Jitu @ Jitendra Sarthi vs State Of Chhattisgarh
2021 Latest Caselaw 2537 Chatt

                                                                             NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                       Criminal Appeal No. 1315 of 2017

   • Jitu @ Jitendra Sarthi S/o Shankar Sarthi, Aged About 27 Years R/o
     Village Turkari Para, Police Station Khairagarh, District Rajnandgaon,
     Chhattisgarh.

                                                                      ---- Appellant

                                       Versus

   • State Of Chhattisgarh Through Station House Officer, police of Police
     Station Khairagarh, District Rajnandgaon, Chhattisgarh.

                                                                  ---- Respondent

       For Appellant            :       Shri Anil Gulati, Advocate.
       For State/Respondent     :       Shri Akash Pandey, Panel Lawyer.




                Hon'ble Shri Justice Arvind Singh Chandel
                              Judgment on Board


24/09/2021

1. This appeal has been preferred against the impugned judgment dated

14/06/2017 passed in Special Case No.06/2016 by the learned

Additional Sessions Judge, Khairagarh, District - Rajnandgaon, (C.G.)

wherein appellant has been convicted and sentenced as under :

                   Conviction                             Sentence

               U/s 377 of the I.P.C.                   R.I. for 7 years

               U/s 506 of the I.P.C.                    R.I. for 2 years

          U/s 3(A), 4 of the Protection of              R.I. for 7 years
           Children from Sexual
          Offences Act, 2012

                    All sentences are directed to run concurrently

2. Brief facts of the prosecution case are that victim (PW-11) is a boy

aged about 7 years. According to the case of prosecution on

31.03.2016, the victim boy went towards the river bridge to answer the

call of nature and when he did not come back in his house, the family

members of the victim searched him and they called him by his name

and thereafter the victim came towards them and when the victim was

taking bath, he revealed that he is feeling pain in his buttock and when

the family members asked him about the same, he revealed that the

appellant has committed unnatural sexual intercourse with him. On the

basis of above, the matter was reported vide Ex. P-1 by mother of the

victim namely Hazra Khatun (PW-6). The victim boy (PW-11) was

medically examined by Dr. P.S Parihar (PW-8) and his medical report

is Ex. P-9. Later on statements of the victim and other witnesses were

recorded under Section 161 of Cr.P.C. After completion of the

investigation, a charge-sheet was filed by the Police. To prove the guilt

of the accused/appellant, prosecution has examined as many as 13

witnesses. No defence witness has been examined by the appellant.

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

recorded, wherein he has pleaded innocence and false implication.

3. After completion of trial, the trial Court has convicted and sentenced

the appellant as mentioned in paragraph 1 of this judgment. Hence,

this appeal.

4. Learned Counsel appearing on behalf of the appellant submits that the

appellant is innocent and is falsely implicated in the present case. The

trial Court has wrongly convicted the appellant without there being

sufficient and clinching evidence against him. He further submits that

in this case none of the prosecution witnesses including complainant

and his family members have supported case of the prosecution

despite of that trial Court has convicted the appellant only on the basis

of medical report of the victim boy. It is further argued by the Counsel

that though according to the medical report and opinion given by Dr.

P.S. Parihar (PW-8), unnatural sexual intercourse was done with the

appellant but the Doctor himself has admitted the fact that this injury

may be caused accidentally while attending call of nature. There is no

evidence available on record which shows that the appellant has

committed the alleged unnatural sexual intercourse with the victim boy.

Therefore, the conviction of the appellant is not sustainable.

5. Per contra, learned Counsel appearing for the State supports the

impugned judgment and submits that sentence awarded by the trial

Court is just and proper and requires no interference.

6. I have heard learned Counsel appearing for the parties, perused the

record available, statement of the witnesses and other annexed

documents minutely.

7. There is no dispute on the point that at the time of alleged incident, the

victim boy (PW-11) was aged about 7 years. With regard to the alleged

incident, the victim boy in his Court statement has not supported the

case of the prosecution and turned hostile. He categorically deposed

that nothing had happened to him. His mother Hazra Khatun (PW-6) who lodged the FIR has also not supported case of the prosecution.

Father of the victim boy namely Mukhtar Aalam (PW-2), neighbours

Mohd. Ayub (PW-10) & Yahiya Yazi (PW-12) have also not supported

case of the prosecution. Hazra Khatun (PW-6) mother of the victim has

categorically deposed that on the date of incident, a dispute took place

between victim boy and the appellant and she lodged a report for the

same. She further deposed that no unnatural sexual intercourse was

done with the victim boy.

8. Dr. P.S. Parihar (PW-8) who examined the victim boy deposed that at

the time of medical examination, it was found that there was swelling

and redness in the anus of the victim boy and it was also raptured.

According to the opinion given by Dr. P.S. Parihar (PW-8), unnatural

sexual intercourse was committed with the appellant but, the Doctor

has categorically admitted the fact that at the time of attending call of

nature if a person seats in any pointed object such injury may cause.

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

neither the victim boy nor any other witnesses including his parents

has supported case of the prosecution. The conviction of the appellant

is based upon the statement of Doctor P.S. Parihar (PW-8) and his

medical report Ex. P-9. Since, the Doctor has admitted the fact that the

said injury of the victim boy may be caused by seating on any pointed

object, therefore, without the support of the victim boy or any other

corroborative evidence it can not be concluded that unnatural sexual

intercourse has been done with the victim boy. For the sake of

argument, if it is assumed that unnatural sexual intercourse has been

done with the victim boy, even though, there is no evidence available on record which shows that the appellant has committed the alleged

act. Therefore, the conviction of the appellant is not in accordance with

the evidence available on record and is not sustainable.

10. Consequently, the appeal is allowed. The conviction and sentence of

the appellant is set aside and he is acquitted of the charge framed

against him.

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/Prakash