K. Sinha (PW10) medically examined the victim boy and
submitted his report (Ex.P10) in which he reported that no injury
was found in any part of the body of the victim.
13. Head Constable Sher Singh (PW9) is the witness who registered
the FIR (Ex.P4) on the basis of the written complaint (Ex.P3).
Inspector Vinodini Tandi (PW8) and Deputy Superintendent of
Police N.L. Dhritlahre (PW14) are the witnesses who conducted
investigation in this case. Amrit Pali (PW12) is the teacher who
provided the Dakhil-Kharij Panji relating to age of the victim boy.
14. On a minute examination of the above evidence, it is clear that
though Vishnu (PW6) and Akriti (PW13) have not supported the
case of the prosecution and turned hostile, the victim boy (PW1)
and Suresh (PW5) both child witnesses have supported the entire
case of the prosecution. During their detailed cross-examination
also they remained firm. There is nothing in their cross-
examination on the basis of which it can be said that they would
have been tutored. Though some contradictions and omissions
have occurred in their statements, they are not material. It is true
that the victim boy did not shout on the spot and immediately after
the incident he did not disclose about the same at his house, there
was a threat to him given by the Appellant of his life on disclosing
about the incident and age of the victim boy at that time was only 8
years. Therefore, the judgment delivered in Bhagwan Singh case
(supra) is not applicable to this case. In Bhagwan Singh case
(supra), the eyewitness of the case was a major woman and wife of
the deceased. She had got ample opportunities to disclose about
the incident but she did not disclose and therefore her statement
was not found to be trustworthy. In the case in hand, the victim boy
was aged about 8 years only and he was threatened of his life on
disclosing the incident and therefore he did not shout on the spot
and did not disclose about the incident immediately thereafter at his
house, appears to be natural.
15. With regard to delay in lodging the written complaint (Ex.P3), in his
Court statement, Virendra (PW3), elder brother of the victim boy
deposed that on the date of incident he was at Village Sipat at the
house of his maternal uncle. Next day, when he returned his
village then he came to know about the incident. Thereafter, he
again went to Village Sipat at the house of his maternal uncle to get
suggestion. Next day, he returned his village and made the written
report (Ex.P3). The victim boy was aged about 8 years only and
therefore looking to his age and the nature of the offence if the
report was lodged belatedly after discussions between the family
members, it is natural.
16. With regard to the land dispute between both the families, no
document has been placed before the Trial Court by the Appellant.
During pendency of this appeal, the Appellant has submitted a copy
of the notice (Annexure A4) which shows that Revenue Case
No.38A/14-15 (Mahabali v. Harprasad) is pending in the Court of
Nayab Tahsildar, Sipat. Even if it is considered to be true it cannot
be said to be natural that for this reason only the Appellant would
be falsely implicated in this case. Therefore, in this regard also, I
do not find any substance in the argument advanced by Learned
Counsel for the Appellant.
17. In the result, the appeal is dismissed.
Sd/-
(Arvind Singh Chandel)
JUDGE
Gopal
