Partly allowed

Ajay Mehar v. State of Chhattisgarh

Chhattisgarh HC9 Aug 2023CRA/1604/2021

Case brief

AI extract

What is this about?

The High Court held that while the appellant was rightly convicted for abducting and taking a minor girl from her guardianship, the convictions for cheating and penetrative sexual assault were unsustainable due to lack of evidence and the nature of the prosecutrix's consent.

What did the court decide?

Appeal partly allowed; appellant acquitted of cheating and POCSO charges; jail term reduced to time already undergone; set at liberty.

Ajay Mehar Vs State of Chhattisgarh — Dowry and Cruelty | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.1604 of 2021

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Ajay Mehar, S/o Shri Dilip Mehar, aged about 26 years, R/o Village Vicharpur, P.S. Lormi, District Mungeli, Chhattisgarh,

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---- Appellant

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Versus

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State of Chhattisgarh Through District Magistrate, Mungeli, District - Mungeli, Chhattisgarh,

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---- Respondent

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For Appellant :Shri Brijesh Kumar, Advocate For State/Respondent :Shri Ankur Kashyap, P.L.

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Hon'ble Shri Justice Arvind Singh Chandel

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Order on Board

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09/08/2023

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This appeal has been preferred against the judgment dated 02.12.2021 passed in Special Criminal Case No.58/2018 by the Special Judge (FTSC) POCSO Act, Mungeli, District Mungeli, Chhattisgarh, whereby the appellant has been convicted for the offence punishable

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Conviction	Sentence
U/s 363 of the Indian Penal Code (in short 'the IPC')	R.I. for 5 years and fine of Rs.2,000/-, on default of payment of fine, additional S.I. for 2 months.
U/s 366 of the IPC	R.I. for 5 years and fine of Rs.2,000/-, on default of payment of fine,additional S.I.

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2	for 2 months.
U/s 417 of the IPC	R.I. for 1 year and fine of Rs.1,000/-, on default of payment of fine, additional S.I. for 1 month.
U/s 4 of Protection of Children from Sexual Offences Act, 2012 (in short 'the POCSO Act) pursuant to the provision under Section 42 of the POCSO Act	R.I. for 7 years and fine of Rs.5,000/-, on default of payment of fine, additional S.I. for 2 months.
All sentences are direct	ed to run concurrently

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In the present case, age of the prosecutrix/victim girl (PW-3), at the relevant point of time was about 14 years and 8 months. According to the entries made in the Dakhil Kharij Panji, date of birth of the prosecutrix is 27.01.2004. Case of the prosecution, in brief is that on 13.10.2018, father (PW-6) of the victim girl lodged a missing report of her daughter stating that at 9:30 PM of 13.10.2018, her daughter is missing. On the basis of the said report, initially offence under Section 363 of the IPC was registered. On the next day, prosecutrix was recovered from the house of the appellant vide recovery memo Ex.P-11. Statement of the prosecutrix was recorded under Section 161 of the Cr.P.C. and she was medically examined by Dr.Pramila Dau (PW-7) and the examination report is Ex.P-13. Statement of the other witnesses were also recorded under Section 161 of the Cr.P.C. After completion of the investigation, charge-sheet was filed and Trial Court framed the charges against the appellant under Section 363, 366, 376 (2)(n), 417 of the IPC and Section 6 of POCSO Act. To prove the guilt of the appellant, prosecution examined as many as 11

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witnesses, whereas no defence witness has been examined by the appellant. The appellant in his statement recorded under Section 313 of the Cr.P.C. has abjured his guilt and pleaded innocence.

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After completion of the trial, the Trial Court convicted and sentenced the appellant for the offence mentioned in paragraph one of this judgment against which this appeal has been preferred by the appellant.

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Learned Counsel appearing for the appellant submits that appellant has been wrongly convicted by the Trial Court without there being any sufÏcient and clinching evidence available on record. Referring to the the statement of the prosecutrix, it is submitted that she was the consenting party of alleged act as there was love relation between the appellant and the prosecutrix and she herself had left her house on her own will and joined the company of the appellant. Therefore, conviction of the appellant under Section 363 & 366 of the IPC is not sustainable. It is further submitted that the prosecutrix in her Court statement has not stated anything regarding any penetrative sexual assault committed with her by the appellant. Medical report of the prosecutrix also does not support the case of prosecution. Therefore, conviction of the appellant under Section 4 of POCSO Act is also not sustainable. Further, considering the evidence available on record and particularly considering the fact that there was love relationship between the appellant and the prosecutrix and due to that she herself joined the company of the appellant, therefore, conviction under Section 417 of the IPC is also not made out against the appellant.

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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.

