Chaitanya @ Chaita vs State Of Chhattisgarh
2021 Latest Caselaw 2542 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                              Criminal Appeal No.681 of 2017

                          Judgment Reserved on :               10.9.2021

                          Judgment Delivered on :              24.9.2021

Chaitanya @ Chaita, son of Chitranjan Sarkar, aged about 32 years, resident
of Village P.V. 119 (Alwar) Kapsi, P.S. Pankhajur, District Kanker,
Chhattisgarh
                                                               ---- Appellant
                                    versus
State of Chhattisgarh through the Station House Officer, Police Station
Pankhajur, District Kanker, Chhattisgarh
                                                            --- Respondent
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For Appellant : Shri Varindra Pratap Singh, Advocate For Respondent : Shri Aakash Pandey, Panel Lawyer

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This appeal has been preferred against judgment dated 3.1.2017

passed by the Special Judge under the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth

'the PoA Act'), Uttar Bastar Kanker in Special Case No.43 of 2015,

whereby the Appellant has been convicted and sentenced as

under:

Conviction Sentence

Under Section 450 of the Rigorous Imprisonment for 4 years Indian Penal Code and fine of Rs.500 with default stipulation Under Section 376(1) of the Rigorous Imprisonment for 10 years Indian Penal Code and fine of Rs.500 with default stipulation Both the jail sentences are directed to run concurrently

2. According to the prosecution case, at the relevant time, the

prosecutrix (PW1) was aged about 13 years. On 1.6.2015, her

parents had gone to Village Murawandi to attend a marriage

ceremony and the prosecutrix and her younger brother and sister,

namely, Umendra and Parmeshwari, aged about 8 years and 5

years, respectively had stayed at home. On 6.6.2015, i.e., the date

of incident, at about 8 p.m., when the prosecutrix was preparing

food, the Appellant entered their house, caught her hands and

began to drag her inside a room of the house. Umendra and

Parmeshwari tried to intervene, but the Appellant beat them and

caused them to run away from there. Allegedly, he committed

forcible sexual intercourse with the prosecutrix there. When

Umendra and Parmeshwari saw that he was inside with the

prosecutrix, they bolted the door from outside and went to the

house of Gokul (PW3) and slept there in the verandah. In the next

morning, at about 4 a.m., when Gokul (PW3) woke up, they told

him about the incident. He went to the spot, but, by that time, the

Appellant had fled from there after breaking down the window of the

house. When the parents of the prosecutrix returned home, she

narrated them about the incident. Thereafter, a written complaint

(Ex.P4) was filed by the mother of the prosecutrix. Statements of

the prosecutrix and other witnesses were recorded under Section

161 of the Code of Criminal Procedure. On completion of the

investigation, a charge-sheet was filed against the Appellant. The

Trial Court framed charges against him under Sections 450 and

376(1) of the Indian Penal Code, Sections 3(1)( c)(1) and 3(2)(v) of

the PoA Act and Section 4 of the Protection of Children from Sexual

Offences Act, 2012 (in short 'the Pocso Act').

3. To bring home the offence, the prosecution examined as many as

15 witnesses. Statement of the Appellant was also recorded under

Section 313 of the Code of Criminal Procedure in which he denied

the guilt, pleaded innocence and false implication. No witness was

examined in his defence.

4. On completion of the trial, the Trial Court acquitted the Appellant of

the charges framed under Sections 3(1)(c)(1) and 3(2)(v) of the

PoA Act and Section 4 of the Pocso Act, but convicted and

sentenced him as mentioned in 1st paragraph of this judgment.

Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that the

Appellant has been wrongly convicted by the Trial Court without

there being clinching and sufficient evidence on record. Statement

of the prosecutrix (PW1) is suspicious. In her Court statement, she

categorically admitted that the Appellant had caught her hands and

attempted to commit forcible act with her. Her medical report

(Ex.P3) also shows that her hymen was intact. No injury, bleeding,

redness or swelling was found in her private part nor was there any

injury on any other part of her body. Therefore, the act committed

by the Appellant falls within the ambit of Section 376 read with

Section 511 of the Indian Penal Code only. The Appellant is in jail

since 9.6.2015. He has no criminal antecedent. Therefore, it is

prayed by Learned Counsel that his conviction under Section

376(1) of the Indian Penal Code may be altered to Section 376

read with Section 511 of the Indian Penal Code and his jail

sentence may be restricted to the period already undergone.

