Partly allowed

K. Mahesh Rao v. State of Chhattisgarh

Chhattisgarh HC17 Jun 2024CRA/1742/2018

Case brief

AI extract

What is this about?

A division bench of the Chhattisgarh High Court allowed an appeal against conviction under the IPC and POCSO Act. The court set aside the rape conviction and life sentence due to lack of medical evidence of recent assault but convicted the appellant of sexual assault under POCSO, sentencing him to five years.

What did the court decide?

Set aside IPC Section 376(2)(i) and POCSO Section 4 conviction; convicted under POCSO Section 7; sentenced to 5 years imprisonment; acquitted of rape.

K. Mahesh Rao Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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CRA No. 1742 of 2018

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1742 of 2018

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(Arising out of judgment dated 26.09.2018 passed in Special Sessions Case No.123/2014 by the 5^th Additional Sessions Judge/Under the POCSO Act, Durg, District Durg, Chhattisgarh)

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K. Mahesh Rao S/o K. Bhaskar Rao, aged about 28 years, R/o Village Jadupalli, Police Station Parla, Kemudi, District Sikakulam, Andhra Pradesh, at present Jagdamba Chowk Purena, Police Station Bhilai-3, District Durg Chhattiisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through Police Station Purani Bhilai, District Durg Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Aman Sharma, Advocate. For Respondent-State :- Mr. Afroz Khan, Panel Lawyer.

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Division Bench

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Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Agrawal

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Judgment On Board

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(18.06.2024)

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Sanjay K. Agrawal, J

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Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 26.09.2018 passed by the 5^th Additional

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CRA No. 1742 of 2018

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Sessions Judge / Under the POCSO Act, Durg, District Durg, Chhattisgarh in Special Sessions Case No.123/2014 whereby the appellant herein has been convicted and sentenced as under:-

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Conviction	Sentence
Under Section 376(2)(i) of the IPC [clause (i) of sub- section (2) of Section 376 has been omitted by the Act 22 of 2018 w.e.f. 21.04.2018]	Imprisonment for life and pay fine of Rs. 10,000/-; in default of payment of fine amount additional rigorous imprisonment for 1 month
Under Section 450 of the IPC	Rigorous imprisonment for 3 years and pay fine of Rs.1,000/-; in default of payment of fine amount additional rigorous imprisonment for 1 month
Under Section 506 (Part-I) of the IPC	Rigorous imprisonment for 6 months and pay fine of Rs.100/-; in default of payment of fine amount additional rigorous imprisonment for 10 days
Under Section 4 of the POCSO Act, 2012	Imprisonment for life and pay fine of Rs.1,000/-; in default of payment of fine amount rigorous imprisonment for 1 month.

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All the sentences are directed to run concurrently.

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The case of the prosecution, in a nutshell, is that on 24.09.2014 at about 5:10 pm at Vivekanand Chowk, Puraina, Police Station Purani Bhilai, District Durg, Chhattisgarh, appellant illegally entered into the house complainant (PW-2), mother of the victim (PW-1,) and committed sexual assault

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CRA No. 1742 of 2018

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upon minor victim (PW-1), who was aged about 9 years at the time of offence, against her wishes and also threatened her to kill if she informs about the said incident to anyone.

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It is further case of the prosecution that on the date of offence when complainant (PW-2) came to her house, she saw the appellant coming out from her house and on being asked that what he is doing here he replied that he came here to meet complainant’s son and went from the house of the complainant. Thereafter, PW-2 entered into the house and minor victim (PW-1) informed her that appellant has committed sexual assault on her against her wishes. Mother of the victim (PW-1) reported the matter to the police pursuant to which FIR was registered vide Ex.P/5. Nazari naksha was prepared vide Ex.P/11. As per copy of register (Ex.P/9C) minor victim was 9 years old at the time of incident. She (PW-1) was medically examined Dr. Pooja Verma Patel (PW-9) and medical report was prepared vide Ex.P/31. As per medical report (Ex.P/31) no external injury was found over private parts and no definite opinion has been given about the sexual intercourse.

