Partly allowed

Rajesh Naidu v. State of Chhattisgarh

Chhattisgarh HC11 Dec 2024CRA/14/2019

Case brief

AI extract

What is this about?

In criminal appeal under POCSO and IPC, High Court acquitted appellant of abduction charge under Section 366 IPC due to lack of marriage pretext evidence but maintained conviction under Section 6 POCSO considering prior sentence served.

What did the court decide?

Appellant acquitted of Section 366 IPC charges; convicted and sentenced to 7 years under Section 6 POCSO with release from jail.

Rajesh Naidu Vs State of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2024)

2024:CGHC:49072

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 14 of 2019

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Rajesh Naidu S/o Shri Chandrabhan Naidu Aged About 30 Years R/o Village Kargi Khurd Ward No. 06 ,kota Police Station Kota District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through S.H.O. Of The Police Station Kotwali Tahsil And District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh.

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... Respondent

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For Appellant : Mr. Abhishek Saraf, Advocate For Res./State : Mr. Pramod Shrivastava, Deputy Government Advocate

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Hon'ble Mr. Justice Narendra Kumar Vyas

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Judgment on Board

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12/12/2024

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1. This criminal appeal under Section 374(2) of the Cr.P.C. is directed against the judgment dated 12.12.2018 passed by In-Charge Additional Sessions Judge (F.T.C.), District Raigarh (C.G.) in Special Criminal Case No. 03/2018 (POCSO Act) whereby the appellant has been convicted and sentenced in the following manner :-

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Conviction	Sentence
Under Section 366 of the IPC	Rigorous Imprisonment years with fine of Rs.1,0 default of payment amount to further unde for 1 month	for 3 00/-, in of fine rgo RI
Under Section 6 of	Rigorous imprisonment	for 10
Protection of Children	years with fine of Rs. 2	0,000/-,
from Sexual Offence Act,	in default of payment of	fine, to
2012 .	further undergo ad	ditional
	rigorous imprisonment months.	for 2
	All the substantive sen	tences
	were ordered to concurrently.	run
	In addition, Rs.1,00,000	/- was
	ordered to be paid victim.	to the

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2. Case of the prosecution, in brief, is that on 05.12.2027, Complainant – Narendra Singh (Father of the victim) lodged an FIR (Ex.P-6) bearing Crime No. 885 of 2017 at Police Station Kotwali Raigarh alleging therein that her minor daughter (victim), aged about 17 years & 2 months on 05.12.2017 at around 6 O'clock was missing and could not be found. It is alleged that victim had gone somewhere due to someone's instigation. Thus, on the basis of aforesaid report, an offence was registered against the unknown person under Section 363 of the IPC and the matter was investigated. During the course of investigation, the victim was recovered at the instance of the present appellant on

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21.12.2017. During interrogation, it was revealed that she had gone to Dhimrapur on the call of accused and from there she went to Banjari Temple with the appellant in a Bus, thereafter, she fell asleep and then they had reached to Pathalgaon. From there, the accused forcibly took her to Rewa where he forcibly exploited her sexually at his sister's house from where the Police had brought her. Thereafter, the properties were seized and the statements of the witnesses were recorded and the appellant was arrested.

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After completion of investigation, charge-sheet under Sections 363, 366 (A), 376 of the IPC and Sections 4 & 6 of the POCSO Act was filed against the appellant. Charges was read over and explained to the accused, who abjured his guilt and faced the trial. After considering the entire evidence learned trial Court has convicted and the appellant under Section 366 of IPC and under Section 6 of the POCSO Act, 2012 as aforementioned.

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4. In order to bring home the offence, the prosecution examined as many as 10 witnesses namely Dr. Santosh Gupta (PW-1), Siser Jaya Grace (PW-2), Narendra Singh (PW-3), Rakesh Kumar Bhagat (PW-4), Inspector Sushma Chelak (PW-5), Victim (PW-6), Dr. Sunil Ratre (PW7), Inspector R.K. Mishra (PW-8), Ramadhar Upadhyaya (PW-9) & Constable Son Charan Pradhan (PW-10) and exhibited 30 documents i.e. Ex.P-1 to Ex.P-30. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and stated that he is innocent and has been falsely implicated. He has neither examined any witness nor exhibited

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any documents in support of his submission.

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5. To appreciate the aforesaid issue, entire evidence adduced by the prosecution is taken into consideration, especially in the rape case with the minor victim, statement of minor victim has to be seen for the purpose of just decision of the case.

