Mahesh Basod vs State Of Chhattisgarh
2021 Latest Caselaw 2422 Chatt

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                                                                          NAFR

              HIGH COURT OF CHHATTISGARH, BILASPUR

                            CRA No. 647 of 2016

    Mahesh Basod S/o Shri Krishna Basod Aged About 19 Years, R/o Village
     Soyada, Police Station Lakhanpur, District Surguja, Chhattisgarh.

                                                                   ---- Appellant

                                   Versus

    State Of Chhattisgarh Through Police Station Lakhanpur, District Surguja,
     Chhattisgarh.

                                                                ---- Respondent

For Appellant           :     Mr. Rishi Rahul Soni, Advocate.
For Respondent/State    :     Mr. Ghanshyam Patel, G.A.


                Hon'ble Shri Justice Arvind Singh Chandel
                            Judgment on Board


21/09/2021

1. This appeal has been preferred under Section 374 (2) of Cr.P.C

against the judgment dated 26/11/2015 passed in Sessions Trial No.

88/2014 by learned Additional Sessions Judge(FTC), Special Judge

under the POCSO Act 2012, Surguja (Ambikapur) C.G., whereby the

Appellant has been convicted under Sections 450 & 376 of the IPC

and Section 4 of the POCSO Act 2012 and sentenced to undergo RI

for 10 years and to pay fine of Rs. 1,000/-, RI for 10 years and to pay

fine of Rs. 1,000/- & RI for 10 years and to pay fine of Rs. 1,000/-

respectively, with default stipulations. All the jail sentences to be run

concurrently.

2. In this case, at the relevant time age of the prosecutrix (PW-2) was

below 18 years. According to the entries of Dakhil Kharij Panji her date

of birth is 06.02.1999. According to the case of prosecution on

12.06.2014 at around 12 PM, the prosecutrix went to visit the house of

her friend namely Sanju Uraon (PW-4), allegedly at about 3 PM, when

they were sleeping, the Appellant entered into the house of Sanju

Uraon and committed forcible sexual intercourse with the prosecutrix

and when she shouted, her friend awakened and she also started

shouting and thereupon the Appellant fled away from the spot.

Thereafter, the matter was reported by the prosecutrix vide Ex. P-4.

The prosecutrix was medically examined by Dr. JP Sahu (PW-7), his

report is Ex. P-12-A. Later on, statements of the prosecutrix and other

witnesses were recorded under Section 161 of the Cr.P.C. After

completion of investigation, a charge-sheet has been filed. Trial Court

framed the charges. The prosecution has examined as many as 7

prosecution witnesses. One defence witness has been examined.

Statement of the Appellant under Section 313 of the Cr.P.C was

recorded, wherein he has pleaded his innocence and false implication

in the matter.

3. After trial, the Trial Court convicted and sentenced the Appellant as

mentioned in paragraph one of this judgment. Hence, this appeal.

4. Learned Counsel appearing for the Appellant submits that the

Appellant has been wrongly convicted by the Trial Court without there

being any reliable evidence available on record. He further submits

that there are material contradictions occurred in the statements of

prosecutrix and other prosecution witnesses. Prosecutrix (PW-2) and

her father Shiv Prasad (PW-1) have developed their statements in the

Court, therefore, their statements are not reliable. He further submits

that MLC report of the prosecutrix also not supported the case of the

prosecution. Material witness Sanju Uraon (PW-4) also not supported

the case of the prosecution and turned hostile, therefore, conviction of

the Appellant is not sustainable.

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 available record minutely. I have also gone through the

statements of the prosecutrix and other witnesses minutely.

7. In her Court statement prosecutrix (PW-2) deposed that on the date of

incident, she went to the house of her friend Sanju Uraon (PW-4) and

their they were sleeping at that time, the Appellant came there in

intoxication condition and assaulted the prosecutrix through mobile

phone and also assaulted her with his legs, her friend objected the

same. She further deposed that thereafter, the Appellant caught hold

her hairs and dragged her to his aunt's house namely Lodhri then Aunt

of the Appellant left the house and thereafter the Appellant closed door

of the house, he again assaulted the prosecutrix and committed

forcible sexual intercourse with her. This witness further deposed that

her sister Bindiya came there and heard her voice, thereupon she

called her father Shiv Prasad. Shiv Prasad (PW-2) also deposed as

stated by the prosecutrix. According to this witness, when he reached

the house of Lodhri along with her wife, he saw that the door was

locked, he called one Reku (not examined) who broke the lock. They

found the prosecutrix and the Appellant inside the house of Lodhri. The

prosecutrix told him that the Appellant has committed forcible sexual

intercourse with her. Sanju Uraon (PW-4) soul eye-witness of the case

has not supported the case of the prosecution and turned hostile.

8. Dr. J.P. Sahu (PW-7) who examined the prosecutrix on 13.06.2014,

has deposed that at the time of examination of the prosecutrix, it was

found that her hymen was old raptured and at present it can not be

determined whether sexual intercourse has been committed with her.

Bhavesh Goutam (PW-6) is the investigating officer who investigated

the entire case.

9. On minute examination of above evidence, it makes clear that the

statement of prosecutrix (PW-2) and her father Shiv Prasad (PW-1) is

suspicious because according to the case of prosecution, the alleged

incident was occurred inside the house of Sanju Uraon (PW-4) and

Sanju Uraon not supported the case of prosecution in any manner. In

their Court statements prosecutrix (PW-2) and her father Shiv Prasad

(PW-1) have stated that the incident was occurred in the house of aunt

of the Appellant namely Lodhri. According to the prosecution, Lodhri

was also present on spot but Lodhri has not been examined by the

prosecution. According to the statement of Shiv Prasad (PW-1), the

incident was firstly informed by Bindiya thereafter he reached the

house of Lodhri to rescue the prosecutrix but, Bindiya is also not

examined by the prosecution. As stated by this witness, the lock was

broken by one Reku but, Reku is also not examined by the

prosecution. Spot map Ex. P-6 is prepared by Sub-Inspector Bhavesh

Goutam (PW-6) as stated by prosecutrix (PW-2), the spot map also

shows the place of incident as Sanju's house not Lodhri's house. Thus,

it appears that there are material contradictions occurred in the

statements of prosecution witnesses regarding the place of incident.

The medical report of the prosecutrix also not supported case of the

prosecution. In these circumstances, the Appellant is entitled to get

benefit of doubt. Therefore, the conviction of the Appellant is not

sustainable. Thus, the impugned order dated 26/11/2015 passed in

Sessions Trial No. 88/2014 passed by learned Additional Sessions

Judge, (FTC), Special Judge (POCSO Act, 2012) Surguja

(Ambikapur), C.G. is set-aside.

10. Consequently, the Appeal is allowed. The Appellant is acquitted

from the charges framed against him on the basis of benefit of doubt.

11.Records of the Court below be sent back along with a copy of this

order forthwith for information and necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Shubham