Mohd. Rafiq Vs State of Chhattisgarh

This criminal appeal preferred under Section 415(2) of the BNSS is against impugned judgment of conviction and order of sentence dated 19/07/2023 passed in Special Criminal Case POCSO No.56/2019 by the learned Additional Sessions Judge 1^st FTC (POCSO), District Raipur (C.G.), whereby the appellant

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has been convicted and sentenced as under:

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Conviction	Sentence
Section 6/18 of the POCSO	R.I. for 10 years and fine of Rs. 500/- with default stipulation
Section 367 of the IPC	R.I. for 10 years and fine of Rs. 500/- with default stipulation
Section 370 of the IPC	life imprisonment and fine of Rs. 500/- with default stipulation
Section 76 of Juvenile Justice(Care & Protection of Children)Act,2015	R.I. for 5 years and fine of Rs. 1,00,000/- with default stipulation

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All the sentences are directed to run concurrently.

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Case of the prosecution, in brief, is that the complainant B. Sandeep Kumar Rao (PW-5), who is the Coordinator of Bachpan Bachao Andolan of State of Chhattisgarh, lodged a complaint at P.S. GRP, Raipur that a person named Dharmendra Singh (PW-7) called on his mobile phone and reported that a man approximately 60 years old, with a white beard, was attempting to commit an unnatural act with a 10-11 years old boy near the saloon siding gallery outside the railway station. Upon arriving at the place of incident, the victim boy (first victim), who is aged about 7-9 years and the accused/appellant were found there. Upon questioning, the victim No.1 (PW-12) stated his name and described the unnatural act being committed by the accused and the entire incident. When another boy (Victim No. 2) (PW-1), who is aged about 16-18 years, sleeping next to Victim No. 1, was awakened

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and questioned, he stated that they had been brought from another State i.e. Odisha to the area, taken to a slum, and forced to beg, and that the accused spent all the money they earned on alcohol. On the basis of which, offence was registered against the appellant. During investigation, crime details form was prepared. Medical examination of appellant and victim No.1 was conducted. Appellant was arrested. After due investigation, charge-sheet was filed before the concerned Court.

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In order to bring home the offence, the prosecution has examined 12 witnesses in its support and exhibited 16 documents. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter.

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The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the learned trial court failed to consider the testimony of Victim No.1 (PW-12), who specifically stated that he, along with Victim No. 2 (PW-1), used to consume solution (an intoxicant substance). Learned counsel submits that at the time of incident, Victim No.1, was under the influence of solvent and he did not remember the

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incident. There is a contradiction and omission in the statement of victims. Learned counsel submits that PW-1, victim No.2 categorically stated that he had not seen the incident happened with victim No.1, which was alleged to have been committed by the appellant. There is no MLC report of victim No.2. Learned counsel further submits that the complainant PW-5 had not stated in Ex.D-1, which is police statement, regarding the unnatural act committed by the appellant with the victim. Learned counsel submits that the entire incident is highly doubtful, therefore, the conviction of the appellant is not sustainable and he may be acquitted of the charges framed against him.

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On the other hand, learned State counsel appearing for the respondent/State would support the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt and the trial Court has rightly convicted and sentenced the appellant, as such, the criminal appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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The question for consideration would be whether the appellant has committed the said offence with the victims?

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According to the prosecution story, the accused is charged with attempting to have carnal intercourse against the order of nature with the first victim (P.W.-12) along with charge of trafficking & kidnapping the victims to subject them to slavery and unnatural lust. However, with respect to the second victim (P.W.-1), there is no allegation that the accused attempted to have carnal intercourse against the order of nature. There is also charge of forcing the victims for begging.

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PW-12, victim No.1 stated in his evidence that he along with his friend victim No.2 PW-1 used to work as sweepers at Titlagarh Railway Station (Odisha), and also used to inhale solution to get intoxicated. When he was with his friend PW-1 in Titlagarh, they met the present accused/appellant there. The appellant told them that there was good earning at Raipur Railway Station, and that they should go there to earn money. Thereafter, both of them brought from Titlagarh to Raipur Railway Station. T his witness used to call the accused Chacha . After bringing them to Raipur, the appellant kept them with him behind the Hanuman temple located at Raipur Railway Station. The appellant told them to do the work of beggar and whatever money they got from begging was taken by the appellant and used to consume alcohol with the money taken from them. This witness also stated they used to conceal some money with them and used to inhale solution to get intoxicated. He further stated that he do

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not remember the date of the incident because it happened a long time ago. On the night of the incident, at around 4–5 p.m. in the evening, he along with PW-1 were sleeping on a platform near the Raipur Railway Station where the vehicles are parked, at that time, the appellant came and started doing unnatural act with him. After that, a man came to us and asked for the name of the accused. The man questioned him and his friend PW-1 and then they told him about the accused. Thereafter, both the victim were taken to police station.

