Partly allowed

Lalit Yadav v. State of Chhattisgarh

Chhattisgarh HC21 Aug 2023CRA/71/2019

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal in part. It upheld the conviction for kidnapping, abduction, cheating, and aggravated sexual harassment but ignored the POCSO Act conviction as the victim was likely 13 or older at the time, not under 12. The court reduced the minimum 10-year sentence to 7 years, aligning with the law applicable at the time of the 2015 incident.

What did the court decide?

Appellant convicted of kidnappings, abduction, etc., remained liable, but POCSO section conviction ignored and sentence for rape reduced from ten years to seven years.

Lalit Yadav Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.71 of 2019

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Lalit Yadav, S/o Basant Yadav @ Meena Yadav, Aged about 38 Years, R/o Village Navapara, P.S. Shankargarh, District Balrampur-Ramanujganj, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through- The Police StationShankargarh, District Balrampur-Ramanujganj, Chhattisgarh.

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---- Respondent

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_______________________________________________________ For Appellant : Mr. Sunil Tripathi, Advocate For State/Respondent : Mr. Shrikant Kaushik, Panel Lawyer

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Hon'ble Shri Justice Arvind Singh Chandel

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Judgment on Board

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21/08/2023

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This criminal appeal has been preferred by the appellant herein under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.'), 1973 being aggrieved with the judgment of conviction and order of sentence dated 10^th December, 2018 passed in Special Sessions Trial No.39/2018 by the Special Judge, Balrampur,

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Place Ramanujganj {Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act}, District Balrampur Ramanujganj (C.G.), by which the appellant stands convicted and sentenced as under :

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Conviction			Sentence
Under Section 363 Indian Penal Code	of the	rigorous year a Rs.100/-, of fine rigorous days	imprisonment for one nd fine amount of in default of payment amount additional imprisonment for seven
Under Section 366 Indian Penal Code	of the	rigorous years a Rs.100/-, of fine rigorous days	imprisonment for two nd fine amount of in default of payment amount additional imprisonment for seven
Under Section 376(2) the Indian Penal Sections 3(a) r/w 4 & 6 of the POCSO Act, As contained under 42 of the POCS conviction only Section 376(2)(i)(n) IPC	(i)(n) of Code, 5(i) r/w Section O Act, under of the	rigorous years a Rs.100/-, of fine rigorous days	imprisonment for ten nd fine amount of in default of payment amount additional imprisonment for seven
Under Section 506 Indian Penal Code	of the	rigorous months Rs.100/-, of fine rigorous days	imprisonment for six and fine amount of in default of payment amount additional imprisonment for seven

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(All the sentences shall run concurrently)

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In this case, at the time of alleged incident, the prosecutrix (PW-05) was aged about 13 years. As per entries of Dakhil Khareej Panjee (Ex.P/5), her date of birth is 02.03.2003. According to the case of prosecution, date of incident is 29.11.2015 at about 04:00 pm, when the prosecutrix was playing along with her friends Lalsi, Shanti and Aasha at that time the appellant came there on motorcycle and forcibly took the prosecutrix with him towards the house of Jeevan Ram situated at Ahirpara there he made the victim drink alcohol and thereafter took the victim/prosecutrix in the Kanjiya Forest where he had committed forcible sexual intercourse with the prosecutrix and threatened her for dire consequences. Thereafter the appellant left the prosecutrix near her house and went his house. After some time, the prosecutrix came her house and informed about the incident to her sister-in-law and her parents then, her treatment was carried out by local doctor. Thereafter, on 12.12.2015, FIR (Ex.P/6) was lodged by the prosecutrix and on the basis of which offence was registered. The prosecutrix was medically examined by Dr. Asarita Kachchap (PW-06) and her report is Ex.P/13. Statement of the prosecutrix and other witnesses were recorded under Section 161 of the Cr.P.C.

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After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant/accused abjured his guilt and entered into defence by stating that he has not committed the offence.

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In order to bring home the offence, prosecution examined as many as 11 witnesses and brought on record 21 documents, i.e., Exs.P/1 to P/21 . However, two defence witnesses were examined by the prosecution. In examination under Section 313 of the Cr.P.C., the appellant denied the guilt and pleaded innocence.

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The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant for the offence under Sections 363, 366, 376(2)(i)(n) and 506 of the Indian Penal Code (hereinafter referred to as 'the IPC') and sentenced as above against which the present appeal has been preferred by the appellant.

