Partly allowed

Jairam Kashyap v. State of Chhattisgarh

Chhattisgarh HC23 Nov 2023CRA/82/2020

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed the appeal against a conviction for aggravated penetrative sexual assault under Section 6 of the POCSO Act, holding that there was no evidence of penetration. The conviction was altered to sexual assault under Section 7 of the POCSO Act, and the sentence was modified to five years of rigorous imprisonment while retaining the fine.

What did the court decide?

The conviction under Section 376-AB IPC and Section 6 of POCSO Act was set aside and altered to conviction under Section 8 of POCSO Act, with a sentence of five years rigorous imprisonment.

Jairam Kashyap Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR CRA No.82 of 2020

¶4

Jairam Kashyap, S/o Late Nandlal Kashyap, Aged About 35 Years, R/o Balaji Nagar, Near Kaushal Kirana, Khursipar, P.S.- Khursipar Dist. Durg (C.G.)

¶5

---- Appellant

¶6

Versus

¶7

State of Chhattisgarh Through the District Magistrate, Dist. Durg (C.G.)

¶8

---- Respondent

¶9

For Appellant : Shri M.P.S. Bhatia, Advocate For Respondent-State : Shri Arijit Tiwari, PL

¶10

Hon'ble Shri Justice Goutam Bhaduri &

¶11

Hon'ble Shri Justice Deepak Kumar Tiwari

¶12

Judgment On Board

¶13

Per Deepak Kumar Tiwari, J

¶14

23/11/2023

¶15

Heard.

¶16

The present appeal is directed against the judgment of conviction and order of sentence dated 26/11/2019 passed in Special Sessions Trial No.62/2019 by the 5^th Additional Sessions Judge/Special Judge (under POCSO Act), Durg, District Durg, C.G. whereby the appellant has been convicted for the offence punishable under Sections 376-AB of Indian Penal Code and Section 5(m)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the Act, 2012), however, since the maximum sentence is prescribed under Section 376-

¶17

¶18

AB of the IPC, learned special Judge has sentenced the appellant only under Section 376-AB of the IPC to undergo R.I. for life (for his entire natural life) and to pay fine of Rs.10,000/- and in default of payment of fine, additional R.I. for two months was also ordered.

¶19

The prosecution case in brief, is that the victim PW-1 was aged about 5 Years & 3 Months on the date of incident i.e. on 15^th May, 2019 at about 5.30 pm she had gone for watching T.V. at her neighbour's house i.e. the appellant herein. The victim returned from the neighbour's house after half an hour in a weeping condition and narrated the incident to her mother that the appellant opened her underwear and touched on the private part of the victim with his finger. She further stated that when she tried to forbid the appellant then the appellant asked her not to disclose the incident to her mother and asked her to come tomorrow and he will give money to her. Immediately, after the said incident, the mother of the victim PW-2 reached to the house of the appellant, where the victim identified the appellant is the person who has committed wrong with her and the appellant asked the mother of the victim to forbid him for the said misconduct and fled away. Thereafter, the mother lodged a written complaint and on the basis of the same, the FIR Ex. P/2 was lodged at Police Station Khursipar by the Inspector Bhushan Ekka (PW-10).

¶20

During the investigation spot map Ex. P/4 was prepared and the victim also subjected for the medical examination. Dr. Sonika Williams Chourasiya (PW-9) and Dr. Chhaya Tiwari (PW-11) have examined the victim and they found no internal or external injury on the body of the

¶21

¶22

victim and also not found any characteristics of recent sexual intercourse in their report Ex. P/17 and Ex. P/28 respectively.

¶23

Statement of witnesses were recorded. During examination of the victim slide was prepared and the underwear in which some stains were found, was sent for FSL for confirmation and in such examination vide report Ex. P/26 nothing significant was found and negative opinion was given.

¶24

Birth certificate Ex. P/8 of the victim and she was born at Kamta Clinic, Ahiroula Road, Kaptanganj-Azamgarh (U.P.) on 09/02/2014 and School Admission Register Ex. P/14 was obtained. After completing the investigation charge-sheet was filed and after committal of the case during the trial appellant abjured the guilt and in order to prove the case the prosecution has examined as many as 11 witnesses and exhibited 28 documents. The appellant in his examination recorded under Section 313 CRPC stated that he has been falsely implicated and has not adduced any evidence. After completion of trial, the learned trial Court after evaluating the evidence convicted the appellant and sentenced him as supra. Hence this appeal.

¶25

Learned counsel for the appellant would submit that from the statement of the victim PW-1, the medical evidence Ex. P/17 & Ex. P/28 and also the FSL report was found negative, there is complete lack of evidence about commission of rape and would further submit that even Section 3 of the Act, 2012 which defines the penetrative sexual assault which contemplates that a person is said to commit penetrative sexual assault

¶26

¶27

if he penetrates, inserts, manipulates or applies his mouth but no such evidence or ingredient is available in the instant case and the learned trial Court wrongly convicted the appellant for the offence under Section 6 of the Act, 2012 for the aggravated penetrative sexual assault. He would further submit that from the evidence at the most the offence which attracts against the appellant is Section 7 of the POCSO Act which defines the sexual assault and same was punishable under Section 8 of the Act, 2012. He would further submit that the conviction recorded by the trial Court is required to be altered under Section 7 of the Act, 2012.