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I have heard learned Counsel appearing on behalf of the parties and perused the record minutely.

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The first question for consideration would be what was the age of the prosecutrix at the time of alleged incident?

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The Trial Court on the basis of statement of the prosecutrix (PW-3), medical report submitted by Dr. Pramila Dau (PW-7) as well as from the entries made in the Dakhil Kharij Panji arrived on the conclusion that at the time of alleged incident, age of the prosecutrix was below 16 years of age. The finding recorded by the Trial Court is in accordance with the evidence available on record which is neither perverse nor contrary to the records. Further, the above finding is also not disputed by learned Counsel appearing for the appellant. Hence, I afÏrm the finding recorded by the Trial Court regarding the age of the prosecutrix.

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9 Now the next question for consideration would be whether the appellant is the person who abducted the prosecutrix and committed aggrevated sexual assault with her and also committed offence of cheating as defined under Section 417 of the IPC?

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10 In this regard, the prosecution has relied on the statement of prosecutrix (PW-3). In her Court statement she has stated that on the date on incident at about 8:00 PM the appellant came to her house and allured her saying that he would marry her and abducted her and

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took her near Hanuman Temple and forcibly committed wrong act with her. In paragraph 7 of her cross-examination, she has admitted the fact that she herself went on her own will to the Hanuman Temple. In paragraph 8, she further admitted that if the appellant would have belonged to their caste, then her parents would have thought about performing marriage with the appellant. Since, the appellant did not belong to their caste, her father lodged complaint against the appellant. From the above admissions made by the prosecutrix, it appears that there was love relationship between the appellant and the prosecutrix and they were well acquainted with each other prior to the alleged incident.

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11 According to the Court statement of prosecutrix (PW-3), on the date of incident, the appellant allured the prosecutrix to perform marriage with her and took her to Hanuman Temple. Sukrita (PW-9) also corroborates the statement of the prosecutrix and deposed that on the next day morning at about 8:00 PM the prosecutrix and appellant were found near the Hanuman Temple and at that time the prosecutrix told that the appellant on pretext of marriage allured her and took her with him. Recovery memo i.e. Ex.P-11 also corroborates the case of prosecution and according to the recovery memo, the prosecutrix was recovered from the possession of the appellant. Thus, considering the entire evidence adduced by the prosecution, it is well established that on the date of incident the age of the prosecutrix was below 16 years of age, and if there was consent of the prosecutrix in the alleged act, then the said consent would not be treated as legal consent. It is also established that on the date of

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incident, the appellant abducted the prosecutrix from the lawful guardianship of the prosecutrix without their consent. Therefore, the Trial Court has rightly convicted the appellant for the offence punishable under Sections 363 & 366 of the IPC. This Court also afÏrm the said conviction of the appellant.

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12 Further, there is no evidence available on record on the basis of which it can be said that the appellant had cheated the prosecutrix as per the case of prosecution. Rather, it appears that the prosecutrix herself joined the company of the appellant, therefore, conviction of the appellant for the offence punishable under Section 417 of the IPC is not sustainable and he is acquitted of the said charge.

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With regard to the offence punishable under Section 4 of POCSO Act i.e. penetrative sexual assault committed with the prosecutrix (PW3), though, the prosecutrix in her Court statement has stated that on the date of incident, the appellant took her near Hanuman Temple and committed wrong act with her, but what wrong act was committed with her is not specifically stated by her. According to the medical report of the prosecutrix, her hymen was found intact and no injury was found on the private part or body of the prosecutrix. Dr. Pramila Dau (PW-7) has also given opinion that there is no sign of recent sexual intercourse committed with the prosecutrix. Thus, it is established that the appellant had not committed penetrative sexual assault with the prosecutrix, and as such, conviction under Section 4 of POCSO Act is not sustainable. Therefore, the appellant is

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acquitted of the charge for the offence punishable under Section 4 of POCSO Act.

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Considering the above facts and circumstances of the case, particularly considering the facts that appellant is in jail since 14.10.2018 and he has already undergone about 4 years and 10 months in jail, there is no criminal antecedent against him and he is facing the lis from 2018, I am of the view that the ends of justice would be met if, while upholding the conviction under Section 363 and 366 of the IPC imposed upon the appellant, the jail sentence awarded to him is reduced to the period already undergone by him.

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Consequently, the appeal is partly allowed to the extent indicated above. Appellant is reported to be in jail. If not required in any other case, he be set at liberty forthwith.

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Record of the Court below be sent back along with copy of this judgment forthwith for information and necessary action.

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Sd/- (Arvind Singh Chandel) Judge

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Prakash

Ajay Mehar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Ajay Mehar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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