Chattisgarh High Court
Mohan Singh Thakur vs State Of Chhattisgarh on 3 February, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:6026
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 2086 of 2024
1 - Mohan Singh Thakur S/o Balram Thakur Aged About 50 Years R/o Puri,
P.S. Gharghoda, District Raigarh, Chhattisgarh.
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through P.S. Gharghoda, District Raigarh,
Chhattisgarh.
... Respondent(s)
For Petitioner(s) : Mr. Prasoon Agrawal, Advocate
For Respondent(s) : Mr. Vivek Sharma, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
03.02.2025
1. The appellant has filed this appeal under Section 415(2) of Bharatiya
Nagrik Suraksha Sanhita, 2023 challenging legality, validity and
propriety of the judgment of conviction and order of sentence dated
23.10.2024 passed by Additional Sessions Judge Gharghoda, District
Raigarh (C.G.) in Special Criminal Case No. 38/2022 whereby the
appellant has been convicted and sentenced as described below :-
Sn. Conviction Sentence
R.I. for 06 months and fine of Rs. 1000/-
1. U/s 342 IPC in default of payment of 01 month
additional R.I.
2. U/s 354 IPC R.I. for 03 years and fine of Rs. 1000/- in
default of payment of 01 month additional
R.I.
R.I. for 01 year and fine of Rs. 1000/- in
3. U/s 506 Part - 2 IPC default of payment of 01 month additional
R.I.
R.I. for 03 years and fine of Rs. 1000/- in
4. U/s 8 of POCSO Act, 2012 default of payment of 01 month additional
R.I.
All sentences will run concurrently
2. The case of the prosecution in brief is that, on 01.11.2022 at about
08:00 pm, when mother of the victim "A" was searching victim "B" for
study teaching, the victim "B" was not found in the house. Even after
searching around, she was not found then cries of the victim "B" came
from the room of the accused Mohan Singh Thakur who was residing in
front of their house. Then the mother of the victim "A" went to the
house of the accused with the neighbors, her mother and the father of
the victim "C", then the cries of victim "B" was coming from the room of
the house. Then they tried to open the door but the accused did not
open the door and the sound of cries and weeping of the victim "B" was
coming from inside, then the door was forcibly pushed and opened and
victim "B" came outside and hugged her mother "A" and started crying
and told that when she had gone out of the house for defecation, the
accused called her and took her to the room of his house and started
molesting her with ill intentions and asked her to open her pants and
panties and threatened to kill her by showing a knife if she disclosed
the incident to anyone. He was threatening to kill her. The victim's
mother "A" (PW1) submitted a written complaint of the incident (Exhibit
P-1) at Police Station-Gharghodha on the same date at 23:20 pm, on
which Sub-Inspector Edmon Khes (PW7) lodged a First Information
Report against the accused under Crime No.472/2022 for the offence
under Sections 342, 354, 506 Part - II IPC and Section 8 Protection of
Children from Sexual Offences Act, 2012. Sub-Inspector Edmon Khes
(PW7) prepared a site map (Exhibit P-3) of the incident on 02.11.2022
and seized the birth certificate Article A-1 of victim "B" from victim's
father C as per seizure memo (Exhibit P-4). On the said date itself, a
steel knife was seized from the accused as per seizure memo (Exhibit
P-5) and he was arrested as per arrest memo Exhibit P-6 and
information about his arrest was given to his family vide Exhibit P-7.
Statement of witnesses were recorded. Statement of victim "B" was
recorded under Section 164 Cr.P.C. Patwari Nazri map of the spot
Exhibit P/10 was prepared. After completion of investigation in Crime
No. 472/2022 of Police Station- Gharghora, charge sheet No.406/2022
was presented before the court. Charges under Sections 342, 354, 506
Part - II IPC and Section 8 of Protection of Children from Sexual
Offences Act, 2012 were framed against the appellant. He abjured guilt
and prayed for trial.
3. In order to prove its case, the prosecution examined as many as 9
witnesses. Statement of the accused was also recorded under Section
313 of CrPC in which he denied all the incriminating circumstances
appearing against him in the prosecution case, pleaded innocence and
false implication. In his defence, the accused/appellant did not adduce
any evidence.
4. Learned trial Court after hearing counsel for the respective parties and
considering the material available on record, passed the impugned
judgment, convicted the appellant and sentenced him as mentioned in
para 1 of this judgment. Hence, this appeal.
5. Learned counsel for the appellant submits that the impugned judgment
of conviction and order of sentence is bad in law, thus, it is liable to be
set aside and the appellant deserves to be acquitted. The family of the
prosecutrix has falsely implicated the appellant. The learned trial Court
failed to appreciate the evidence recorded in the case in its true and
correct perspective and succumbed to conjectures and surmises while
passing the judgment of conviction and order of sentence against the
appellant. He further submits that there is delay in lodging the First
Information Report. The essential ingredients for the alleged offence
under Section 354 of IPC are not present in the instant case. It is
submitted that learned trial Court has not taken into consideration the
statement of the appellant recorded under 313 CrPC in which due
explanation was given by him. The prosecution has failed to prove its
case against the appellant and the impugned judgment passed by the
trial Court is illegal, erroneous and contrary to law and therefore,
deserves to be set aside.
