Partly allowed

Arvindra Bandhe v. State of Chhattisgarh

Chhattisgarh HC8 Dec 2024CRA/572/2020

Case brief

AI extract

What is this about?

Appeal against conviction under Sections 363, 366 and 376(2) IPC and Section 6 POCSO for alleged repeated sexual assault of a 15-year-old on a marriage pretext. The court found no evidence of repeated rape, altered conviction to Section 376 IPC and Section 4 POCSO, affirmed Sections 363 and 366 convictions, and allowed release after seven years.

What did the court decide?

Conviction altered from S.376(2) IPC/S.6 POCSO to S.376 IPC/S.4 POCSO with sentence reduced to RI 7 years; S.363 and 366 convictions affirmed; release directed after completion of 7 years.

Arvindra Bandhe Vs State of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2024)

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2024:CGHC:45202

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 572 of 2020

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Arvindra Bandhe S/o Mohan Lal Bandhe, Aged About 24 Years R/o Village Baigatola, Ward No. 7 P.S. Somni District Rajnandgaon (Chhattisgarh), District : Rajnandgaon, Chhattisgarh

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versus

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State Of Chhattisgarh Through The Station House OfÏcer, Somni, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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... Respondent

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For Appellant : Mr. Sudhanshu Kumar Singh, Advocate For Respondent : Ms. Avalin Gambhir Juneja, Panel Lawyer

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Hon'ble Shri Justice Narendra Kumar Vyas

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Order on Board

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09/12/2024

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1. This appeal is directed against the judgment of conviction and order of sentence dated 29.02.2020 passed by Learned Additional Sessions Judge, Fast Track Special Court (FOCSO) in Sessions Criminal Case No. 13 of 2018 by which the appellant has been convicted under Sections 363, 366 and 376(2) of the IPC and sentenced to RI for 7 years and to pay fine of Rs. 2,000/- and in default of payment of fine to further undergo RI for 1 year Section

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Digitally signed by SANTOSH SANTOSHKUMAR KUMAR SHARMA SHARMA Date:2024.12.17 13:29:09 +0530

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363 IPC, RI for 7 years and to pay fine of Rs. 2,000/- and in default of payment of fine to further undergo RI for 1 year Section 366 IPC and RI for 10 years and to pay fine of Rs. 5,000/- and in default of payment of fine to further undergo RI for 1 year Section 376 (2) IPC with a direction to run the sentences concurrently.

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2. Fact of the case is brief is that on 02.04.2018 the grand mother of the victim has lodged the report before police Station Somni alleging that on the date of incident the victim went to the house of her heighbour but she was not there on apprehension she was searched in the house of the appellant wherein the victim has stated that the appellant allured her on the pretext of marriage and committed sexual intercourse with her. On the complaint, FIR under Section 363 IPC bearing Crime No. 47 of 2018 was registered against him. The appellant was arrested. After usual investigation, charge sheet was filed before Additional Sessions Judge FTSC (POCS)) Rajnandgaon who after conducting the trial recorded the statement of the witnesses and the victim has convicted the appellant on the afore stated sections.

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3. The prosecution in order to prove the guilt of the appellant examined 13 witnesses, Gajendra Kumar Deshlahare (PW-1), Gangadas Deshlahare (PW-2), Dr. Sohadra Thakur (PW-3), Ranjan Bai (PW-4), Vikesh Kumar Soni, (PW-5), Anil Sharma (PW-6), Anuradha Deshlahare (PW-7), Anup Soni (PW-8), Sarita Sahu (PW9), Vikrant Shrivastava (PW-10), Manisha Chandrakar (PW-11), Devdas Bharti (PW-12), Dr. Y.K. Tiwari (PW-13). The appellant did not examined any witnesses in his support.

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4. The trial Court on the basis of evidence, material on record has convicted the appellant under Section 376(2) of the IPC, since maximum sentence is provided under Section 376 (2) taking aid of section 42 of the POCSO has convicted under Section 376(2) and sentenced him to undergo RI for 10 years. Being aggrieved with the order of conviction, the appellant has filed this appeal.

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5. Learned counsel for the appellant would submit that the finding recorded with regard to section 376(2) IPC is perverse finding contrary to the evidence, suffers from illegality as the victim was examined wherein she has nowhere stated before the trial court that she was subjected to sexual assault for so many times, despite the trial court has convicted the appellant for commission of offence under section 376(2) IPC is perverse and contrary to the law and would pray for acquittal of the appellant.

