Partly allowed

Prakash Gupta v. State of Chhattisgarh

Chhattisgarh HC22 Aug 2023CRA/901/2022

Case brief

AI extract

What is this about?

The High Court set aside the appellant's conviction for penetrative sexual assault under POCSO/IPC, deeming evidence insufficient. The court upheld convictions for kidnapping, hurt, and assault on woman seriousness, but convicted him for sexual assault under POCSO. The sentence for upheld offences was commuted to the period already undergone.

What did the court decide?

Conviction under Section 6 POCSO and IPC 376(2)(p) set aside; conviction under Section 8 POCSO affirmed; sentence for IPC 363/323/354-A remitted to period undergone; appellant released.

Prakash Gupta Vs State of Chhattisgarh — Child Custody and Guardianship | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.901 of 2022

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Prakash Gupta, S/o Shri Sharad Gupta, aged about 23 years, R/o Village Dabo, P.S. Fastarpur, District – Mungeli, Chhattisgarh,

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---- Appellant

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Versus

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

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---- Respondent

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For Appellant	: Shri Anil Pillai and Shri Anupam Dubey,
	Advocates,
For State/Respondent	: Shri Ishwar Jaiswal, P.L.

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Hon'ble Shri Justice Arvind Singh Chandel

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Judgment on Board

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22/08/2023

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This appeal has been preferred against the impugned judgment dated 06.05.2022 passed in Special Criminal Case No.17/2018 by the Special Judge (FTSC) POCSO Act, Mungeli, District - Mungeli, (C.G.) wherein appellant has been convicted and sentenced as under :

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Conviction	Sentence
U/s 363 of the Indian Penal	R.I. for 3 years and fine of Rs.1,000/-,
Code, 1860 (in short ‘the IPC’)	in default, R.I. for 1 month,

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2 U/s 323 of the IPC	R.I. for 1 year and fine of Rs.1,000/-, in default, R.I. for 1 month
U/s 354-A of the IPC	R.I. for 2 years and fine of Rs.1,000/- in default, R.I. for 1 month,
U/s 376(2)(p) of the IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short 'the POCSO Act') pursuant to provision contained in Section 42 of the POCSO Act.	R.I. for 10 years and fine amount of Rs.5,000/-, in default, R.I. for 2 months

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All sentences are directed to run concurrently

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According to the case of prosecution, in the present case, at the relevant time, age of the victim girl/prosecutrix (PW-1) was about 6 years. According to her birth certificate i.e. Article 1(C), date of birth is 01.12.2012. Further case of the prosecution is that, on 08.02.2018 the victim girl was playing in front of her house, but she did not return to her house till the evening. On being searched by her parents, one Badal informed her father (PW-3) that the appellant herein took away the victim girl with him. Thereafter, father of the victim girl and other persons searched the victim girl, after some time they found the victim girl along with the appellant near tesua canal in bush. On seeing the father of the victim girl, the appellant fled away from the spot. It was informed by the victim girl that the appellant was teasing her and touching her chest, thigh and stomach. Thereafter, on 08.02.2018 itself, a written complaint Ex.P-3 was lodged by father (PW-3) of the victim girl and on the basis of which FIR was registered vide Ex.P-4. Firstly, victim girl was medically examined by Dr. Kavita Kaushik (PW-

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and report submitted by her is Ex.P-11. She was further examined by Dr. Chanchala Mahilange (PW-12) and her report is Ex.P-19. Statement of witnesses were recorded under Section 161 of Cr.P.C. Statement of victim girl was recorded under Section 164 of the Cr.P.C. After completion of the investigation, a charge-sheet was filed against the appellant. The Trial Court framed the charges under Section 363, 323, 354-A and 376 of the IPC and Section 6 of POCSO Act. To prove the guilt of the accused/appellant, prosecution has examined as many as 12 witnesses. Two defence witnesses were also examined. Statement of appellant under Section 313 of the Cr.P.C. was recorded, wherein accused/appellant has pleaded innocence and false implication in the matter.

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After completion of trial, the trial Court has convicted and sentenced the appellant as mentioned in paragraph 1 of this judgment. Hence, this appeal.

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Learned Counsel appearing on behalf of the appellant submits that the Trial Court has wrongly convicted the appellant without there being sufficient and clinching evidence against him. From the admissions made by the parents of the victim girl/prosecutrix (PW-1), it is established that appellant has been falsely implicated by them due to some previous enmity between them. Further referring to the contents of written complaint vide Ex.P-3 and medical report of the victim girl i.e. Ex.P-11 & 19, it is argued that as per the said documents, no penetrative sexual assault has been committed with the victim girl by the appellant, therefore, conviction of the appellant for the offence

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punishable under Section 6 of POCSO Act and Section 376(2)(p) of the IPC is not sustainable, instead of that, considering the evidence available on record, the appellant may be convicted and sentenced for the offence punishable under Section 8 of POCSO Act only. It is further argued that the appellant has already undergone more that five years in this case, therefore, it is prayed that the sentence imposed upon him may be reduced to the period already undergone by him.

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Per contra, learned Counsel appearing for the State supports the impugned judgment and submits that considering the medical report of the victim girl, the Trial Court has rightly convicted the appellant for the aforesaid offences. As such, the appeal deserves to be dismiss.

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I have heard learned Counsel appearing for the parties, perused the statement of witnesses, evidence adduced by the prosecution oral and documentary both and other annexed documents available on record minutely.

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With regard to the age of the victim girl/prosecutrix (PW-1), the Trial Court on the basis of statements of mother (PW-2) and father (PW-3) of the victim girl/prosecutrix (PW-1) as well as from the birth certificate of victim girl and other evidence on record, arrived on the conclusion that at the time of alleged incident, age of the victim girl was about six years. The above finding recorded by the Trial Court is based upon the evidence on record which is neither perverse nor contrary to the record. This fact has also not been disputed by learned Counsel appearing for the appellant. Thus, I hereby affirm the said finding recorded by the Trial Court.

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With regard to the alleged incident, the victim girl/prosecutrix (PW-1) in her Court statement has deposed that on the date of incident, when she was playing along with one child namely Chhoti in the street, then the appellant came there and told her that he would give her chocolate, then he took her near river bank where he lied the victim girl on the ground and started touching her chest and stomach. She further deposed that thereafter, appellant inserted his finger inside her vagina. At that time she saw Jaggu i.e. father of one Punam, and called him, then the appellant on seeing him, fled away from the spot. She further deposed that Jaggu took her to her house, then she informed about the incident to her mother, then the matter was reported by her father. In paragraph six of her cross-examination, she further admitted that her parents had told her what to say against the appellant on the basis of which offence would be framed against him.

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Father (PW-3) of the victim girl/prosecutrix in his Court statement has deposed that on the date of incident, when he returned to his house after work at about 6:00 PM, then his wife told that their daughter was missing. Then he along with Jaggu, Gajanand (PW-5) started searching her and near the river bank, they saw appellant with the victim girl. Upon seeing them, the appellant fled away from the spot. He further deposed that on being asked to the victim girl, she told them that the appellant slaped her and touched her hand, chest and stomach. Thereafter, he lodged a written complaint i.e. Ex.P-3 in the police station. He further deposed that after recording of FIR (Ex.P-4), in the night, her wife told him that the private part of their daughter is paining, then he took her daughter to the doctor for treatment. Mother

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(PW-2) of the victim girl/prosecutrix corroborated the statement of her husband (PW-3). However, both the above witnesses admitted the fact that, thereafter, they never made any complaint regarding pain in private part of their daughter. Pardeshi Sahu (PW-4), Gajanand Sahu (PW-5) also supported the statement of father of victim girl and deposed that they along with father of victim girl went towards the river to search the victim girl where they saw appellant with the victim girl and on seeing them, the appellant fled away from the spot. Then victim girl informed them that appellant slapped her and touched her leg, hand, thigh and other parts of the body.

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The victim girl/prosecutrix (PW-1) was firstly, medically examined by Dr. Kavita Kaushik (PW-8) and medical report submitted by her is Ex.P-11. During examination of the victim girl, she found blood spot present on the lower end of labia but bleeding point was not seen. Blood spot can be easily wiped off by a wet gauze piece. She further opined that there was a sign of crude touch over the inguinal region. Later on, the victim girl was again medically examined by Dr. Chanchala Mahilange (PW-12) and medical report submitted by her is Ex.P-19. During examination of victim girl, she found that there was a red bleeding point present in the private part of victim girl. However, no definite opinion was given by her regarding commission of sexual intercourse with the victim girl. She further admitted the fact that the said injury may be caused while playing and falling.

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On minute examination of the evidence available on record, it is clear that on the date of incident, victim girl/prosecutrix (PW-1) was playing

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with her friends in the street and at that time appellant took her towards river bank. It is also established that father (PW-3) of the victim girl, Pardeshi Sahu (PW-4) and Gajanand Sahu (PW-5) went towards river bank to search the victim girl where they found the appellant with the victim girl and upon seeing them, the appellant fled away from the spot. From the statements of above witnesses, it is established that immediate after the incident, the victim girl informed them that appellant committed marpeet with her and touched her chest and stomach. At that time, the victim girl did not make any complaint regarding inserting finger by the appellant in her private part. In the written complaint (Ex.P.-3) also, there is no mentioning of insertion of finger in the private part of the victim girl, and in the said report, commission of marpeet and touching of chest and stomach of the victim girl is mentioned. Thus, there is no content available in the written report regarding insertion of finger in the private part of the victim girl. Though, as per the statement of mother (PW-2) and father (PW-3) of victim girl, that after recording of the written complaint, there was a complaint of pain occurred in the private part of the victim girl at night, but this fact has not been informed by them to the police, thereafter, no second complaint has been made in this regard.

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The medical report (Ex.P-11) of the victim girl/prosecutrix which is proved by Dr. Kavita Kaushik (PW-8) shows that there was blood spot present on the lower end of labia but the said blood spot can be easily wiped off by a wet gauze piece. Later on, the victim girl was again medically examined by Dr. Chanchala Mahilange (PW-12) and medical report submitted by her is Ex.P-19, according to which, there was a red

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bleeding point present in the private part of victim girl. However, no definite opinion was given by her regarding commission of sexual intercourse with the victim girl. However, she admitted the fact that the said injury may be caused while playing and falling.

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Considering the entire evidence available on record, it is not established that victim girl/prosecutrix (PW-1) was subjected to penetrative sexual assault or commission of rape with her by the appellant. Looking to the facts and circumstances of the case, only commission of sexual assault with victim girl is established which is defined under Section 7 of the POCSO Act. Therefore, conviction of the appellant for the offence punishable under Section 6 of the POCSO Act and Section 376 (2)(p) of the IPC is not sustainable. Thus, conviction of the appellant under Section 6 of the POCSO Act and Section 376 (2)(p) of the IPC are set aside. Further, the appellant is convicted for the offence punishable under Section 8 of POCSO Act i.e. for “sexual assault” as defined under Section 7 of POCSO Act. Ordered accordingly. However, conviction of the appellant for the other offence i.e. under Sections 363, 323 and 354-A of the IPC are affirmed.

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Considering the above facts and circumstances of the case, particularly considering the facts that the appellant has already undergone about five and half years in jail, there is no criminal antecedent against him, and further considering the age of the appellant i.e. 23 years, I am of the view that the ends of justice would be met if, while upholding the conviction under Sections 363, 323 and

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354-A 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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