6. Alternatively, he further submits that the trial Court has convicted the
appellant under Section 354 of IPC and Section 8 of POCSO Act
separately which is not in accordance with law. Learned counsel for the
appellant goes on to submit that it is clear from the statement of
prosecutrix that the offence under Section 8 of POCSO is not made out
against the appellant and his conviction is liable to be altered into
Section 12 of POCSO Act. He further submits that the appellant is in jail
since 02.11.2022 so, the total detention period of the appellant is more
than 02 years and 3 months and therefore, he prays that his sentence
may be reduced to the period already undergone by him.
7. On the other hand, learned counsel for the State supporting the
impugned judgment of conviction and order of sentence submits that
the trial Court having appreciated the overall oral and documentary
evidence has rightly recorded a finding of guilt against the appellant
which needs no interference by this Court. Therefore, the present
appeal being sans merit is liable to be dismissed.
8. Heard learned counsel for the parties and perused the material
available on record including the impugned judgment.
9. It is clear from the records of learned trial Court that the victim was
aged about 10 years at the time of incident. The learned trial Court
went through the deposition sheet of victim and also dealt with the
statements of important prosecution witnesses. PW - 02 (Mother of
Prosecutrix) who stated in her statement that date of birth of victim is
19.01.2013. This fact is also admitted by PW - 03 (Father of
Prosecutrix) and stated in his statement that date of birth of victim is
19.01.2013 and they remained firm in their cross-examination. Thus it
is proved by the prosecution that on the date of the incident the age of
prosecutrix was about 10 years.
10. PW - 01 (Prosecutrix) stated that the incident took place after
Diwali at around 8 pm. When she had gone out of the house for
nature's call, the accused called her and she went with him. After that
the accused took her inside his house and closed the door. Then he
asked her to take off her pants, when she refused, the accused forcibly
started taking off her pants and started strangulating her. After that he
was touching her hands and feet and laid down over her but in her
cross-examination, her statement is contradictory to that of her police
statement. In her cross examination, she has stated that the
appellant /accused didn't touch or lay down over her and she can't tell
as to why the said fact was not recorded in her police statement.
11. PW - 02 (Mother of prosecutrix) in her cross-examination stated that
the accused considers the victim/prosecutrix as his granddaughter and
in rural areas, grandparents use to talk with their grandchildren jokingly,
touches cheeks and other parts of body and also use abusive language
which is not considered as bad. She further stated in her cross-
examination that whenever the wife of the accused used to sit and talk
with her and other women, they all felt that bad about the nature of
accused. It is also stated that many times people cover their bodies
with clothes to scare children, make scary sounds, lock the children in
room, make it dark and scare them by giving fear of ghosts.
12. As per statement of PW - 03 (Father of Prosecutrix) in cross-
examination, on the date of incident when he was sleeping, after
hearing the noise, he went to home of the accused where he opened
the door by pushing it and his daughter/prosecutrix came out of the
house and started crying.
13. PW - 04 (Neighbbour of Prosecutrix) only stated that when
mother of prosecutrix made a noise after hearing weeping sound of
prosecutrix, he went there, at the time of incident, the accused was
inside the room, the door was opened by him and one Surendra.
14. PW - 05 stated in his statement that while he was asking the
accused to open the door, he didn't open. Then he and one boy (D.)
opened the door by pushing, thereafter, people took out the
prosecutrix. He also admitted the signature on seizure memo Ex.P/4 &
Ex.P/5.
15. Mother and father of prosecutrix stated that the prosecutrix told
them that the accused was threatening her for removing her clothes
and strangulating her. After that mother of the prosecutrix filed written
complaint vide Ex.P/1 based on which FIR (Ex.P/2) was registered and
thereafter Spot Map (EX. P/3) was prepared. The mother of prosecutrix
admitted her signature on all three documents. It was alleged that
accused Mohan Thakur called her from the street and took her inside
his room and while teasing her with ill intentions, he started asking her
to take off her pants and panties and threatening to kill her by showing
a knife if she discloses the incident to anyone.
16. Statement of the prosecutrix was also recorded under Section
164 of Cr.PC. which being necessary is reproduced herein below:-
"....साक्षी द्वारा उपरोक्त प्रश्नों के सही जवाब दिये जाने के कारण घटना के संबंध में पूछा गया
प्रश्न 7 आपके साथ क्या घटना हुई है बताइये ?