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After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of

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CRA No. 1742 of 2018

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Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence.

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During the course of trial, in order to bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 32 documents whereas, the appellant in defence has not examined any witness, but exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence.

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Mr. Aman Sharma, learned counsel for the appellant, submits that the trial Court has absolutely unjustified in convicting the appellant for the aforesaid offences by recording a finding which is perverse to the record. He also submits that offence under Section 376(2)(i) of the IPC is not made out in absence of

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CRA No. 1742 of 2018

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medical evidence and also medical evidence & forensic evidence are absolutely missing, therefore, the appellant could not be convicted for offence under Section 4 of the POCSO Act. Thus, the present appeal deserves to be allowed and the appellant is entitled for acquittal.

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On the other hand, Mr. Afroz Khan, learned State counsel, supports the impugned judgment and submits that prosecution has been able to prove the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence, therefore, the instant appeal deserves to be dismissed.

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

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So far as the age of the victim is concerned as per Ex.P/9C (copy of the relevant page of register) & Ex.P/10C (copy of provisional application for admission), proved by Smt. G.K. Bhatiya (PW-5), at the time of offence the victim (PW-1) was aged about 9 years old, which is the correct finding of fact, based on evidence available on record and we hereby affirm the said finding recorded by the Special Court.

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CRA No. 1742 of 2018

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Now, the appellant has been convicted for offence under Section 376(2)(i) of the IPC [clause (i) of sub-section (2) of Section 376 has been omitted by the Act 22 of 2018 w.e.f. 21.04.2018] which is a commission of rape on a woman when she is under 16 years of age. Though, the victim (PW-1), on the date of the offence, was less than 16 years of age, but considering the statement of victim (PW-1); medical evidence (Ex.P/31), proved by Dr. Pooja Verma (PW-9); FSL report (Ex.P/28) in which on the seized articles no human sperm was found and also considering the statement of Dr. Pooja Verma, who examined the victim (PW-1), in paragraph 9 she has clearly stated that she did not find any symptoms with regard to the recent sexual assault and also she did not find any injury over the private part and body parts of the victim (PW1), as such, in our considered opinion the trial Court has wrongly convicted the appellant for the offence under Section 376 (2)(i) of the IPC and we hereby set aside the finding in this regard recorded by the trial Court. However, considering the statement of the victim (PW-1), the appellant has been found guilty of committing sexual assault under Section 7 of the POCSO Act, 2012 for which he could be punished under Section 8 of the POCSO Act.

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CRA No. 1742 of 2018

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In view of the aforesaid discussion, the conviction of the appellant for offences punishable under Section 376(2)(i) [clause (i) of sub-section (2) of Section 376 has been omitted by the Act 22 of 2018 w.e.f. 21.04.2018] and under Section 4 of the POCSO Act as well as sentence of life imprisonment awarded to him by the learned trial Court are hereby set aside. Considering the statement of victim (PW-1); medical evidence (Ex.P/31), proved by Dr. Pooja Verma Patel (PW-9); statement of Pooja Verama (PW-9) and also considering the FSL report (Ex.P/28), the appellant is convicted for offence under Section 7 of the POCSO Act, 2012 and punished under Section 8 of the POCSO Act and he is sentenced for imprisonment of 5 years which he has already undergone, however, the fine amount imposed by the learned trial Court shall remain intact. So far as the conviction and sentence along with default stipulations imposed by the learned trial Court for the offences punishable under Sections 450 & 506 (Part-I) of the IPC are not interfered with. The appellant has already completed his jail sentence as all the sentences were directed to run concurrently, accordingly, the appellant be released forthwith, if not required any other matter.

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This criminal appeal is allowed to the extent indicated herein above.

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CRA No. 1742 of 2018

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.

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

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Ankit

K. Mahesh Rao v. State of Chhattisgarh

Case brief

What is this about?

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K. Mahesh Rao v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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