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Learned counsel for the appellant would submit that the trial Court has wrongly been convicted the appellant without there being any sufficient and clinching evidence available

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on record. He further submits that there is no conclusive evidence available on record which shows that at the time of alleged incident, the prosecutrix was below 18 years of age. There is also no evidence available on record which shows that the appellant had committed sexual intercourse with the prosecutrix more than once and also no evidence available on record which shows that the prosecutrix was below 12 years of age at the time of the incident, therefore, conviction of the appellant punishable under Section 5(i) read with Section 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as 'the POCSO Act') is not sustainable. As the prosecutrix was below 18 years of age and it appears that she was a consenting party, therefore, conviction in other offences is also not sustainable.

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Learned counsel for the State supports the impugned judgment and submits that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted and sentenced for the aforesaid offences. Therefore, the appeal deserves to be dismissed.

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I have heard learned counsel for the parties and perused

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the entire evidence adduced by the prosecution before the trial Court both oral and documentary.

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

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The trial Court on the basis of statement of the prosecutrix, entries of Dakheel Kharij Panjee and statement of Saganu Ram (PW-04) who is Pradhan Pathak of the Primary School, Jotada, Thana Shankargarh, District Surguja arrived on the conclusion that at the time of alleged incident, the prosecutrix was above 13 years of age. The above finding recorded by the trial Court is based upon the evidence available on record, it is neither perverse nor contrary to the record, therefore, I hereby affirm the said finding recorded by the trial Court.

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With regard to the incident, in her Court statement, the prosecutrix (PW-05) herself deposed that at the time of occurrence, when she was playing with her friends Lalsi, Shanti and Aasha at that time the appellant came there and took her in the forest from motorcycle and there he had committed forcible sexual intercourse with her. The above statement of the prosecutrix is also duly corroborated by her

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father (PW-01). Jeevan Ram (PW-03) who saw that the appellant took the prosecutrix with him on his motorcycle. The appellant also made the victim drink alcohol in the house of Kunwar Say. Though healthy cross-examination was conducted by the defence but the above witnesses remained firm during their cross-examination and there is nothing in their statement on the basis of which their statement can be disbelieved.

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Considering the statement of above witnesses and other material available on record, the trial Court has rightly arrived on conclusion that the appellant had committed penetrative sexual assault on the prosecutrix. However, considering the fact that as per case of prosecution itself, the prosecutrix was aged about 13 years at the time of alleged incident. There is no material evidence available on record which shows that the prosecutrix was below 12 years of age at the time of incident. Further considering the statement of the prosecutrix that the appellant had committed sexual intercourse with her only once, there is nothing in her statement which shows that the appellant had committed sexual intercourse with her repeatedly. Further considering the statement of the prosecutrix and looking to

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her age, it is established that the conviction of the appellant for the offence punishable under Section 5(i) read with Section 6 of the POCSO Act is not sustainable. However, conviction of the appellant for the other offences is affirmed.

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With regard to the sentence, the appellant has been sentenced by the trial Court to undergo rigorous imprisonment for ten years and fine amount of Rs.100/- for the offence punishable under Section 376(2)(i)(n) of the IPC read with Section 3(a) read with Section 4 of the POCSO Act. The alleged incident occurred in the year 2015, i.e., prior to amendment in the POCSO Act as well as in the Indian Penal Code. Before amendment in the POCSO Act, minimum sentence prescribed for the offence punishable under Section 3(a) of the POCSO Act was seven years and for the offence punishable under Section 376(2)(i)(n) of the IPC was also seven years. In the present case, the appellant has already undergone about six years and two months.

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Considering the entire facts and circumstances of the case, the appellant has been sentenced rigorous imprisonment for ten years, which appears to be on higher side, I am of the considered opinion that the ends of justice would be met if,

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while upholding the conviction imposed upon the appellant for the offence punishable under Section 376(2)(i)(n) of the IPC the appellant is now, sentenced with rigorous imprisonment for seven years. Accordingly, the jail sentence of the appellant is reduced to seven years from ten years. The fine sentence imposed upon the appellant by the trial Court for the aforesaid offence is hereby affirm. The sentence imposed upon the appellant for other offences is also affirmed and all sentences are directed to run concurrently.

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Accordingly, the instant criminal appeal is allowed in part to the extent shown above.

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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/-

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(Arvind Singh Chandel) Judge

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Vasant

Lalit Yadav v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Lalit Yadav 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

Coram

Case details

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