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In cross-examination, he categorically stated that when he gave his statement under Section 164 of the Code of Criminal Procedure, he stated that he was sleeping at the station on Saturday when an old man came. He stated that he said "he don't remember" in front of the Judge. He further stated that at the time of incident, he was under the influence of solvent and he did not immediately remember the incident. After showing a video, he recognized the incident.

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PW-1, victim No.2 also stated in his main examination that he and the victim No.1 were brought to railway station by the accused to beg. He stated that the money earned by them through begging, the accused used to consume alcohol with that money. He further stated that the appellant committed a wrongful act with the victim No.1 on the date of the incident. However, he categorically stated that at the time of incident, he

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was sleeping with the Victim No.1, but he had not seen the incident happened with the victim No.1 which was committed by the appellant.

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B. Sandeep Kumar Rao (PW-5), who is the Coordinator of Bachpan Bachao Andolan of the State of Chhattisgarh, arrived at the scene after being informed of the incident, also stated in Court that he had received information that a man was committing an unnatural act with a child at the scene. When he arrived at the scene, he saw the appellant, who was committing unnatural act with the victim No.1 PW-12. He stated that the victim No.1, was in a highly intoxicated state. At that time, GRP staff also arrived at the scene, and another victim No.2 child was also present there.

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In the case at hand, the victim No.1, stated in his statement under Section 161 of the Code of Criminal Procedure that the accused/appellant was committing wrongful act with him. However, in his statement under Section 164 of the Code of Criminal Procedure, he stated that an old man came and opened his pant and started doing unnatural things with him, which he does not remember now.

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The victim No.2, stated in his police statement that he only listened from the victim No.1 that the accused was performing indecent acts on him. Further the victim No.2, who was sleeping nearby victim No.1 during the incident, stated in the Court that

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he did not see the incident but heard about it from the victim No.1. It means, he did not see the accused committing the unnatural act with the victim No.1, but he came to know about the incident when the victim No.1 told the police.

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The victim No.1 has admitted during cross-examination that he had told the Government children's home in Mana that he could not remember anything because he was intoxicated. Regarding his statement under Section 164 of the Code of Criminal Procedure, the witness also stated during cross-examination that he had told the Judge that he didn't remember about the incident, but before that, he had told the Judge that on the night of the incident, while he was sleeping, an old man came, unbuttoned his pants, and started doing something to him. Due to his intoxication, he couldn't immediately recall the incident. In cross-examination, the victim No.1 stated that a video shown to him and after that, he had told him about the incident that had happened to him. However, there is no evidence from the prosecution regarding any video being recorded in relation to the incident.

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The victim No.1 did not make any statement in his statements under Sections 161 and 164 of the Code of Criminal Procedure that the accused had unzipped his pants and inserted his penis into the anus. Complainant B. Sandeep Kumar Rao (PW-5) also only made a statement to the police that the accused was

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performing some inappropriate act. The present case is not of human trafficking as the basic ingredients of Section 370 are completely missing. There is material contradiction & omission in the evidence adduced by the prosecution witnesses with regard to the offences under Sections 367 of IPC, Section 76 of the J.J. Act for which, the accused was tried. As the alleged act has not been described in a clear terms, the charge of Section 6/18 of POCSO Act is not made out and the prosecution failed to establish the case beyond all reasonable doubt.

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The medical examination report of the victim No.1 (PW-12), Exhibit P-3, does not contain any mention that any unnatural act or sexual assault was committed against him on the date of the incident, and Dr. O.P. Srivastava (PW-3), who examined the victim, did not provide any findings regarding any unnatural act or sexual assault having been committed against victim (PW12), whereas the Doctor opined that the victim was under intoxication.

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From the aforesaid evidence led by the prosecution, this Court is of the opinion that the prosecution has failed to prove its case, in respect of all the aforesaid offences, beyond reasonable doubt against the appellant and as such he is entitled for benefit of doubt.

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In the result, the appeal is Allowed . The impugned judgment of conviction and sentence is set aside. The appellant is acquitted

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from all the charges leveled against him. The appellant is in jail. He be released forthwith if not required in any other case.

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Keeping in view the provisions of Section 437-A Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

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SD/SD/-

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(Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice

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Gowri/Amardeep

Mohd. Rafiq v. State of Chhattisgarh

Case brief

What is this about?

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Mohd. Rafiq v. State of Chhattisgarh

Case brief

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What the court decided

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