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On the other hand, supporting the impugned judgment counsel for the State submits that conviction of accused/appellant is strictly in accordance with law and there is no illegality or infirmity in the same. He further submits that the victim has categorically stated that she was subjected to rape by the appellant, therefore, sentences awarded by the trial Court are just and proper and do not call for any interference.

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I have heard learned counsel for the parties and perused the material available on record.

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8. The main thrust of the submission of the counsel for the appellant that in the worst view of the matter the appellant can be convicted under Section 376 of the IPC as there is no clinching evidence against the appellant for committing rape with the same victim so

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many times and in absence of any such evidence, the finding recorded by the trial Court is perverse therefore, the appellant’s conviction is liable to be altered under Section 376 of the IPC instead of 376(2) of the IPC. He would further submit that the appellant is in jail since 03.04.2018 as he has completed more than 6 years 7 months and 25 days, therefore, the appellant may be undergone to the period already undergone by him.

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9. The point emerged for determination by this Court whether the finding of the trial regarding conviction of the appellant under Section 376(2)(N) IPC is deserves to be afÏrmed or not.

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To appreciate this issue this Court has gone through the evidence of the victim (PW-7) who is the star witnesses of the offence and she has categorically stated in para-2 of her evidence, that the appellant called her and taken to his home where he made sexual intercourse with her on the pretext of marriage but he did not perform the marriage. From the evidence, it is quite vivid that she has nowhere stated that prior to the date of incident on 02.04.2018 she was subjected to rape by the appellant for any occasion. Even the victim in her evidence she has not stated that on the date of incident she was subjected to rape for more than on occasion. Thus from the evidence of the victim, the prosecution has not proved that the appellant committed repeated rape with the same victim, therefore, the finding recorded by the trial Court is incorrect finding of fact, therefore, the same is liable to be interfered by this Court while exercising appellate power by this Court under Section 386 of the CrPC, I am of the view that the appellant is deserves to be convicted under Section 376 IPC in place of offence under Section

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376(2) of the IPC. Further prayer of the appellant that since he has already undergone 6 years 7 months and 25 days of the jail sentence, therefore, he may be undergone to the period already undergone by him is deserves to be rejected as minimum sentence is provided under Section 376 of the IPC is not less than 7 years on the date of incident. Further considering the provisions of Section 6 of the POCSO Act, it is quite vivid that Section 6 POCSO provide that punishment for aggravated penetrative sexual assault and sentence shall not be less than ten years, (prior to amendment on 16.08.2019). Section 5(l) of the POCSO provides whoever commits penetrative sexual assault on the child more than once or repeatedly. Section 5(m) of the POCSO provides aggravated penetrative sexual assault whoever commits penetrative sexual assault on a child below twelve years, he is said to commit aggravated sexual assault. Admittedly, the victim is 15 years which is above 12 years and in absence of any evidence regarding sexual assault on the victim more than once or repeatedly, the ingredients of section 5 of the POCSO Act is not attracted as such the conviction of the appellant with the aid of Section 6 for 10 years is perverse, illegal and is deserves to be quashed by this Court. The appellant is convicted under Section 4 of the POCSO Act which provides for penetrative sexual assault as define in Section 3 of the Act. The sentence provides for punishment for penetrative sexual assault as per Section 4 is 7 years prior to amendment on 16.08.2019. Since the offence was committed on 02.04.2018 therefore, un-amendment section of IPC is applicable to the facts of the case. Section 376(1) of the IPC was amended on 21.04.2018

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and Section 4 of the POCSO has been amendment on 02.04.2018, therefore, the conviction of the appellant altered from Section 376(2) to Section 376 of the IPC and from Section 6 to Section 4 of the POCSO Act. Thus in light of the above discussion, the appellant is convicted RI for 7 years in place of RI for 10 years. So far as conviction of the appellant under Section 363 and 366 are afÏrmed.

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It is reported that the appellant remained in jail about 6 years 7 months and 25 days, therefore, it is directed that after completion of 7 years of jail sentence he shall be released from the jail, if not required in any other case.

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Consequently this appeal is allowed in part.

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Sd/-

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(Narendra Kumar Vyas )

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Judge

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Santosh

Arvindra Bandhe v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Arvindra Bandhe 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

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