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Victim (PW-6), aged about 17 years, who is minor victim of rape, has stated in her evidence that there is grocery shop in her house and the same was running by her mother. She also used to sit with her in the said shop. On 05.12.2017, at about 5 pm the appellant/accused came to her shop and stated that let's go for a walk and when she refused to do so, accused / appellant threatened to kill her, then due to fear & pressure, she went along with him to Dhimrapur where the accused told her that they will go to Banjari Temple by bus, then also accused/appellant threatened her to kill, so due to fear she sat in a bus with the appellant and went to Banjari Temple, but before reaching Banjari Temple, she slept and when she woke-up then she reached at Patthalgaon, thereafter, she and accused/appellant took a Bus and reached the house of the sister of the accused/appellant at Rewa on 06.02.2017 and they remained there with appellant's sister house till 19.12.2017, where the accused/appellant made physical relation with her. Thereafter, accused/appellant and the victim went from his sister's house to the house of his sister's daughter-in-law in a four wheeler in village Sansarpur, from where she was recovered from the appellant. In cross-examination, she has admitted that she knew the accused/appellant for the past one year, she used to talk with the

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appellant and she never talked with him on mobile. She has admitted that when she left the house on 5.12.2017, she was having mobile phone. She has also admitted that when she was travelling in a Bus and woke up in Pathalgaon, she did not call her father, brother or any other relative to narrate them about travelling in the Bus or going anywhere. She has also admitted that, she did not see any gun, knife, sword or stick with the accused on 05.12.2017. She has also admitted that she did not tell her father or brother sitting in the shop or the people around her about the incident.

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Narendra Singh (PW-3), who is father of the victim, has stated in his evidence, that he knew very well the appellant, as he used to come his grocery shop to take kirana items. He further stated that his son Santosh got the call details of the victim's mobile, which shows that she was at Rewa, thereafter, he went to Rewa to search along with Rakesh Chouhan and Rohit and they found that she was in a village under Govindgarh Police Station near Rewa, then his son informed the Raigarh police, then the police went there and recovered her and the accused and brought them to Raigarh Police Station. He has also stated that victim has told her mother that accused sexually exploited her in her sister's house at Rewa.

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Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 12.12.2018 has recorded a finding that the appellant/accused used to make physical relation with the victim at her sister's house and victim is subjected to aggravated sexual assault for more than one occasion and accordingly convicted the appellant

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for the offence under Sections 366 of the IPC and Section 6 of the POCSO Act and sentenced him as has been stated in preceding paragraph, against which, this criminal appeal has been filed.

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Learned counsel for the appellant submits that finding recorded by learned trial Court to the extent that appellant has committed an offence under Section 366 of the IPC and Section 6 of the POCSO Act, is perverse and contrary to the evidence as the victim has nowhere stated that accused/appellant used to make physical relationship with her for more than one occasion, as no evidence has been brought on record by the prosecution that victim is subjected to aggravated sexual assault for more than one occasion by the appellant, hence, the criminal appeal filed by the appellant may be allowed and the appellant may be acquitted of the alleged charges. 10. Per contra, learned counsel for the State submits that the finding recorded by the trial Court is just & proper, which does not call for any interference by this Court. 11. I have heard learned counsel for the parties and perused the material placed on record. 12. Perusal of the material available on record would demonstrate that undergarments of the victim were sent to FSL for chemical examination, but the report of the same did not make available to the trial Court for deciding the fact whether the appellant/accused has sexually exploited the victim or not. Further, the appellant has remained in her sister's house along with the victim for about 16 days but there is no such material available on record to demonstrate that victim was subjected to aggravated sexual assault for more than one occasion, even the victim was about 17 years of age at the time of incident, then, the finding recorded by the trial Court that the victim was subjected to aggravated sexual assault by the

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appellant/accused for several occasions, is perverse and illegal. 13. So far as finding recorded by the trial Court for the offence under Section 366 of the IPC is concerned, the same is perverse & illegal, as the prosecution has failed to prove that the appellant abducted the victim on the pretext of marriage and in absence of such evidence, appellant cannot be convicted under Section 366 of the IPC,. Thus, I am of the view that the appellant be acquitted of the charges under Section 366 of the IPC. So far as offence under Section 6 of POCSO is concerned, learned trial Court has not committed any illegality in convicting the accused/appellant for the aforesaid offences, thus, the same is hereby maintained.

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So far as sentence part of the appellant is concerned, it is reported that the appellant has already remained in jail for about 7 years & four months. Thus, considering the facts & circumstances of the case, this court is of the view that the appellant be convicted under Section 6 of the POCSO for which minimum sentence shall not be less than seven years prior to amendment in 2019 and since the offence was committed in the year 2017, therefore, the appellant is sentenced to undergo RI for seven years under Section 6 of the POCSO.

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Considering all the facts and circumstances of the case and further considering the fact that the appellant already remained in jail for seven years and four months, as such, he has already undergone the minimum sentence which can be imposed under Section 6 of POCSO, Act, I am of the view that appeal deserves to be allowed in part by affirming the sentence under Section 6 of the POCSO.

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Accordingly, the appeal is partly allowed by affirming conviction under Section 6 of POCSO. Since the appellant has already remained in jail for seven years and four months, he be released from jail forthwith, if not required in any other case.

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RAVVA SATYANARAYANA RAJU

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Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2024.12.20 17:59:08 +0530

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Sd/-

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(Narendra Kumar Vyas)

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Judge

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amita

Rajesh Naidu v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Rajesh Naidu 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

Statutes considered

Parties & counsel

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