¶28

On the other hand learned State counsel would submit that the trial Court has rightly appreciated the evidence available on record. He would further submit that on the date of incident the victim was about 5 Years & 3 Months and the said fact was duly proved. During the trial by producing the primary and the best evidence of the hospital where the victim was born vide Ex. P/8 and the School Admission Register Ex. P/14 and from the statement of the victim wherein she categorically deposed the misconduct committed by the appellant which is squarely covered under Section 3 of the Act, 2012. So the judgment is well merited which does not require any interference.

¶29

We have heard learned counsel for the parites and perused the record.

¶30

Victim PW-1 is student of Class 1 and aged about 5 Years examined by the trial Court after ascertaining her mental capability to depose and certain questions were put and after obtaining the answers the trial

¶31

¶32

Court has examined the said witness in which she has categorically deposed that on the date of incident she had gone for watching T.V. to the house of the appellant and at that time the appellant alone was present in the house. She further deposed that the appellant called her in the another room of his house and opened her underwear and laid her down on the bed and pressed her mouth and closed the door. She also deposed that the appellant had also opened his clothes and underwear and touched her private part with his finger to which she objected and tried to shout but the appellant pressed her mouth and after the incident the appellant asked her to come tomorrow and then he will give money to her and also threatened her not to disclose the incident to her mother otherwise he will quarrel to her. After such incident the victim had reached to the house in a weeping condition and narrated the incident to her mother PW-2. After noticing the said incident she informed the incident to her husband & brother A (PW-3) over telephone and on the next date of incident on 16^th of May, 2019 she lodged a report vide Ex. P/1 at Police Station Khursipar based upon which the Inspector Bhushan Ekka (PW-10) lodged an FIR Ex. P/2 and the reason for delay in lodging the report was mentioned that after asking from the husband for the lodging the FIR, the complaint was made.

¶33

Dr. Sonika Williams (PW-9) on 17^th May, 2019 at about 1.30 noon examined the victim PW-1 aged about 4 years and in such examination she has not found any internal or external injury on the body of the victim and the hymen was found intact and there was no bleeding or injury or fresh injury on her private part. During such examination she

¶34

¶35

has also prepared slide and gave her report vide Ex. P/17 and handed over the slide to the constable vide query report Ex. P/18. The second medical opinion of the expert Dr. Chhaya Tiwari (PW-11) was also obtained and she had examined the victim on 20^th May, 2019 vide its report Ex. P/28 and in the said examination she has also confirmed and not found any internal or external injury on the body of the victim and she further opined that there were no characteristic about the recent sexual intercourse. In the FSL report vide Ex. P/26 of the slide of the victim and the underwear was also found negative.

¶36

Perused the statement of the victim about the incident, such fact was unrebutted in the cross-examination and the testimony of the victim is found fully reliable and the said fact was also not challenged by the learned counsel for the appellant. The main ground and submission putforth by learned counsel for the appellant is the offence at the most attracts for the sexual assault which has been defined under Section 7 of the Act, 2012. For the sake of brevity Section 7 of the Act, 2012 is reproduced herein below:-

¶37

“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 of 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.”

¶38

To attract penetrative sexual assault it is required that a person penetrates, inserts, manipulates or applies his mouth to the child for such act and Section 3 of the Act, 2012 which defines penetrative

¶39

¶40

sexual assault reads under:-

¶41

“3. Penetrative sexual assault.- A person is said to commit “penetrative sexual assault”if-

¶42

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

¶43

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

¶44

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

¶45

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”

¶46

If we closely examine and scrutinize the evidence of the victim with the help of the medical evidence and also the FSL report because in the medical evidence no sign of penetration or insertion or manipulation have been found, we find that the victim herself has given the evidence that the appellant touched her private part with his finger and thus the basic ingredients to attract the offence under Section 3 of the Act, 2012 is missing in the instant case. Therefore, we are of the view that the submission put forth by learned counsel for the appellant is found to be acceptable and accordingly the conviction recorded by the learned trial Court is liable to be interfered. Consequently, the conviction recorded under Section 376-AB of the IPC and under Section 5(m)/6 of the Act, 2012 cannot be sustained and the same is altered to that of conviction under Section 7 of the Act, 2012 which is punishable under Section 8 of the Act, 2012 and the appellant is sentenced to undergo R.I. for 5 years.

¶47

¶48

So far as the fine sentence is concerned, it is made clear that we are not inclined to interfere with the sentence of fine imposed by the Court below and the fine amount of Rs.10,000/- along with default stipulation imposed by the trial Court shall remain intact and the same shall be treated to have been passed under Section 8 of the Act, 2012.

¶49

In the result, the Appeal is partly allowed.

¶50

Let a copy of this judgment be sent to the concerned trial Court and the concerned Secretary of the DLSA for necessary compliance forthwith.

¶51

Sd/- Sd/- (Goutam Bhaduri) (Deepak Kumar Tiwari) Judge Judge

¶52

ashu

Jairam Kashyap v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Jairam Kashyap 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

Similar cases

Rinki Choudhary Vs Vikram Choudhary

M/S Narendra Transport Pvt. Ltd. Vs South Eastern Coalfields Ltd.

Rewaram Verma Vs Smt. Premkumari Verma

Dileep Kumar @ Jhirga Vs State of Chhattisgarh

Mahendra Kurre @ Ravindra @ Lallu Kurre Vs State of Chhattisgarh

Kishun Yadav Vs State of Chhattisgarh