Chattisgarh High Court
Azad Koshle vs State Of Chhattisgarh on 31 March, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 153 of 2022
• Azad Koshle S/o Dukhiram Koshle Aged About 21 Years R/o
Imlibhata, Mahuapara, Police Station Sarkanda, District Bilaspur
Chhattisgarh.
---- Appellant
Versus
• State Of Chhattisgarh Through District Magistrate, Bilaspur, District
Bilaspur Chhattisgarh.
---- Respondent
For Appellant : Smt. M. Asha, Advocate.
For Respondent : Miss. Shivali Dubey, Panel Lawyer.
For Victim : Miss Sareena Khan, Advocate.
Hon'ble Shri Deepak Kumar Tiwari, J
Judgment On Board
31/03/2022 :
1. The appellant would call in question the legality and validity of his
conviction under Section 363 & 366(A) of the IPC and under Section 4
of the Protection of Children from Sexual Offences Act, 2012, and
sentence of rigorous imprisonment for 5 years, 5 years & 10 years along
with fine amount of Rs.250/-, Rs.250/- & Rs.500/-, respectively, with
usual default stipulation imposed by the Additional Sessions Judge/First
FTSC (POCSO), Bilaspur in Special ST No.12/2020.
2. Case of the prosecution, in brief, is that the father of the
prosecutrix/victim has lodged an FIR on 29.12.2019 at Police Station
Sarkanda, District Bilaspur stating that his daughter/victim, aged about
17 years 7 months, has studied up to Class-6th and thereafter she left
the studies and started washing utensils in Bangali Para. On
28.12.2019, at about 10 am, the victim left the house saying that she is
going for the work. When she did not return, a search was made. As
the father of the victim could not trace her whereabout, the FIR
(Ex.-P/1) was lodged against unknown person.
3. During investigation, spot map was prepared vide Ex.-P/4. The
prosecutrix was recovered from the possession of the appellant vide
Ex.-P2A. Statement of the prosecutrix was recorded vide Ex.-P/10. The
prosecutrix was sent for medical examination to the CIMS Hospital,
Bilaspur vide Ex.-P/11. After examination, vaginal slides and panty of
the prosecutrix was seized vide Ex.-P/18. The appellant was arrested
and sent for medical examination to the CIMS Hospital, Bilaspur.
Underwear of the appellant was seized vide Ex.-P/19.
4. After completing the investigation, charge sheet was filed. The
appellant abjured the guilt. His statement was recorded under Section
313 of the CrPC wherein he pleaded false implication. In order to
prove its case, the prosecution has examined as many as 11 witnesses.
After conclusion of trial, the trial Court convicted and sentenced the
appellant as mentioned above.
5. Learned counsel for the appellant would submit that the trial Court has
not appreciated the evidence properly. Material witnesses have not
supported the case of the prosecution and turned hostile and only on the
basis of conjectures and surmises, order of conviction has been passed.
Therefore, learned counsel prays to allow the Appeal and set aside the
impugned judgment.
6. On the other hand, learned State Counsel would support the impugned
judgment.
7. I have heard learned counsel for the parties at length and perused the
record.
8. The prosecutrix (PW-2) has turned hostile completely and not supported
the case of the prosecution. Even after declaring hostile by the
prosecution, she has denied her statement recorded during investigation
(Ex.-P/10). Her mother (PW-3) has also not supported the case of the
prosecution and specifically stated that at the time of incident, her
daughter becomes major and further admits that in the School Register,
the date of birth was not correctly recorded. The victim's father has
stated that he has beaten the prosecutrix, therefore, she became annoyed
and left the house. He further stated that the victim has also not
narrated any incident to him and he has also turned hostile. In his cross-
examination, he has specifically stated that the appellant did not commit
any wrong with his daughter.
9. Even in the impugned judgment, in spite of serious infirmities in the
evidence of the prosecution witnesses and it was also observed in para-
46 of the impugned judgment that though the victim, her father and
mother have not supported the case of the prosecution and they have
also specifically stated that the appellant has done nothing wrong with
the victim, as also as per the evidence of (PW-9) Dr. Tasnim Anjum,
who gave negative opinion, as no sign of injury was found, only on the
basis that during examination of the prosecutrix, the doctor has taken
history in which the victim has stated about consensual sexual
intercourse with her boy friend, the learned trial Court wrongly assumed
and roped in the appellant on the basis of conjectures and surmises.
The prosecutrix was not confronted with the statement which was used
against the appellant that any such statement was given by her to the
doctor.
10. From the aforesaid evidence, this Court is of the considered opinion that
as against the appellant, there is no incriminating evidence put forth by
the prosecution. Even on nil evidence, the trial Court has passed the
impugned judgment, which is totally perverse.
11. For the foregoing, the Appeal succeeds and the same is allowed.
Conviction and sentence imposed upon the appellant under Sections
363 & 366-A of the IPC and under Section 4 of the Protection of
Children from Sexual Offences Act, 2012 are set aside and he is
acquitted of the said charges. He be released forthwith unless required
to be detained in any other case, on his furnishing a personal bond for a
sum of Rs.5,000/- with one surety in the like sum to the satisfaction of
the trial Court. The bail bond shall remain in operation for a period of 6
months as required under Section 437-A of the CrPC. The appellant
shall appear before the higher Court as and when directed.
12. Let a copy of the judgment along with record of the trial Court be sent
forthwith for necessary compliance.
Sd/-
(Deepak Kumar Tiwari)
Judge
Barve