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

minutely perused the record of the Trial Court including the

statements of the witnesses.

8. In her Court statement, the prosecutrix (PW1) deposed that on the

date of incident, her parents had gone to Village Murawandi and

she was at home along with her younger brother and sister,

namely, Umendra and Parmeshwari (both not examined). She was

preparing food. At that time, the Appellant entered their house,

caught her hands and dragged her towards inside the house. He

tore her clothes and underwear as well. He caused her to fall down

and thereafter he entered his private part inside her private part.

She further deposed that he beat her younger brother and sister

and caused them to run away from there. Both of them went out

and bolted the door of the house from outside. She further

deposed that the Appellant stayed at their house for the whole night

and in the next morning he ran away after breaking down the

window of the house.

9. Gokul (PW3), supporting the above statement of the prosecutrix

(PW1), deposed that in the morning at about 5 a.m., when he woke

up, he saw Umendra and Parmeshwari, the younger brother and

sister of the prosecutrix in front of his house. On being told by them

about the incident, he went to the spot and saw that the window of

the house was broken down and clothes of the prosecutrix were

torn. She told him that the Appellant had broken down the window

and run away. Villager Mangturam (PW4) also deposed in similar

fashion.

10. Dr. Ujjwala Dewangan (PW6) examined the prosecutrix on

9.6.2015. Her report is Ex.P3. She deposed that at the time of

examination of the prosecutrix, she did not find any injury in her

private part. Her hymen was intact. She did not find any bleeding

or swelling in her private part. She opined that it was not possible

to state that any sexual intercourse was done with the prosecutrix.

11. On a minute examination of the above evidence, it is clear that it is

not in dispute that the prosecutrix (PW1) was inside her house

along with her younger brother and sister. It is also not in dispute

that in the early morning at about 5 a.m., her younger brother and

sister met with Gokul (PW3) and when Gokul (PW3) went to the

spot, he saw that the window of the house of the prosecutrix was

broken down and her clothes were torn. She told him that the

Appellant had entered her house and committed forcible act with

her and thereafter run away. Though according to the statement of

the prosecutrix the Appellant had entered his private part inside her

private part, the medical report (Ex.P3) shows that her hymen was

intact and no injury, bleeding, redness or swelling was present in

her private part and no injury was present even on any other part of

her body. As opined by Dr. Ujjwala Dewangan (PW6), she was

unable to state that any sexual intercourse was done with the

prosecutrix. Even in the vaginal slides of the prosecutrix and on

her underwear, no semen was found. In paragraph 4 of her cross-

examination, the prosecutrix (PW1) categorically admitted the fact

that in the night, the Appellant had caught her hands and attempted

to commit forcible act with her. Looking to her above admission

and her medical report (Ex.P3), it appears that the Appellant

attempted to commit sexual intercourse with her, but there is no

evidence on record to show that he penetrated his penis into her

vagina to any extent and, therefore, the act committed by him falls

within the ambit of Section 376 read with Section 511 of the Indian

Penal Code.

12. As an outcome of the above discussion, conviction of the Appellant

under Section 450 of the Indian Penal Code is affirmed, but his

conviction under Section 376(1) of the Indian Penal Code is altered

to Section 376 read with Section 511 of the Indian Penal Code.

13. As regards sentence against conviction of the Appellant under

Section 450 of the Indian Penal Code, rigorous imprisonment for 4

years and fine of Rs.500 imposed upon him by the Trial Court are

affirmed.

14. Against conviction of the Appellant under Section 376 read with

Section 511 of the Indian Penal Code, having regard to the fact that

he is in jail since 9.6.2015 and is facing the lis since then and also

keeping in view the fact that he has no criminal antecedent, I am

inclined to restrict his jail sentence to the period already undergone

by him with imposing a fine of Rs.500 payable within a period of

one month from today. Ordered accordingly. In default of payment

of the fine, he shall be liable to undergo simple imprisonment for a

period of 10 days. If any amount has already been deposited

towards fine, same shall be adjusted against the fine imposed

today.

15. Consequently, the appeal is partly allowed in the terms aforestated.

The Appellant is in jail. On compliance of the fine sentence, he be

released forthwith.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal