Partly allowed

Rajesh @ Rajendra Porte v. State of Chhattisgarh

Chhattisgarh HC23 Jul 2024CRA/1216/2018

Case brief

AI extract

What is this about?

The High Court set aside the conviction under Section 4 of the POCSO Act due to material inconsistencies between the FIR, Section 161 statements, and court testimony regarding the allegation of sexual intercourse. The court substituted the conviction under Section 7 of the POCSO Act and directed immediate release as the appellants had already served the maximum prescribed sentence.

What did the court decide?

Conviction under Section 4 of POCSO Act set aside; conviction altered to Section 7; appellants directed to be released immediately.

Rajesh @ Rajendra Porte Vs State of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1216 of 2018

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{Arising out of the judgment dated 03.08.2018 passed in Special Criminal (POCSO) Case No.02/2014 by the learned Special Judge (POCSO) Katghora, District Korba}

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1. Rajesh @ Rajendra Porte, S/o. Dashrath Porte, Aged About 23 Years, R/o.Village- Kalmiduggu, Dhanuharpara, Darri, Police Station- Darri, District- Korba, Chhattisgarh.

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2. Rajendra Prasad @ Lalu, S/o. Manharan Khairwar, Aged About 22 Years, R/o.Village- Kalmiduggu, Dhanuharpara, Darri, Police Station- Darri, District- Korba, Chhattisgarh.

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3. Bhagbali, S/o. Jawaharlal Dhruw, Aged About 21 Years, R/o. Village- Kalmiduggu, Dhanuharpara, Darri, Police Station- Darri, District- Korba, Chhattisgarh.

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---Appellants

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Versus

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State Of Chhattisgarh, Through The Station House Officer, Police Station Darri, District Korba, Chhattisgarh.

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---Respondent

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(Cause Title taken from Case Information System)

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For Appellants	: Mr. Aditya Khare, Advocate
For Respondent	: Mr. H.A.P.S. Bhatia, Panel Lawyer

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment On Board

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(24.07.2024)

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Sanjay K. Agrawal, J.

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1. The appellants herein i.e. A-1 Rajesh, A-2 Rajendra & A-3 Bhagbali have preferred this appeal under Section 374(2)

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of Cr.P.C. calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 03.08.2018 passed by the learned Special Judge (POCSO) Katghora, District Korba in Special Criminal (POCSO) Case No.02/2014, by which, each of them has been convicted for the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) and sentenced to undergo life imprisonment and to pay fine of Rs.2000/-, in default of payment of fine, to suffer additional 2 months rigorous imprisonment.

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2. Case of the prosecution, in brief, is that on 21.12.2013 at about 6:00 p.m., near Mini Power Plant at Sanjaynagar, the three appellants herein in furtherance of their common intention caught hold of the minor victim (PW-3), aged about 14 years and committed sexual intercourse with her and thereby, the offence has been committed. On the same day, PW-4, sister of the victim, reported the matter to the police, pursuant to which, FIR was registered vide Ex.P-2. During investigation, spot map was prepared vide Ex.P-5 and the victim was medically examined by Dr. Smt. S. Shrivastava (PW-8), who proved the MLC Report (Ex.P-14) in which no injuries were found on the body of the victim. After usual

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formalities and on completion of the investigation, the appellants herein were firstly charge-sheeted for the offences under Sections 354(A)(1)/34, 354(B)/34, 506/34 of I.P.C. and Section 8 of the POCSO Act and thereafter during the course of trial Section 376(D) and Section 4 of the POCSO Act were also added.

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3. In order to bring home the offence, prosecution examined as many as 8 witnesses and exhibited 14 documents and the appellants-accused in support of their defence have examined DW-1 & DW-2 and exhibited the document Ex.D-1.

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4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellants for the offence under Section 4 of the POCSO Act and sentenced them to undergo life imprisonment, against which the present appeal has been preferred.

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5. Mr. Aditya Khare, learned counsel for the appellants would submit that, at the first instance, offences under Sections 354(A)(1)/34, 354(B)/34, 506/34 of I.P.C. and Section 8 of the POCSO Act were registered against the appellants and later on Section 376(D) of IPC as well as Section 4 of the POCSO Act were added during the course of trial, whereas there is no allegation in this regard in the FIR and the statement of the victim recorded under

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Section 161 Cr.P.C. as well. Therefore, it is a clear case of exaggeration and improvement by victim, as the appellants have been falsely implicated in the instant case. Even otherwise, at the most, the appellants can be convicted for offence under Section 8 of POCSO Act and for which they have already remained in jail for a period of more than five years, therefore, their appeal be allowed and they be released forthwith.

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6. Mr. H.A.P.S.Bhatia, learned State counsel would submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the learned trial Court has rightly convicted the appellants for the aforesaid offence and, as such, the appeal deserve to be dismissed.

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7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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8. The incident has taken place on 21.12.2013 at about 6:00 p.m. near Mini Power Plant, Sanjaynagar, Police Station Darri, District Korba. PW-4, sister of the victim, has allegedly reported the matter to the police on the basis of which, the appellants were charge sheeted for offences under Sections 354(A)(1)/34, 354(B)/34, 506/34 of I.P.C. and Section 8 of the POCSO Act on 15.01.2014. However,

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during the course of trial, additional charges were also framed against the appellants on 20.07.2017 for the offence under Section 376(D) and Section 4 of the POCSO Act and ultimately, appellants were convicted for the offence under Section 4 of the POCSO Act and sentenced to imprisonment for life. However, when PW-4, sister of the victim, who is the lodger of the FIR, was subjected to cross-examination in light of FIR (Ex.P-1), she had only stated the appellants had outraged the modesty of her sister. Similarly, when she was also confronted to her statement recorded under Section 161 of Cr.P.C. vide Ex.P-3, in which also she confined to the statement that the appellants had outraged the modesty of the victim. Furthermore, she has refused that any such statement she has been made in Ex.P-2 & P-3. Similarly, the victim (PW-3) has stated that the two appellants (A-1 & A-2), except Bhagbali (A-3), committed sexual intercourse with her and she immediately after the incident had become unconscious. She has been confronted to her statement recorded under Section 161 of Cr.P.C. (Ex.D-1) in which she has only stated that the appellants had outraged her modesty and the fact of alleged sexual assault was not there in her statement under Section 161 of Cr.P.C. As such, she has made exaggeration and improvement in her

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statement recorded before the court stating that the appellants had committed sexual intercourse with her. PW-6 Narendra Kumar Trivedi, the Investigating Officer, also has clearly stated that the fact of sexual intercourse was not stated by the victim in her statement under Section 161 of Cr.P.C. (Ex.D-1). Similarly, the FIR (Ex.P-2) and the 161 Cr.P.C. statement of PW-4 Ku. Asha (Ex.P-3) have been written as per the instruction of PW-4 herself and in which the statement of the commission of sexual intercourse is missing.

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9. Accordingly, in view of the aforesaid discussion of evidence, the conviction of the three appellants herein for the offence under Section 4 of the POCSO Act deserves to be and is hereby set aside. However, in view of the statement made by the victim, the offence under Section 7 of the POCSO Act is found proved against the three appellants herein, which is punishable under Section 8 of the POCSO Act and the maximum punishment prescribed thereunder is five years. Since the three appellants herein have already undergone more than five years of imprisonment in the instant case as they are in jail since 03.08.2018, they are directed to be released forthwith, unless their detention is required in connection with any other offence.

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10. In the result, the appeal is partly allowed to the extent indicated herein-above.

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11. Let a certified copy of this judgment along-with the original record be transmitted forthwith to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant (A-1) is suffering the jail sentence.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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Ashok

Rajesh @ Rajendra Porte v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajesh @ Rajendra Porte v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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