Chattisgarh High Court
Suresh Jhariya vs The State Of Chhattisgarh on 6 December, 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 584 of 2015
Suresh Jhariya S/o Gajanand Jhariya Aged About 30 Years R/o
Village- Chartola, Police Station- Gadhi, District- Balaghat M.P. At
Present Resident of Village- Bazar Para, Chilphi, Police Station-
Chilphi, District- Kabirdham, Chhattisgarh.
---- Appellant
Versus
The State of Chhattisgarh, through Station House Officer, Police
Station- Chilphi, District- Kabirdham, Chhattisgarh.
---- Respondent
For Appellant : Mr. C.R. Sahu, Advocate.
For State/Respondent : Mr. Devesh Chandra Verma, Government
Advocate.
Hon'ble Shri Justice Arvind Singh Chandel
Hon'ble Shri Justice Deepak Kumar Tiwari
Judgment on Board
Per Arvind Singh Chandel, J.
06.12.2021
1. This appeal has been preferred against the judgment dated
08.08.2014 passed in Special Sessions Case No.61/2014 by
Fast Track Court of learned Additional Sessions Judge and
Special Judge under Protection of Children from Sexual
Offences Act, 2012, Kabirdham (Kawardha) (C.G.) wherein,
the Appellant has been convicted for the offence punishable
under Section 376(2)(i) of the Indian Penal Code and Section
4 of the Protection of Children from Sexual Offences Act,
2012 (for short 'the POCSO Act') and sentenced to undergo
RI for 14 years and to pay fine of Rs. 1,000/- and RI for 10
years and to pay fine of Rs. 1,000/- respectively, with default
stipulations.
2. In this case, at the relevant time, age of the prosecutrix was
about 10 years. According to the entries of Dakhil Kharij Panji
Ex. P-16, her date of birth was registered as 06.07.2004.
According to the case of prosecution, on 08.05.2014 at
around 10 AM, near gurdwara (a Sikh shrine) of village
Chilphi, the prosecutrix went for collecting jackfruits, allegedly,
the Appellant came there caught hold her hands and dragged
her to shambles thereafter, he removed her clothes and
committed forcible sexual intercourse with her. The incident
was witnessed by Sundar Bai (PW-4). On the same day, the
matter was reported by the prosecutrix vide Ex. P-3. On the
basis of said report, offence has been registered against the
Appellant. The prosecutrix was medically examined by Dr. S.
Ahluwalia (PW-9). Her report is Ex. P-11-A. Statements of the
prosecutrix and other witnesses were recorded under Section
161 of the Cr.P.C. After completion of investigation, a charge-
sheet was filed. Trial Court framed the charges against the
Appellant. To robe the Appellant in the crime-in-question, the
prosecution has examined as many as 9 witnesses. In the
statement of the Appellant recorded under Section 313 of
Cr.P.C, he has pleaded his innocence and false implication in
the matter, however, no defence witness was examined by
the Appellant.
3. After completion of trial, Trial Court convicted and sentenced
the Appellant as mentioned in paragraph 1 of this judgment.
Hence, this appeal.
4. Learned Counsel appearing for the Appellant submits that the
Appellant has wrongly convicted by the Trial Court without
there being any clinching and reliable evidence available on
record. On perusal of statement of Sundar Bai (PW-4), it
appears that due to some previous enmity, the Appellant has
falsely been implicated by Sundar Bai (PW-4) through
prosecutrix (PW-3), therefore, the conviction of the Appellant
is not sustainable.
5. On the contrary, learned State Counsel opposed the
arguments advanced by learned Counsel for the Appellant
and supported the impugned judgment of the Trial Court.
6. We have heard learned counsel appearing on behalf of the
parties and perused the record minutely. We have also gone
through the statements of the witnesses and other material
available on record.
7. There is no dispute on the point that at the time of alleged
incident, the prosecutrix was aged about 10 years. According
to the entries of Dakhil Kharij Panji Ex. P-16, her date of birth
was registered as 06.07.2004 which has not been disputed by
learned Counsel for the Appellant during course of argument.
8. With regard to the incident, in her Court statement prosecutrix
(PW-3), deposed that at the time of incident when she went
for collecting jackfruits near gurdwara at that time the
Appellant came there caught hold her hands and dragged her
to shambles thereafter, he removed her clothes and
committed forcible sexual intercourse with her. She further
deposed that at that time, one Taylor aunt (Sundar Bai PW-4)
came there and by seen her, the Appellant fled away from the
spot. Immediately after, she went to her house and narrated
the entire incident to her elder father and thereafter the matter
was reported. The above statement of this witness has duly
corroborated by Sundar Bai (PW-4). Sundar Bai (PW-4) has
deposed that at the time of incident, she saw that inside the
dilapidated gurdwara, the Appellant was committing forcible
sexual intercourse with the prosecutrix and having seen her,
the Appellant fled from the spot. The above statement of
prosecutrix (PW-3) & Sundar Bai (PW-4) have not been duly
rebutted during their cross-examinations.
9. Medical report of the prosecutrix i.e. Ex. P-11-A also shows
that at the time of examination there was a redness on labia
minora of the victim and also there was a cut injury and as
opined by Dr. S. Ahluwalia, the prosecutrix was sexually
assaulted.
10. On a minute examination of the above evidence, particularly,
statements of Sundar Bai (PW-4) and the prosecutrix, which
are duly supported by medical evidence (Ex. P-11-A), we are
of the view that the Trial Court has rightly convicted the
Appellant. Hence, we affirm the conviction of the Appellant
under Section 376(2)(i) of the IPC and Section 4 of the
POCSO Act.
11. As regards the sentence, it has been argued by learned
Counsel for the Appellant that the Trial Court has convicted
the Appellant for the offence punishable under Section 376(2)
(i) of the IPC and Section 4 of the POCSO Act and sentenced
him as mentioned in paragraph 1 of this judgment. Looking to
the provision contained in Section 42 of the POCSO Act, the
Appellant is liable to suffer the punishment under the POCSO
Act or under the IPC whichever is greater in degree and,
therefore, in the instant case, since the sentence imposed
upon him under the IPC is greater in degree, he shall suffer
the sentence imposed upon him under the IPC.
12. However, considering the fact that the Appellant is in jail
since 09.05.2014, he is aged about 30 years, he has no
criminal antecedent, he is facing the lis since 2014 and as
submitted by learned Counsel for the Appellant, the Appellant
is a poor person and is a resident of a village, namely, Bazar
Para, Chilphi, (C.G.), we are of the view that the ends of
justice would be met if while upholding the conviction of the
Appellant, his sentence is reduced from rigorous
imprisonment of 14 years to rigorous imprisonment of 10
years. Ordered accordingly. Thus, he shall complete the
rigorous imprisonment of 10 years only. The sentence of fine
of Rs. 1,000/- imposed for the offence under the IPC is
upheld.
13. Consequently, the appeal is allowed in part to the extent
shown above.
Sd/- Sd/-
(Arvind Singh Chandel) (Deepak Kumar Tiwari)
Judge Judge
Shubham