उत्तर घटना कल शाम की है मैं अपने घर के बाहर सुसु करने गयी थी तभी मुझे मेरे घर के
सामने रहने वाले मोहन सिंह जिसे मैं दादा बोलती हूँ, उन्होंने मुझे बुलाया और अपने साथ अपने घर
चलने बोला, वह मेरे साथ हंसी मजाक करता था इसलिए मैं उसके साथ उसके घर चली गई। जब मैं
उसके घर पहुँची तब वह मुझे कमरे अन्दर ले गया तथा दरवाजा अन्दर से बंद कर दिया और मेरी पैंट
एं व पेंटी खोलने के लिए बोलने लगा वह मुझे चाकु दिखाकर बोला की अगर किसी को बतायेगी तो
तुम्हारे छोटे-छोटे टु कड़े करके जान से मार ढु ंगा, मैं डरकर रोने लगी तभी मेरे रोने की आवाज सुनकर
मेरी मम्मी मुझे ढू ँढते हुए आई, वहां पहुँची तब मेरे रोने की आवाज सुनकर मेरी मम्नी तथा अन्य लोगों
ने दरवाजे को धक्का देकर खोला तब मैं अपनी मम्मी के पास चली गई और अपनी मम्मी को सारी बात
बताई।"
17. Learned trial Court has held that the appellant is guilty of offence under
Sections 342, 354, 506 Part - II IPC and Section 8 of Protection of
Children from Sexual Offences Act, 2012. Sections 7, 8, 11 and 12 of
the POCSO Act are provided as under:-
"7. Sexual Assault.- Whoever, with sexual intent touches the
vagina, penis, anus or breast of the child or makes the child
touch the vagina, penis, anus or breast or such person or any
other person, or does any other act with sexual intent which
involves physical contact without penetration is said to commit
sexual assault.
8. Punishment for sexual assault.- Whoever, commits
sexual assault, shall be punished with imprisonment of either
description for a term which shall not be less than three years
but which may extend to five years, and shall also be liable to
fine.
11. Sexual harassment - A person is said to commit sexual
harassment upon child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture
or exhibits any object or part of body with the intention that
such word or sound shall be heard, or such gesture or object
or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so
as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for
pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a
child either directly or through electronic, digital or any other
means; or
(v) threatens to use, in any form of media, a real or fabricated
depiction through electronic, film or digital or any other mode,
of any part of the body of the child or the involvement of the
child in a sexual act; or
(vi) entices a child for pornographic purposes or gives
gratification therefor.
Explanation. Any question which involves "sexual intent" shall
be a question of fact.
12. Punishment for sexual harassment. Whoever, commits
sexual harassment upon a child shall be punished with
imprisonment of either description for a term which may
extend to three years and shall also be liable to fine."
18. As per statement of the victim recorded before the Magistrate under
Section 164 of Cr.P.C., the appellant did not perform any act which falls
within the ambit of Section 8 of POCSO but she stated in her court
evidence that accused slept over her but she could not tell the reason
that why the said statement was not recorded in her police statement.
19. As per statement of prosecutrix, the act of accused is covered under
Section 11 of POCSO, Act, 2012 and the same is punishable under
Section 12 of Act of 2012 but not under Section 8 of POCSO. The trial
Court not only convicted the appellant under Section 354 of IPC but
also convicted the appellant under Section 8 of Act of 2012 separately
and sentenced him thereunder. Thus, instead he is held guilty under
Section 354 of Indian Penal Code read with Section 12 of POCSO Act.
20. So far as conviction under Section 342 and 506 Part - II of IPC is
concerned, in the given facts and circumstances of the case and the
evidence on record, the same is hereby affirmed. The sentence
awarded thereunder by the learned trial Court being just and proper is
also maintained.
21. As regards sentence under Section 354 of IPC read with Section 12 of
POCSO Act, considering the facts and circumstances of the case, the
fact that the appellant is in jail since 02.11.2022, he has no criminal
antecedent and there is no minimum sentence prescribed under
Section 12 of the POCSO Act, this Court is of the opinion that no fruitful
purpose would be served in keeping the appellant behind the bars any
longer and the ends of justice would be served if he is sentenced to the
period already undergone by him for the offence under Section 354 of
IPC read with section 12 of the POCSO Act.
22. In the result, the appeal is allowed in part. Conviction of the appellant
under Sections 342 and 506 Part - II of IPC and the sentence awarded
thereunder by trial Court are hereby maintained. However, conviction
under Section 8 of the POCSO Act is set aside and instead the
appellant is held guilty under Section 354 of IPC read with Section 12
of the POCSO Act and his sentence thereunder is reduced to the
period already undergone by him. The fine imposed on the appellant
under Section 354 of IPC with default sentence by trial Court shall
remain intact.
The appellant is reported to be in jail, therefore, he be set free
forthwith if not required in any other case. However, in view of
provisions of section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023,
the appellant shall execute a bail bond for a sum of Rs.25,000/- to the
satisfaction of the learned trial Court for his appearance before the
higher Court as and when such Court issues notice in respect of any
appeal or petition filed against this judgment and such bond shall be in
force for a period of six months.
23. Let a copy of this judgment and the original record be
transmitted to the trial court concerned forthwith for necessary
information and compliance.
Certified Copy as per rules.
Sd/-
( Rajani Dubey)
JUDGE
Digitally
ABHIGYA signed by
SAXENA ABHIGYA
SAXENA
Saxena
